Decision
Mr P and Dun Laoighre Rathdown County Council (the Council)
From Office of the Information Commissioner (OIC)
Case number: 140128
Published on
From Office of the Information Commissioner (OIC)
Case number: 140128
Published on
Whether the Council was justified in its decision to refuse access to three records from the applicant's housing file including allegations of anti-social behaviour against the applicant, on the basis that the records are exempt from release under various provisions of the FOI Act
18 September 2014
The applicant made an FOI request to the Council on 22 October 2012 for a full copy of his file. In its decision dated 19 November 2012 the Council part-granted the applicant' request. The applicant applied for internal review of that decision on 1 April 2014. In its internal review decision of 23 April 2014 the Council released further records to the applicant but withheld access to six records; three records on the basis that disclosure would involve the disclosure of personal information of third parties and on the grounds that these consisted of information given to the Council in confidence (Schedule 3 records 1-3), and three records were withheld on the grounds that these consisted of information obtained from An Garda Síochána which were not subject to the FOI Act (Schedule 1 record 1, Schedule 3 records 4 and 7). The applicant wrote to this Office on 21 May 2014 seeking a review of the Council's decision.
During the course of this review the Council agreed to release the three records that had earlier been withheld on the grounds that these consisted of information obtained from An Garda Síochána and were exempt under the Act. This followed confirmation from An Garda Síochána that it had no objection to the release of records it had shared with the Council where these consisted of records detailing a person’s previous convictions. The Council confirmed that these three records were released to the applicant on 12 August 2014.
Mr. Christopher Campbell of this Office outlined his preliminary view to the solicitor for the applicant on 11 August 2014. He outlined that while the Council had agreed to release the records obtained from An Garda Síochána, the other records in his view were exempt from release under the FOI Act and would not be released should this review proceed to a formal decision. The solicitor for the applicant indicated that she wished the case to proceed to a formal decision and so I consider that the review should now be brought to a close by the issue of a formal, binding decision.
In conducting this review, I have had regard to the submissions of the Council and those of the applicant, and to the provisions of the FOI Act. I have examined the contents of the records, copies of which have been provided to this Office by the Council for the purposes of this review.
This review is concerned solely with the question of whether the Council was justified in its decision to refuse access to the withheld records identified above on the basis that they are exempt from release under the provisions of the Act.
The records at issue in this case consist of details of complaints of anti-social behaviour made to the Council about the applicant. The Office of the Information Commissioner does not have a role in examining how the Council dealt with any allegations which may have been contained in the records requested. Additionally, the FOI Act at section 8(4), specifically prohibits a decision maker, subject to the provisions of the Act, from having regard to any reason the applicant may have for making the request for access.
I also wish to make the point that, while I am required by section 34(10) of the FOI Act to give reasons for decisions, this is subject to the requirement of section 43(3) that I take all reasonable precautions during the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the records at issue is limited. Nevertheless, I do not believe that I would be in breach of section 43(3) by explaining that the records, which relate to alleged anti-social behaviour, contain information relating to the applicant, to the complainant(s) and also to other third parties.
The Council relied on sections 23, 26, and 28 of the FOI Act to refuse access to the three records. In my view, sections 23(1)(b) and 28 are the most appropriate provisions under which to review this application.
As outlined above, the three records withheld by the Council contain details of complaints of anti-social behaviour made to the Council and details of follow up contact from the Council with the subjects of the complaints, including the applicant. Release of the certain parts of the records at issue would, in my view, reveal or lead to the revelation of the identity of the complainant(s). Such information falls to be considered under section 23(1)(b) of the Act, as outlined below. The remaining information contained in the records details follow up contact made by the Council and includes the personal information of third parties, and so falls to be considered under section 28, as outlined below.
Section 23(1)(b) of the FOI Act states:
A head may refuse to grant a request under section 7 if access to the record concerned could, in the opinion of the head, reasonably be expected to:
(b) reveal or lead to the revelation of the identity of a person who has given information to a public body in confidence in relation to the enforcement or administration of the civil law or any other source of such information given in confidence.
In order for this exemption to apply, three specific requirements must be met:
1. Release of the withheld details could reveal, whether directly or indirectly, the identity of the supplier of the information;
2. The information in the record was given in confidence; and
3. The information has been given in relation to the enforcement or administration of the civil law.
As I have explained above, release of the certain parts of the records at issue would, in my view, reveal or lead to the revelation of the identity of the complainant(s). Accordingly, the first requirement is met in respect of that information.
I must now address the issue of whether the information was given to the Council in confidence. It is clear to me, in considering the core statutory functions involved, that it is necessary for Council officials, in the course of their duties, to be in a position to receive necessary information in confidence from members of the public. I recognise that much of the information the Council receives is received in confidence from people who do not wish to be identified. It is arguable that if people providing information to the Council in such cases were not reassured as to confidentiality, the information gathering process would be compromised by the withholding of such information. In order for the Council to take responsive measures to deal with alleged anti-social behaviour in its management of local authority housing it must facilitate complaints to be made in a variety of ways. I accept that, without an assurance or understanding that information provided was being provided in confidence, persons may be reluctant to make complaints about anti-social behaviour.
In this case, the Council states that the information was given to it in confidence. I see no reason not to accept the Council's position that it is satisfied that the information was given in confidence by the complainant and accordingly, I find that the information at issue was given in confidence and that the second condition has been met.
It is clear that local authorities are required under the Housing Acts to make decisions relating to the management and tenancy of its housing stock, and in furtherance of this to investigate and consider complaints of anti-social behaviour against its tenants. I am satisfied that in receiving such information the Council was performing its statutory functions under the Housing Acts and that the information in question therefore relates to the enforcement or administration of the civil law. Accordingly, it is my view that the information given relates to the enforcement or administration of the civil law. On this basis the third requirement of section 23(1)(b) has been met.
Subsection 23(3) of the FOI Act provides that 23(1)(b) does not apply in certain specified circumstances where the public interest would, on balance, be better served by granting than by refusing to grant the request. It is important to note that the public interest balancing test in subsection 23(3) differs from the public interest balancing test which exists in other exemptions in that the test in 23(3) may be considered only where certain circumstances arise. Those circumstances are where the record discloses that an investigation is not authorised by law or contravenes any law, or it contains information concerning the performance by a public body of functions relating to law enforcement or contains information concerning the effectiveness or merits of any programme for prevention, detection or investigation of breaches of the law. I am satisfied that no such circumstances arises in this case and that subsection 23(3) does not apply.
I find, therefore, that under the provisions of 23(1)(b), the Council is justified in its decision to refuse access to the certain parts of the withheld records.
Section 28(1) of the FOI Act provides that a public body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information relating to an individual other than the requester. Furthermore, section 28(5B) provides that a public body shall refuse to grant a request if access to the record concerned would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester, commonly referred to as joint personal information. I am satisfied that the withheld records contain personal information of persons other than the applicant, or personal information relating to the applicant that is inextricably linked to the personal information of other persons. I find that, therefore, that sections 28(1) and 28(5B) apply.
Under Section 28(2) there are some circumstances in which the exemption at sections 28(1) and 28(5B) do not apply. Having examined the withheld portions of the records, I am satisfied that none of those circumstances arise in this case. Section 28(5)(a) provides that a record, which is otherwise exempt under section 28(1) or 28(5B), may be released in certain limited circumstances where it can be demonstrated that "on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld".
In considering the public interest test at section 28(5)(a), I have had regard to the judgment of the Supreme Court issued in July 2011 in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner, available at www.oic.gov.ie (which I will refer to below as "the Rotunda judgment").
In the Rotunda judgment, the Supreme Court outlined the approach that the Commissioner should take when balancing the public interest in granting access to personal information with the public interest in upholding the right to privacy of the individual(s) to whom that information relates. Following the approach of the Supreme Court, ‘a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law’ must be distinguished from a private interest for the purpose of section 28(5)(a). The language of section 28 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy (which has a Constitutional dimension, as one of the unenumerated personal rights under the Constitution). When considering section 28(5)(a), privacy rights will be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy.
The FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies in the performance of their functions. I understand from the content of the records that the applicant was interviewed by the Council about the anti-social behaviour complaints. In this regard the openness and accountability of the Council in the performance of its functions has been met to a certain extent. However, having reviewed the content of the withheld details, I do not consider that their release would further serve the public interest to such an extent that a breach of the third parties' Constitutional rights to privacy is justified. Thus, I find that section 28(5)(a) of the FOI Act does not require the release of the withheld information in this case.
Section 28(5)(b) provides that a record which has been found to be exempt under section 28(1) or 28(5B) may still be released if it can be demonstrated that the grant of the request would benefit the third party or parties whose information would be released. The applicant has not made any case that the release to him of the personal information of the third parties would "benefit the individual[s]" to whom it relates, nor having reviewed the record do I consider that this might be the case. Therefore, I find that no right of access arises to the withheld information further to the provisions of section 28(5)(b) of the FOI Act.
In conclusion, I find that the three records at issue are exempt from release in their entirety in accordance with the provisions of sections 23(1)(b) and 28 of the FOI Act. Accordingly, I do not consider it necessary to identify precisely those parts of the records to which each section applies.
Having carried out a review under section 34(2) of the Freedom of Information Act 1997 (as amended) I hereby affirm the Council's decision to refuse access to the records concerned in accordance with sections 23 and 28 of the FOI Act.
A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.
Stephen Rafferty
Senior Investigator