Decision
Ms X and South Dublin County Council
From Office of the Information Commissioner (OIC)
Case number: OIC-152030-Z4P5Q2
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-152030-Z4P5Q2
Published on
Whether the Council was justified in refusing access, under section 15(1)(a) of the FOI Act, to further records related to the applicant’s property and whether the Council was justified in refusing access, under section 37(1) of the Act, to personal information contained in the records it released to the applicant
27 November 2024
In a request dated 30 April 2024, the applicant sought access to all information relating to her property, that is leased to the Council, including photos, maps, notes, emails, reports, letters, files and any other communications.
On 12 June 2024, the Council part-granted the applicant’s request. It refused access to certain information contained in the records that relates solely to third-parties under section 37(1) of the FOI Act. On 9 July 2024, the applicant requested an internal review of the Council’s decision, as she believes further records ought to exist. On 31 July 2024, the Council affirmed its original decision. On 10 September 2024, the applicant applied to this Office for a review of the Council’s decision. The applicant listed various types of records she believes were omitted by the Council from the records it released to her, including records relating to damage to the property and various works at the property. The applicant also indicated that she wants this Office to review the Council’s decision to redact parts of the records it released to her under section 37(1) of the Act.
I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the correspondence outlined above and to the submissions made by the Council in support of its decision. I have also had regard to the content of the records which the Council redacted. I have decided to conclude this review by way of a formal, binding decision.
In its internal review decision, the Council said that all available records have been provided to the applicant. This is, in essence, a refusal to release any other relevant records under section 15(1)(a) which provides for the refusal of a request where the records sought do not exist or cannot be found.
Accordingly, this review is concerned solely with whether the Council was justified in refusing access to further records relating to the applicant’s property under section 15(1)(a) of the Act, and also whether it was justified in refusing information contained in the records it released to the applicant under section 37(1) of the Act.
As noted above, the applicant contends that there should be further records relating to her property.
Section 15(1)(a) provides that an FOI body may refuse to grant a request when the records sought either do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner’s role in such cases is to review the decision of the FOI body and to decide whether the decision is justified. This means that the Commissioner must have regard to the evidence available to the decision maker in arriving at their decision. The evidence in “search” cases generally consists of the steps actually taken to search for the records along with miscellaneous and other information about the record management practices of the FOI body, insofar as those practices relate to the record in question.
In its initial submissions to this Office, the Council said it understands that the records which the applicant believes were omitted from the Council’s decision are in connection to the management of her property during the lease period. The Council said that the applicant’s property was managed by a named management company.
Section 11(9) of the Act provides that a record in the possession of a service provider shall, if and in so far as it relates to the service, be deemed for the purposes of the FOI Act to be held by the FOI body. Section 2 defines “Service Provider” as “a person who, at the time the request was made, was not an FOI body but was providing a service for an FOI body under a contract for services and contract for services in this definition includes an administrative arrangement between an FOI body and another person.” The effect of section 11(9) is that any records held by a service provider that relate to the service provided for the FOI body are deemed to be held by the FOI body for the purposes of the FOI Act and a right of access to such records exists unless they are otherwise exempt.
In response to further queries from this Office, the Council said that it has a service level agreement in place with the named management company in relation to the management and maintenance of residential properties. The Council said that the company was commissioned by the Council to manage the applicant’s property during the lease period. The Council said that it therefore believes the company would be considered a service provider under the FOI Act. The Council said that it asked the management company to search its records when it received the applicant’s FOI request. It said, the company has been asked for any relevant records that it holds on three occasions, but no information has been provided to the Council to date. The Council said that it has received a verbal assurance from the company that the search would be undertaken and that any records found would be sent to the Council. The Council said that once records are received it will issue them to the applicant.
It is evident from the Council’s submissions that further relevant records may be held by the management company it commissioned to manage the applicant’s property. While I acknowledge the Council has asked the management company to carry out searches for any relevant records it may hold, it is ultimately the responsibility of the Council, as the FOI body, to satisfy this Office that all reasonable steps have been undertaken to ascertain the whereabouts of all relevant records. With the possibility that further relevant records may be held by the management company, I cannot find the Council was justified in refusing access to further relevant records that may exist. Accordingly, I consider the most appropriate course of action is to annul the Council’s decision and to direct the Council to reconsider the applicant’s request afresh.
As noted above, the applicant listed various types of records she believes were omitted by the Council from the records it released to her, including records relating to damage to the property and various works at the property. While it may transpire that some of these records are held by the management company, I suggest that the Council contact the applicant when processing her request again in order to establish what further records she is seeking.
The Council redacted, under section 37(1) of the FOI Act, the names, mobile numbers, email addresses and date of births of tenants living at property from a number of the records it released to the applicant.
Section 37(1) of the FOI Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information. ‘Personal information’ is defined in section 2 of the FOI Act as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or their family or friends or, (b) is held by a public body on the understanding that it would be treated by it as confidential. I have considered the contents of the records and the information withheld by the Council on the basis of section 37. I am satisfied that the information at issue comprises personal information relating to identifiable individuals other than the applicant. Accordingly, I find that section 37(1) of the Act applies to the information at issue.
Section 37(2) of the FOI Act sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances in section 37(2) apply in this case. Section 37(5) provides that a request that would fall to be refused under subsection (1) may still be granted where, on balance, (a) 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, or (b) the grant of the request would benefit the person to whom the information relates. I am satisfied that section 37(5)(b) does not apply in this case and I find accordingly.
It is important to note that the release of records under the FOI Act must be regarded, in effect, as release to the world at large, given that the FOI Act places no constraints on the uses to which a record released under FOI can be put. All of this means that in considering whether a right of access exists to records under section 37(5)(a) of the Act, any decision to grant access would be on the basis that there is an overriding public interest in the release of the information redacted by the Council effectively to the world at large that outweighs the privacy rights of the third party individuals concerned.
The FOI Act recognises the public interest in the protection of the right to privacy both in the language of section 37 and the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with the right to privacy). It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. Moreover, unlike other public interest tests provided for in the FOI Act, there is a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. Privacy rights will therefore 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.
In this case, the Council released the records it located and redacted a small amount of information contained in the records that concerns third parties. In my view, the Council has attempted to provide the applicant with as much information as possible from the records in questions without compromising the privacy rights of the relevant third parties. I am also cognisant of the fact that the release of information under the Act must be regarded, potentially at least, as release to the world at large. Having carefully considered the matter, I am not satisfied that the public interest in granting access to the information at issue outweighs, on balance, the public interest in upholding the right to privacy of the third parties concerned. I find therefore, that section 37(5)(a) does not apply.
In summary, I find that the Council was justified in refusing access to the personal information of third parties contained in the records at issue under section 37(1) of the FOI Act. I also find that the Council was not justified in refusing access to further records sought by the applicant under section 15(1)(a) of the FOI Act given the possibility that further relevant records may be held by the management company. I therefore annul the Council’s decision to effectively refuse access to further records and I remit the request back for fresh consideration by the Council.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Council’s decision. I affirm the Council’s decision, under section 37(1) of the FOI Act to refuse the release of third-party personal information contained in the records at issue. I direct the Council to process the applicant’s request afresh to establish whether any further relevant records exist.
Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.
Richard Crowley
Investigator