Decision
Mr Y and Dublin City Council
From Office of the Information Commissioner (OIC)
Case number: OIC-155874-N1Q7N4
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-155874-N1Q7N4
Published on
Whether the Council was justified in redacting certain information, under section 37 of the FOI Act, from a Statutory Declaration Form submitted to the Planning Enforcement Section of the Council on the ground that the information is personal information of a third party
23 May 2025
In a request dated 20 May 2024, the applicant sought access to the Statutory Declaration Form submitted to the Planning Enforcement Section of the Council regarding the pre-1963 status of a specified property. On 12 June 2024, the Council released a copy of the declaration to the applicant with personal information of a third party redacted under section 37(1) of the FOI Act. The applicant sought an internal review of that decision on 10 July 2024, making a number of contentions that the record should be released in full. On 30 July 2024, the Council affirmed its original decision. In a letter dated 27 January 2025, the applicant applied to this Office for a review of the Council’s decision.
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 referred to above and to the submissions made to this Office by both parties. I have also examined the record at issue. I have decided to conclude this review by way of a formal, binding decision.
This review is solely concerned with whether the Council was justified in redacting certain information from the Statutory Declaration Form at issue under section 37(1) of the FOI Act.
Before I address the substantive issues arising, I would like to make a number of preliminary comments.
First, the applicant made submissions about the statutory declaration process and the Council’s duty to act and investigate credible concerns regarding the authenticity of the declaration, amongst other things. I wish to note that this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies. This means we have no role in examining the Council’s investigation or non-investigation of concerns raised by the applicant and/or other third parties in relation to the Statutory Declaration Form at issue or how it dealt with matters around its handling of the planning enforcement process.
Second, although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent the disclosure of information contained in an exempt record. This means that the extent to which I can describe the withheld information is limited.
Both the applicant and the Council made submissions to this Office in the course of the review. While I do not propose to repeat those submissions in full here, I can confirm that I have had regard to them for the purposes of this review.
In his submissions to this Office, the applicant said that the legal basis for the confidentiality of the withheld information has not been provided by the Council in this case. He said that there is no provision in law to say that all statutory declarations must remain confidential. He said that, given the reliance on statutory declarations in the planning process, their authenticity should be open to scrutiny.
He said that the release of the withheld information does not compromise the ability of the Council to conduct its business in a confidential manner where such confidentiality is required or provided in law. The applicant further said that, as the Statutory Declaration Form was not provided as part of a complaint to planning enforcement, its release would not dissuade members of the public continuing to submit planning complaints to the Council.
The applicant also said that the Statutory Declaration Act 1938 does not provide for any automatic right of confidentiality, and the role statutory declarations play in the planning process means there is a public interest in their release to ensure there is transparency and accountability. He said that release of the withheld information would allow members of the public to observe whether any abuse of the statutory declaration process has occurred.
In his submissions, the applicant said that there is a public interest in exposing wrongdoing, inefficiency or unfairness, and this public interest outweighs the public interest in the right to privacy in this case. He also said the public interest in protecting the credibility of the statutory declaration system and planning system outweighs the public interest in the right to privacy. He said that anyone challenging the veracity of a statutory declaration should have access to the identity of the declarant so they have an opportunity to assess the validity and credibility of the statutory declaration and its contents. The applicant added that without knowing the identity of the declarant, the validity of the statutory declaration cannot be proved, and therefore it cannot be proved whether the Statutory Declaration Act is being complied with.
He said that release of the information is necessary to prove the authenticity of the document at issue, and no personal or confidential information is involved as statutory declarations are part and parcel of the planning process. He further said that names per se do not constitute personal information for the purposes of section 37, only where it appears with other personal information, which he said was not the case in this instance.
In its submissions, the Council said that the Statutory Declaration Form in this case was submitted by the owners of the property at issue following the issuing of a warning letter by the Council in respect of allegations that the property was being converted to multiple/additional residential units. It said that the third party who had signed the Statutory Declaration Form dated many years ago was likely not aware that it was being submitted to the Council for that purpose.
It said that the statutory declaration was not relied upon when the final decision was being made by the Council in respect of how many units were permitted at the premises. The Council said that, in instances where the Planning Enforcement Section receives a statutory declaration where a complainant contradicts the content of the declaration concerned, it weighs up the evidence provided by both parties and makes a decision on whether further action is appropriate, having regard to the evidence before it.
It said that any information/personal details submitted by the owner of a property relating to a third party – in particular a third party that is not a professional advisor or who does not have any current interest in the property – is held in a confidential manner in the same way as a complainant’s information.
The Council said that it does not consider that the public interest in release outweighs the public interest in the right to privacy in this case, as its final actions on the matter did not support the contents of the statutory declaration concerned. It said there is no merit in releasing the name, address, and signature of the third party concerned to the applicant.
It said that third party statutory declarations associated with planning enforcement cases are not public documents. It said that they are available in redacted format, with the name and address of the party who signed them removed from what is sent to a requester under the FOI Act. The Council said that all other content of the declaration is available and released on foot of an FOI request, unless some of that content directly identifies the third party person who swore the declaration.
Section 37(1) of the FOI Act is a mandatory exemption and provides for the refusal of a request where access to the record sought would involve the disclosure of personal information relating to an individual other than the requester. For the purposes of the Act, personal information is defined as information about an identifiable individual that either (a) would ordinarily be known only to the individual or members of the family, or friends, of the individual, or (b) is held by an FOI body on the understanding that it would be treated by that body as confidential. Section 2 of Act details fourteen specific categories of information that is personal without prejudice to the generality of the foregoing definition. These categories include (xii) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to, establish that any personal information held by the FOI body concerned relates to the individual, and (xiii) information relating to property of the individual (including the nature of the individual’s title to any property).
The effect of section 37 is that, generally speaking, access to a record shall be refused if it would involve the disclosure of personal information relating to individual(s) other than the requester. Under section 37(1), personal information cannot be released unless one of the other relevant provisions of section 37 applies.
As noted above, section 25(3) requires that I take precautions to not disclose information contained in an exempt record. However, I believe it would not be in breach of section 25(3) to state that the withheld information consists of the name, address, and signature of a third party. Having regard to the nature of the withheld information at issue and its contents as described above, I am satisfied that the information in the record comprises personal information of a third party. I therefore find that section 37(1) applies to the information redacted by the Council in this case. However, that is not the end of the matter as section 37(1) is subject to the other provisions of section 37, which I will consider below.
Section 37(2) provides that section 37(1) does not apply if;
(a) the information concerned relates to the requester concerned,
(b) the individual to whom the information relates consents, in writing or other such form as may be determined, to its disclosure to the requester,
(c) information of the same kind as that available in the record in respect of individuals generally or a class of individuals that is, having regard to all the circumstances, of significant size, is available to the general public,
(d) the information was given to the FOI body concerned by the individual to whom it relates and the individual was informed on behalf of the body, before it being so given, that the information belongs to a class of information that would or might be made available to the general public, or
(e) disclosure of the information is necessary in order to avoid a serious and imminent danger to the life or health of an individual.
The Council said that it does not release the personal details of a declarant as a matter of course, and I have no evidence before me that this information is in the public domain as a matter of course, or that any of the provisions of section 37(2) serve to disapply section 37(1) in this case. I find accordingly.
Section 37(5) provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the request would benefit the person to whom the information relates. No argument has been made that the release of the information at issue in this case would benefit the third party to whom the information relates. Therefore, I am satisfied that section 37(5)(b) does not apply.
Before I consider the applicability of section 37(5)(a), there are a number of important points to note. Firstly, section 13(4) provides that, subject to the Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. In relation to the question of the public interest, this means that I cannot have regard to the applicant’s motives for seeking access to the records at issue, except insofar as those motives reflect, or overlap with, what might be regarded as true public interest factors in favour of release of the records, i.e. insofar as the concerns raised in relation to the request could also be matters of general concern to the wider public.
Secondly, 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 Act places no constraints on the uses to which a record released under the Act can be put. With certain limited exceptions provided for under the Act, FOI is not about granting access to information to particular individuals only and, as noted above, a requester's reasons for making a request are generally not of relevance. Thus, records are not released under FOI for any limited or restricted purpose.
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 records effectively to the world at large that outweighs the privacy rights of the third party individual concerned.
In considering where the balance of the public interest lies in this case, I have had regard to section 11(3) of the Act which provides that, in performing any functions under the Act, an FOI body must have regard to, among other things, the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. However, in doing so, I have also had regard to the judgment of the Supreme Court in TheMinister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (“the Enet case”). In that case, the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and “there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure”. Although the Court’s comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.
As noted above, in his correspondence with this Office, the applicant highlighted his concerns that if the personal information of the third party is not released, then the veracity of the Statutory Declaration cannot be investigated. The applicant also contends that disclosure would serve the public interest by allowing members of the public to observe whether any abuse of the statutory declaration process has occurred. He said that granting access to the withheld information would enable the public to assess the validity and credibility of the statutory declaration and its contents. The applicant argued that the public interest in protecting the credibility of the statutory declaration system and planning system outweighs the interest in maintaining confidentiality or protecting the privacy of the third party in this case.
As noted above, in its submissions, the Council said it considered that there was a public interest in protecting the right to privacy of members of the public, and implicitly the public interest in safeguarding the flow of information to public bodies. It said that it was not satisfied in this case that there was any public interest for release that was sufficient to warrant the breach of the third party’s rights to privacy.
While I accept that there is a public interest in enhancing transparency around the manner in which the Council carries out its functions in relation to planning enforcement, it is not clear to me from the record at issue that release of the third party’s personal information would reveal anything additional about the manner in which the Council carries out its functions, nor the reason(s) for which the Council has or has not conducted any investigation into the veracity of the Statutory Declaration Form, which the applicant contended it should have done. Furthermore, I note that the Council has, in its submissions, outlined the steps it takes where concerns are raised regarding the validity of a statutory declaration. I note that the Council only redacted the name, address, and signature of the third party concerned, and released the remainder of the record.
It is not apparent to me that the release of the withheld information at issue in this case would serve the public interest in accountability and transparency in relation to the actions of the Council. Furthermore, any public interest that might serve to support the release of the information must be balanced against the privacy rights of the individual 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 it clear that the release of records under Freedom of Information must be consistent with the right to privacy. It is also worth noting that the right to privacy has a constitutional dimension, as an unenumerated personal right. 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. Moreover, even where an overriding public interest in granting the request exists, there is a discretionary element to the application of section 37(5)(a).
Having regard to the nature of the information at issue and to the fact that the release of the record must be regarded as being effectively, or at least potentially, to the world at large, it seems to me that the public interest in releasing the record should not be at the expense of the privacy rights of the individual concerned. Notwithstanding the applicant’s arguments, I am not satisfied there is any sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure of the information at issue in this case. Accordingly, I do not accept that the public interest in releasing the withheld information outweighs, on balance, the privacy rights of the third party individual concerned. I find, therefore, that section 37(5)(a) does not apply. In conclusion, I find that the Council was justified in refusing access to the withheld information at issue under section 37(1) of the FOI Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Council’s decision to redact the third party personal information contained in the Statutory Declaration Form under section 37(1) of the FOI Act.
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