Decision
X association and Cork County Council (FOI Act 2014)
From Office of the Information Commissioner (OIC)
Case number: 180150
Published on
From Office of the Information Commissioner (OIC)
Case number: 180150
Published on
Whether the Council was justified in charging the applicant a fee of €30 to carry out an internal review of the decision it made on its FOI request
10 May 2018
On 5 January 2018, a residents' association submitted a request to the Council for access to records relating to the taking in charge of the housing estate in which its members reside and/or own properties. On 29 January 2018, the Council issued a decision in which it refused the request. The decision letter informed the applicant of its right to appeal that decision and that a fee of €30 was payable should it wish to do so. Following a further exchange of correspondence, the applicant paid the fee so that an internal review of the substantive decision to refuse the request could proceed. On 11 April 2018, the applicant sought a review by this Office of the Council's decision to charge a fee of €30 to carry out the internal review.
In carrying out this review, I have had regard to the correspondence between the Council and the applicant and to the communications between this Office and both the applicant and the Council on the matter.
This review is concerned solely with whether the Council was justified in charging the applicant a fee of €30 to carry out an internal review of the decision it made on the FOI request. It is not concerned with the substantive decision made by the Council on the request.
Section 27(13)(a)(i) of the FOI Act provides that a fee of such amount (if any) as may be prescribed shall be charged by the FOI body and paid by the applicant to the body in respect of an application for internal review under section 21. The prescribed fee is set out in the Freedom of Information Act (Fees)(No.2) Regulations 2014 [S.I. No. 531 of 2014]. Under Regulation 4, a fee of €30 is prescribed for such applications. However, no fee is due in certain circumstances, including where the records sought contain only personal information relating to the applicant.
For the purposes of the FOI Act, personal information is defined as information about an identifiable individual that (a) would, in the ordinary course of events, 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. The Act details fourteen specific categories of information that is personal, without prejudice to the generality of the foregoing definition, including (xiii) information relating to property of the individual (including the nature of the individual's title to any property).
In its submission to this Office, the Council explained that the process of taking in charge of an estate involves the taking in charge by a local authority of the public road and other public areas such as footpaths, sewers, water mains, water hydrants, and open spaces. It explained, therefore, that any file on the taking in charge of an estate would typically contain inspection reports, photographs, maps and surveys of these public spaces and correspondence with the developer in relation to same.
The Council argued that the taking in charge file is not related to an individual’s property or indeed the nature of the individual’s title to any property but rather relates only to the public aspects of the estate. It argued that this is not personal information as defined by the Act and it stated that it has previously explained this to the applicant.
In essence, the applicant's argument is that the information sought about the estate is personal information relating to the members of the association as each of the members own and/or reside in properties in the estate. To qualify as personal information, the information in question must be about an identifiable individual. I fully accept that the members of the association are likely to have a personal interest in matters relating to the taking in charge of the estate. I also accept that any decisions taken by the Council relating to the taking in charge of the estate is likely to affect them as residents/owners. However this does not mean that all information relating to the estate is information about them. Rather, it is about the estate and its related services. I find, therefore, that the information sought does not contain only personal information about the members of the association.
It is also worth noting that the FOI request in this case was made by a residents' association. Under Regulation 4, no fee is due for making an application for internal review where the records sought contain only personal information relating to the applicant i.e. the information must be information about an identifiable individual and that individual must be the applicant. I fail to see how this derogation from the requirement to pay a fee could apply where the request is made by a residents' association.
In conclusion, therefore, I find that the Council was justified in charging the applicant a fee of €30 for an internal review, that fee being the prescribed mandatory fee for an internal review where the records concerned do not contain only personal information relating to the applicant.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Council's decision to levy the fee prescribed under section 27(13)(a)(i) 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.
Stephen Rafferty
Senior Investigator