Cinneadh
Mr C. and Limerick City and County Council
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-150607-J3Y4B9
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-150607-J3Y4B9
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Council was justified in refusing access, under sections 15(1)(a), 35(1) and/or 37(1) of the FOI Act, to certain records, in whole or in part, concerning the selection, implementation, and removal of a derelict site notice on the applicant’s property
25 August 2025
In a request dated 16 November 2023, the applicant sought access to records concerning the selection, implementation and removal of a derelict site notice on his property. In a decision dated 15 December 2023, the Council part-granted the request. Of the 24 records it identified as coming within the scope of the request, it granted partial access to records 3, 12, 14, 15, 18, 19, 20, 22, 23 and 24 with certain information redacted under section 37(1) of the FOI Act. Record 17 was withheld in its entirety under sections 35(1) and 37(1). The remaining records were released in full.
On 12 January 2024, the applicant sought an internal review of that decision, following which the Council affirmed its original decision. On 17 July 2024, the applicant applied to this Office for a review of the Council’s decision. In his application for review, he said he did not receive copies of all relevant records.
During the review, the Council identified 17 further relevant records (records 25 to 41). Record 25 was released in part, with redactions under section 37(1). Record 28 was released in part with certain information redacted on the ground that it did not come within the scope of the request. Records 26, 27 and 29 to 41 were released in full to the applicant.
Following receipt of the additional records, the applicant said he did not receive copies of two letters referenced in record 27. He also said he wanted full access to record 28 as he did not accept that it fell outside the scope of his request. The Council subsequently released the two letters referencing them as records 42 and 43 in a revised schedule of records issued to the applicant and this Office.
During the course of the review, the applicant provided further submissions about records which he considered he should have received. He provided details of engagements he had with the Council in 2020 and 2021. He suggested that there should be records of those engagements. He said the information that he sought at the outset was information concerning how the selection, implementation and removal of the derelict site notice on his property was processed. He said he wanted to know who singled out and decided to put the property on the derelict site register in the first place. He said a meeting with the deputy CEO in his office has to be addressed in terms of what he did or who he engaged with in the Council to resolve and conclude matters after the meeting with him. This Office sought further submissions from the Council on the matter. In response, the Council said there were no further records for release. This is, in essence, a refusal to grant access to any further relevant records under section 15(1)(a) of the Act which provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps have been taken to ascertain their whereabouts.
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 submissions made by the applicant and the Council. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.
During the course of the review, the Investigator from this Office sought clarification from the Council as to the basis on which it decided to redact certain information from record 28 on the ground that it fell outside the scope of the request. In response, the Council said the first redaction “related to another individual’s account” while the second redaction was “deemed not suitable for release”. Following a request for further clarification, the Council indicated that the first redaction was made in error. I expect the Council to release the additional information without delay if it has not already done so. In respect of the second redaction, the Council said it did not believe it to be in the public interest to release the information at issue and that it deemed the information to be outside the scope of the request as the information does not relate directly to the applicant.
The question of whether the release of information is in the public interest or not is of no relevance to the question of whether it falls within the scope of a request. Moreover, regardless of whether or not the information relates directly to the applicant, I am satisfied that the entire record relates to the “selection, implementation and removal of the derelict Site Notice” and is therefore within the scope of the request in its entirety. Notwithstanding the Council’s failure to identify a specific exemption on which it might base its refusal to release the information, this Office’s Investigator formed the view that section 37(1) was potentially relevant. She informed the applicant of the potential applicability of section 37(1) to the information and afforded him the opportunity to comment which he duly did.
Accordingly, this review therefore, is concerned with whether the Council was justified in part granting access to records 3, 12, 14, 15, 18, 19, 20, 22, 23, 24, 25 and 28 under section 37(1), in refusing access to record 17 under sections 35(1) and 37(1), and in refusing access to any further relevant records under section 15(1)(a) of the FOI Act.
It is important to note that this Office has no remit to investigate complaints about FOI bodies, to adjudicate how FOI bodies perform their functions generally or to act as an alternative dispute resolution mechanism with respect to the actions taken by FOI bodies. As such, while it is clear that the applicant is dissatisfied with the way the Council dealt with the substantive issues of the derelict site notice and associated levies being applied to his property, this Office has no role in examining the appropriateness of those actions or any decisions taken on foot of same.
It is also important to note that a review by this Office is considered to be “de novo”, which means that in this case, it is based on the circumstances and the law as they pertain at the time of the decision and is not confined to the basis upon which the FOI body reached its decision. Accordingly, in light of the “de novo” nature of our reviews, I consider it appropriate to consider the applicability of section 37(1), a mandatory exemption, to record 28 notwithstanding the fact that the provision was not relied upon as a ground redacting the record.
Section 15(1)(a) of the Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The role of this Office in a case such as this is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision and also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. 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 records in question. It is important to note that the FOI Act is concerned with access to records that a public body holds as opposed to records that a requester considers ought to exist.
As I have outlined above, during the course of the review, the applicant provided details of engagements he had with the Council in 2020 and 2021 and suggested that there should be records of these engagements. In its submissions to this Office, the Council said that the Council official the applicant identified as having engaged with checked his records and diary and has no correspondence regarding the matter for the dates specified. On the matter of his meeting with the then Deputy CEO, it said the individual in question no longer works with the Council. It said, however, that it checked its SharePoint file repository and mailmeter system and confirmed that all records held on file relating to the matter have been released.
The applicant was informed of the details of the Council’s submissions. In response, the applicant queried wither the named Council official had any records of engagements with him. He again stated that he was seeking details of whose direction it was to include his property on the derelict site register. He said it is alarming and not acceptable for the Council to simply say that no records exist. On the matter of the absence of records concerning his meeting with the then Deputy CEO, he said he found it hard to understand or accept that the official did not make notes or inform other members of the Council of their meeting given the matters that were discussed and the advices that the official gave to him. He said he acted on foot of those advices and queried if officials at that level are obliged to keep records of business meetings.
Following a request for further clarification of the points raised by the applicant, the Council said the named official had no records of any engagements with the applicant. It said the named official clarified that if he was to meet with a member of the public in relation to a derelict property on site, the form of record keeping would be a physical diary where notes would be recorded in writing. The named official said he did not meet with the applicant at any stage but may have spoken with him by phone. He confirmed he had no records in his diary relating to the applicant and that any correspondence relating to the site is maintained on the derelict site file which has already been made available to the applicant. In response to the applicant’s query as to how the property was selected for inclusion in the register, the Council said the property was picked up by an Inspector while conducting street surveys during the normal course of their duties and on foot of this, an inspection of the property took place.
It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations arise where records are lost or simply cannot be found. It is clearly envisaged by the Act that records may exist but still may not be found after all reasonable steps have been taken to ascertain their whereabouts. What section 15(1)(a) requires is that the FOI body takes all reasonable steps to locate relevant records. This Office does not expect FOI bodies to carry out extensive or indefinite general searches for records simply because an applicant asserts that more records should or might exist or rejects an FOI body's explanation of why a record does not exist.
The applicant is essentially seeking access to the paper trail that he believes should clearly show how his property came to be placed on, and subsequently removed from, the derelict sites register. I note that the earliest record identified by the Council is record 24 which was released to the applicant. That record includes a derelict site notice dated 7 October 2019. The Council explained how the notice came to issue, namely that an inspection took place following the Inspector having picked the property up while conducting street surveys during the normal course of their duties. While the applicant may well take issue with the appropriateness of the decision to regard the property as in need of inspection and the subsequent issuing of such a notice following inspection, no evidence has been presented to this Office to suggest that the Council’s explanation as to how the property came to be placed on the register is other than as stated or that other relevant records should exist in relation to that matter.
Moreover, while the applicant is clearly unhappy with the absence of further records of his engagements with the Council, it seems to me that the Council has conducted searches that should have uncovered such records if they existed. I am not aware of any particular evidence or circumstances to suggest that further specific searches might be warranted in this case. Accordingly, having regard to the details provided by the Council of the searches undertaken in an effort to locate the records sought, I am satisfied that it has taken all reasonable steps to ascertain their whereabouts. I find, therefore, that the Council was justified in refusing access, under section 15(1)(a) of the Act, to any further relevant records coming within the scope of the applicant’s request.
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. This does not apply where the information involved relates to the requester (section 37(2)(a) refers). However, section 37(7) provides that, notwithstanding section 37(2)(a), an FOI 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 known as joint personal information).
Personal information is defined in section 2 of the FOI Act as information about an identifiable individual that either (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. Section 2 details 14 specific categories of information that is personal without prejudice to the generality of the definitions provided for in (a) and (b) above, including (xiii) information relating to property of the individual (including the nature of the individual's title to any property), and (xiv) the views or opinions of another person about the individual.
The information redacted from records 3, 12, 14, 15, 18, 19, 20, 22, 23, 24 and 25 comprises names, addresses and financial information relating to individuals other than the applicant. Record 17, to which access was refused under sections 37(1) and 35(1), comprises a letter sent by a third party’s legal representatives to the Council. The information redacted from record 28 comprises a comment made about a third party. I am satisfied that all of the information at issue comprises personal information relating to third parties and that section 37(1) applies. 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 for a number of circumstances in which section 37(1) will not apply. No argument has been made that any of the provisions of section 37(2) apply in this case and I am satisfied that they do not.
Section 37(5) provides that a request which would otherwise be refused under section 37(1) may be granted where on balance (a) the public interest that the request 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.
It is important to note when records are released under the FOI Act, they are considered, in effect, to be released to the world at large, as the Act places no constraints on the uses to which a released record under the Act can be put. With certain limited exceptions provided for under the Act, such as under sections 37(2)(a), 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 individuals 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 inThe Minister 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 a case involving commercial sensitivity and confidentiality, I consider them to be relevant to the consideration of public interest tests generally.
In its submissions to this Office, the Council said that in considering the public interest in favour of release of the records, it considered the necessity for the public in knowing how a public body performs its functions and in members of the public knowing that information held by public bodies about them or those they represent is accurate. In considering the public interest in favour of withholding the information, it said it considered the public interest in protecting the right to privacy of individuals in relation to their personal circumstances and in members of the public being able to communicate in confidence with public bodies and without fear of disclosure in relation to personal or sensitive matters. Regarding the comment in record 28, whilst the Council did not rely on an exemption to refuse access to this element of the record, it did state that it could see no public interest in releasing the information at issue and it is of the opinion that release of the comment could potentially cause more harm than good.
In his correspondence with this Office the applicant did not put forward any public interest in favour of release of the records in question. He said the Council is withholding information about individuals who were involved in the relevant matter and would appreciate if it was instructed to release the information. The applicant was also afforded an opportunity to comment on this Office’s view regarding the applicability of section 37(1) to record 28. He said he would appreciate if the redaction in record 28 could be removed as it concerns his property and that he needs to know as much information as possible.
It seems to me that the applicant has essentially identified a private interest in seeking release of the records. Nevertheless, I accept that there is a public interest in disclosing how the Council dealt with the matter of placing and subsequently removing the property he now owns on and from the derelict sites register. On this point, however, the disclosure of the information at issue would reveal very little, if anything about that matter. On the other hand, 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. Privacy rights, including those afforded to deceased persons under the FOI Act, 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 fact that the release of information under the FOI Act must be regarded, in essence, as release to the world at large, I know of no sufficiently specific, cogent and fact-based reason for finding that the public balance in the release of the information outweighs, on balance, the privacy rights of the third parties concerned. I find, therefore, that section 37(5)(a) does not apply.
Accordingly, I find that the Council was justified in withholding all of the information at issue under section 37(1) of the Act. Having so found, I do not need to go on to consider the applicability of section 35(1) to record 17.
Having carried out a review under section 22(2) of the FOI Act, I affirm the Council’s decision to refuse access to refuse access, in whole or in part, to records 3, 12, 14, 15, 17, 18, 19, 20, 22, 23, 24, 25 and 28 under section 37(1) of the Act and in refusing access to any further relevant records under section 15(1)(a) of the 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