Cinneadh
Mr. X and Wicklow County Council (the Council)
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-153773-P7R0L7
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-153773-P7R0L7
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Council was justified under sections 37 and 42(m) of the FOI Act in refusing for access to a record relating to certain structures that had been erected at a specified address
28 August 2025
The context for the FOI request that underpins this review is a planning dispute between neighbours regarding the erection of an allegedly unauthorised structure in the garden of a domestic property.
In a request dated 16 August 2024, the applicant sought access from the Council to records relating to the erection of the structure at issue, specifically requesting the release of “all the submissions” made by certain parties to the dispute. In a decision dated 11 September 2024, the Council refused the applicant’s request, citing section 37(1) of the FOI Act as the basis for its decision. On 19 September 2024, the applicant sought an internal review of the Council’s decision. In its internal review decision dated 2 October 204, the Council affirmed its original decision to refuse the applicant’s request. However, it varied the basis on which the refusal was made, relying on two further provisions of the FOI Act in addition to section 37(1), namely sections 37(7) and 42(m). On 19 November 2024, 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 submissions made by the Council in support of its decision, and to the comments made by the applicant in the course of his correspondence with the Council as well as in his application to this Office. 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, under sections 37 and 42(m) of the FOI Act, in refusing access to the records sought by the applicant.
In advance of the substantive analysis of the issues in this case, there are a number of preliminary points that I wish to make. Firstly, it should be noted that, 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 material at issue is limited.
Secondly, I wish to note that section 13(4) of the FOI Act provides that, subject to the legislation, 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. Thus, while certain provisions of the FOI Act implicitly render the motive of the requester relevant, as a general rule, the actual or perceived reasons for a request must be disregarded in deciding whether to grant or refuse an access request under the FOI Act.
Thirdly, it should be noted that the FOI Act places no restrictions on the use to which information released under the legislation may subsequently put. Accordingly, the release of information under FOI is not considered to be release to any particular requester or individual, but is generally considered to constitute, at least potentially, release of the information to the world at large.
In addition, it is relevant that section 18 of the FOI Act provides that, if it is practicable, records may be granted in part, by excluding the exempt material. Section 18 shall not apply if the copy of the record provided would be misleading. This Office takes the view that the provisions of section 18 do not envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, this Office is not in favour of the cutting or "dissecting" of records to such an extent. Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.
Finally, I note that in his application to this Office for a review of the Council’s decision on his FOI request, the applicant makes clear his dissatisfaction with the manner in which the Council handled the planning dispute which underpins the request. He goes on to accuse certain parties of acting illegally with regard to the erection of the structure at issue and of effectively being rewarded “…for subverting the planning process”. In this regard, it should be noted 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.
The record at issue
The Council identified one record, comprising 39 pages, that it considered relevant to the applicant’s FOI request. The record is a submission made to the Council, along with a number of exhibits, in response to a planning complaint made to the Council regarding the erection of the structure at issue.
Sections 37(1) and 37(7)
The Council relied on section 37(1) of the FOI Act, in conjunction with section 37(7), to withhold the record. Section 37(1) provides that, subject to the other provisions of the section, an FOI body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information relating to third parties. 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, unless one of the other relevant provisions of section 37 applies.
Section 37(7) provides that, notwithstanding subsection (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). In essence, this means that while section 37(1) does not provide a basis for refusing access to personal information that relates solely to the requester, if that personal information is inextricably linked to personal information relating to parties other than the applicant, then section 37(1) applies. It is also important to note that the fact the applicant may be aware of the identity of the other parties does not mean that the information cannot be protected under section 37(1).
Section 2 of the FOI Act defines personal information as information about an identifiable individual that either (a) would ordinarily be known only to the individual or to members of his/her family or to his/her friends, or (b) is held by an FOI body on the understanding that it would be treated by the FOI body as confidential. Furthermore, section 2 details 14 specific categories of information that is personal without prejudice to the generality of the foregoing definition which is personal without prejudice to the generality of the foregoing definition.
In submissions made to this Office, the Council outlined the grounds on which it considered that section 37(1) of the FOI Act applies to the record. The Council outlined its view that the information in the record satisfies the definition of personal information as it would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, and was held by the Council on the understanding that it would be treated by that body as confidential. The Council noted that, while the intended confidentiality of the record was not explicitly stated, its position was that it would not ordinarily make public information of the kind contained in the record, and moreover that under planning legislation there was no requirement to make it publicly available.
In addition, the Council argued that, while certain parts of the record include general information and information which could reasonably be expected to be in the public domain, by virtue of the fact that the material forms part of one submission, and was collated and provided as supporting documentation for the purposes of the submission by its author, its view was that the submission as a whole (ie. including exhibits) belongs to the author and is therefore the author’s personal information, and accordingly falls within the scope of section 37. It stated that its overall view was that it has a responsibility not to divulge all of the information that the author of the submission gathered as part of the submission, and on this basis it considered that section 37 covers all of the pages contained with the record.
In relation to section 37(7) of the FOI Act, the Council stated that it would not have been feasible for it to separate the personal information relating to the applicant without disclosing personal information of other individuals.
In his application to this Office for a review of the Council’s decision, the applicant stated that he was quite happy for any “sensitive personal information” to be redacted, but argued that, in withholding the record in its entirety, the Council had acted with “undue caution” to “…protect one side’s right to privacy whilst at the same time, denying mine”. The applicant argued that he had a right to know what information the Council held on file in relation to him and, and if that information happened to be “…intertwined with another person’s personal information, that is through no fault if [sic] mine”.
I find as follows in relation to the arguments made by the parties. As outlined above, due to the requirements of section 25(3) of the FOI Act, I am limited in the extent to which I can describe the information in the record to which the Council referred in its submissions. It must suffice for me to state that I am satisfied that the record contains information that is personal to identifiable individuals, so as to bring it within the scope of section 37(1) of the FOI Act. In particular, the record seems to me to clearly contain information that both satisfies the general definition of personal information in section 2 of the FOI Act, and which falls within the 14 categories of information I have set out in the same provision of the legislation. Moreover, I accept the Council’s argument that the record should be read in the round, and that viewed in this light the information gathered by the author of the records in support of the submission comprises their personal information.
In relation to the arguments of the applicant, while I can quite easily understand his frustration, the provisions of the FOI Act in relation to personal information are quite clear. Personal information need not be “sensitive” in order to engage section 37(1) (although the sensitivity of the personal information may be a factor that is relevant in considering whether the public interest would be better served by its release, pursuant to section 37(5)(a) of the FOI Act). Rather, the information must come within the general definition of personal information in section 2, and/or within one or more of the 14 categories of personal information set out in the same section. Moreover, section 37(7) is quite clear that, notwithstanding section 37(2)(a), an FOI body shall refuse to grant personal information relating to a requester where it is “intertwined” (to use the applicant’s term) with the personal information of third parties. Again, section 25(3) of the FOI Act limits me in terms of the extent to which I can explain the manner in which the personal information of the applicant is contained in the record. It must suffice for me to state that, while the majority of the record does not contain the personal information of the applicant, I am satisfied that certain information therein does relate to him. Furthermore, where such information does appear in the records, in my view it does so in a manner which renders it inextricably linked to the personal information of other individuals – in other words, where it is not practicable to remove the personal information of other individuals (the approach of this Office to section 18 of the FOI Act, which I have outlined above, refers). I accept that this information is therefore “joint personal information”, and comes within the scope of section 37(7) of the FOI Act on this basis.
However, the matter does not end there as 37(1) is subject to the other provisions of section 37, while section 37(7) is subject to section 37(2)(b) to (e), section 37(5) and 37(8). Section 37(2) provides that section 37(1) does not apply in certain circumstances. I am satisfied that no such circumstances arise in this case and that section 37(2) does not, therefore, apply.
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. 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. First, section 13(4) of the FOI Act provides that, subject to the legislation, 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 in so far 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 may also be matters of general concern to the wider public.
Secondly, it is important to note that (as I have alluded to above) the release of records under the FOI Act must be regarded, in effect, as release to the world at large, given that the legislation places no constraints on the uses to which a record released under FOI can be put. With certain limited exceptions provided for under the FOI Act, such as under sections 37(2)(a) and 37(8), 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), 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) which provides that in performing any functions under the FOI 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 The 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 cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.
In this case, the applicant did not identify any specific public interest factors in favour of the release of the records at issue that might outweigh, on balance, the privacy rights of the individuals to whom the personal information in the records relates. This being said, in his application to this Office, he did refer to his belief that the planning rules were effectively being subverted to the benefit of one party, and to his detriment. While I consider that the applicant has essentially expressed a private interest in the release of the documents, I would also accept that such release would further a public interest in terms of allowing insight into, and scrutiny of, the manner in which the Council addresses planning disputes, and ensuring that such matters are processed by the Council in a fair, objective and unbiased manner.
In its submissions, the Council did not identify any public interest factors in favour of the release of the relevant information. It did specify a number of public interest factors against the release of the information, namely the public interest in protecting the rights to privacy of members of the public; the public interest in ensuring that members of the public can communicate in confidence with public bodies without fear of their personal information being disclosed; and the public interest in public bodies being able to perform their functions effectively.
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 FOI 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 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).
While I accept that the release of the records at issue would serve to further the public interest factor in favour of release that I have identified above, it seems to me that the release of the of the information at issue would further this public interest only slightly. This is especially so in circumstances where, in the course of addressing the substantive matter of the planning dispute which underpins this review, the Council provided the applicant with a decision letter in respect of his complaint which. In the course of conducting this review, I requested that the Council provide me with a copy of this letter, which was subsequently provided and which I have considered. To my mind, the decision letter sets out clearly and effectively the basis on which the Council reached its decision on the applicant’s planning complaint. I therefore take the view that the decision letter goes a significant distance to satisfying the relevant public interest, and that disclosure of the record would not significantly add to this result. In addition, while the information in the record might not be described as being of an inherently sensitive and private nature, nonetheless I have found it to constitute personal information for the purposes of section 37(1), or joint information for the purposes of section 37(7), and I must regard its release as being effectively, or at least potentially, to the world at large.
Furthermore, I have noted above that the applicant’s private interest in seeking access to the record is reflective of a wider public interest. However, the view of this Office is that the recognition of a public interest in promoting procedural fairness through FOI is more properly understood as an acknowledgement that the public interest in openness and accountability is entitled to significant weight when the constitutional rights of individuals may be affected by the actions of public bodies. However, that does not mean that it is a matter for the Information Commissioner to determine the precise scope of what fair procedures would have required of a public body in a certain set of circumstances. Nor does it mean that the privacy rights of third parties should be suspended in favour of the applicant’s pursuit of his claim regarding the alleged subversion of the planning process. In the circumstances, I do not accept that the public interest in releasing the records outweighs, on balance, the privacy rights of the individuals to whom the personal information relates. I find, therefore, that section 37(5)(a) does not apply.
Accordingly, I find that the Council was justified, under section 37(1) of the FOI Act, in conjunction with section 37(7), in refusing access to the record.
Section 42(m)
In circumstances where I have found that the record at issue is exempt from release under section 37 of the FOI Act, I am not required to examine the extent to which it might also be exempt under section 42(m).
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Council. I find that it was justified, under section 37(1), in conjunction with section 37(7), in withholding the record at issue.
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.
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Neill Dougan
Investigator