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Mr X and Louth County Council (FOI 2014)

Case Number: 150297

Whether the refusal of access by the Council to certain records about an oil spill at a service station is justified under sections 30(1)(a), 31(1)(a), 32(1)(a), 35(1), 36(1)(b) and (c) and 37(1) of the FOI Act

Conducted in accordance with section 22(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 1 July 2015 the applicant made an FOI request to the Council for certain information about an oil spill which occurred at a service station. He listed ten items in respect of the incident report. By letter dated 27 July 2015, the Council granted access to some of the records. It refused access to others, on the basis that they were exempt from release under sections 15(1)(a), 15(1)(d), 21(1)(a), 35(1)(a), 36(1)(b) and 37(1) of the FOI Act. On 31 July 2015, the applicant applied for an internal review in respect of the records which had been withheld. By letter dated 20 August 2015, the Council issued its internal review decision, in which it affirmed its original decision. On 3 September 2015, the applicant applied to this Office for a review of the Council's decision.

In conducting this review I have had regard to the Council's decision on the matter; the Council's communications with the applicant and with this Office; the applicant's communications with the Council and with this Office; the submissions of the third parties; the content of the withheld records provided to this Office by the Council for the purposes of this review and to the provisions of the FOI Act.

Scope of Review

A few points arise in relation to the scope of this review. First, a significant number of records which the Council provided to this Office fall outside the scope of this review. Many pre-date the commencement of the FOI Act; some relate to a previous FOI request; others relate to legal proceedings between private parties (in his FOI request, the applicant specifically referred to records relating to legal proceedings initiated by the Council, but not private parties). Secondly, in correspondence with this Office, the Council clarified that it relied on sections 30(1)(a) and 32(1)(a) (not "21(1)(a)"), in addition to the other provisions cited above. Thirdly, the applicant set out the scope of his application for review by letter dated 3 September 2015. Finally, the Council has confirmed to me that despite being listed in its schedule, there is no "record 4".

Having regard to all of these points and to the third party's submissions, this review is solely concerned with whether the Council is justified in refusing access to the following records under sections 30(1)(a), 31(1)(a), 32(1)(a), 35(1), 36(1)(b) and (c) and 37(1) of the FOI Act: 6-12, 14 (which duplicates 7), 20, 21, 31, 51, 54, 56-59, 109-118, 161-170.

Preliminary Matters

Before I consider the exemptions claimed, I wish to make the following points.

First, this review has taken much longer than I would have liked and I apologise to the applicant for this. In part, this is because it involves a number of records which relate to an incident dating back to the 1990s and which has involved different sets of legal proceedings.

Secondly, the Council's approach in this case seems to have been to invoke a number of exemptions over all of the records, on a "blanket" basis. It does not appear to have examined the content of each record and properly analysed which particular provision of the FOI Act was relevant. I encourage all FOI bodies to make use of the many resources available to them, including guidance notes on the exemptions on this Office's website www.oic.ie and the website of the Department of Expenditure and Public Reform's Central Policy Unit at www.foi.gov.ie.

Thirdly, it is important to note that section 22(12)(b) of the FOI Act provides that when the Commissioner reviews a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore in this case, the onus is on the Council to satisfy me that its decision is justified. This point is particularly pertinent in the circumstances. The Council's approach in using blanket exemptions meant that it did not explain its refusal of access in relation to each individual record, despite quite evident differences between them.

Finally, the applicant provided this Office with copies of a number of similar FOI requests he had made to other councils with some of their replies. I have not taken this correspondence into account in my decision as I do not consider it relevant to my analysis of the various exemptions invoked by the Council.

Analysis and Findings

Section 31(1)(a) - Legal professional privilege

During this review, the investigator consulted a third party about certain reports and related correspondence about the oil spill. The third party objects to the release of these records. One of the exemptions to which it refers is section 31(1)(a) of the FOI Act, which it says applies to records 6, 7, 9, 11, 165 and 166.

One would not normally expect a third party (as opposed to the Council) to claim this exemption. In view of the mandatory nature of this exemption, I have exercised my discretion to consider section 31(1)(a) in relation to all the records within the scope of this review.

Section 31(1)(a) of the FOI Act provides that a head shall refuse to grant an FOI request if the record concerned would be exempt from production in proceedings in a court on the ground of Legal Professional Privilege (LPP). In deciding whether section 31(1)(a) applies, I must consider whether the record concerned would be withheld on the ground of LPP in court proceedings. LPP enables the client to maintain the confidentiality of two types of communication:

(a) confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege); and
(b) confidential communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation (litigation privilege).
The third party submits that records 6, 7, 9, 11, 165 and 166 were prepared as part of confidential settlement negotiations in connection with court proceedings, which agreements contain confidentiality clauses. However, the third party does not claim that they comprise confidential communications between a client and legal adviser for the purpose of obtaining or giving legal advice, or between a client and legal adviser or a client and third party, the dominant purpose of which is the preparation for litigation. Nor is it apparent to me on the face of the records that they fall into either of these categories. Accordingly, I have no basis on which to find that section 31(1)(a) applies to records 6, 7, 9, 11, 165 and 166. I consider them further under sections 35 and 36 below.

Having reviewed the records, I find that section 31(1)(a) applies as follows. Records 21, 31, 51 and 54 are confidential communications between the Council and its legal advisers for the purpose of obtaining and/or giving legal advice (legal advice privilege). They would also qualify for exemption under the second limb of LPP in that their dominant purpose is preparing for contemplated/pending litigation (litigation privilege). Records 111, 112, 113, 114, 115, 116, 117 and 170 are confidential internal communications, the dominant purpose of which is preparing for contemplated litigation (litigation privilege).

I therefore find that the Council is justified in withholding access to records 21, 31, 51, 54, 111, 112, 113, 114, 115, 116, 117 and 170, under section 31(1)(a) of the FOI Act.

Section 30(1)(a) - Functions and negotiations of FOI bodies &
Section 32(1)(a) - Law enforcement and public safety

The Council claims both these exemptions in respect of records 6 - 170. I consider its submissions in relation to all the records within the scope of this review, except for those records I have found to be exempt under section 31(1)(a).

The wording of the Council's submissions in relation to each provision is identical. It says that it has a statutory function to ensure the remediation of lands. It submits that releasing these records could prejudice any legal proceedings which may have to be entered into should the remediation works not proceed as planned, since the companies which commissioned the reports have requested that no records be released at present. It submits that on the balance of public interest, the records should not be released at this time. However, it does not provide any further detail on the public interest factors that it relies on in respect of these records which would explain its position on the public interest balancing test.

I have had regard to the harm which the Council identifies in its identical submissions under sections 30 and 32. I take this, in essence, to be an argument that releasing the records could prejudice civil proceedings. Given that this alleged harm relates to legal proceedings rather than the Council's own functions, I consider it more appropriate to consider these records under section 32(1)(a)(iv) and not under section 30. The Council has failed to justify its claim that section 30(1)(a) applies.

Section 32(1)(a)(iv) provides:

"A head may refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, reasonably be expected to -

(a) prejudice or impair -

...

(iv) the fairness of criminal proceedings in a court or of civil proceedings in a court or other tribunal,".

The principal purpose of section 32(1)(a)(iv) is to prevent the disclosure of information which could result in unfairness in the conduct of legal proceedings. When relying on this provision, the FOI body should show how or why releasing the withheld information at the time of the Commissioner's review could reasonably be expected to harm the fairness of the proceedings. The making available by an FOI body of evidence in advance of a hearing does not, in principle, prejudice or impair the fairness of the hearing. The Commissioner has accepted, as a general point, that the release of material relating to the proposed conduct of a case is likely to prejudice the fairness of future proceedings.

The Council refers to the possibility of legal proceedings which it would initiate to enforce remediation. In addition, it advises that there is related civil litigation which involves private parties. However, the Council has not demonstrated how any of the records could, for example, disclose aspects of any party's strategy for legal proceedings or indeed identified any information within these records which could prejudice the fairness of any legal proceedings. The fact that the companies have objected to releasing the records does not of itself evidence a potential harm to the fairness of legal proceedings. In any event, I address the third party's submissions on releasing the records elsewhere in this decision, under sections 31(1)(a), 35 and 36 of the FOI Act.

In the circumstances, I find that the Council is not justified in refusing access to these records under section 30(1)(a) or 32(1)(a)(iv) of the FOI Act.

Section 35(1) - Information obtained in confidence

The Council claims section 35(1)(a) in respect of records 6 - 170. The third party claims sections 35(1)(a) and (b) in respect of records 6, 7, 9, 11, 164, 165 and 166 (reports and related correspondence on the oil spill). I consider it in relation to all the records within the scope of this review, except for those records I have found to be exempt under section 31(1)(a).

Section 35 of the FOI Act provides:

"(1) Subject to this section, a head shall refuse to grant an FOI request if -

(a) the record concerned contains information given to an FOI body, in confidence and on the understanding that it would be treated as confidential (including such information as aforesaid that a person was required by law, or could have been required by the body pursuant to law, to give to the body) and, in the opinion of the head, its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and it is of importance to the body that such further similar information as aforesaid should continue to be given to the body, or

(b) disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment (other than a provision specified in column (3) in Part 1 or 2 of Schedule 3 of an enactment specified in that Schedule) or otherwise by law.

(2) Subsection (1) shall not apply to a record which is prepared by a head or any other person (being a director, or member of the staff of, an FOI body or a service provider) in the course of the performance of his or her functions unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than an FOI body or head or a director, or member of the staff of, an FOI body or of such a service provider.

(3) Subject to section 38, subsection (1)(a) shall not apply in relation to a case in which, in the opinion of the head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the FOI request concerned."

Submissions

The Council

The Council submits that the information in these records was given to it on the basis that it was confidential. It says that the information was for the Council's purposes only and it is vital to the Council's performance of its duties and that the companies involved did not consent to any records being released. It submits that it concluded on the balance of public interest that the records should not be released at this time. However, it does not provide any further detail on the public interest factors that it relies on in respect of these records which would explain its position on the public interest balancing test. Moreover, yet again, the Council claims this exemption over the records on a blanket basis, without justifying its claim in respect of each individual record. This is despite the fact that there are obvious differences between the records; e.g. some records are letters sent by the Council; others are internal memos by the Council; others are letters sent to the Council.

Third party

In relation to section 35(1)(a), the third party submits that records 6, 7, 9, 11, 164, 165 and 166 were given voluntarily to the Council and if they are disclosed to a third party, it will entirely prejudice it giving further similar information to the Council on a voluntary basis.

In relation to section 35(1)(b), the third party submits that disclosing records 6, 7, 9, 11, 164, 165 and 166 would breach a duty of confidence in agreements between it and the private company which prepared the reports for it. It further submits that records 6, 7, 9, 11, 165 and 166 were prepared as part of confidential settlement negotiations in connection with legal proceedings and that disclosing these reports would breach a duty of confidence in the relevant settlement agreements.

 

Analysis

Records 6, 7 (duplicated at 14), 9, 11, 164, 165 and 166

These records are reports and related correspondence about the oil spill which were prepared by a consultant for the third party, which in turn gave copies to the Council. The consultant states that these reports are confidential to the third party. As they were not prepared by an FOI body or a service provider to an FOI body, I am not required to consider section 35(2) in relation to them.

I do not accept that the release of these records by the Council would constitute a breach of a duty of confidence provided for by an agreement, because the Council is not party to the agreements to which the third party refers. Nevertheless, I will go on to consider whether a breach of confidence "otherwise by law" might arise.

A duty of confidence provided for "otherwise by law" is generally accepted to include a duty of confidence arising in equity. The Commissioner accepts that breach of an equitable duty of confidence is comprehended by section 35(1)(b). In Mahon v Post Publications Ltd [2007] 3 IR 338, the Supreme Court summarised the requirements of the equitable duty of confidence as follows: the information must have the necessary quality of confidence about it; it must have been communicated by the possessor of the information in circumstances which impose an obligation of confidence or trust on the person receiving it; it must be wrongfully communicated by the person receiving it or by another person who is aware of the obligation of confidence.

Having regard to the particular circumstances in, and limited purpose for which, these reports and related correspondence were given to the Council, I am satisfied that these records (with the exception of two, which I address below) have the necessary quality of confidence about them and that they were communicated in circumstances imposing an obligation of confidence. Finally, I believe that it would be an unauthorised use of the information contained in these records for them to be circulated further, in view of the circumstances. In reaching this conclusion, I am mindful of the fact that settlement of the legal proceedings remains ongoing. I therefore find that section 35(1)(b) applies to these records, except for Records 11 and 164. As the public interest balancing test under section 35(3) does not apply to section 35(1)(b), I am not required to consider it.

Record 11

However, I consider that Record 11 is different, as I note from Record 10 that the Council staff disclosed its contents to a Councillor. I therefore cannot find that it has the necessary of quality of confidence about it to attract the equitable duty of confidence outlined above. I find that section 35(1)(b) does not apply to Record 11.

Record 164

Record 164 is a report on an investigation into residential private properties which was prepared by a consultant for the third party, which in turn gave a copy to the Council. Again the consultant states that the report is confidential to the third party. As it was not prepared by an FOI body or a service provider to an FOI body, I am not required to consider section 35(2) in relation to it.

The third party does not claim that this particular report was prepared or relied upon in the context of a confidential settlement agreement. I therefore consider it in a different light to the reports which I have found to be exempt under section 35(1)(b) above.

The third party says that it gave this report to the Council "on an entirely voluntary basis" and that it would be extremely concerned about disclosing such reports to the Council on a voluntary basis if they were to be disclosed. I do not believe that it reasonable to suggest that disclosing this report would be likely to prejudice the supply of such reports to the Council, whether from the companies or the property owners themselves. This is particularly in view of the fact that the Council has advised this Office that it is entitled to require such information pursuant to its statutory functions under water pollution legislation. There is also the fact that the companies are apparently commissioned and paid for by property owners to prepare the reports. I therefore do not accept that section 35(1)(a) applies to this record. I find that the Council is not justified in refusing access to this record under section 35(1). I consider its content further under section 36 below.

Remaining Records

As noted before, while the Council claims section 35(1)(a) in respect of all the records within the scope of this review, it does not substantiate its assertion in relation to each individual record. In support of its submission, it refers to the fact that the companies involved did not consent to any of the records being released; yet many records were not prepared by, or do not involve, private companies. In any event, as noted above, the investigator obtained a third party's submissions on releasing certain records and I have considered these above.

Having regard to section 22(12)(b) of the FOI Act, I do not believe that it is my role to make arguments for the Council in respect of each individual record in circumstances where the Council has failed to do so. I therefore do not propose to consider each of the remaining records individually under section 35. The position would be different if the Council had taken the opportunity to make submissions under section 35 in respect of each individual record; but it did not. That said, I have exercised my discretion to consider whether section 35 applies to three particular records.

In determining whether the information was given in confidence and on the understanding that it would be treated by the FOI body as confidential, the circumstances in which the information was received are relevant. As the Supreme Court noted in Governors and Guardians Rotunda Hospital v Information Commissioner [2011] IESC 26 ("the Rotunda case"), what is protected under this section "stems from the circumstances in which the material is given, and not from the nature of the material itself". Factors that may be relevant include the expectations of the person giving the information to the FOI body and any statements or assurances given at the time the information was given.

Records 20 and 167 are reports prepared by consultants for the Council. They are therefore reports prepared by a service provider to the Council. Accordingly, section 35(2) disapplies section 35(1) unless releasing it would breach a duty of confidence under agreement or statute or otherwise by law which is owed to someone other than the Council or its staff. As noted above, the Council does not substantiate its assertion in relation to individual records. It has provided me with no evidence that disclosing these records would breach such a duty of confidence.

Record 109 is an internal memo by the Council. As it was prepared by the Council itself, section 35(2) disapplies section 35(1) unless releasing it would breach a duty of confidence under agreement or statute or otherwise by law which is owed to someone other than the Council or its staff. Its content appears to relate to the same matters concerning the settlement agreement to which the third party has referred me. Accordingly, I will consider whether a breach of confidence "otherwise by law" which is owed to the third party might arise. Having regard to the circumstances in, and limited purpose for which, this information was given to the Council, I am satisfied that it has the necessary quality of confidence about it and that it was communicated in circumstances imposing an obligation of confidence. Finally, I believe that it would be an unauthorised use of this information for it to be circulated further. In view of the circumstances, I therefore find that section 35(1)(b) applies to this record. As the public interest balancing test under section 35(3) does not apply to section 35(1)(b), I am not required to consider it.

Record 110 is an internal memo by the Council. As it was prepared by the Council itself, section 35(2) disapplies section 35(1) unless releasing it would breach a duty of confidence under agreement or statute or otherwise by law which is owed to someone other than the Council or its staff. However the information which it contains emanates from a Councillor and it has not been argued that any duty of confidence is owed to that person.

Finding on Section 35

Having regard to the above, I find that the Council is justified in refusing access to records 6, 7 (duplicated at 14), 9, 109, 165 and 166, under section 35(1)(b) of the FOI Act.

I find that section 35(1) does not apply to the remaining records. I therefore find that the Council is not justified in withholding access to this information under section 35(1) of the FOI Act.

Section 36(1) - Commercially sensitive information

The Council claims this exemption in respect of records 6 - 170. The third party claims section 36(1)(b) and (c) in respect of records 6, 164, 165 and 166. I consider it in relation to all the records within the scope of this review, except for those records I have found to be exempt under section 31(1)(a) or section 35(1).
Section 36 of the FOI Act provides that access to a record shall be refused if access would involve the disclosure of commercially sensitive information. Specifically, section 36(1) of the FOI Act provides:
"Subject to subsection (2), a head shall refuse to grant an FOI request if the record concerned contains -
...
(b) financial, commercial, scientific or technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation, or
(c) information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates."

However, section 36(1) does not apply if the public interest would, on balance, be better served by granting rather than refusing the request (section 36(3) refers).

The essence of the test in section 36(1)(b) is not the nature of the information but the nature of the harm which might be occasioned by its release. The harm test in the first part of subsection (1)(b) is that disclosure of the information could reasonably be expected to result in material financial loss or gain. The Commissioner takes the view that the test to be applied in this regard is whether the decision-maker's expectation is reasonable. The harm test in the second part of subsection (1)(b) is that disclosure of the information could prejudice the competitive position of the person in the conduct of his or her profession or business or otherwise in his or her occupation. The standard of proof necessary to meet this test is considerably lower than the standard required to meet the test of "could reasonably be expected to" in the first part of section 36(1)(b).

Submissions

The Council

The Council claims this exemption over all the records. It says that the information received in the reports is commercially sensitive and therefore its principal concern appears to be the reports from third parties. It says that the reports detail how the companies carry out their investigations and present their findings and were submitted for the Council's purposes only and the companies did not consent to their release. The Council says that releasing the records could prejudice any legal proceedings which may have to be taken. Finally, it submits that on the balance of public interest, they should not be released at this time. However, it does not provide any further detail on the public interest factors that it relies on in respect of these records which would explain its position on the public interest balancing test. During the review, the Council clarified that it paid for the report at record 167 and did not consult the third party which prepared that report about this FOI request, as it regarded that report as its own.

Third Party

Under section 36(1)(b), the third party submits that releasing records 6, 164, 165 and 166 would cause loss/damage were a third party to access them and could seriously prejudice its business. As I have already found records 6, 165 and 166 to be exempt, I need only consider the third party's submissions in relation to record 164. The third party's submissions under section 36(1)(c) do not relate to record 164 and therefore I do not propose to consider this provision further.

Section 36(1)(b)

Once more, while the Council claims section 36(1) in respect of all the records within the scope of this review, it does not substantiate its assertion in relation to each individual record. I have nevertheless exercised my discretion to consider whether section 36 applies to any of the information contained within the records. Having reviewed them, I am satisfied that section 36(1)(b) applies to some of the information in these records; specifically, information relating to the companies' methodology for assessing and remediating oil spills and pricing. I consider that releasing this information could have negative commercial consequences for the companies, thereby prejudicing their competitive positions. I find that section 36(1)(b) applies to the following information:

Record 20 - "Option 1" on page 2 until the end of the record
Record 163 - sections 3, 4, 5, 6, 7, 8, Recommendations and Appendices
Record 164 - sections 2, 3, 4, Figures and Appendices
Record 167 - sections 1.2, 2, Appendices A & B

I am not satisfied that section 36(1)(b) applies to the remaining information and would again note that although the Council invoked this exemption over all the records, it only refers to "the reports" in its submissions.

Section 36(2)

Section 36(2) provides for the release of information to which section 36(1) is found to apply in certain circumstances. I am satisfied that none of the circumstances identified at section 36(2) arises in this case.

Section 36(3) - The Public Interest

Having found that section 36(1)(b) applies, section 36(3) of the FOI Act requires me to consider whether, on balance, the public interest would be better served by granting than by refusing the request. Section 36(1) itself recognises the public interest in the protection of commercially sensitive information. The FOI Act also recognises a significant public interest in FOI bodies being open and accountable. The Commissioner takes the view that, in attempting to strike the balance between openness on the one hand and the need to protect commercially sensitive information on the other, it is legitimate to consider both the positive public interest served by disclosure and the harm that might be caused by disclosure.

It seems to me that any public interest in openness and transparency is served by releasing of those parts of the reports which I have found not to qualify for the section 36 exemption. The arrangements between the private companies and their clients are commercial arrangements which do not involve the expenditure of public funds. Accordingly, I do not see how the public interest would be better served by releasing them.

Record 167 is different, as it does involve the expenditure of Council monies. Nevertheless, there is a legitimate public interest in entities being able to conduct commercial transactions with public bodies without suffering commercially as a result. In the circumstances of this case, I conclude that, on balance, the public interest would not be better served by the release of the information to which section 36(1)(b) applies to the extent that overriding the commercial sensitivity of that information would be justified.

Accordingly, in the circumstances of this case, I find that on balance, the public interest would not be better served by releasing the commercially sensitive information in these records, to the extent that overriding the commercial sensitivity of those records would be justified.

Finding on Section 36

I find that the Council is justified in withholding access to the information which I have identified as being commercially sensitive and listed above, under section 36(1)(b) of the FOI Act.

I find that section 36(1) does not apply to the remaining records. I therefore find that the Council is not justified in withholding access to this information under section 36(1) of the FOI Act.

Section 37(1) - Personal Information

The Council claims this exemption in respect of records 6 - 170. It submits that the information relates to the individual owner of the relevant service station. However, I note that the service station appears to be owned by a company rather than an individual. I consider section 37 in relation to all the records within the scope of this review, except for those records I have found to be exempt under section 31(1)(a), section 35(1) or section 36(1).

Section 37(1) is a mandatory exemption which requires the FOI body to refuse a request, subject to the other provisions of section 37, where it considers that access to the record concerned would involve the disclosure of personal information relating to an individual other than the requester. The FOI Act defines the term "personal information" 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 the body as confidential. The definition also contains a list of 14 specific types of information, including (iii) information relating to the employment or employment history of the individual and (xiii) information relating to the property of the individual.

Having regard to the above definition, I consider that the following information is "personal information": all names of individuals (except for staff members of FOI bodies) and any words or references which could identify them or their properties such as addresses, maps or photographs etc.

Section 37 (5) - The Public Interest

I am satisfied that the provisions of section 37(2) in relation to various exceptions to this mandatory exemption do not apply. Therefore, those parts of the records are exempt unless section 37(5) applies: -

" ...Where, as respects an FOI request the grant of which would, but for this subsection, fall to be refused under subsection (1), in the opinion of the head concerned, 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 individual aforesaid, the head may, subject to section 38, grant the request."

I cannot see how granting the request insofar as the personal information concerned would benefit the individuals concerned and consequently I find that paragraph (b) does not apply.

In respect of paragraph (a), I am satisfied that any public interest in openness and accountability about the Council performing its functions is met to a considerable extent by the release of those parts of records which I have not found to be personal information. The FOI Act itself recognises the public interest in ensuring openness and accountability of FOI bodies. However, the language of section 37 and the Long Title to the Act also recognises a very strong public interest in protecting the right of privacy which has a constitutional dimension. I find that the public interest that the request should be granted in full does not outweigh the public interest that the right to privacy of the individuals concerned -who are neither employed by the Council nor by its service providers in relation to the service at issue in the records - should be upheld. I find therefore that section 37(5)(a) does not apply in this case.

Finding on Section 37

I find that the Council is justified in refusing access to the information which I have found to qualify as personal information, under section 37(1) of the FOI Act.

I find that section 37(1) does not apply to the remaining parts of the records. I therefore find that the Council is not justified in refusing access to this information under section 37 of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act 2014, I vary the decision of the Council. I affirm its decision in respect of records 21, 31, 51, 54, 111, 112, 113, 114, 115, 116, 117 and 170, under section 31(1)(a) of the FOI Act. I affirm its decision in respect of records 6, 7 (duplicated at 14), 9, 109, 165 and 166, under section 35(1)(b) of the FOI Act. I affirm its decision in respect of those parts of records 20, 163, 164 and 167 which I have found to be commercially sensitive information, under section 36(1)(b) of the FOI Act. I affirm its decision in respect of the information which I have listed above as being personal information, under section 37(1) of the FOI Act. I annul its decision to refuse access to the remaining records and direct the release of those records.
I specify that, subject to sections 24 and 26 of the FOI Act, effect shall be given by the Council to my decision within five working days of the expiration of the 4 week period for the bringing of an appeal to the High Court from this decision as provided for at section 24(4) of the Act.

Right of Appeal

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 by the requester not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

 

Elizabeth Dolan
Senior Investigator