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Ms X and Cork County Council (FOI Act 2014)

Case Number: 160200

Whether the Council was justified in its decision to refuse access to records in relation to planning files on the basis of sections 29(1), 32(1), 35(1)(a), 37(1) and 42(m)(i) 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 2 September 2016, the applicant made an FOI request to the Council seeking access to all records in relation to all planning files under certain reference numbers. The Council issued a decision on 25 September 2015 and identified 63 records relevant to the FOI request. It part granted the request and refused access to the enforcement files which comprise 34 records on the basis of section 29(1)(a) of the FOI Act. The Council's internal review upheld its original decision on 12 November 2015 and also relied on sections 29(1)(b), 32(1)(a)(i) and (ii), 35(1)(a), 37(1) and 42(m)(i) of the FOI Act to refuse access to the requested records.

The applicant wrote to this Office seeking a review of the Council's decision on 4 May 2016.

Using the numbering system adopted by the Council, the remaining withheld records 4 - 6, 8 - 9, 12 - 13, 15 - 19, 22, 24 - 29, 39 - 43, 45 - 47, 49 - 50, 52, 56, 60, 62 and an unnumbered record of phone calls made by planning staff described by the Council as "the record listed between No. 35 and 36". I consider that the review should now be finalised by way of a formal, binding decision. This is because although the Council released the majority of the records on 16 November 2016, the applicant has not withdrawn her application for review.

In conducting my review I have had regard to the submissions from the Council, the application from the applicant and to correspondence between them. I have examined the contents of the records provided to this Office for the purposes of this review by the Council and had regard to the provisions of the FOI Act.

Scope of the Review

On 19 December 2016, the Council confirmed to this Office that all of remaining records had been released with the exception of parts of record 4 and the record listed between No. 35 and 36 which contain personal information of other individuals who have not consented to the release of their names. Therefore, this review is concerned solely with whether the Council was justified in its decision to refuse access to the redacted p[arts. It is not entirely clear whether or not record 17 was released so I will also deal with it. r

Preliminary Matters

The Council's decision-making in this case fell far short of what is required under the FOI Act. First, in neither its original nor internal review decision did the Council provide the applicant with a proper statement of reasons. In its original decision, in addition to citing section 29(1)(a) as the exemption claimed under the FOI Act, the Council stated "that the refusal under this section is self explanatory". As explained below, section 29 is a discretionary exemption and requires the FOI body to show that the requirements of the exemption is met. The Council also failed to consider the public interest and exceptions to section 29 in this case. In the internal review decision, the decision maker relied on six further exemptions to refuse access. While some additional information appears in the schedule, adequate reasons for refusal were not provided in either decision. Accordingly, on 20 June 2016, this Office exercised its power under section 23 of the FOI Act to direct the Council to provide a statement of reasons for its refusal of access.

By letter dated 12 July 2016, the Council provided this Office and the applicant with a statement of reasons. I would remind FOI bodies of their obligation under section 13 of the FOI Act to provide reasoned decisions. I encourage decision makers to use the FOI resources available, including guidance on the FOI Act published by the Central Policy Unit of the Department of Public Expenditure and Reform and by this Office, to assist them in their decision-making process.

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.

Analysis and Findings

Records
The background to this case is that the applicant wrote a letter of complaint to the Council in January 2013 concerning an alleged unauthorised development. The Council issued a warning notice to the developer in July 2013 and a planning application for retention was received in January 2014. This application was withdrawn in September 2014 and a new application was received in December 2014. Planning permission was granted by the Council in February 2015. Objectors appealed this planning permission to An Bord Pleanála and its decision issued in July 2015 refusing permission for retention. According to the Council, the developer applied for planning permission again and it was granted by the Council in May 2016. Subsequently, an appeal was lodged by objectors with An Bord Pleanála and a decision was given in September 2016 granting the permission.

The records the subject of this review are contained on the enforcement files in relation to the relevant planning files. 14/028 and 14/703. According to the Council, it is its policy not to make enforcement files available for inspection by members of the public while the file is open. I consider that, the Council is not entitled to adopt a general policy to refuse as all FOI requests for access to records concerning "live enforcement files". The Act does not provide for a mandatory exemption or exclusion of planning enforcement files as a class. However, I am not required to consider the exemptions cited in relation to each record since the enforcement records have, for the most part, now been released.

Redacted Information - section 37

The Council, under section 37(1) of the FOI Act, withheld from records identified above information concerning individuals members of the public (other than the applicant) who contacted the Council. That section provides for the refusal of a request where access to the record sought would involve the disclosure of personal information relating to an individual or individuals other than the requester.
In the particular circumstances of this case, I am satisfied that the withheld information is personal information relating to parties other than the applicant and that section 37(1) of the Act applies.

Section 37(2) of the FOI Act sets out certain circumstances in which the exemption under section 37(1) does not apply. I am satisfied that none of those circumstances arise in this case and that the parties concerned have not consented to the release of their information. Section 37(5) of the FOI Act provides that access to the personal information of a third party may 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 information would be to the benefit of the person to whom the information relates.

No evidence has been presented to this Office to suggest that the release of the withheld information would be to the benefit of the third parties concerned. I therefore find that section 37(5)(b) does not apply.

In relation to the issue of the public interest under section 37(5)(a), it is important to take note of the obiter comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner[2011] IESC 26 (which I shall refer to as the Rotunda case). It is noted that a public interest ("a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest.

The FOI Act recognises a public interest in ensuring the openness, transparency, and accountability of public bodies in how they perform their functions. In my view, the public interest in ensuring the openness and accountability of the Council in the performance of its functions has been met to some degree by the release of records without identifying the third parties. Furthermore, it is not clear to me how the release of the information at issue would serve to further enhance the openness and accountability of the Council to any significant extent.

On the other hand, the Act also recognises the public interest in the protection of the right to privacy, both in the language of section 37 and in the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with the right to privacy). Accordingly, I find that the public interest in the release of the information at issue does not, on balance, outweigh the public interest in protecting the privacy rights of the individuals to whom the information relates. I find, therefore, that section 37(5)(a) does not apply.

Accordingly, I find that the Council was justified in its decision to refuse access to the remaining withheld information under section 37(1) of the FOI Act.

Record 17
The Council's letter to the applicant enclosing the released records made no mention of record 17. This may have been an oversight and it is possible that record 17 was among the records actually released on 16 November 2016. Having regard to its content and that of the other released material, I find that the Council has not justified refusal of access to it and, if it has not already been released, I direct its release.

 

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the decision of the Council. I affirm its decision to refuse access under section 37 of the Act to small parts of certain records containing the personal information of individuals other than the applicant. I direct the release of record 17 if this has not already been done on foot of the Council's agreement to release the majority of the records.

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 applicant not later than four weeks after notice of the decision was given.

Elizabeth Dolan
Senior Investigator