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Case 99091

Request for amendment of records - whether information relates to personal information about the requester - section 28(1) - whether a right of amendment exists - section 17

Case Summary

Facts

The requester applied to An Bord Pleanála for the amendment of records which show his lands as being within a Red (Safety) Area on the approach to a particular runway at Shannon Airport. An Bord Pleanála ("The Board") identified four planning appeals files and four purchase notice files as being relevant to the request. The Board decided that the records held on six of the eight files which were publicly available did not come within the scope of the FOI Act and that one of the remaining files no longer existed. It decided to refuse to amend the relevant records on the remaining file on the ground that the information contained in the records was not personal information relating to the requester.

Decision

The Commissioner noted that the planning file at issue contained a number of references to the sites of a proposed development being located within the Red (Safety) Area in question. The Commissioner found that the information that the particular sites are within a Red (Safety) Area is not something that, in the ordinary course of events, is known only to the requester of his family or friends as it is known to the Irish Aviation Authority (the IAA), which has made it publicly available previously in the context of planning applications in respect of those lands. He considered it equally clear that the IAA does not hold this information on the understanding that it would be treated by it as confidential. He found that the information in question was not personal information about the requester and that he did not, therefore, have a right of amendment of the information.

The Commissioner added that while it was not strictly necessary for him to consider the question of whether the specific information was, in fact, incorrect, incomplete or misleading, it was clear that the sites in respect of which the requester had applied for planning permission lay within the boundary of the area designated by Aer Rianta as a Red (Safety) Zone. He found that the information could not be said to be incomplete, incorrect or misleading.

Date of Decision: 18.01.2001

Our Reference: 99091

18.01.2001

Mr X

Dear Mr X

I refer to your application under the Freedom of Information Act, 1997 for a review of the decision of an Bord Pleanála (the Board) to refuse your request for amendment of information contained in records which show your lands as being within a Red (Safety) area or Protected Zone on the approach to Runway A at Shannon Airport.

Background

I have now completed my review of the Board's decision. In carrying out that review I have had regard to the Board's explanation for refusing your request, to your correspondence with the Board and with this Office and to your letter of 12 December, 2000 which you submitted following Mr Rafferty's letter of 17 November, 2000 outlining his preliminary observations on the matter. I have also examined the contents of planning appeal file reference XXX.

I note that the Board identified records relating to four planning appeals and four purchase notices which, it considered, related to your request. It decided that the records held in relation to planning appeal YYY, planning appeal AAA, and the four purchase notices are publicly available and that they do not, therefore, come within the scope of the FOI Act. It further decided that the records relating to planning appeal BBB no longer exist and that the information contained in records relating to planning appeal XXX is not personal information for the purposes of the FOI Act. In your request for internal review you indicated that planning appeal BBB and one of the purchase notices does not relate to you. You also indicated that the Board holds further records which come within the scope of your request, namely planning appeal PLX and purchase notice PNZ. The Board indicated that PLX was decided on 19 February 1996 and that PNZ, was decided on 5 November 1998.

Scope of Review

The Local Government (Planning & Development) (No. 2) Regulations, 1995 provide that documents relating to an appeal or other matter with which the Board is concerned shall be made available at the offices of the Board for inspection by members of the public for a period of five years after the appeal or other matter has been determined. With the exception of records on planning appeals BBB and XXX, all other records identified either by the Board or by you come within the scope of these regulations. Section 46(2) of the FOI Act provides that the Act does not apply to records which are available for inspection by members of the public whether upon payment or free of charge. It follows, therefore, that the records in this particular case which are available for inspection by members of the public do not come within the scope of the Act. Furthermore, you have indicated that appeal BBB does not relate to you. Accordingly, my review is concerned solely with the question of whether the Board was correct in refusing your request for amendment of the information contained on planning appeal XXX which shows your lands as being within a Red (Safety) Area or Protected Zone. For convenience I shall refer to such areas or zones in the remainder of this decision as Red (Safety) Areas.

Findings

As Mr Rafferty advised you in his recent letter, section 17 of the FOI Act provides a right of amendment of personal information relating to a requester contained in a record held by a public body where the information is incomplete, incorrect or misleading. He also explained that, for the purposes of the FOI Act, personal information is (i) information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or his/her family or friends, or (ii) information about the individual that is held by a public body on the understanding that it would be treated as confidential. The Act details twelve specific instances of information which is personal without prejudice to the generality of (i) and (ii) above and makes it clear that it includes information relating to property of the individual (including the nature of the individual's title to any property). In this case, the Board claims that the information contained on XXX which you sought to have amended is not information about you that would ordinarily be known only to you or your family or friends, or information about you that is held by the Board on the understanding that it would be treated as confidential.

You say in your letter of 12 December, 2000 that the "ordinary course of events" does not apply in this instance. You indicate that the records which contain the information you wish to have amended purport to show a Government Department and/or semi-state bodies having an easement over your property and thus being the owner(s) of the dominant tenement and that, accordingly, rather than being the full owner (in fee simple) of your property, you are merely the owner of the servient tenement as per the records in question. This is an inference which you have drawn from the information in the records. Whether it is correct or not is not a matter for me as Information Commissioner. The only question which I can deal with is whether you are entitled to have amended the information which shows "my lands as being within a Red (Safety) Area or Protected Zone on the approach to Runway A at Shannon Airport".

Having examined planning appeal file XXX I note that it makes a number of references to the sites of the proposed development being located within the Red (Safety) Area ( or public safety zone) of the approach to Runway A at Shannon Airport. These references do not specifically refer to your lands. It seems to me that these references disclose two separate pieces of information. The first is that you proposed to develop the sites in question. The second is that those sites are within a Red (Safety) Area. It seems to me that the requirements contained in planning legislation are such that an individual who submits a planning application in respect of a proposed development cannot claim that the proposal to carry out development, or the fact that an application for permission has been made, is personal information about him/her. I note, for example, that planning legislation requires that notification of the intention to submit a planning application must be published in a newspaper circulating in the area and that the planning application and corresponding documentation be made available for public inspection while being considered by the planning authority. Applying the definition of personal information which I have outlined earlier, I find that the information that you applied for planning permission to develop these sites is not personal information about you. In any event, it is clear from your correspondence with the Board and with my Office that this is not the information which you claim requires amendment.

Your case is that the information that the particular sites are within a Red (Safety) Area is incorrect. This latter piece of information is not something that, in the ordinary course of events, is known only to you or your family or friends. It is known to the Irish Aviation Authority (the IAA), which clearly is willing to make it publicly available, and has done so previously, in the context of planning applications in respect of those lands. It is equally clear that the IAA does not hold this information on the understanding that it would be treated by it as confidential. As I have indicated above, the FOI Act only confers a right of amendment of personal information about the requester. In this case, I am of the view that the information in question is not personal information about you for the purposes of the FOI Act. It follows that you do not have such a right of amendment.

While it is not strictly necessary for me to consider the question of whether the specific information you are seeking to have amended is, in fact, incorrect, incomplete or misleading, I would like to make the following comments. The IAA's letter of 27 January, 1999 to you indicates that there is a distinction between Red (Safety) Areas and "Protected Areas" designated under section 12 of the Air Navigation and Transport Act, 1950. It says that the Act gives the Minister the power to declare a Protected Area and that section 72(2)(b) of the Irish Aviation Authority Act, 1993 extended to the IAA the power to declare Protected Areas. It says that the Red (Safety) Areas (also referred to as "Protected Zones" in the IAA's "Policy in Advising on Planning Applications and Appeals" dated November, 1997) are not Protected Areas under the terms of the 1950 and 1993 Acts.

You indicate in your letter of 28 May, 1999 to this Office that a Red (Safety) Area was designated by Aer Rianta at Shannon Airport and you clearly accept that the sites for which you had applied for permission lie within the boundary of this area. In a further letter of 1 July, 1999 you claim that the Red (Safety) Area designated over your property was, and still is, invalid as no rights over such an area were ever lawfully acquired. It is clear that your claim that the information that the sites are within a Red (Safety) Area requires amendment is based on the ground that the Red (Safety) Area has no statutory basis. However, the fact remains that a "Red Safety Area" was, indeed, designated and the sites in respect of which you applied for planning permission lie within the boundary of this area and I note that you do not dispute this fact. The question of whether the area was designated in accordance with relevant legislation does not, in my view, alter this fact and I offer no comment on the circumstances surrounding such designation. It seems to me, therefore, that the information cannot be said to be incomplete or incorrect. It also seems to me that there is nothing misleading about the statement that the site of the proposed development is within a Red (Safety) Area of the approach to Runway A at Shannon Airport. The IAA policy document explains the significance of these terms viz. that they refer to certain designated areas and that it is IAA policy to object to certain developments in such areas. While the similarity in terminology between a "Protected Zone" and a "Protected Area" may be unfortunate, it seems to me that no properly informed reader could be misled by the information in question into believing that the lands lie in a "Protected Area". Therefore, even if I had formed the view that this information was personal information about you I would have come to the conclusion that it was not incomplete, incorrect or misleading.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, I hereby affirm the decision of An Bord Pleanála in this case.

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than four weeks from the date of this letter.

Yours sincerely

Information Commissioner