BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!

Whether the Council was justified in its decision to refuse access to records relating to the applicant's dealings with the Council's Housing Department under sections 23, 26 and 28 of the FOI Act

Conducted in accordance with section 34(2) of the FOI Act, by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 24 January 2014, the applicant submitted a request to the Council seeking access to records consisting of a copy of her file from the Housing Department. On 27 February 2014 the Council issued its decision on the applicant's request. The Council identified 87 records coming within the scope of the request as described in four separate schedules, copies of which were provided to the applicant. The vast majority of the records were released to the applicant apart from the following:

- Records 1 and 7 from Schedule 1 were withheld while partial access was granted to record 9
- Records 17, 27, 36 and 45 from Schedule 3 were withheld while partial access was granted to records 9, 21 and 41

The applicant sought an internal review of this decision by way of letter dated 12 March 2014. The Council's internal reviewer issued his decision on 3 April 2014, upholding the initial decision. On 11 August 2014, the applicant sought a review by this Office of the Council's decision.

During the course of the review, the Council released additional records to the applicant, either in whole or in part. However, the applicant informed this Office that she required a decision on the remaining records at issue. I therefore consider that the review should now be brought to a close by the issue of a formal, binding decision.

In conducting my review, I have had regard to correspondence between this Office and both the applicant and the Council, and to correspondence between the applicant and the Council. I have also had regard to the contents of the records at issue, which were provided to this Office for the purpose of this review.

In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997-2003, notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Scope of the Review

During the course of this review, the Council released to the applicant in full record 17 (schedule 3). The Council also released in part record 1 (schedule 1) and record 27 (schedule 3), subject to redactions of exempt information under section 28 of the FOI Act. Furthermore, as records 36 and 45 (schedule 3) are exact copies of the first page of record 1 (schedule 1) and as record 9 (schedule 3) is an exact copy of record 9 (schedule 1), I have excluded those records from the scope of this review.

Accordingly, this review is concerned solely with the questions of whether the Council was justified in withholding record 7 (schedule 1) under sections 23, 26 and 28 of the FOI Act and in withholding certain parts of records 1 and 9 (schedule 1) and records 21, 27 and 41 (schedule 3).

Analysis and Findings

Record 1 (schedule 1)
This record is a "Garda Siochána Record Check" together with a letter from An Garda Síochána to the Council and a handwritten note prepared by an officer of the Council, detailing a conversation with a Garda. The first two parts of this record were released in full. Redactions were made to the handwritten note under section 28 of the FOI Act. Section 28(1) provides that a public body shall refuse to grant access to information where access would involve the disclosure of personal information relating to individuals other than the requester. Furthermore, section 28(5B) of the Act provides that access to a record shall be refused if access would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to third parties.

Having carefully considered the contents of the withheld information in record 1, I am satisfied that its release would involve the disclosure of personal information relating to individuals other than the applicant or information relating to the applicant that is inextricably linked with personal information relating to third parties. As it is not feasible to separate the personal information relating to the applicant from that relating to other individuals, I find that sections 28(1) and 28(5B) apply.

Section 28(2) provides that sections 28(1) and 28(5B) do not apply in certain circumstances, none of which I consider to apply in this case. Furthermore, section 28(5) provides that a record containing the personal information of a third party may be released in certain limited circumstances, namely where

(a) on balance, 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.

I am satisfied that the release of the personal information at issue in this case would not benefit the individuals concerned and I find, therefore, that section 28(5)(b) does not apply. On the matter of whether the public interest in granting the request outweighs, on balance, the privacy rights of the parties about whom the information relates, I accept that there is a public interest in promoting openness, transparency and accountability in how the Council assesses applications for housing. On the other hand, the language of section 28 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy (which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution). Accordingly, when considering section 28(5)(a), privacy rights will 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. In the circumstances of this particular case, I am satisfied that it is not. I find, therefore, that section 28(5)(a) does not apply and that the Council was therefore justified in refusing access to the relevant part of the record at issue.

Record 7 (schedule 1)
This record consists of interview notes and "scoring" relating to the consideration by the Council of the applicant's housing application. Among other things, the record contains details of information that was provided to the Council by An Garda Síochána and that I have found to be exempt under section 28 of the FOI Act. It follows, therefore, that any such similar information is exempt from release under that section, regardless of whether or not the other exemptions cited by the Council apply.

I find that the following information contained in record 7 is exempt from release under section 28:

- In the note on category 1, the words following the word "extent" and before the word "Score"
- In the note on category 2, the first sentence in its entirety, all words in the second sentence following the word "antisocial", all words in the third sentence before the words "Ms. Stapleton is happy" and after the word "conditions"
- In the note on category 3, the first sentence in its entirety
- In the note on category 4, all words in the first sentence following the word "interview", all words in the second sentence following the word "conditions", the third sentence in its entirety, all words in the fourth sentence following the word "family", the fifth sentence in its entirety, the words in the sixth sentence following the words "tenant and" and before "wants", as well as the words following the word "drugs", and the seventh sentence in its entirety
- In the note on category 5, the second sentence in its entirety
- In the note on category 6, the first sentence in its entirety, and the words in sentence two following the word "condition" and before the words "the risk".
- The condition to which approval was subject should be redacted in its entirety

As the Council refused access to the record in its entirety, citing sections 23, 26 and 28 of the FOI Act, I must now proceed to consider whether those exemptions apply to the remaining parts of the record which I have not found to be exempt under section 28. In particular, the Council relied on sections 23(1)(a)(i) and 23(1)(a)(ii) of the FOI Act, which provide that a public body may refuse a request where it considers that release of the record could reasonably be expected to prejudice or impair

(i) the prevention, detection or investigation of offences, the apprehension or prosecution of offenders or the effectiveness of lawful methods, systems, plans or procedures employed for the purposes of the matters aforesaid,

or

(ii) the enforcement of, compliance with or administration of any law.

The Council's primary argument is that the release of the record would deter An Garda Síochána from future liaison with the Council and that such liaison is an important part of the Council's management and control functions in dealing with anti-social behaviour on its estates in accordance with the Housing (Miscellaneous Provisions) Act 1997 (as amended). Having regard to particular circumstances of this case, I do not accept that it is reasonable to expect that An Garda Síochána will refuse to cooperate in the future with the Council's enquiries relating to anti-social behaviour as a result of the release of this particular record. The applicant is aware that the Council obtained information from An Garda Síochána in relation to her housing application. I further note that the Council has already informed the applicant of the general substance of the information obtained in an interview dated 21 November 2013. Accordingly, I am satisfied the release of the record at issue, with the deletion of the information I have found to be exempt under section 28, could not reasonably be expected to result in any of the harms identified in sections 23(1)(a)(i) or 23(1)(a)(ii). I find, therefore, that the Council has not justified its decision to refuse access to the record concerned under section 23.

The Council also refused access to the record under section 26 of the FOI Act. That section is concerned with the protection of information given to a public body in confidence. However, as its arguments for applying the exemption related solely to the information in the record that I have already found to be exempt from release under section 28, I do not find it necessary to consider the applicability of section 26 to the record.

Remaining Records
The remaining records were released to the applicant in part only with the redaction of information that the Council considered to be exempt from release under section 28. As I have explained above, that section provides for the refusal of a request where access would involve the disclosure of personal information relating to individuals other than the requester. Having considered the redactions in question, I am satisfied that the release of the information concerned would involve the disclosure of personal information relating to individuals other than the applicant. For the same reasons as I have outlined in respect of record 1, I am also satisfied that the public interest in release of the withheld information would not, on balance, outweigh the public interest that the right to privacy of the individuals to whom the information relates should be upheld

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby vary the decision of Council, directing the release of record 7 (schedule 1) subject to the redaction of exempt personal information as set out in this decision.

I find that the Council was justified under section 28(1) in refusing to release personal information of third parties contained in records 1 and 9 (schedule 1) and records 21, 27 and 41 (schedule 3).

Right of Appeal

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 eight weeks from the date on which notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator