Whether the Council was justified in refusing access to records relating to the applicant or his business at a specified address on the basis that section 32(1)(a)(iv) applied

3 February 2021

Background

This review has its background in a dispute between the applicant and the Council concerning waste permits for the applicant’s business. The applicant has operated his business for many years in its current location. Waste permits were sought and granted in 2004 and 2007, for a period of three years. According to the Council, waste enforcement action is ongoing in relation to the site. It alleges that the site is involved in the illegal dismantling and storage of end of life vehicles and has been operating without a waste permit for several years.

The applicant has applied for a waste permit on a number of occasions, most recently in February 2020. The waste permit application was determined to be invalid as no planning application number or planning exemption was provided with the application. I am informed that for a waste permit application to be processed, the site in question must be planning compliant. The applicant wrote to the Council stating that the site was exempt from planning as all land uses on the site had been in existence prior to 1963. He sought a declaration under the Planning Acts to this effect. The Council responded stating that it was unable to make such a declaration, due to lack of sufficient detail to demonstrate that all of the land uses were in place prior to 1963. 

In a request dated 13 December 2019, the applicant sought access to all records pertaining to him or his business at a specified address. In a decision dated 14 January 2020, the Council refused the request under section 32(1)(a)(iv) of the FOI Act (concerning prejudice to the fairness of criminal or civil proceedings).

On 29 January 2020, the applicant sought an internal review of that decision, following which the Council affirmed its original refusal of the request. It also stated that it would not provide a schedule of records, pursuant to section 32(2). That section allows a body to refuse to disclose whether records exist where doing so would have an effect specified in certain subsections of section 32(1).

On 26 February 2020, the applicant sought, through his legal representatives, a review by this Office of the Council’s decision.  For the sake of convenience, all references to communications with the applicant in this decision should be taken to include communications with his legal representatives.  In referring to the records at issue in this case, I have adopted the numbering system used by the Council when processing the request.

During the course of the review, and following an initial examination of the records at issue, it appeared to the Investigating Officer that some of the records had previously been made available to the applicant in 2011. This raised the possible relevance of section 15(1)(i) which provides for the refusal of a request where the request relates to records already released, where the records are available to the requester concerned.  The Council confirmed that records had previously been released.  However, the applicant, when contacted, explained that the business destroys files after seven years and so the records were no longer available to it.  Regardless, the Council maintained its position that section 32(1)(a)(iv) applied to those records.

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 applicant’s comments in his application for review and to the submissions made by the FOI body in support of its decision.  I have also had regard to the contents of the records concerned.  I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

The Council identified six files of records as relevant to the request. A number of records on files 5 and 6 postdate the applicant’s request and some others do not appear to contain any material directly relevant to the applicant’s request. I am satisfied that these records are outside the scope of the request and this review.  Therefore, files 1 to 4, records 5b to 5d, 5f to 5m, 5z, 5d4 to 5g7, 5l12 to 5r18, 6a to 6d and the parts of records 5e, 6h, 6l, 6m, 6n and 6u that existed at the date of the request are within the scope of the review.  The review is concerned solely with whether the Council was justified, under section 32(1)(a)(iv) of the Act, in refusing access to the records in question.

Preliminary Matters

The Council’s reliance on section 32(2) to refuse to provide a schedule in this case was inappropriate. It appears that the Council did not wish to provide details of the nature of some or all of the records at issue due to a concern that a detailed description of the records might prejudice the fairness of future proceedings.

The Central Policy Unit of the Department of Public Expenditure and Reform (see www.foi.gov.ie) has published a Code of Practice on FOI for public bodies. The Code states a schedule should be included with decisions providing details of those records being released in full, of those to which partial access is being given, and of those being refused and setting out the reasons why access is not being granted in full or in part and referencing relevant sections of the Act where refusals are made. I see no reason why the Council could not have provided a schedule of records in this case, with a minimal description of those records that it felt it could not describe in detail for fear of giving rise to the harm identified in section 32(1)(a)(iv). This would have allowed the applicant to make a more informed decision as to what records he wished to access. I expect the Council to have regard to the Code of Practice when processing requests in the future.

I must also explain at the outset that section 25(3) of the FOI act requires the Information Commissioner to take all reasonable precautions in the performance of his functions to prevent the disclosure of information contained in an exempt record or that would cause the record to be exempt if it contained that information. For this reason, the description I can give of the records and of the reasons for my decision are somewhat limited in this case.

Analysis and Findings

The Council refused access in full to records identified as relevant to the request under section 32(1)(a)(iv).  Mindful of the provisions of section 25(3) set out above, I can say that the records comprise various interactions with the applicant and internal interactions concerning the applicant’s business site extending over a long period of time, and can briefly be described as follows:

• File 1: records relating to 2004 waste permit application
• File 2: records relating to 2007 waste permit application
• File 3: records relating to legal proceedings between the parties concluded in 2011
• File 4: records relating to waste permit matters dated 2010, 2011 and 2012
• File 5: records relating to the applicant’s business held electronically – various dates
• File 6: email correspondence relating to the applicant’s business – various dates

Section 32(1)(a)(iv) – fairness of court or other proceedings

Section 32(1)(a)(iv) provides that an FOI body may refuse access to a record if it considers that such access could reasonably be expected to prejudice or impair the fairness of criminal proceedings in a court or of civil proceedings in a court or other tribunal.

It is well settled that mere assertions by an FOI body as to harms that might result from disclosure of a record are not sufficient for the Commissioner to find that a particular exemption applies. Where an FOI body relies on section 32(1)(a), it should identify the potential harm to the matters specified in the relevant sub-paragraph that might arise from disclosure and having identified that harm, consider the reasonableness of any expectation that the harm will occur. It should explain why releasing the particular record could reasonably be expected to cause the harm which it has identified. It should consider whether the matter specified could reasonably be expected to be prejudiced (that is to say, injured or potentially injured) or could reasonably be expected to be impaired (that is to say, damaged or weakened). In interpreting the words “could reasonably be expected to”, the Commissioner’s view is that the test is not concerned with the question of probabilities or possibilities. It is concerned with whether or not the decision maker's expectation is reasonable.

Where a body wishes to rely on section 32(1)(a)(iv) to refuse access to records, it should be able to refer to proceedings that are either underway or that might reasonably be contemplated. The fact that proceedings are not actually in being does not necessarily mean that the exemption does not apply. If there is a real likelihood, as opposed to a remote possibility, of such proceedings coming into being, this may be sufficient. However, the fact that proceedings may be pending does not, of itself, mean that release of records could reasonably be expected to prejudice the fairness of those proceedings.

In its submissions to this Office, the Council provided details of its previous and ongoing engagements with the applicant in connection with compliance with waste management legislation and related enforcement actions taken concerning the applicant’s business. Having regard to that description, I accept that court proceedings are reasonably contemplated in this case.

However, that is not the end of the matter.  As I have outlined above, for the exemption to apply, the Council must show how the release of the records at issue could reasonably be expected to prejudice or impair the fairness of those contemplated proceedings.

In its submissions, the Council said that several requests for information have been received to date from the applicant’s solicitors since the initial inspection was completed. It said that following discussions with its solicitors, it was advised not to disclose any information except where a summons has issued and to date no summons has issued in relation to the matter. It said that as the case will go to court for a decision, it is reluctant to disclose information which may prejudice or impair its case or provide the applicant with a clear picture of evidence gathered and its overall approach to the case in advance of a summons.

As I have outlined above, when relying on section 32(1)(a)(iv) to refuse access to a record, the body should show how or why releasing the record could reasonably be expected to harm the fairness of the proceedings, i.e. what it is about the particular record or the particular information in the record which, if released, is expected to cause the harm envisaged and how or why is that harm expected to occur.

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 particular court proceedings. There are many instances where the release of information could prejudice or impair the fairness of such proceedings. For example, if the disclosure of information were to result in the manufacture or destruction of evidence, interference with potential witnesses, etc. then clearly the fairness of the court proceedings would be prejudiced or impaired. Furthermore, this Office has previously 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.

It seems to me that the Council has, in essence, adopted a “blanket approach” to the request in this case by seeking to refuse access to all records under section 32(1)(a)(iv), regardless of the nature or contents of the records coming within the scope of the request. This is not an appropriate application of a harm-based exemption. I see no evidence to suggest that consideration was given to each record coming within the scope of the request to determine if release could reasonably be expected to prejudice or impair the fairness of the contemplated proceedings, nor is it apparent to me how such harm might arise.

As outlined above, files 1 to 4 significantly predate the process which is currently underway, even allowing for some preparatory work prior to November 2019, when a site inspection took place. It is also the case that the applicant is a party to many of the records, some of which relate to the normal processing of waste permit applications. Having examined their contents, I am satisfied that the release of these records could not reasonably be expected to prejudice or impair the fairness of the contemplated proceedings. I find that section 32(1)(a)(iv) does not apply to these records.  

On the matter of the relevant records held on files 5 and 6, I note the Council’s argument that it does not wish to provide the applicant with a clear picture of evidence gathered and its overall approach to the case in advance of a summons.

The making available by a public body of evidence in advance of a hearing does not, in principle, prejudice or impair the fairness of the hearing. The mere fact that disclosure of certain information might weaken the prosecution or strengthen the defence is irrelevant as such disclosure would not, of itself, damage the fairness of the proceedings. Furthermore, the fact that release of the records by the body may provide the applicant with information in a situation where there is not a corresponding requirement on the applicant to provide the body with similar information, does not necessarily, or of itself, prejudice or impair the fairness of the proceedings. The lack of reciprocity alone does not mean that the fairness of the proceedings will be prejudiced or impaired.

Nevertheless, as noted above, this Office has previously 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. This Office has previously drawn a distinction between records which are in the nature of a submission which has been prepared with a view to being seen by other parties and records which relate to the preparation by the body for its conduct of a case or its legal strategy.

While the records at issue will clearly be of relevance to the contemplated proceedings, I am satisfied that their disclosure would not disclose the manner in which the Council intends to conduct its case or the legal strategy it proposes to adopt. In my view, the Council has not shown how the release of the records could reasonably be expected to prejudice or impair the fairness of the contemplated proceedings. I find that section 32(1)(a)(iv) does not apply to these records.  

Section 37 Personal Information

Section 37(1) of the FOI Act provides, subject to the other provisions of the section, for the mandatory refusal of a request where access to the records sought would involve the disclosure of personal information relating to an individual or individuals 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 that is personal information, without prejudice to the foregoing definition, including information relating to the property of an individual, information relating to the medical history of an individual and the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to, establish that any personal information held by the FOI body concerned relates to the individual.  

Having examined the records, I am satisfied that the following records contain personal information relating to individuals other than the applicant and that section 37(1) applies to the following information:

• Record 3d: document dated 3 July 1986
• Record 4e: first sentence of email dated 18 July 2011
• Record 5b: names and addresses of landowners
• Record 5i: all mentions of name of individual other than the applicant
• Record 5l12: full record as it relates to property of individuals other than the applicant
• Record 5m13: (includes content of 5i) all mention of name of individual other than the applicant and document dated 3 July 1986
• Record 5n14: name of individual other than the applicant

Section 37(1) is subject to the other provisions of the section, some of which serve to disapply the exemption. I am satisfied that none of the other relevant provisions serve to disapply section 37(1) in this case. I find that the information identified above is exempt from release under section 37(1) of the Act.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby annul the decision of the Council to refuse the request under section 32(1)(a)(iv) of the Act. I direct the release of the records, subject to the redaction, under section 37(1) of the Act, of certain information in records 3d, 4e, 5b, 5i, 5l12, 5m13 and 5n14.

For the sake of clarity, the records to be released are as follows: files 1 to 4, records 5b to 5d, 5f to 5m, 5z, 5d4 to 5g7, 5m13 to 5r18, 6a to 6d and the parts of records 5e, 6h, 6l, 6m, 6n and 6u that predate the request i.e. 13 December 2019, apart from the personal information in records as described above.

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 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.

 

Stephen Rafferty

Senior Investigator