Whether the Council was justified in refusing access, under section 37(1) of the FOI Act, to certain records and parts of records relating to a specified planning enforcement matter

8 February 2022

Background

In October 2018, the applicant in this case complained to the Council about alleged unauthorised development at a neighbouring property on the ground that it was not in accordance with the planning permission granted. As a result, the owner of the property carried out certain remedial works, following which the Council informed the applicant that it would be taking no further action in relation to the enforcement case and that its file on the matter would be closed.

In a request dated 16 June 2021, the applicant sought access to records relating to the matter, namely a copy of the inspector’s report, and “all documentation relating to Enforcement Actions including correspondence, planners reports to the manager, managers' decisions, representations made under section 152 of the Planning and Development Act, warning letters, enforcement notices and notes on site visits”. In a decision dated 15 July 2021, the Council part-granted the request. Of the 19 records it identified as coming within the scope of the request, it released 10 records in full. It refused access in full to three records and redacted six further records, under section 37(1) of the Act.

On 10 August 2021, the applicant sought an Internal Review of the Council’s decision. In its Internal review decision dated 7 September 2021, the Council affirmed its original decision. It also noted that a related planning file was available for public inspection. On the same date, the applicant applied to this Office for a review of the Council’s decision. It appears she was not in receipt of the Council’s internal review decision when she submitted that application.

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 correspondence exchanged between the parties in the course of the processing of the applicant’s request, and to the applicant’s comments in her application for review. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

In referring to the records at issue, I have adopted the numbering system used by the Council in the schedule of records it prepared when processing the request. I note, however, that Records 8 and 9 appear to have been mixed up, insofar as the Council states in the Schedule that access to Record 8 was granted and that Record 9 was withheld in full under section 37(1) of the Act. It appears that Record 8 was in fact withheld in full under section 37(1), while access was granted to Record 9.

Accordingly, this review is concerned solely with whether the Council was justified in refusing access to Records 5, 7, and 8 and in granting only partial access to Records 2, 3, 4, 13, 14, and 15, under section 37(1) of the Act.

Preliminary Matters                                                                        

At the outset I wish to note that, under section 25(3) of the Act, I am required to take all reasonable precautions to prevent the disclosure of information contained in an exempt record. As such, while I am required to give reasons for my decision, the extent to which I can describe the contents of the records is limited.

In her application to this Office for a review of the Council’s decision, the applicant raised a number of additional issues apart from the refusal of certain records in whole or in part. Firstly, she applicant stated that the Council’s failure to respond by 31 August 2021 to her request of 10 August 2021 for an Internal Review of its original decision amounted to a “deemed refusal” of her application. While she is correct, the fact remains that Council issued a late decision and as such, I consider it appropriate to have regard to the details of that decision. In any event, the internal review decision did not alter the original decision in any way.

The applicant also argued that no assistance had been offered to her, citing sections 15(3) and 15(4) of the Act. Section 15(3) provides that an FOI body may not refuse to grant a request on the ground that the record is available for public inspection, purchase or removal by reason only of the fact that it contains information constituting personal data to which the Data Protection Act 2108 applies. Section 15(4) provides that an FOI body may not refuse a request under sections 15(1)(b) or 15(1)(c) unless it has first assisted, or offered, to assist the requester. No such circumstances arise in this case as the Council did not rely on section 15 to refuse any part of the request.

The applicant also referred to section 10 of the Act, which is concerned with the provision of statements for acts of FOI bodies. She essentially argued that she had not been given reasons for the Council’s decisions, as it had not provided her with all of the relevant records. Section 10 is a standalone provision that allows a person who has been affected by an act or decision of an FOI body to seek a statement of the reasons for that act or decision. A person wishing to apply for a statement of reasons must make an application under section 10 for such a statement. This review is concerned with a request made for records, under section 12 of the Act.

Furthermore, the applicant referenced a previous FOI request made to the Council in 2019 and indicated that this had not been responded to. This is entirely separate to the matter of the Council’s decision on the FOI request at hand, and as such does not fall within the scope of this review.

Finally, in her application for internal review, the applicant explained why she required access to the records at issue. Section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that this Office cannot have regard to the applicant's motives for seeking access to the information in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest

Analysis and Findings

As outlined above, the Council cited section 37(1) of the Act as a basis for refusing access in full to Records 5, 7 and 8, and for redacting sections of Records 2, 3, 4, 13, 14, and 15. Section 37(1) provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information. This does not apply where the information involved relates to the requester (section 37(2)(a) refers). However, section 37(7) provides that, notwithstanding section 37(2)(a), an FOI body shall refuse to grant a request if access to the record concerned would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester (commonly known as joint personal information). The effect of section 37 is that, generally speaking, access to a record shall be refused if it would involve the disclosure of personal information relating to individual(s) other than the requester.

Section 2 of the FOI Act defines personal information as information about an identifiable individual that either (a) would ordinarily be known only to the individual or to members of his/her family or to his/her friends, or (b) is held by an FOI body on the understanding that it would be treated by the FOI body as confidential. Furthermore, the Act details fourteen specific categories of information that is personal without prejudice to the generality of the foregoing definition, including at paragraph (xiii) information relating to property of an individual (including the nature of the individual's title to any property).

The information at issue in this case comprises the names, addresses and email addresses of individuals other than the requester, and correspondence with those individuals concerning their property. Having regard to the definition of personal information as described above, I am satisfied that the release of the information at issue would involve the disclosure of personal information relating to individuals other than the applicant. I note that some of the redacted information will be known to the applicant and that she is aware of the identities of the third parties concerned. However, I must have regard to the fact that the release of a record under FOI is regarded, in effect, as release to the world at large, given that the Act places no constraints on the uses to which information released under the Act may be put. I find that section 37(1) applies to the information at issue.

Section 37(2)

However, that is not the end of the matter as section 37(1) is subject to the other provisions of the section. Section 37(2) provides that section 37(1) does not apply in certain circumstances. In particular, section 37(2)(c) provides that section 37(1) does not apply where information of the same kind as that contained in the records in respect of individuals generally, or a class of individuals that is, having regard to all the circumstances, of significant size, is available to the general public. This is of relevance to this review, as much of the case made by the applicant in her application for internal review is that certain records should have been made available under planning legislation.

In her application for internal review, the applicant argued that, under Part III of the Planning and Development Act 2000 as amended (the Act of 2000), she was entitled to access the full documentation sought and that failure to provide the records denied her the right to make complete and accurate submissions or observations on any retention application. Part III of the Act of 2000 is concerned with planning applications. It is not concerned with what records, if any, the applicant is entitled to receive or inspect in relation to a planning enforcement matter.

Part VIII of the Act of 2000 is concerned with planning enforcement. The applicant argued that the issuance of a warning letter permitted her to make observations and that this right was being violated by the Council’s refusal to provide the record sought. Section 152 provides that where a representation in writing is made to a planning authority by any person that unauthorised development may have been, is being or may be carried out, and it appears to the planning authority that the representation is not vexatious, frivolous or without substance or foundation, the authority shall issue a warning letter to the owner, the occupier or any other person carrying out the development and may give a copy, at that time or thereafter, to any other person who in its opinion may be concerned with the matters to which the letter relates. Under section 152(4)(b), any person served with the letter may make submissions or observations in writing to the planning authority regarding the purported offence not later than four weeks from the date of the service of the warning letter.

Section 153 is essentially concerned with the requirement on the planning authority to make a decision on whether to issue an enforcement notice as expeditiously as possible. The section provides that in deciding whether to issue an enforcement notice, the planning authority shall consider any representations made to it under section 152(1)(a) or submissions or observations made under section 152(4)(b) and any other material considerations.

I note that the Council has the discretion, under section 152, to give a copy of the warning letter to any other person who in its opinion may be concerned with the matters to which the letter relates and that it provided the applicant with a copy of the relevant warning letter in this case, with the redaction of the name and address of the third party concerned. Nevertheless, there is nothing in Part VIII that requires a planning authority to make documents relating to a planning enforcement matter publicly available so that the information at issue might be regarded as information of the same kind as that contained in the records in respect of individuals generally, or a class of individuals that is, having regard to all the circumstances, of significant size, is available to the general public. I am satisfied that section 37(2)(c) does not apply in this case and that none of the other provisions of section 37(2) apply.

Section 37(5)

Section 37(5) provides that a request that would fall to be refused under section 37(1) may still 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. I am satisfied that the release of the information at issue in this case would not be to the benefit of the individuals to whom the information relates and that section 37(5)(b) does not apply.

In relation to the applicability of section 37(5)(a), in carrying out any review this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. Section 11(3) provides that an FOI body must have regard to the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. It is important to note that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (“the Enet Case”), the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and “there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure”. Although the Court’s comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.

In relation to the issue of the public interest, it is also important to have regard to the 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. 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.

It seems to me that the Council has sought to release as much information as possible in this case whilst seeking to protect the privacy rights of the third parties concerned. The records released with minor redactions of the identity and address of a third party include the warning notice that issued and copies of the inspector’s reports on the matter, and its decision on the matter, all of which, when read together explain why the Council decided that no further action would be taken following the remedial work undertaken. Having regard to the arguments made by the applicant in her correspondence with the Council, I would add that it seems to me that the Council’s decision to withhold certain information in no way impinged on any rights afforded to the applicant by the Act of 2000.

In relation to the information withheld, which includes the correspondence between the Council and the relevant third parties and their legal representatives on the matter, the FOI Act recognises the public interest in the protection of the right to privacy both in the language of section 37 and the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with the right to privacy). It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. Moreover, unlike other public interest tests provided for in the FOI Act, there is a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. Privacy rights will therefore 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.

Having examined the contents of the records at issue, and having regard to the fact that the release of information under the FOI Act is, in effect, release to the world at large, I find no sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure I this case. I find that, on balance, the public interest in granting the request does not outweigh the strong public interest in upholding the right to privacy of the individuals to whom the information relates. I find that section 37(5)(a) does not apply in this case.

I find, therefore, that the Council was justified in refusing access, under section 37(1) of the Act, to Records 5, 7 and 8 and in granting only partial access to Records 2, 3, 4, 13, 14, and 15.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Council to withhold, wholly or in part, certain of the records sought, under section 37(1) 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 not later than four weeks after notice of the decision was given to the person bringing the appeal.

Stephen Rafferty

Senior Investigator