Whether the Council was justified in refusing access to records relating to the re-zoning of certain lands by Naas Town Council under section 32 of the FOI Act
28 May 2019
In 1998, the applicant made submissions to Naas Town Council seeking the re-zoning of certain lands as part of the 1999 Naas Town development plan. The applicant said that it would donate certain land to the Council for public use if all of the zoning it requested was included in the plan. Some but not all of the requested zoning was included in the plan and in 2001, the applicant transferred certain lands to the Council.
In 2009, the Supreme found in an unrelated case (McHugh v. Kildare County Council  IESC 16) that an agreement on the part of Kildare County Council and the plaintiff that he would transfer some land to the Council in the event of other land being rezoned was not an agreement within the meaning of section 38 of the Local Government (Planning and Development) Act 1963, as amended by the Act of 1976, and was ultra vires the Council.
In June 2018, lawyers for the applicant wrote to the Council and stated that "the transfer of the said lands and any agreement pursuant to which the lands were transferred was ultra vires, void and unenforceable." The letter called on the Council to rectify the matter and stated that if it did not do so the applicant reserved the right to issue proceedings against the Council. On 11 June 2018, the applicant made an FOI request to the Council for access to the following records:
- · All records relating to any agreement between the applicant and the Council in relation to the re-zoning of certain lands in the 1999 Development Plan;
- · Any records relating to any agreement in writing dated 16 April 1999 between the Council and the applicant;
- · Records of meetings and communications between the applicant and the Council between 1999 and 2001 (to include both 1999 and 2001);
- · All records relating to the purported transfer of lands comprised in a certain folio by the applicant to Naas Town Council on 19 November 2001.
On 4 July 2018, the Council refused access to the requested records under section 15(1)(i) of the Act on the basis that the records were already released to the applicant in a previous FOI request. The applicant requested an internal review of this decision. In its internal review decision of 16 August 2018, the Council stated that some records relevant to the current FOI request were the subject of an FOI request in 2003. It stated that following a decision of this Office in case 030520 (Mr. X and Naas Town Council) it released certain records, some of which are relevant to the current case. The Council acknowledged that the requester in 2003 was a third party and not the applicant and that therefore section 15(1)(i) was not an appropriate ground for refusal. The Council stated, however, that the context in which the records are now requested is entirely changed since this period as the applicant’s lawyers have challenged the Council’s ownership of the lands in question and have threatened legal proceedings. The Council refused access to the records under section 32(1)(a)(iv) of the Act on the basis that granting access to the records could reasonably be expected to prejudice or impair the fairness of court proceedings.
On 11 February 2019, the applicant applied to this Office for a review of the Council’s decision. Both the applicant and the Council provided submissions during the course of the review.
I have decided to conclude this review by way of a formal binding decision. In conducting this review, I have had regard to the contents of the records, to the submissions of the parties, and to the provisions of the FOI Act 2014.
Scope of Review
The Council identified the following four sets records which fall within the scope of the applicant's request: (i) records A-Z; (ii) records AA to AZ; (iii) records BA to BZ; (iv) records CA to CI.
Records A-T relate to the previous FOI request made to the Council in 2003. These records do not relate to the agreement between the applicant and the Council or to the transfer of lands from the applicant to the Council. The records relate to communications between this Office and the Council or the requester and concern the steps taken by the Council to identify the records which fall within the scope of that request. I note that part of the transfer document dated 19 November 2001 is attached to record 'A'; however, the full transfer document record is contained in record 'BY'. I am satisfied, therefore, that records A-T fall outside the scope of this review.
Record BG contains minutes of Naas Town Council meetings. The Council has confirmed that it has released this record to the applicant. I am, therefore, excluding it from the scope of this review.
During the course of the review, this Office informed the applicant that a number of the records contain personal information in relation to the property interests of third party individuals. The applicant confirmed that it is willing to exclude this information from the scope of the review. For the avoidance of doubt, I would have found this information to be exempt under section 37 of the FOI Act which provides that an FOI body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information relating to an individual other than the requester (including personal information relating to a deceased individual). The definition of personal information which is contained in section 2 of the Act includes information relating to property of the individual (including the nature of the individual's title to any property). I have attached a schedule to this decision listing the record or parts of records which contain personal information which falls outside the scope of this review.
The scope of this review is confined to whether the Council was justified in its decision to refuse access to the following records under section 32(1)(a)(iv) of the FOI Act: (i) records U-Z; (ii) records AA to AZ; (iii) records BA to BZ (excluding BG); (iv) records CA to CI.
Section 13(4) of the FOI Act provides that the actual or perceived reasons for a request must generally be disregarded by the decision maker, including the Information Commissioner, (except insofar as such reasons are relevant to consideration of the public interest or other provisions of the Act).
Section 18 of the FOI Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. However, the Commissioner takes the view that neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent.
Although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the records at issue and the material that I can refer to in the analysis is limited.
Finally, the release of a record under the FOI Act is understood, effectively, to be equivalent to its release to the world at large.
Analysis and Findings
Section 32 – Law enforcement and public safety
Section 32(1)(a) provides that a head may refuse to grant an FOI request if access to the record concerned could, in the opinion of the head concerned, reasonably be expected to prejudice or impair: (iv) the fairness of criminal proceedings in a court or of civil proceedings in a court or other tribunal. Where a record falls to be refused under section 32(1), the FOI body must still consider the public interest test under section 32(3).
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. A mere assertion of an expectation of harm is not sufficient. The FOI body should specify what it is about the particular record which, if released, is expected to cause the harm envisaged. Having identified the harm envisaged, the FOI body is expected to show how release of the particular record could reasonably be expected to result in that harm. 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.
The applicant states that in 2009, the Supreme Court found that a Council cannot (and never could) exchange zoning in return for a gift of land to the Council. The applicant states that the Council were a party to this ruling, yet two years later in 2011 they purported to register ownership over part of the applicant's lands. The applicant states that it wishes to remove the Council from the title to the lands and it would like to receive any information it is entitled to receive under its FOI request.
The Council argues that the applicant is seeking to use the FOI process to prepare for future proceedings against it. It argues that the appropriate manner for deciding whether records should be released is through a court order for discovery as such an order provides that the records can only be used for the purposes of those proceedings. The Council states that if the records are released under FOI, their use cannot be controlled. It argues they could be used by the applicant to create adverse publicity that, in the event of subsequent court case, may prejudice the capacity of the Council to defend its case. The Council also argues that the applicant should have its own copy of all documentation which it submitted or sent to the Council.
The Council states that it cannot benefit from a reciprocal full disclosure of all relevant records held by the applicant. It argues that release of the requested records will aid the applicant in developing their strategy for proceedings and will provide the applicant with an insight into possible tactics to be used by the Council in its defence. It argues that it would be unfair, if having prepared its stance, it was then obliged to hand over its preparations to the applicant. It argues, therefore, that release of the records under FOI will provide the applicant with an unfair advantage. Finally, the Council states that the applicant offered the lands in question to the Council for use as a public park. It argues that the public interest would not be served by assisting the applicant in its efforts to reverse its original decision to offer the lands for public use and reversing the agreement made with the Council.
The fact that it may be open to the applicant to seek the records through discovery does not mean that it may not seek access to the records under FOI. In case 020179 (Organisation A and the Department of Arts, Sport and Tourism) (available at www.oic.ie
) the former Commissioner made the following observation, which I consider to apply equally to this case "I am aware of no restrictions on the use of the FOI Act as a means of obtaining documents held by a public body which might otherwise be available through the process of discovery". She noted E.H. v The Information Commissioner
2 IR 463 in which O'Neill J. commented: "I think it will undoubtedly be the case that as the public grow accustomed to the opportunities of disclosure contained in the Act, as time goes by and where litigation may be contemplated or indeed where it has even occurred they may opt to seek disclosure of documents via the Act rather than via the traditional method of discovery."
In this case, the Council argues that release of the records could prejudice the fairness of the proceedings as it could result in prejudicial pre-trial publicity. The fact that applicant offered to transfer certain lands to the Council in return for zoning is in the public domain. There is extensive reference to this matter in the minutes of monthly meetings of Naas Town Council which have been released to the applicant during this review as record "BG". The applicant was a party to the transfer agreement and it is reasonable to assume that it has copies of correspondence and transfer documents relevant to this matter. The Council has not explained and it is not apparent to me from my examination of the records what it is about their content or any particular content which, if released, is expected to cause prejudicial pre-trial publicity; neither has it explained any rationale for its assertion that this prejudicial pre-trial publicity is reasonably 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 proceedings. The fact that release of the records by the Council may provide the applicant with information in a situation where there is no reciprocal requirement on the applicant to provide the Council with similar information does not necessarily prejudice the fairness of the proceedings. In order for the exemption to apply, I consider that the FOI Body should show how or why release of the withheld information at the time of the Commissioner's review could reasonably be expected to harm the fairness of the proceedings. The Commissioner has previously drawn a distinction between records which are prepared with a view to being seen by other parties and records which relate to the preparations by the FOI body for its conduct of a case or its legal strategy. He has 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.
In this case, the records contain correspondence between the applicant and its lawyers and the Council and its lawyers in relation the transfer of certain land to the Council. The records also contain copies of a Deed of Conveyance and maps of certain lands that were transferred. The records date from 1998 to 2002. The records do not relate to Council's preparations for court proceedings nor do they relate to tactics that the Council might use in its defence. I am not satisfied that the records are exempt under section 32(1)(a)(iv) of the FOI Act and I find accordingly. In light of this finding, it is not necessary to consider section 32(3) and the public interest.
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I annul the Council’s decision to refuse access to the records under section 32(1)(a)(iv). I direct the release of the records to the applicant subject to the redaction of certain personal information in relation to the property interest of third parties which falls outside the scope of the request. For the avoidance of doubt, I have attached a schedule to this decision listing the records or parts of records which contain personal information and which fall outside the scope of this review.
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.