Case number: 030611
Case No. 030611 - County Council's refusal of access to planning enforcement records - whether records contained matter relating to the Council's deliberative process- section 20(1) - whether release in the public interest - section 20(3).
The requester was refused access to records including Manager's Orders, planners' reports and Enforcement Notices served by the Council on a third party who operated a waste facility. The Council initially relied on section 23(1)(a)(ii)of the FOI Act - exemption on the basis of prejudice to the enforcement of or compliance with any law. Following correspondence with the Commissioner's Office, the Council no longer relied on section 23 and, instead, claimed that the exemption provisions of section 20(1) applied in that the records contained matter relating to its deliberative process. The scope of the request was narrowed during the review to exclude a number of records, including those relating to a current planning application.
The Commissioner's authorised official found that, although some of the records contained matter relating to the deliberative process, records such as the Manager's Orders and Enforcement Notices did not. These comprised the outcome of a statutory process under the Planning Acts and, as such, should be available to the public. The Planning Act requires that particulars of Enforcement Notices be entered in the planning register; however, the Council stated that it was not its practice to make the actual notices available to the public.
In relation to the other records, the finding was that some of these contained factual information which was distinguishable from information in the form of proposal, opinion or recommendation and thus was excluded from the section 20(1) exemption by the provisions of section 20(2)(b).
The remaining parts of records which related to the deliberative process were examined in the context of the public interest test at section 20(3). It was accepted that the Council might take further action against the landowner at some future date. However, this was not sufficient to justify the claim that disclosure of these particular records could adversely affect the Council's enforcement functions. It was noted that once the decision is taken to proceed with enforcement action, the public interest in withholding information on the recommendations on which that action was based weakens. It was also noted that the planning and development control system does not provide for an individual carrying out development to have dealings with a planning authority in a secret or private manner. There is a positive public interest in the public being informed as to how allegations of unauthorised development are investigated and pursued.
The decision found, on balance, that the public interest was better served by granting than by refusing the request, that the section 20(1) exemption did not apply and that the records should be released.
Our Reference : 030611
I refer to your application on behalf of your client [ ], received in this Office on 3 June 2003, for a review by the Information Commissioner, under the Freedom of Information (FOI) Acts, of the decision of Cork County Council on your FOI request. Your request was for access to any records held by the Council about [ ].
I have been authorised by the Information Commissioner to conduct this review on her behalf. At the outset, I wish to apologise for the delay which has arisen in completing our review in this case.
On 3 March 2003, the Council received an FOI request from you for the records described above. The Council identified records coming within the scope of your request both in its Environment Department and in its Planning Department. In May 2003, the Council's Environment Department released a large number of records to you. However, a decision to refuse access to the records of the Planning Department was notified to you on 30 April 2003. Following your application for an internal review of this decision, the refusal of access was upheld by the Council's internal reviewer in his decision of 28 May 2003.
In conducting this review, I have had regard to the Council's conclusions on the matter and to its responses to detailed queries raised by this Office. I have also had regard to your contacts with this Office and with the Council, to the records themselves and to the provisions of the Freedom of Information Act, 1997 as amended by the Freedom of Information (Amendment) Act, 2003. I note that on 3 September 2003, Elizabeth Dolan, Investigator, of this Office sent you her preliminary views on some of the issues arising in this review and I have taken into account your response as communicated to Ms Dolan in your telephone conversation with her on 26 September 2003.
Arising from this Office's contacts with the Council and with yourself in the course of this review, some additional records have been released and further records have been identified as being available for public inspection and thus not covered by the FOI Act, having regard to section 46(2)(a) of that Act. Schedules of the records held have been provided by the Council and you have agreed that certain records no longer require to be considered in the review. In her letter to you of 30 September 2003, Ms Dolan outlined the remaining records withheld by the Council to which you wished to have access. She gave you her understanding of your telephone discussion of 26 September 2003 in relation to the scope of the review and I note that you have not indicated that you disagree with that position.
Further, on 17 October 2003 you confirmed by fax message to this Office that you did not require this review to rule on record 27, which relates to a current planning application, and that copies of maps and plans attached to records are not required either.
In summary, the 23 records remaining at issue are all from the files of the Planning Department and are as set out in the following table using the identification numbers adopted by the Council:
[ Table deleted]
The issue arising in this review is whether or not the Council is correct, within the terms of the FOI Act, in refusing you access to the above records.
I note that Ms Dolan expressed the view in her letter to you of 30 September 2003 that access to copies of the two enforcement notices served by the Council might not be available under the FOI Act by virtue of their being available for inspection under planning legislation. When this point was subsequently raised with the Council, it stated that while section 154(10) of the Planning and Development Act, 2000 requires that particulars of an enforcement notice shall be entered in the planning register, it is not its practice to make the actual enforcement notices available to the public. Accordingly, as you will see from the table above, the examination of these records will form part of this review.
The Council's position, as notified to you in its decision of 30 April 2003 and in its internal review decision of 28 May 2003, was that access to the records was refused on the basis of section 23(1)(a)(ii); this covers situations where access could reasonably be expected to prejudice or impair the enforcement of, compliance with, or administration of any law. The Council's decisions did not provide any information as to why it had applied the section 23 exemption in relation to the particular records at issue; nor did it identify, in a schedule or otherwise, which records it held. Following correspondence with Ms Dolan of this Office, the Council has released some records to you and has scheduled all of the records covered by your request which its Planning Enforcement Department says it holds. The Council is no longer relying on the section 23 exemption and, as you have been informed, section 20(1) is now the exemption being claimed by the Council in relation to the withheld records.
Before I proceed to examine the records in the context of the exemption claimed, I draw attention to the provision at section 34(12)(b) of the FOI Act whereby a decision to refuse to grant a request for access to records shall be presumed not to have been justified unless the public body concerned shows to the satisfaction of the Commissioner that the decision was justified.
Section 20 - deliberations of public bodies
The Council argues in its submissions that, until such time as it has determined whether or not the developer has fully complied with the Enforcement Notices and decided whether or not further action is necessary, all of the records at issue still form part of its deliberative process.
Section 20 of the FOI Act, 1997 (as amended) provides:
"(1) A head may refuse to grant a request under section 7 if the record concerned contains matter relating to the deliberative processes of a public body (including opinions, advice, recommendations and the results of consultations, considered by the body or a member of the body or of the staff of the body for the purposes of those processes)."
Deliberative processes involve the consideration of various materials with a view to making a decision on a particular matter. For the purposes of this review, and in the broad sense of the term, I am prepared to accept that the records numbered 14, 22, 23, 29, 33, 37, 40 and 60 contain matter relating to the deliberative processes of the Council. These records constitute the recommendations, advice and results of consultations considered by the Council in its determination of whether to proceed with a warning letter under section 152 of the Local Government (Planning and Development) Act, 2000 and the service of Enforcement Notices under section 154 of that Act. However, I am aware that it is the view of commentators on the operation of this type of exemption in the context of Australian and other FOI jurisdictions that, in order to qualify as a record relating to the deliberative process, the record would have to be concerned with policy-making processes of public bodies as opposed to purely procedural or service delivery functions. In assessing whether the act of considering planning enforcement action in the circumstances of this case amounts to a deliberative process, I have taken account of the view implicit in the Council's submissions that it has discretion to decide whether to proceed further against the developer in this case. If the Council were confined to establishing the facts and circumstances, and applying a pre-existing principle, I would not be prepared to accept that this constituted a deliberative process in the sense intended by the FOI Act.
Records 19, 31 and 42 as well as the records of the Manager's Orders and Enforcement Notices numbered 1 -6 on each of the two Enforcement Notice Files do not, in my opinion relate to the deliberative process. To a certain extent, they represent the outcome of a deliberative process rather than relating to the workings of that process itself. These particular records represent the exercise by the Council of its regulatory role under the Planning Act and they do not, in themselves, contain any weighing up or evaluation of options open to the Council.
In response to Ms Dolan's point that particulars of the Enforcement Notices are available for public inspection, the Council says that although the notices themselves are not made available, the names and addresses of those served, date of service, location and nature of the unauthorised development and a site location map are available in the planning register. Although I do not know to what extent, if any, the information in the register differs from that in the records under consideration, I have to say that I can see no justification at all for the Council's reliance on section 20(1) of the FOI Act in its refusal to release records of statutory notices issued under the Planning Act. More than any almost any other area of public administration, the conduct of the planning process is intended to be an open process and records disclosing the actions of the planning authority - the Council in this case - should be available to the public.
It is my finding that records 19, 31 and 42 on the Enforcement File and records 1-6 on each of the Enforcement Notice files are not exempt by virtue of section 20(1) and should be released. As regards the remaining records at issue, where I accept that they relate to the deliberative processes of the Council, section 20(1) is subject to the provisions of sections 20(2) and 20(3) of the FOI Act.
Section 20(2)(b) -Factual Information
Sections 20(2)(a), (c), (d) and (e) would not appear to be relevant in this case. However, section 20(2)(b) provides:
"Subsection (1) does not apply to a record if and in so far as it contains -
....(b) factual information.."
As for the question of what constitutes "factual information", the Freedom of Information (Amendment) Act, 2003 provided for the inclusion, in the 1997 Act, of a definition of this term as follows: "factual information includes information of a statistical, econometric or empirical nature, together with any analysis thereof". It is the Commissioner's view, as expressed in a recent decision, that the use of the word "includes" in the definition means that while information of a statistical, econometric or empirical nature should be regarded as factual, regard must also be had to the ordinary meaning of the term when considering its scope.
It seems to me that had it been intended that only information of a statistical, econometric or empirical nature, together with any analysis thereof, should be deemed to be factual information for the purposes of the Act, then the term could have been defined by stating that that is what it means as opposed to what it includes. In the circumstances, I am satisfied that it is appropriate for me to have regard to the ordinary meaning of the term "factual information" when considering its scope.
The Oxford English Dictionary defines factual as "pertaining to or concerned with facts of the nature of fact, actual, real", while fact is defined as "Something that has really occurred or is actually the case; something certainly known to be of this character; hence, a particular truth known by actual observation or authentic testimony, as opposed to what is merely inferred, or to a conjecture or fiction; a datum of experience, as distinguished from the conclusions that may be based upon it". Having regard to those definitions, I am satisfied that factual information would generally include, for example, material presented to provide a factual background to the central topic in a record. Furthermore, factual information is, in my view, distinguishable from information in the form of proposal, opinion or recommendation.
Having examined records 14, 22, 23, 29, 33, 37, 40 and 60, I find that section 20(1) does not apply, by virtue of the provisions of section 20(2)(b), to the following factual information:
The full report with the exception of the first 4 lines of "Conclusion", the "Planner's comments" and the "Recommendation".
The full report with the exception of Paragraphs 3 -6 of page 2; "Conclusion" and "Recommendation" on page 3 and 4.
The full record with the exception of the last sentence.
The full report with the exception of the last sentence of item (6) on page two and "Conclusion" and "Recommendation" on pages 2, 3 and four.
As for Record 40 above but excluding the hand-written annotation.
Section 20(3) - the Public Interest
I turn now to the remaining records or parts of records which may meet the requirements necessary to invoke the section 20 exemption in that they contain information considered by the Council in deciding on a proposed course of action.
Section 20(1) is subject to a public interest test at section 20(3) which provides:
"Subsection 1 does not apply in relation to a case in which, in the opinion of the head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the request."
Taking the first and the fourth point together, the Council has not explained how, or in what way, release would impair its ability to carry out its statutory functions in relation to the planning enforcement cases with which these records are concerned. Although the reports and correspondence at issue may have qualified for exemption at the time the records were created, it seems to me that the process of considering them ended with the issuing of the Enforcement Notices on [date]. I accept the Council's position that its Enforcement file is still open on this development. I also accept that the Council may take further action at some future date, depending on the developer's level of compliance with the Council's requirements as specified in the notices. However, I do not accept that the possibility of further action by the Council is sufficient to justify a claim that release of these records - which detail the investigations and recommendations concerning works that the Council decided were unauthorised in the first place - would affect adversely its functions in relation to planning enforcement. As I see it, any consideration by the Council as to whether or not the developer has complied with the notices issued would constitute a separate process. If such a process takes place, it will presumably be informed by further inspection reports from the Council's staff; any decision on further enforcement action would take account of such reports and of whatever analysis or recommendations they might contain.
Once the decision has been taken to proceed with any proposed action - in this case the issue of enforcement notices - the public interest in withholding the information weakens. In this regard, I note that under the Planning Act an enforcement notice does not cease to have effect until ten years after the date of service.
Neither can I see how release of the enforcement records would impair the ability of the Council to consider and determine the current planning application under [file reference] in accordance with its functions under the Planning Act.
As I understand it, the Council's concerns in relation to any future case relate to the possibility that legal proceedings could be taken by it against the developer arising from the issue of the Enforcement Notices. I note that the Planning Act provides, inter alia, that if the steps specified in the notice are not taken within a certain period, the persons served with the notice may be guilty of an offence, that proceedings may be brought by a planning authority and that penalties on conviction are laid down in the Planning Act. There is also a separate provision whereby the planning authority or any other person may apply to the High Court or to the Circuit Court for orders in relation to unauthorised development. The Council has not identified how disclosure of records, such as the inspectors' reports, might affect any proceedings it might take. According to the Council, the withheld records would form part of the prosecution file should a decision be made to instigate proceedings. While I can understand that a party to a prosecution might prefer not to disclose its information in advance of a Court case, this, in itself, could not be held to be likely to prejudice any proceedings.
The information in the inspection reports and other records does not, in my opinion, divulge any particular strategy to be used by the Council in any future litigation. Indeed, the nature of the unauthorised development and the fact that warning letters and enforcement notices were served is already in the public domain. I should say also that there is nothing on the Council's files as forwarded to this Office to indicate that any of the records were prepared with the dominant purpose of preparing for litigation; if this were the case, legal professional privilege would attach to them and they would be exempt from release by virtue of section 22(1)(a) of the FOI Act.
I am aware that your client has initiated proceedings concerning the development in question. The case has not been made that release of these records under the FOI Act would have an effect on the Council's involvement in these proceedings. The motive of the requester for seeking the records, and any use he might make of them, have to be disregarded in dealing with an FOI request [section 8(4) of the FOI Act].
I cannot disagree with the proposition that there is a public interest in ensuring that public bodies deal with individuals in a fair and equitable manner. However, the Council has not elaborated on its view that this is a factor favouring the withholding of the records in this case. If this is intended as an argument that the developer, or others involved in the enforcement case, should not be denied access to records obtained by the requester, it would be open to the Council to rectify matters through making the same records available to the other parties.
The Council puts forward as a public interest factor in favour of withholding the records the "right of an individual to regularise his/her situation to the benefit of all in as confidential [a] manner as possible". If this is a claim that participants in the planning enforcement process expect or have rights to some degree of confidentiality, I do not agree that this is the case. The reality is that the planning and development control system does not provide for an individual carrying out development to have dealings with a planning authority in a secret or private manner; this is unlike, for example, the situation in most cases under the
Revenue or Social Welfare Codes. Planning applications, third party observations, appeals as well as enforcement notices giving particulars of unauthorised development are all in the public domain. While I accept that the Council believes it is to the benefit of the public that it pursue a resolution with the developer in this case through ongoing discussion and monitoring, the records now under consideration in this review do not cover any such discussions because they end with the serving of the enforcement notices [ ].
The Council also suggests in its submissions that agents for the developer should be consulted before some of the records could be released. I have considered this suggestion and my conclusion is that as the records do not contain personal information relating to these professional advisors, information given in confidence or commercially sensitive information release of which is being considered in the public interest, there is no requirement for such consultation. I intend, however, to give notice of this decision to the developer/landowner.
In relation to the Council's dealings with the parties in the course of its regulatory role, I note that contacts between the Council's Environment Department and agents for the developer, as well as site inspection reports in connection with enforcement of the Waste Management Act, are among the records already released in response to your client's FOI request. This would indicate that this type of record would not normally be treated as confidential.
In addition to the public interest in members of the public exercising their rights under the FOI Act, there is a positive public interest in the public being informed as to how allegations of unauthorised development are investigated and pursued. There is considerable public concern about environmental matters generally and there is a public interest in the community seeing how decision making in relation to enforcement under the Planning Acts is conducted. Having considered the Council's arguments carefully, I am satisfied that, the public interest would, on balance, be better served by granting than by refusing to grant this request. Accordingly, I find that the records should be released.
In the course of your contacts with this Office, you indicated that you wished to have access to records concerning [ ]. I understand that there are references to this contractual arrangement in records released to you by the Council's Environment Department. Ms Dolan asked the Council whether any further records concerning [ ] are held on its files in relation to the lands at [ ]; its response was that while it had no difficulty in confirming [ ], records about them were not held with the records the subject of your request. Since the scope of your original request was clearly confined to records about the activities on the lands [ ], and I can see no reason why additional material in relation to [ ] would be held on those files, this review cannot be extended to cover records of other dealings the Council may have with the landowner.
Having carried out a review under section 34(2) of the Freedom of Information Act 1997, I hereby vary the decision of Cork County Council in this case. I direct that access be granted, in the form of copies, to records 14, 19, 22, 23, 29, 31, 33, 37, 40, 42 and 60 on Enforcement File [ ] and to records 1 - 6 on files [ ] as described above.
A party to a review, or any other person affected by a decision of the 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 of this letter.
Office of the Information Commissioner