Case number: OIC-132858-S0K1F4

Whether the Council was justified in refusing access to a planners report concerning the applicant’s property

 

19 April 2023

 

Background

In a request dated 22 September 2022, the applicant sought access to a complete copy of a planning file held by Cork County Council in respect of an inspection, which had been carried out on the applicant’s property. The inspection had been carried out in respect of an alleged unauthorised development.

On 12 October 2022, the Council issued its decision. The Council refused access to the file citing exemption under sections 29(1) and 32(1) of the FOI Act. The decision clarified that the file consisted of only three documents and noted that the applicants were already in possession of two of these documents. Accordingly, the only record considered for release, was the planner’s inspection report on the file. The Council argued that the matter was one prepared for the sole purpose of compliance and enforcement and noted that should the matter proceed to Court, the report would be relied on as evidence. Accordingly, the Council argued that early release of the report could prejudice the enforcement of the alleged offence.

On 14 October 2022, the applicant sought an internal review of the Council’s decision. The internal review noted that documents contained the personal information of the applicant, and that the applicant was seeking to understand whether the documents were misleading, inaccurate or incomplete in anyway, and requested to know whether the Council would grant access to part of the documents on that basis. The Council issued its internal review decision on 11 November 2022. It upheld the original refusal, it noted that there was no third party complaint and as such the only relevant record was the planners report. It further noted that the nature of the allegation was disclosed in the warning letter which the Council had issued to the applicants. The Council noted that the planners report was part of a live investigation, it noted that once a decision had been reached on the matter the planners report would be made available.

On 29 November 2023, the applicant applied to this Office for a review of the Council’s decision.

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 submissions made by the relevant parties who made submissions. I have also examined the record at issue. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

The scope of this review is concerned solely with whether the Council was justified in refusing access under sections 29(1) and 32(1)(a) of the Act, to the planners report in the relevant enforcement file.

Preliminary Matters

Before I address the substantive matters, I wish to make a few preliminary points.

First, 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. In light of that requirement, the descriptions I can give of the Council’s arguments in support of its refusal of the request and of the reasons for my decision are somewhat limited in this case.

Secondly, the release of a record under the FOI Act is understood, effectively, to be equivalent to its release to the world at large, given that the Act places no restrictions on the uses to which a record released under FOI may be put.

Finally, while the applicant’s reason for seeking access to the records has been outlined it is important to note that section 13(4) of the Act generally requires the FOI body to disregard any reason that the applicant gives for a request in deciding whether to grant or refuse the request.                                                                                                       

Analysis and Findings

During the course of the review, the Department provided this Office with submissions, wherein it argued that the records sought are exempt from release under sections 32(1)(a)(ii) and 29(1). I propose to consider the applicability of section 32(1)(a)(ii)  in the first instance as I consider that provision to be of most relevance in this case.

Section 32(1)(a)(ii)

Having regard to section 25(3) of the FOI Act, the extent to which I can describe the contents of the record is limited. I am however, also aware that the Council would have provided the applicant with high level details in respect of the inspection and the alleged non – compliance, via the warning letter which issued. As such, I do not consider myself in breach of section 25(3) by saying that the report contains details of the inspection which took place on the applicant’s primary residence in respect of an alleged unauthorised development and the planner’s recommendations in respect of same.

Section 32(1)(a) provides for the refusal of an FOI request if, in the opinion of the head of the FOI body, access to the record concerned could reasonably be expected to prejudice or impair

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

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.

According to the Council, the matter is one which relates to a planning enforcement investigation into an alleged unauthorised development under the Planning and Development Act 2000, it notes that the matter is a potentially criminal matter.

It argues that the applicants have been informed of the alleged offence by the Council and have received the warning letter explaining in sufficient detail the nature of the alleged offence. The Council maintains that releasing the report before a decision is reached on whether to pursue prosecution or not, could prejudice the enforcement of the alleged offence by disclosing evidence gathered by the Council. It contends that should this matter proceed to Court; the planners report will be relied on as part of the evidence at a hearing. The Council also notes that inspection reports are also produced as part of the assessment of all planning applications and that reports are published following the issue of a decision.

Although, the applicant was provided with an opportunity to make submissions, he did not provide any in relation to the matter.

I fully accept that public bodies should be afforded the space to consider various options without undue intrusion, particularly when considering how to proceed in respect of an investigation or potential prosecution. I also accept the right of any person to be duly informed of the nature of any allegation against them in accordance with fair procedures. I have had regard to the record with this in mind.

From my examination of the record, a lot of the information contained within it is likely already in the applicant’s possession by virtue of the warning letter which issued. I also note that the report contains potential evidence collected during the planner’s independent investigation, and details of how information in relation to this matter came to be in his possession. It is entirely possible that this information has not been disclosed to the applicant at this juncture.

It has been the position of this office previously, that were an investigation is still ongoing, a prosecution has not commenced and there is a strong possibility that a criminal prosecution will result, the arguments in favour of release of relevant records are weak and remain weak until such time as the investigation has been completed and a prosecution has been concluded or a decision has been taken not to institute a prosecution.

I consider this to be the most relevant factor in the consideration of the matter and am satisfied on that basis, that the release of the report in this matter could reasonably be expected to prejudice or impair the enforcement of any relevant prosecution arising out of the consideration of this matter. I find therefore that section 32(1)(a)(ii) applies.

Section 32(3) – Public Interest

Section 32(3) of the FOI Act contains a limited public interest test.  It provides that in certain circumstances, section 32(1) does not apply where the body considers that the public interest would, on balance, be better served by granting the request. The circumstances are as follows:

  • if the record discloses that an investigation for the purpose of the enforcement of any law, or anything done in the course of such an investigation or for the purposes of the prevention or detection of offences or the apprehension or prosecution of offenders, is not authorised by law or contravenes any law, or
  • if the record contains information concerning the performance of the functions of an FOI body whose functions include functions relating to the enforcement of law or the ensuring of the safety of the public (including the effectiveness and efficiency of such performance), or
  • if the record contains information concerning the merits or otherwise or the success or otherwise of any programme, scheme or policy of an FOI body for preventing, detecting or investigating contraventions of the law or the effectiveness or efficiency of the implementation of any such programme, scheme or policy by an FOI body.

Neither party chose to make submissions in respect of the applicability of section 32(3). An inspection report in respect of a live investigation although, it contains details of the performance of functions of the Council relating to the enforcement of law, is itself not primarily concerned with these functions. Rather, the concern, is assessment of the overall compliance with the Planning and Development Act 2000 by the subject of the inspection/investigation. In my view, the provision is aimed at ensuring that public bodies cannot rely on section 32(1) to refuse access to records concerned with how they carry out their functions, I do not believe this applies here. I find therefore that section 32(3) does not apply in this case.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Council’s decision. I find that the Council was justified in refusing access to the record in question.

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.

 

Rachael Lord
Investigator