Case number: OIC-106777-T6P7Q9

Whether the Council was justified in refusing access, under section 15(1)(a) and 37 of the FOI Act, to further records and information relating to a specified right of way




1 October 2021



In a request dated 13 July 2020, the applicant sought access to all relevant information held by the Council “in regard to the right of way situation” at a named location. In a decision dated 30 July 2020, the Council refused the request under section 15(1)(a) of the FOI Act, on the grounds that it holds no relevant records. By letter dated 20 August 2020, the applicant sought an internal review of that decision. The Council did not issue an internal review decision within the statutory timeframe. Following correspondence with this office, the Council issued its effective position issued on 21 October 2020, wherein it varied its original decision. It identified three documents as falling within the scope of the applicant’s request. It released one record in full (Record 3a), one in part (Record 2a) and it refused access to a third record (Record 1a). It cited section 37(1), which is concerned with the protection of third party personal information, as a ground for withholding the records in whole and in part. On 26 April 2021, the applicant sought a review by this Office 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 correspondence between the parties as described above and to the correspondence between this Office and both parties on the matter.  I have also had regard to the contents of the records provided.  I have decided to conclude the review by way of a formal, binding decision. 

Scope of the Review

During the review, the applicant indicated that he is in possession of a complete copy of Record 2a. As such, I have excluded that record from the scope of this review. 
Accordingly, this review is concerned with;
(a) whether the Council was justified in refusing access, under section 37(1) of the Act, to Record 1a, and 
(b) whether the Council was justified in refusing access, under section 15(1)(a) of the FOI Act, to any further records coming within the scope of the applicant’s request other than the three located on the ground that no further relevant records exist or can be found.

Preliminary Matters

Before I address the substantive issues arising, I wish to make a number of preliminary comments.
First, 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
Secondly, I also note that in his correspondence with this Office, the applicant has expressed concerns about the Council’s handling of matters relating to a disputed right of way. This Office has no role in the investigation of complaints regarding the manner in which FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies. For example, we have no role in investigating whether or not a particular property is private property. Our review in this case is confined to a consideration of the decision taken on the applicant’s FOI request as set out in the section above entitled “Scope of the Review”.

Analysis and Findings

Record 1a
Record 2a, to which access was granted in part, comprises a letter from the Council addressed to “To whom it may concern” and is headed “Re: Confirmation of No Right-of-Way of the laneway [specified]”. The letter indicates that an agreement was formalised with certain named parties to allow the Council access through part of specified property to a specified trail. It describes the way marked trail as “permissive routes” that were developed with the agreement of the landowners and indicates that it is not “rights of way”. In the letter, the Council states that it does not hold any right-of-way, formal or otherwise, over the specified laneway.
The record at issue, record 1a, is a letter from the Council to certain parties concerning the proposed rehabilitation of the trail. While it contains information, in part, relating to private lands, it also contains details relating to the Council’s plans for the trail itself.
As set out above, the Council refused access to the record under section 37(1) of the Act. Section 37(1) provides for the mandatory refusal of a request if the FOI body considers that access to the records sought would involve the disclosure of personal information relating to individuals other than the requester. For the purposes of the Act, personal information is information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or his/her family or friends, or (b) is held by an FOI body on the understanding that it would be treated by it as confidential.  Section 2 of the Act details fourteen specific categories of information that is personal information without prejudice to the generality of (a) and (b) above, including: (xiii) information relating to property of the individual (including the nature of the individual’s title to any property). 
Section 18(1) of the Act provides that if it is practicable to do so, access to an otherwise exempt record shall be granted by preparing a copy, in such form as the body concerned considers appropriate, of the record with the exempt information removed. Having examined the record at issue, I find that the following information is personal information for the purposes of the Act and that section 37(1) applies:
• the name and address of the recipients of the letter,
• the opening sentence,

• paragraphs numbered 1, 2, and 5,

• the final sentence of paragraph 4, and

• the final sentence.
I find that section 37(1) does not apply to the remainder of the record. Having regard to the provisions of section 18, I find that the remainder of the record is not exempt and should be released.
Having found that section 37(1) applies to certain parts of the record, I must proceed to consider whether any of the other provisions of section 37 serve to disapply section 37(1).
Section 37(2) provides that section 37(1) does not apply in certain circumstances. Having examined the record, I am satisfied that the circumstances identified at section 37(2) do not arise in this case.
Section 37(5) provides that a request which would fall to be refused under section 37(1) may still be granted where the FOI body considers that, on balance, (a) the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld, or (b) the grant of the request would benefit the individual concerned.  As no evidence has been presented to this Office to suggest that the release of the information at issue would benefit the individual(s) concerned, I find that section 37(5)(b) does not apply.
In relation to the public interest test contained in section 37(5)(a), I wish to emphasise that 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) recognises the need to enhance public scrutiny and accountability of government and public affairs, particularly the activities and decision making of FOI bodies. However, in a judgment delivered on 25 September 2020, (The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors, available on our website), the Supreme Court held that general principles of openness and transparency do not provide a sufficient basis for directing the release of otherwise exempt information in the public interest. Rather, a “sufficiently specific, cogent and fact-based reason” is required “to tip the balance in favour of disclosure”. 
Moreover, while the Court stated that the public interest balancing test involves a “weighing of the respective private and public interests in the analysis of the records in issue”, it did not disturb the guidance that it previously gave in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner [2011] IESC 26 ("the Rotunda Hospital case") in which it drew a distinction between private and public interests. Relevant private interests are those that are recognised by law and, in particular, through the protection afforded by the exemption provisions. 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.
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.
In considering where the balance of the public interest lies in this case, it is important to note that the release of records 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 a record released under the Act may be put. Moreover, it is noteworthy that the disclosure of the information to which I have found section 37(1) to apply would not, in my view, further enhance the transparency and accountability in relation to the Council’s position relating to the alleged right-of-way. In the circumstances, I find no relevant public interest in granting access to the information at issue that, on balance, outweighs the public interest in upholding the right to privacy of the third parties concerned. I find that section 37(5)(a) does not apply in this case.
In conclusion, therefore, I find that section 37(1) applies to the information at issue and that the Council was justified in refusing access to that information.
Do other records exist?
Section 15(1)(a) of the FOI Act provides that a request for access to records may be refused if the records sought either do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner’s role in such cases is to review the decision of the FOI body and to decide whether the decision was justified. This Office must have regard to the evidence available to the decision maker in arriving at his/her decision. The evidence in “search” cases generally consists of the steps actually taken to search for the records along with miscellaneous other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.
The Investigating Officer requested the Council to provide details of the searches it carried out in response to the applicant’s assertion that further records ought to exist. In submissions to this Office, the Council provided details of the steps it took to locate the records. As this Office has already provided the applicant with those details, I do not propose to repeat them in full here. 
The Council explained that it holds no information to prove that the laneway is in private ownership. Instead, it confirmed that it holds no land deeds for the laneway and that the laneway has never been taken in charge by the Council. It explained that the land used for many public roads is privately owned by the parties on either side of the road and that the absence of ownership details does not confirm that the lane is a public road or that the lane is privately owned. It said ownership details for a section of the laneway are not clear as the land is not included in a land registry folio. It added that disputes relating to property ownership are legal matters for resolution through the courts if necessary. It said it has no other information on the registration or unregistration of properties around the specified folio other than the public information available on the LandDirect website published by the Property Registration Authority.
The Council explained that it initially referred the request to Property Management Section, Roads Section, and Gorey Municipal District and that, at internal review stage, it also forwarded the request to two further sections, namely Planning and Environment, following which three records were located in Environment Section.
The Roads Section explained the laneway in question is not in charge of the Council and that it holds no records relating to rights of way unless the road or lane is in charge. The Gorey District confirmed it does not hold or store records pertaining to whether roads are in charge or not. The Property Management Section carried out searches of its property files and electronic systems, by names and keywords.
The Environment Section carried out electronic searches under the project title as the relevant official stores all files relating to the right-of-way/folios on the environment server in a sub-folder, as a result of which three records were located.
The Planning Department said it holds no relevant records. It said that the first query recorded in the Planning Department in relation to the right-of-way issue as the location in question was an email dated 15 July 2020. It noted that this record, and any subsequent records, did not exist at the date of the applicant’s request and did not, therefore, come within the scope of that request.
In essence, the thrust of the Council’s position is that following communication with relevant sections and detailed searches undertaken, no further relevant records exist or can be found, apart from the three records already identified. In essence, the Council’s position is that no further relevant records exist.
It is important to further note that the FOI Act is concerned with access to records held by public bodies. If the record sought is not held by the body then that is the end of the matter, regardless of whether or not the requester believes that the record ought to exist. The role of this Office is confined to determining whether the FOI body has taken all reasonable steps to locate the records. 
While I can appreciate that the question of whether a right-of-way exists at the specified location is a matter of some concern to the applicant, our remit is confined to considering whether the Council has taken all reasonable steps to locate relevant records coming within the scope of his request. Having regard to the details of the Council’s submissions to this Office, I am satisfied that it has in this case. Accordingly, I find that the Council was justified in refusing access, under section 15(1)(a) of the Act, to any further records apart from those already located. 


Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of the Council in this case.  I affirm its decision to refuse access, under section 15(1)(a) of the FOI Act, to any further relevant documents sought by the applicant other than those located. I vary its decision to refuse access to record 1a and I direct the release of the record, subject to the redaction of the following information which I find to be exempt under section 37(1):
• the name and address of the recipients of the letter,
• the opening sentence,

• paragraphs numbered 1, 2, and 5,

• the final sentence of paragraph 4, and

• the final sentence.

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