Whether the Council is justified in refusing to fully grant the applicant's request for records relating to the properties of the applicant and his neighbour
2 July 2019
On 20 November 2018, the applicant made his FOI request to the Council, which referred to previous correspondence about works being carried out on his property. He requested copies of all records relating to his property and that of his neighbour from 1 January 2017.
The Council's decision of 19 December 2018 concerned 72 records. It granted full and partial access to some of the records. It refused access to the remaining records and parts of records under sections 36 (commercially sensitive information) and 37 (personal information) of the FOI Act. The decision also said that some of the withheld information had already been disclosed to the applicant on foot of an earlier FOI request.
The applicant sought an internal review on 10 January 2019. The Council's internal review decision of 31 January 2019 affirmed its refusal to fully grant the request for the reasons already outlined. On 4 March 2019, the applicant applied to this Office for a review of the Council's decision.
I have now decided to conclude my review by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges and to correspondence between this Office, the Council and the applicant. I have had regard also to the records considered by the Council and to the provisions of the FOI Act.
Scope of Review
This review is confined to whether the Council's refusal to grant access to the remaining records and parts of records (the records) is justified under the FOI Act. It does not extend to those parts of records 58 and 59 that contain information that is not covered by the request.
My review will not consider the applicant's contention, which he made for the first time during this review, that the Council has not identified all documents covered by the request. It is open to him to make a fresh request to the Council for any records he considers to have been omitted from its decision making process to date. However, section 12(1)(b) of the Act requires that FOI requests contain sufficient particulars to enable the record sought to be identified by the taking of reasonable steps.
I note the applicant's views that further information should be granted from records that have been partially released. Section 18(1) of the FOI Act provides that where an FOI request would fall to be granted "but for the fact that it relates to a record that is an exempt record, by reason of the inclusion in it, with other matter, of particular matter, the head of the FOI body concerned, shall, if it is practicable to do so, prepare a copy, in such form as he or she considers appropriate, of so much of the record as does not consist of the particular matter aforesaid and the request shall be granted by offering the requester access to the copy." Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers).
Even though the Council has granted partial access to some records, this Office takes the view that the provisions of section 18 do not 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. Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.
In making my decision, I must comply with section 25(3) of the FOI Act, which requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. Finally, I must also take account of the fact that the grant of access to a record under the FOI Act is understood to be equivalent to the record's release to the world at large.
Section 37 - personal information
Section 37(1), subject to other provisions of section 37, requires the refusal of access to a record containing personal information.
"Personal information" is defined at section 2 of the FOI Act, which also lists 14 examples of what must be considered to be personal information. These examples include (ii) "information relating to the financial affairs of the individual" and (xiii) "information relating to the property of the individual".
The applicant acknowledges that personal information must be redacted but disputes that all of the withheld information is personal information for the purposes of the FOI Act. He says that his property is a protected structure and that works were carried out on his chimney by his neighbour (Y). He says that Y has confirmed that the Council awarded a Built Heritage Investment Scheme (BHIS) grant to do so but that he was not aware of the grant and did not consent to it. He also says that he owns the chimney and that the Council is mistaken in considering it to be shared by him and Y. He says that details of the works proposed to be carried out by Y as contained in record 22 (a BHIS application form) do not amount to personal information and that the Council has redacted more from this record than is necessary to comply with section 37. He says he needs to know what works have been carried out because he is obliged to ensure that they comply with Heritage Council requirements. He says that he is entitled to information submitted to the Council in relation to the grant and following completion of the works.
At the outset, it is not part of this Office's role to determine matters such as ownership of the chimney or Y's entitlement to a grant or to carry out the works concerned. Furthermore, the fact that the Council publishes certain general information about the recipients of BHIS grants is not relevant to my consideration of whether the records covered by this review contain personal information for the purposes of the FOI Act.
I am limited in the description I can give of the records and in my analysis. I am satisfied that records concerning works carried out to a property by an identifiable individual who received a grant for the works concerned is information falling within example (ii) of what comprises personal information. In this regard, I also note that applicants for BHIS grants are required to match the funding received. I am also satisfied that details given by an identifiable individual to an FOI body for a BHIS grant, including details of works the individual intends to carry out and/or details of private arrangements they have made with contractors in this regard, amounts to that individual's personal information. I am satisfied that the records contain personal information and I find that section 37(1) applies.
Section 37(2) - exceptions to section 37(1)
Section 37(2) sets out a number of circumstances in which the exemption at section 37(1) does not apply. These include at section 37(2)(a), "if the information concerned relates to the requester concerned", which the applicant says applies in this case.
While an example of personal information includes "information relating to the property of the individual", as I have already said it is not part of this Office's role to determine ownership of the chimney. Even if the chimney is owned solely by the applicant, in circumstances where Y sought and was given a grant for the works it seems to me that the records contain personal information relating to Y that is inextricably linked to personal information relating to the applicant (joint personal information). Section 37(7) provides that, notwithstanding section 37(2)(a), a request shall be refused where access to a record would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to individual(s) other than the requester. Accordingly, I find that the applicant is not entitled to access to the records further to the provisions of section 37(2)(a).
I do not consider the other provisions of section 37(2) to be relevant in this case.
Section 37(5) - the public interest
Section 37 (1) is also subject to section 37(5). In my view, only section 37(5)(a) is of relevance in this case. That section provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of the individuals to whom the information relates should be upheld.
The applicant says that the BHIS grant is awarded from public monies and that there is a public interest in ensuring that the Council can be held accountable in this regard. He also says that his property and Y's property are protected structures and that there is a public interest in protecting them. He says that it is in the public interest for the nature of works to such buildings to be made public to ensure that public bodies and owners remain accountable for how structures are protected for the common good. He refers in this regard to section 54(1)(a)(i) of the Planning and Development Act, 2000 (the 2000 Act).
On the matter of where the public interest lies, I have had 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 IESC 26 ("the Rotunda judgment"). 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. Although these comments were made in relation to another provision of the FOI Act, I consider them to be relevant to consideration of public interest tests generally.
Furthermore, McDermott J., in his December 2016 judgment in F.P. and the Information Commissioner [2014 No. 114 MCA] ("the F.P. case"), which was subsequently approved by the Supreme Court, said that private as opposed to public interests were not a sufficient basis upon which to exercise the discretion in favour of the appellant under the relevant public interest test in that case. He also said that "the ‘public interest’ in granting access is not to be determined on the basis of the appellant’s personal circumstances or desire to explore or pursue civil proceedings or criminal complaints.” It follows that I cannot take into account any private interests that the applicant may have in obtaining the records.
There is a public interest in this case (as recognised by the FOI Act) in ensuring that the Council is open regarding, and may be held accountable for, the performance of its functions including its administration of the BHIS grant scheme. While this public interest been served to some extent by the details already released by the Council further to this FOI request and by its publication of certain general information regarding BHIS grants, I accept that it would be served further by granting access to the records. That said, it is not appropriate for me to direct that access should be granted to the records on the basis that the applicant is unhappy with the Council's actions or because the records partially relate to him. The records are not solely concerned with the Council's actions and also contain personal information relating to Y. It is also relevant that the works in this case were not carried out by the Council. The FOI Act is not primarily concerned with ensuring the accountability of private individuals.
Section 54(1)(a)(i) of the 2000 Act provides for a planning authority to add to or delete from its record of protected structures. I do not see how this represents a public interest in the disclosure of information to the world at large under the FOI Act.
Both the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy (which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution). When considering section 37(5)(a), privacy rights will 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. I do not consider that the general requirement for accountability regarding an FOI body's administration of public monies necessarily means that grant recipients lose all rights to privacy regarding such matters. It seems to me that records relating to the administration of BHIS grants also concern private aspects of an applicant's life. In the circumstances, I am satisfied that granting access to the records would significantly breach Y's rights to privacy.
I find that the weight of the public interest in granting access to the records is not such that it outweighs the public interest in upholding the third party's rights to privacy.
Accordingly, there is no need for me to consider whether section 36 of the FOI Act applies.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Council's decision to refuse access to parts of the records the subject of the FOI request under section 37(1) of the FOI 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.