Whether the Council was justified in refusing access to a submission in relation to a named burial ground under sections 37(1), 35(1)(a), 30(1)(a) and 29(1)(c) of the FOI Act
4 October 2021
On 10 March 2020, as part of a consultative and engagement process with stakeholders, the Council circulated a position paper in relation to the future management of a named burial ground that is situated within privately owned lands. On 26 February 2021, the applicant, a member of the burial ground committee, submitted a request to the Council for the landowners’ response to that position paper, whether written or verbal.
The request was refused by the Council on 25 March 2021 under sections 37(1), 35(1)(a), 30(1)(a) and 29(1) of the FOI Act. The applicant sought an internal review of that decision on 20 April 2021, following which the Council affirmed its refusal of the request. On 25 May 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 conducting the review, I have had regard the correspondence between the Council and the applicant as set out above, and to the correspondence between this Office and the applicant, the Council and the landowners. I have also had regard to the contents of the record at issue. I have decided to conclude this review by way of a formal, binding decision.
Scope of review
The Council identified one record as coming within the scope of the applicant’s request, a letter the landowners sent to the Council in September 2020. This review is concerned solely with whether the Council was justified in refusing to release this record under sections 37(1), 35(1)(a), 30(1)(a) and 29(1) of the FOI Act.
Before I address the substantive issues arising, I would like to make a number of preliminary comments. First, while I am required to give reasons for my decision under section 22(10) of the FOI Act, I am also required to take reasonable precautions to prevent disclosure of information in an exempt record, under section 25. This means that the extent to which I can describe the contents of the record at issue is limited in this case
Secondly, 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.
Finally, 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. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). I take the view that neither the definition of a record under section 2 of the Act 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, I am not in favour of the cutting or "dissecting" of records to such an extent.
Analysis and Findings
Having regard to the contents of the record at issue, it appears to me that section 37(1) is of most relevance in this case. Accordingly, I will consider the applicability of section 37(1) in the first instance.
Section 37(1) – Personal Information
Section 37(1) of the FOI Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information relating to an individual or individuals other than the requester.
Section 2 of the FOI Act defines the term “personal information” as information about an identifiable individual that either (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual or (b) is held by an FOI body on the understanding that it would be treated by the body as confidential. Without prejudice to the generality of the foregoing definition, section 2 also lists 14 non-exhaustive examples of what is considered to be personal information, including (xiii) information relating to property of the individual (including the nature of the individual’s title to any property).
In its submissions to this office, the Council explained that it prepared a position paper relating to the named burial ground as part of an ongoing consultative and engagement process with the landowners and the Burial Ground Committee (the committee). It explained that it has a statutory function in relation to the management of burial grounds and is participating in this process with all stakeholders in relation to seeking a resolution and agreement on the future management of the burial ground.
Amongst other things, the position paper sets out the Council’s position in relating to certain matters, including ownership of the burial ground, the appointment of a Registrar, right of way to the burial ground, and restrictions on access. The record at issue, comprising the landowners’ response to that paper, contains information relating to matters such as the ownership of the burial ground, right of way over, and access to, their property, and security measures taken in respect of their property. I am satisfied that the information in question comprises personal information pursuant to category (xiii) of the definition of personal information, and as such, that the release of the record would involve the disclosure of personal information relating to identifiable individuals. I find, therefore, that section 37(1) applies.
However, that is not the end of the matter as section 37(1) is subject to the other provisions of the section. Section 37(2) sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances provided for in section 37(2) arise in this case and section 37(2) does not apply to the records sought.
Section 37(5) provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the information would be to the benefit of the person to whom the information relates. As the landowners have explicitly stated in their submissions that they do not wish the record to be released I cannot see how granting the request would be to their benefit and I find that section 37(5)(b) does not apply.
On the matter of whether section 37(5)(a) applies, the question I must consider is whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the persons to whom the information relates. In considering the type of public interest factors that might be considered in support of the release of the information at issue in this case, I have had regard to the findings of the Supreme Court in The Minister for Communications, Energy and Natural Resources v The Information Commissioner & Ors  IESC 5.
In her judgment, Baker J. indicated that the public interest in favour of disclosure cannot be the same public interest as that broadly stated in the Act. She said the public interest in disclosure must be something more than the general public interest in disclosure and the reason must be found from the scrutiny of the contents of the record. She said there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure. While these comments of the Supreme Court were made in relation to provisions of the FOI Act other than section 37, 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. It is also relevant to note that the release of records under FOI is, in effect, regarded as release to the world at large, given that the Act places no constraints on the uses to which the information contained in those records may be put.
The Council stated that while it took into account the general public interest in openness and transparency in the performance of its statutory and non-statutory functions (of which the management of graveyards is a statutory function), it also relies on the submission of information that is often given on the basis that confidentiality will be maintained. It submitted that the release of the record could prejudice the giving of such information in future which could affect the Council’s ability to fulfil its statutory obligations. The Council stated that the consultative process was ongoing, wherein it was playing a mediation role, and that to release the record could harm the progress made to date and adversely affect the outcome or lead to a situation where no agreement or positive outcome could be reached. The landowners made similar arguments, emphasising that they made their submission to the Council on the understanding that it would be treated as confidential. They argued that to release such information, which they characterised as an invasion of privacy, could prejudice the future supply of such information to the Council (or other FOI bodies) on a voluntary basis. They suggested that ultimately private bodies may be less inclined to engage with public bodies through mechanisms of voluntary, collaborative engagement and may be encouraged to instead pursue resolution by litigation.
The applicant did not put forward any arguments for the release of the record, in the public interest or otherwise. Having had regard to the arguments put forward and having carefully examined the record at issue, I find no relevant public interest in granting access to it 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 the Council was justified in refusing access to the record at issue under section 37(1). Having found that section 37(1) applies, I do not need to consider the applicability of sections 35(1)(a), 30(1)(a) or 29(1)(c) of the Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Council to refuse access, under section 37(1) of the FOI Act, to the landowners’ response to a position paper issued by the Council relating to the management of a named burial ground.
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 has been given to the person bringing the appeal.