Case number: OIC-54088-L3J3R1
31 October 2019
On 4 June 2019, the applicant made an FOI request to the PRA for “details of all folio numbers that have been granted under a Form 3 Application in the previous ten years”. On 5 June 2019, the PRA issued a decision, in which it refused access to the records on the ground that they were exempt under section 37(1) of the FOI Act. On 20 June 2019, the applicant applied for an internal review decision. On 5 July 2019, the PRA issued an internal review decision, in which it affirmed its original decision. On 9 July 2019, the applicant applied to this Office for a review of the PRA's decision.
In conducting my review, I have had regard to the correspondence between the PRA and the applicant as described above, as well to correspondence between this Office and the PRA. I have also had regard to the contents of the records at issue and the provisions of the FOI Act.
This review is concerned with whether the PRA was justified in refusing access to the records under section 37 of the FOI Act.
Before considering the exemption claimed, I wish to note that with certain limited exceptions, the FOI Act does not provide for the limiting of access to records to particular individuals only. When a record is released under the FOI Act, it effectively amounts to disclosure to "the world at large" (H.(E.) v Information Commissioner  IEHC 58). The FOI Act places no restrictions on the type or extent of disclosure or the subsequent use to which the record may be put.
Section 37 - Personal information
Section 37(1) of the FOI Act provides that access to a record shall be refused if it would involve the disclosure of personal information. The FOI Act defines the term “personal information” as information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or his/her family or friends, or information about the individual that is held by a public body on the understanding that it would be treated as confidential. The FOI Act details fourteen specific categories of information which is personal without prejudice to the generality of the foregoing definition. These categories include: “(xiii) information relating to property of the individual (including the nature of the individual’s title to property)”.
As I understand it, Form 3 is used for a particular type of application for registration of property. The PRA identified 62,743 folios as having been created under a Form 3 Application since 1 January 2009. I will refer to these folio numbers collectively as “the records”. The PRA provided this Office with a sample of 100 such folio numbers and copies of the first three folios. The PRA says that the folio itself does not indicate the type of application form lodged for the registration of a property, although the kind of application may be clear from viewing the folio e.g. transfers of ownership. It says that inspection of an instrument would be required to obtain details of the type of application. Rule 159 of the Land Registration Rules 2012 governs access to instruments and generally restricts inspection of documents filed to the registered owner of property or a person authorised by that person or the PRA.
In her submissions, the applicant says that before making this FOI request, she received information from the PRA about a folio and a Form 3 Application in respect of a particular query. She submits that this would indicate that it is not deemed to be personal information. The fact that the applicant was previously provided with this kind of information in response to a specific query does not determine whether section 37 of the FOI Act applies to the records. That is what I must decide.
The applicant submits that there is no personal information at stake. She says: “while documents lodged for registration and the nature of the application may be considered personal information, this is not what we are requesting. We are simply asking for the folio numbers of land registrations that have taken place via a particular method available via the PRAI”. Nonetheless, her FOI request specifically seeks access to folio numbers created under a particular kind of application. The applicant appears to acknowledge that the nature of the application may be considered personal information.
Given the subject-matter of this particular FOI request, access to the records will disclose the fact that the folios concerned were created under a Form 3 Application. This fact is information relating to property. The folios in turn will disclose information relating to the property of identifiable individuals. In that regard, I note that the sample folios provided to me identify individuals. I am satisfied that access to the records would involve the disclosure of information relating to property of identifiable individuals, which would not otherwise be known to the applicant and the world at large.
I find that section 37(1) of the FOI Act applies to the records. This finding is subject to other provisions of section 37, which I examine below.
Section 37(2) of the FOI Act sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances in section 37(2) apply to the records. That is to say, (a) they do not relate to the applicant; (b) the third parties have not consented to the release of the information; (c) the information is not of a kind that is available to the general public; (d) the information does not belong to a class of information which would or might be made available to the general public; and (e) the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.
In reaching my conclusion on section 37(2), I considered the fact that folios are available to the general public on request and payment of a fee. However, the fact that the folios named in the records were created under a Form 3 Application is not information of a kind that is available to the general public.
Section 37(5) - The Public Interest
I will now consider section 37(5) in relation to the records. Section 37(5) of the FOI Act provides that access to the personal information of a third party may be granted where the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or the grant of the request would benefit the person to whom the information relates.
The FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies. On the other hand, however, 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. Accordingly, 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.
Section 11(3) of the FOI Act provides that public bodies shall, in performing any function under the FOI Act, have regard to a number of matters. These include the need to achieve greater openness in their activities and to promote adherence to the principles of transparency in government and public affairs; the need to strengthen their accountability; and the need to improve the quality of their decision-making. It is not clear to me how releasing the records would serve the public interests set out in section 11(3). Neither has the applicant identified a public interest for my consideration.
I find that section 37(5)(a) does not apply in the circumstances. It has not been argued that releasing the records would benefit the people to whom the information relates and I find that section 37(5)(b) does not apply in the circumstances. I find that the PRA was justified in refusing access to the records, under section 37(1).
Having carried out a review under section 22(2) of the FOI Act, I affirm the PRA's decision, under section 37(1) of the FOI Act.
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.