Case number: OIC-142309-R3H7L6

Whether Tailte Éireann was justified in refusing access to records relating to a specified folio under sections 15(2) and 41(1)(a) of the FOI Act, on the ground that some of the records are publicly available for purchase and the remainder of the records sought are held in Instruments access to which is prohibited by an enactment

 

21 March 2024

 

Background

In July 2023, the applicant sought access to a folio consisting of two merged folios, as well as archived versions of the original two folios dating prior to April 1978 and records detailing how named individuals became the owners of the property. In a decision dated 2 August 2023, Tailte Éireann refused access to some of the records sought under section 15(2) of the FOI Act on the ground that they are available to members of the public for inspection, removal, or purchase whether free of charge or on payment of a fee. It provided details of how copies of archived folios can be purchased.

It further explained that when an application for registration is completed, the legal effect of the documents lodged is registered on the folio. It said the title documents are subsequently filed in the Land Registry in a file known as an “Instrument”. It refused access to the Instruments sought under section 41(1)(a) of the Act on the ground that disclosure of the records is prohibited by the Land Registration Rules 2012. The applicant sought an internal review of that decision. In its internal review decision of 5 September 2023, Tailte Éireann informed the applicant that certain amendments had been made to one of the specified folios. It explained that in order to see the documents lodged on the second folio, the applicant would have to request a copy of a specified Instrument. It affirmed the original decision to refuse access to the instrument under section 41(1) of the Act. On 11 September 2023, the applicant applied to this Office for a review of Tailte Éireann’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 referred to above and to the submissions made by both parties. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is solely concerned with whether Tailte Éireann was justified in its decision to refuse access to the records sought under section 15(2) and section 41 of the FOI Act.

Preliminary Matters

Before I consider the substantive issues arising in this case, I would like to make the following preliminary comments.

First, I note that in her correspondence with both Tailte Éireann and with this Office the applicant outlined reasons for seeking the records and emphasised that they should be released to her as they were necessary in order to proceed with a purchase of a property. She contended that she had a right to know the details of amendments made to the folio(s) involved. It is important to note that section 13(4) of the Act provides that, subject to the Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. Thus, while certain provisions of the Act implicitly render the motive of the requester relevant, as a general rule, the actual or perceived reasons for a request must be disregarded in deciding whether to grant or refuse an access request under the FOI Act.​​

Second, the applicant also argued that Tailte Éireann ought to have actual details of the land and its contents on landdirect.ie, not only the boundaries. It is important to note that this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.

Analysis and Findings

Section 15(2)

Section 15(2) further provides that an FOI body may refuse to grant a request where the information sought is a) available for inspection by members of the public whether upon payment or free of charge, or b) available for purchase or removal free of charge by members of the public.

In its submissions, Tailte Éireann said that old paper folios were scanned into a digital format, but were not available on landdirect.ie and required a fee to be accessed. It said, however, that as these were publicly available to any person on foot of receiving a fee, the two records were refused under section 15(2)(a) and (b), rather than section 41.

Regarding the process of a merge, such as took place in this instance, it said that a folio merge is treated as a dealing, which is given a number, and that becomes an Instrument number when the merge is completed and processed. Tailte Éireann said that a property transfer would be noted on the closed folios, with the new folio noting what it contains and what application led to the change. It said the Instrument number would be noted on the new folio, so the date of the merge and the Instrument number would be public information.

Having regard to the nature of the records sought and to the submissions of Tailte Éireann in this case, I am satisfied that the archived folios are publicly available to any person on foot of receiving a fee and that Tailte Éireann was therefore justified in refusing access to those records under section 15(2)(b) of the FOI Act.

Section 41

Tailte Éireann refused access to the remainder of the records under section 41 of the FOI Act. It said that it is prohibited from allowing access to an Instrument of the type sought except in accordance with Rule 159 of the Land Registration Rules 2012 (SI 483/2012) and that the records are therefore exempt from release under section 41(1)(a) of the FOI Act.

Section 41(1) of the FOI Act provides for the mandatory refusal of a request if:

a. the disclosure of the record concerned is prohibited by law of the European Union or any enactment (other than a provision specified in column (3) of Part 1 or 2 of Schedule 3 of an enactment specified in that Schedule), or

b. the non-disclosure of the record is authorised by any such enactment in certain circumstances and the case is one in which the head would, pursuant to the enactment, refuse to disclose the record.

The Land Registration Rules 2012 are not listed in Schedule 3 of the FOI Act and are therefore relevant for the purposes of section 41. The question to be considered in this case, therefore, is whether the release of the Instruments sought is prohibited by Rule 159.

In its submissions to this Office, Tailte Éireann said that an Instrument is the file under which the documents lodged to make an individual registration are contained. It said this is the documentation lodged by the applicant’s solicitor, or in certain circumstances the applicant(s) themselves, in support of their application for registration. It said these are not considered to be public records and access to these is restricted to certain parties by Rule 159 of the Land Registration Rules 2012.

Tailte Éireann said that Rule 159 is concerned with the inspection of filed documents and with obtaining copies of such documents. Rule 159(9) provides that the Authority may, in special circumstances, and on such terms as it shall think fit, permit a person to inspect, or obtain a copy of, a document filed in the Land Registry. Tailte Éireann said that all applications under Rule 159 are to be made to the Authority using Form 96 of the Land Registration Rules 2012 and lodging it with the prescribed fee. It said that if an applicant satisfies the criteria they will be provided with a copy of the Instrument applied for. It said that if an applicant is not satisfied with Tailte Éireann’s decision under a Rule 159/Form 96 case they are entitled to appeal the decision to court under section 15 of the Registration of Title Act 1964.

It is not a matter for this Office to determine whether the applicant has a right under Rule 159 to inspect or obtain a copy of the remaining records sought. In order to do so, she must submit an application in accordance with Rule 159. If her application is successful, she will obtain a copy of the record sought. As noted above, if an applicant is not satisfied with Tailte Éireann’s decision under a Rule 159/Form 96 case they are entitled to appeal its decision to court under section 15 of the Registration of Title Act 1964. Furthermore, it is important to note that this Office has no role in examining the manner in which the property was registered.

In the circumstances, I am satisfied therefore that disclosure of the remaining records sought is prohibited by Rule 159, and that, as a result, they are exempt from release under section 41(1)(a) of the FOI Act. In conclusion, while I appreciate that the applicant will be disappointed by my decision, I am satisfied that the FOI Act does not afford a right of access to Instruments as an alternative to making an application in accordance with Rule 159.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm Tailte Éireann’s decision. I find that Tailte Éireann was entitled to refuse the request under sections 15(2) and 41(1)(a) 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.

 

Stephen Rafferty
Senior Investigator