Whether the Council was justified in refusing to release certain planning enforcement records under sections 15(1)(i), 35(1)(a) or 37(1) of the FOI Act
29 October 2021
On 7 December 2020, the applicant submitted an FOI request to the Council for copies all personal information that is held about her in any area of the Council from January 2019 onward. The applicant stated that the main areas of the Council which she would have dealt with are the planning department, planning enforcement, water services and septic tank inspections. On 1 February 2021, the Council issued its decision. The Council identified 108 records that fall within the scope of the applicant’s request. It granted access to records 91 and it refused access to 17 records under sections 15(1)(i), 35(1)(a) and section 37(1) of the FOI Act. On 13 February 2021, the applicant applied for an internal review of the Council’s decision. The applicant queried whether parts of certain water services, septic tank and planning department records released to her were missing. She also sought a review in relation to the Council’s decision not to release planning enforcement records 26, 27, 32, 42, 43 and 44 and planning enforcement emails 28, 30, 31, 32, 33, 34, 35 and 36. The applicant stated that she is aware that the above records could contain the personal information of third parties which she does not require. She stated, however, that if any of the above records contain her personal information she wishes to have a partial copy of the record.
On 17 and 18 February 2021, the Council addressed the applicant’s queries in relation to parts of missing water services, septic tank and planning department records and it released additional information to the applicant. On 9 March 2021, the Council issued its internal review decision in which it affirmed its original decision. On 16 March 2021, the applicant applied to this Office for a review of the Council’s decision on the basis that not all of her personal information has been released to her
I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out this review, I have had regard to correspondence between the applicant and the Council, to correspondence between the applicant and this Office, to correspondence between the Council and this Office, to the contents of the records at issue and to the provisions of the FOI Act.
Scope of Review
It is important to note that the jurisdiction of this Office is based on the wording of the original FOI request and internal review request. This Office does not have jurisdiction to consider the release of any records that the applicant did not seek in her original request or to review an FOI Body's decision in relation to particular records where an applicant has not sought to have these decisions reviewed. In her internal review request, the applicant sought a review in relation to the Council’s decision not to release planning enforcement records 26, 27, 32, 42, 43 and 44 and planning enforcement emails 28, 30, 31, 32, 33, 34, 35 and 36 and these are the records considered in this review.
During the course of the review, the Council said that it had reviewed its use of section 15(1)(i) of the FOI Act to refuse access to planning enforcement record 26 on the basis that this record is already available to the applicant. It said following this review, it had decided to release this record to the applicant with the redaction of names and addresses of third parties which the applicant has said she does not require. I am therefore excluding planning enforcement record 26 from the scope of this review.
I note that the Council has refused access to planning enforcement email 30 on the basis that it falls outside the scope of the applicant’s request. Record 30 refers to the applicant’s property. I am satisfied that it falls within the scope of the applicant’s request and I find accordingly.
My review in this case is therefore concerned solely with the question of whether the Council was justified in refusing access to planning enforcement records 27, 32, 42, 43 and 44 and planning enforcement emails 28, 30, 31, 32, 33, 34, 35 and 36 under sections 35(1)(a) or 37(1) of the FOI Act.
Before considering the exemptions claimed, I wish to note the following points. 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 records and the level of detail I can discuss in my analysis are limited.
Secondly, section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that the applicant 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 of the FOI Act provides that if it is practicable, records may be granted in part, by excluding the exempt material. Section 18 shall not apply if the copy of the record provided would be misleading. 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, this Office 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.
Analysis and Findings
The Council refused access to planning enforcement records 27, 32, 42, 43, 44 and planning enforcement emails 28 and 33 under section 35(1)(a) of the Act. It refused access to planning enforcement emails 31, 32, 34, 35 and 36 under section 37(1) of the Act, and it refused access to planning enforcement email 30 on the basis that it falls outside the scope of this review. All of the records concern the same planning enforcement matter and there is a lot of duplication between the records, for example planning enforcement records 32, 43 and 44 are contained in planning enforcement emails 33, 35 and 36. It is not clear to me why the Council has relied on different exemption provisions in relation to records that contain the same information. In my view section 37 of the FOI Act is the appropriate exemption provision to consider in relation to each of the records at issue.
Section 37 - 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. This does not apply where the information involved relates to the requester (section 37(2)(a) refers). However, section 37(7) provides that, notwithstanding section 37(2)(a), an FOI body shall refuse to grant a request if access to the record concerned would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester. Where a record or part of a record contains personal information relating to the requester, which is closely intertwined with personal information relating to another party (or parties), and where it is not feasible to separate the personal information relating to the requester from that relating to the other party (or parties), it can be described as joint personal information and section 37(7) must be considered.
Section 2 of the FOI Act defines "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 that body as confidential. Section 2 of Act details fourteen specific categories of information that is personal without prejudice to the generality of the foregoing definition. These categories include (xii) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to, establish that any personal information held by the FOI body concerned relates to the individual; (xiii) information relating to property of the individual (including the nature of the individual's title to any property).
The records at issue contain information in relation to a planning dispute between neighbours. The records contain names, addresses, phone numbers, photographs, utility bills and information in relation to property of named individuals including the nature of those individual’s title to property. I am satisfied that none of the withheld records contain information which is personal information relating solely to the applicant. The information withheld is either the personal information of third parties or personal information relating to the applicant, which is inextricably linked with the personal information of third parties. It may well be the case that a considerable amount of the withheld information is generally known to the applicant. Nevertheless, I must consider that when a record is released under the FOI Act, this, in effect, amounts to disclosure to “the world at large”, as the FOI Act places no restriction on the subsequent uses to which the record may be put.
I have taken account of section 18 of the FOI Act as referred to earlier in this decision. However, having regard to the content of the withheld records, it seems to me that it is not practicable to separate the personal information of the applicant from the personal information of the third parties. On that basis, I find that the withheld records as identified above, are exempt from release on the basis of section 37(1) and section 37(7) subject to the provisions of section 37(2) and 37(5), which I examine below.
Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. For the purposes of this review, and with reference to those circumstances, I am satisfied that, (a) the information contained in the records does not relate solely to the applicant; (b) the third parties have not consented to the release of that information; (c) the information is not of a kind that is available to the general public; (d) the information at issue 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.
Section 37(5) The Public Interest
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  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 my view, the Council has sought to provide as much information as possible relating to the applicant while simultaneously seeking to protect the privacy rights of other parties. As I set out above, I am also cognisant of the fact that the release of records under FOI is, in effect, regarded as release to the world at large, given that the FOI Act places no constraints on the uses to which the information contained in those records may be put. In the circumstances, and based on a careful review of the records at issue here, 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 records at issue and that the Council was justified in refusing access to the records.
Having carried out a review under section 22(2) of the Freedom of Information Act, I affirm the Council’s decision. I find that the Council was justified in refusing access to the records at issue under 37(1) of the FOI Act as their release would involve the disclosure of third party personal information or joint personal information and the public interest that the request should be granted does not outweigh the public interest in upholding the right to privacy of the third parties concerned.
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.