Case number: 170481

Whether the Council was justified in refusing access to records relating to the applicant, under section 35 of the FOI Act

03/05/2018

Background

On 12 June 2017 the applicant made an FOI request to the Council for certain correspondence to and from the Council relating to her and certain information relating to sewers and drains. By letter dated 27 July 2017, the Council refused access to the information sought on the grounds that some of it was exempt under section 35(1) of the FOI Act (confidentiality) and the rest of it was held by another FOI body, Irish Water. On 21 August 2017, the applicant applied for an internal review. By letter dated 8 September 2017, the Council issued its internal review decision, in which it affirmed its original decision. On 3 October 2017 the applicant applied to this Office for a review of the Council’s decision.

In conducting my review, I have had regard to the correspondence between the applicant and the Council as outlined above and to the correspondence between this Office and both parties, as well as the content of the records that were provided to this Office by the Council for the purposes of this review.

Scope of the Review

On 28 October 2017 the applicant made an FOI request to Irish Water for the information relating to sewers and drains which she had sought from the Council and which the Council advised was held by Irish Water. On 28 February 2018 the applicant made a further FOI request to the Council. Neither of these requests is under review in this decision. The question for this review is whether the information which the Council withheld in relation to the applicant's FOI request outlined above is exempt from release under section 35 of the FOI Act or otherwise. This information is scheduled as Records 1 and 5.

The applicant's FOI request comprised a series of questions. Section 11 of the FOI Act provides for a right of access to records held by FOI bodies. Requests for information or for answers to questions posed are not valid requests, except to the extent that a question can reasonably be inferred to be a request for a record containing the answer to the question asked or the information sought.

Preliminary Matters

Before considering the exemptions claimed, I wish to note the following points. First, section 22(12)(b) of the FOI Act provides that when the Commissioner reviews a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore in this case, the onus is on the Council to satisfy me that its decision is justified.

Secondly, 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

Section 42 - Restriction of Act

Having reviewed the records, I consider it appropriate to address this section first, as it concerns jurisdiction.

Section 42(k)

Section 42(k) provides that the FOI Act does not apply to a record relating to any of the private papers (within the meaning of Article 15.10 of the Constitution) of a member of either House of the Oireachtas that is required by the rules or standing orders of either or both Houses to be treated as confidential.

The relevant part of Standing Order 135 provides that: "For the purpose of this Standing Order, the private papers of a member are all documents concerning which the member has a reasonable expectation of privacy, and: (a) which are prepared for the purposes of, or purposes incidental to: ... (ii) the member's role as public representative".

Pages 1-2 and 5-6 of Record 5 contain correspondence from a member of the Oireachtas. Having regard to its content, I consider that this is a document concerning which the member has a reasonable expectation of privacy and which was prepared for the purposes of, or purposes incidental to, the member's role as public representative. I therefore find that it is a record relating to the private papers of a member of a House of the Oireachtas.

I find that the Council is justified in refusing access to Pages 1-2 and 5-6 of Record 5 under section 42(k) of the FOI Act.

Section 42(m)(i)

Section 42(m)(i) provides that the FOI Act does not apply to a record relating to information whose disclosure could reasonably be expected to reveal, or lead to the revelation of, the identity of a person who has provided information in confidence in relation to the enforcement or administration of the law to an FOI body, or where such information is otherwise in its possession.

In essence, section 42(m)(i) provides for the protection of the identity of people who have given information in confidence in relation to the enforcement or administration of the law. The Commissioner takes the view that it is aimed at ensuring that members of the public are not discouraged from co-operating with bodies or agencies in the enforcement or administration of the law.

For section 42(m)(i) to apply, three requirements must be met. The first is that release of the withheld information could reasonably be expected to reveal, whether directly or indirectly, the identity of the supplier of the information. The second is that the information must have been given in confidence, while the third is that the information must have been supplied to the FOI body in relation to the enforcement or administration of the law.

First Requirement

On the first requirement, some of the records disclose the names, telephone numbers, addresses and other pieces of identifying information about people who complained to the Council about alleged anti-social behaviour. They are:

  • Pages 1-2 of Record 1
  • Page 4 of Record 1 - the second email from the top only
  • Page 6 of Record 1 - the first and third emails from the top only
  • Page 12 of Record 1

I consider that releasing this information could reasonably be expected to reveal, directly or indirectly, the identities of the suppliers of the information concerned. I believe that the first requirement has been met.

Second Requirement

On the second requirement, the Council's strategy on anti-social behaviour states: "the complaints procedure is confidential and every effort will be made to protect the identity of the complainants". Given the particular content of the information, I would expect that such complaints are made in confidence. I consider that the information concerned was given in confidence and the second requirement is thereby met.

Third Requirement

On the third requirement, the Council's strategy on anti-social behaviour refers to housing legislation which gives it powers to address anti-social behaviour. By their very nature the complaints relate to the enforcement or administration of the law on anti-social behaviour by the Council. I consider that the third requirement is met. 

Accordingly, I find that the Council is justified in refusing access to the information listed above in bullet points, under section 42(m)(i) of the FOI Act.

Section 35 - Information obtained in confidence

I am now required to consider section 35 in relation to the remaining records. The remaining records contain correspondence between the Council and the HSE about the applicant; a note of a meeting with the applicant at the Council's offices and a document outlining the applicant's tenancy details.

As section 35(1) does not apply where the records fall within the terms of section 35(2), section 35(2) should be considered at the outset. Under section 35(2), the confidentiality exemption does not apply to a record which was prepared by a head, director or staff member of an FOI body or a service provider in the course of the performance of his or her functions unless disclosure would constitute a breach of a duty of confidence that is owed to a person other than an FOI body etc.

These records were prepared by the Council and the HSE, both of which are FOI bodies. Therefore during the review, the Investigator invited the Council's submissions on section 35(2). The Council says that the records which were shared between the HSE and the Council were refused under section 35(2) as it was the opinion of the FOI body that the information was given on the understanding that it would be treated by both FOI bodies as confidential. The Council consulted the HSE and the HSE replied that it understood that the information was conveyed confidentially under section 35 of the FOI Act. The Council says that it accepts that section 35(2) applies; however, it is of the opinion that confidential sharing of information is required between public bodies and to release this information would prejudice the sharing of such information.

The HSE also said to the Council that it considered that releasing the information to the applicant would be prejudicial to the applicant's health. In view of this, the Investigator invited the Council's submissions on sections 37(3) and (4) of the FOI Act. These provisions are not mandatory, but allow the FOI body concerned to consider whether disclosing personal information might be prejudicial to the health or well-being of the requester. Section 37(4) provides that access to the records may be offered to a health professional specified by the requester. The Council replied that it asked the HSE about section 37 and the HSE's opinion does not differ from its previous position. In the circumstances, I do not propose to consider sections 37(3) and (4) further.

The fact remains that the Council has not identified an entity other than an FOI body or service provider to whom a duty of confidence is owed. Moreover, it accepts that section 35(2) applies. The Council has not satisfied me that disclosing the remaining records would breach a duty of confidence that is provided for by an agreement or enactment or otherwise by law and owed to a person other than an FOI body or head or a director, or a member of staff of, an FOI body or of such a service provider. I find that section 35(2) disapplies section 35(1) and that the Council is not justified in refusing access to the remaining records under section 35 of the FOI Act.

Despite having had the opportunity to do so, the Council has not claimed that any other exemption applies in the circumstances of this case.

Decision

Having carried out a review under section 22(2) of the FOI Act, I vary the Council's decision. I affirm its decision to refuse access to Pages 1-2 and 5-6 of Record 5, under section 42(k) of the FOI Act. I affirm its decision to refuse access to the information listed above in bullet points, under section 42(m)(i) of the FOI Act. I annul its decision to refuse access to the remaining information and direct its release. This is subject to the redaction of the remaining small items of personal information relating to individuals other than the applicant (mobile telephone numbers, details of leave of staff of an FOI body and names of individuals other than staff of an FOI body).

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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.


 

Elizabeth Dolan

Senior Investigator