Decision
Ms X and Cork City Council
From Office of the Information Commissioner (OIC)
Case number: OIC-151807-M2K8S3
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-151807-M2K8S3
Published on
Whether the Council was justified, under section 15(1)(a) of the FOI Act, in refusing access to further records relating to the applicant and works carried out at a specific location on the basis that it had undertaken all reasonable steps to locate relevant records, and whether it was justified under section 37(1) of the FOI Act in refusing the personal information of third parties that it redacted from the records it released to the applicant
16 May 2025
This case has its background in works carried out as part of the Council’s Public Transport Improvement Scheme (the Scheme). On 8 December 2023, the applicant submitted a request for all records from 1 January 2021 to 8 December 2023 concerning her as it relates to works at a specific location. The applicant cited an enforcement file reference number and said she is seeking all records relating to the matter. On 19 January 2024, the Council released 18 records to the applicant. It redacted certain information from a number of the records under section 37(1) of the FOI Act. The Council also refused access to certain information contained in records 8 and 15 which it said is outside the scope of the applicant’s request.
On 24 January 2024, the applicant applied for an internal review on the basis of a deemed refusal, stating that she had not received a decision from the Council within the statutory four weeks allowed. It would appear that, as the original decision was issued by post, the applicant did not receive it until after 24 January 2024. On 14 February 2024, the applicant wrote to the Council again, requesting a review of its decision on her FOI request. On 5 March 2024, the Council affirmed its original decision. On 2 September 2024, the applicant wrote to this Office seeking a review of the Council’s decision. The applicant appealed the redactions made by the Council to the records it released to her and said she believed that all departments in the Council had not been contacted about her FOI request, suggesting further records ought to exist.
During the course of this review, the Council located a number of additional records of remedial drawings relating to the works in question. The Council provisionally stated it may be in a position to release these records to the applicant, however it stated the volume of records would potentially cause a substantial and unreasonable interference with the work of the Council. The Council was invited to make further submissions on access to these additional records but has not done so to date.
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 outlined above and to the submissions provided by the Council during the course of this review. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether the Council was justified in refusing access, under section 15(1)(a) of the FOI Act, to further records relating to the applicant’s request and whether it was justified in refusing the personal information of third parties that it redacted from the records released to the applicant under section 37(1) of the Act.
In her application to this Office the applicant expressed her dissatisfaction with the Council’s handling of the time extension it applied under section 14(1) of the FOI Act when processing her request. As the Council noted in its letter dated 16 January 2024 to the applicant about the time extension, an appeal of a decision to apply a time extension should be made to this Office within 2 weeks from the date of notification. As such, I do not propose to consider this matter further at this time.
Adequacy of searches - Section 15(1)(a) of the FOI Act
The Council’s position is that it released all relevant records to the applicant with some redactions, which I will consider below. However, the applicant believes further records ought to exist.
Section 15(1)(a) of the FOI Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. My role in a case such as this is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at their decision and also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in “search” cases generally consists of the steps actually taken to search for the records along with miscellaneous and other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.
In its submissions to this Office, the Council said that the applicant’s property and the works which are the subject of her request are on the street which is the subject of a public transport improvement scheme, which it said was led by the Infrastructure Development Directorate of the Council. The Council provided details of its filing system for its Infrastructure Development Directorate and outlined the digital and physical documents held by the Council relating to the public transport improvement scheme in question.
In relation to searches carried out for digital records falling within the scope of the applicant’s request, the Council said that when a project is initiated a digital project folder is set up, with a series of sub folders, on a secured network server within the Council. It said the project folder for this project was set up in and around 2018 and is held on the “Traffic Server”. In addition, a separate folder was set up on the “Roads Design Server”, which the Council said was to cater for the finance and administration of the project. The Council said that these 2 digital servers contain all the information held by the Infrastructure Development Directorate in relation to the Scheme in question. The Council stated it uses Microsoft Outlook for email correspondence, and said that for ease of filing, emails relating to the Scheme in question were moved into a separate folder relating to the project. The Council said that this facilitated the project manager in identifying emails easily.
The Council said that searches were carried out of the digital folders outlined above and that a digital search of the project manager’s C-drive was also carried out. Additionally, the Council said that email searches for any records falling with the scope of the applicant’s request were carried out using the Microsoft Outlook search function on the inbox and all other subfolders for the time period specified. The Council said it used a number of key word searches including variations of the name of the street, the name of the feature in question, the applicant’s first and last name, as well as her email address.
In relation to the searches carried out for paper records falling within the scope of the applicant’s request, the Council said that a physical folder was opened by the project manager. It stated that this folder contains any paper records relating to the project, including correspondence with members of the public. The Council stated these are also scanned and uploaded to the relevant server. It said that correspondence received is usually responded to in the format it was received. Additionally, the Council also stated that legal contract documentation is scanned and uploaded to the relevant server, and the hard copy that is signed and sealed is sent to its in-house legal affairs office for secure storage.
Furthermore, the Council stated that the Infrastructure Development Directorate was the only directorate contacted in relation to this FOI request. It said this was because all records in relation to the Public Transport Improvement Scheme in question are held by the Infrastructure Development Directorate. The Council said that project staff in this directorate led, co-ordinated, and managed the project and all matters related to it and were consulted and requested to carry out searches for records relevant to the applicant’s request. Additionally, the Council stated that this includes any correspondence with the Roads Department or any other section of Cork City Council.
As part of its submissions to this Office, the Council stated that the Infrastructure Development Directorate holds working contractual drawings relating to the specific Public Transport Improvement Scheme which forms part of the applicant’s request. The Council stated that these records form part of a contract and are subject to change, and as such it said that these are not issued to the public. The Council said that final, as built, drawings were not received from the contractor between the timeframe set out in the applicant’s request. The Investigating Officer sought clarity from the Council about remedial drawings during the timeframe of the applicant’s request and noted its comment that certain records “are not issued to the public”.
In response, the Council said that it had located a number of records relating to remedial drawings regarding the specific Public Transport Improvement Scheme in question, many of which it said related to the architectural feature which formed part of the applicant’s request. During a phone call with the Investigating Officer, the Council’s FOI Officer suggested the relevant Directorate may be willing to release the records located to the applicant, but also indicated it could be an onerous undertaking to compile and prepare the records for release to the applicant. The Investigating Officer noted the Council had not provided any substantive submissions in relation to the remedial drawings it may hold and invited the Council to provide submissions outlining its position in relation to these records. To date, the Council has not provided any such submissions.
For section 15(1)(a) to apply in any case, the FOI body must have taken all reasonable steps to ascertain the whereabouts of the records sought. It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations can arise where records are lost or simply cannot be found. Furthermore, it is open to this Office to find that an FOI body has satisfied the requirements of section 15(1)(a), even where records that an applicant believes ought to exist have not been located. We do not generally expect FOI bodies to carry out extensive or indefinite general searches for records simply because an applicant asserts that records should or might exist.
The question I must consider in this case is whether the Council has taken all reasonable steps to ascertain the whereabouts of the records sought by the applicant. I have had regard to the submissions made by the Council during the course of this review, including the search details provided and the reasons it concluded that no further records exist. Given the Council’s submissions about the existence of remedial drawings for the site in question, I am not satisfied the Council has demonstrated that it has undertaken all reasonable steps to locate the records sought by the applicant. Accordingly, I find the Council was not justified in refusing access to further records under section 15(1)(a) of the FOI Act.
In the circumstances, I consider that the most appropriate course of action to take is to annul the Council’s decision to effectively refuse access to further records under section 15(1)(a) of the Act, the effect of which is that the Council must consider the applicant’s request afresh and make a new, first instance decision in accordance with the provisions of the FOI Act. The applicant will have a right to an internal review and a review by this Office if she is not satisfied with the Council’s decision.
Information redacted by the Council under Section 37(1) of the Act
The Council released 18 records to the applicant, redacting information from 10 of those records. The records relate to works at the site in question, which form part of the overall Public Transport Improvement Scheme for the area. Record 1 is described as enforcement records relating to the file referenced in the applicant’s request and comprises 23 pages including a planning enforcement complaint made by the applicant. The Council redacted a name and address of a third party contained in the applicant’s complaint form. The remaining records comprise emails and other records concerning works at the site in question.
In its original decision on the applicant’s request, the Council said that the redactions made within the records it released to the applicant relate to personal information of third parties, including names, email addresses, mobile phone number, etc. The Council also said it redacted information in Records 8 and 15 as it is outside the scope of the applicant’s request. Record 15 is entitled “Construction Programme” which includes a list of works to be undertaken at various locations, including the site that is the subject of the applicant’s request. The Council released that part of the record that relates to the site in question. Record 8 is an email detailing certain elements of the works. Having examined Records 8 and 15, I am satisfied that the redactions (other than a small amount of personal information which I will consider below) relate to works concerning other elements of the Scheme and do not fall within the scope of the applicant’s request. Furthermore, while the Council refused certain information in Record 2 under section 37 of the FOI Act, I am satisfied that the majority of that information (apart from the names of third parties it redacted) also relates to other elements of the project and falls outside the scope of the applicant’s request. I will now consider the Council’s decision to refuse the remaining information it redacted from the records under section 37(1) of the Act.
The Council refused access to the personal information contained in Records 1, 2, 3, 4, 7, 8, 12, 13, and 14 under section 37(1) of the FOI Act.
Section 37(1) provides for the mandatory refusal of a request where access to the record concerned would involve the disclosure of personal information. Personal information is defined in section 2 of the FOI Act as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or their family or friends or, (b) is held by a public body on the understanding that it would be treated by it as confidential. The FOI Act details fourteen specific categories of information which are included in the definition without prejudice to the generality of the forgoing definition, including "(iii) information relating to the employment or employment history of the individual".
Certain information is excluded from the definition of personal information. Paragraph II of the definition provides that where the individual is or was a service provider, the definition does not exclude the name of the individual or information relating to the service or terms of the contract or anything written or recorded in any form by the individual in the course of and for the purpose of the provision of the service. A similar exclusion for staff members of FOI bodies is found at Paragraph I. However, the exclusions to the definition do not exclude all information relating to staff members of FOI bodies or service providers. Individual staff members are still entitled to the right to privacy generally.
I am limited in the description I can give of certain redactions as a result of section 25(3) of the FOI Act. However, I can say the majority of redactions refer to the names of individual staff members of the third party service providers and their email and contact details under section 37(1) of the FOI Act. A small amount of other information is redacted as it relates to other parties. Having considered the redactions made by the Council, I am satisfied that it constitutes the personal information of the relevant third parties. I therefore find that the exclusion referred to above does not apply and that the names and other personal details of the contractors contained in the records are personal information within the meaning of the Act.
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 in this case.
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 granting of the request would benefit the person to whom the information relates. No evidence has been put forward, and it is not evident to me from the content of the records, that section 37(5)(b) applies.
Before I consider the applicability of section 37(5)(a), there are a number of important points to note. First, section 13(4) 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. In relation to the question of the public interest, this means that I cannot have regard to the applicant’s motives for seeking access to the records at issue, except insofar as those motives reflect, or overlap with, what might be regarded as true public interest factors in favour of release of the records, i.e. insofar as the concerns raised in relation to the request could also be matters of general concern to the wider public.
Secondly, it is important to note that the release of records under the FOI Act must be regarded, in effect, as release to the world at large, given that the Act places no constraints on the uses to which a record released under the Act can be put. With certain limited exceptions provided for under the Act, FOI is not about granting access to information to particular individuals only and as noted above, a requester's reasons for making a request are generally not of relevance. Thus, records are not released under FOI for any limited or restricted purpose.
All of this means that in considering whether a right of access exists to records under section 37(5)(a) of the Act, any decision to grant access would be on the basis that there is an overriding public interest in the release of the information redacted in the records effectively to the world at large that outweighs the privacy rights of the third party individual concerned.
In considering where the balance of the public interest lies in this case, I have had regard to section 11(3) of the Act which provides that in performing any functions under the Act, an FOI body must have regard to, among other things, the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. However, in doing so, I have also had regard to the judgment of the Supreme Court in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (“the Enet case”). In that case, the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and “there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure”. 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.
In her application to this Office, the applicant simply stated that she wished to appeal the volume of redactions made to the records, and did not point to any specific public interest argument in favour of release. In its submissions to this Office, the Council acknowledged that there was a public interest in the public knowing how a public body performs its functions, as well as a public interest in a requester being able to exercise their rights of access under the FOI Act. However, the Council also stated that there was a public interest in protecting the privacy of individuals, as well as a public interest in ensuring that public bodies are able to perform their functions effectively. The Council stated that, having considered all the factors outlined above, and taking into consideration that the information related to third parties who had not consented to their personal information being released, it believed that the public interest in preserving the right to privacy of the third parties involved outweighed the public interest which would be served by releasing the information. Additionally, in its submissions to this Office, the Council stated that it did not believe the release of the redacted information would benefit the applicant, as it was not of relevance to the records being sought.
The FOI Act provides a right of access to information in the possession of public bodies to the greatest extent possible consistent with the public interest and the right to privacy. 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. 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. Moreover, even where an overriding public interest in granting the request exists, there is a discretionary element to the application of section 37(5)(a).
I accept that there is a public interest in enhancing transparency around the manner in which a public body carries out its functions generally. It seems to me that the Council has endeavoured to release as much information as possible in the copies of the records it provided to the applicant. I am aware of no public interest factors in favour of the release of the personal information at issue that might outweigh, on balance, the privacy rights of the individuals concerned. In making this finding, I am conscious of the fact that the release of information must be regarded, in essence, as release to the world at large. In the circumstances, I find that section 37(5)(a) does not apply.
In conclusion, I find that the Council was justified in redacting the personal information of third parties from the records at issue under section 37(1) of the FOI Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Council’s decision. I annul the Council’s decision under section 15(1)(a) of the FOI Act and I direct it to consider the request again. I also find the Council was justified in refusing access to the personal information contained in Records 1, 2, 3, 4, 7, 8, 12, 13, and 14 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.
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Richard Crowley
Investigator