Decision
Mr B and Tipperary County Council
From Office of the Information Commissioner (OIC)
Case number: OIC-152310-N4D5K0
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-152310-N4D5K0
Published on
Whether the Council was justified in refusing access to records relating to a planning enforcement complaint under sections 15(1)(d), 32(1)(a)(i), and 32(1)(a)(ii) of the FOI Act
22 August 2025
The background to this review lies in a complaint the applicant made to the Council in 2023 concerning a newly built residential development adjacent to his property. In a request dated 18 July 2024, the applicant sought access to all records relating to the development from the date the Planning Section was first approached up to the date of his request. In a decision dated 15 August 2024, the Council identified 3 records as relevant to the scope of the request. It refused access to the relevant planning files which it described as Records 1 and 2 under section 15(1)(d) of the Act which provides for the refusal of a request where the information is already in the public domain. It provided links to its eplanning webpage (ePlan), where planning files are accessible to members of the public. It refused access to the planning enforcement file it described as Record 3 under section 32(1)(a)(ii) of the Act. It said the applicant would be kept informed of any relevant correspondence in accordance with Part VII (Enforcement) of the Planning Development Act 2000. On 21 August 2024, the applicant applied for an internal review of the Council’s decision. On 10 September 2024, the Council affirmed its refusal of the enforcement file under sections 32(1)(a)(i) and 32(1)(a)(ii) of the Act. On 25 September 2024, the applicant applied to this Office for a review of the Council’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 between the applicant and the Council as outlined above and to the communications between this Office and both parties on the matter. I have also had regard to the contents of the records at issue. I have decided to conclude this review by way of a formal, binding decision.
The enforcement file at issue contains 66 individual records. During the course of the review, the Council decided to release 42 of those records to the applicant. It also said that record 24 was previously released to the applicant. The Council also identified records on the schedule that were created after the date parameters of the applicant’s request, “seeking records up to and including 18 July 2024”. Three of the records released, records 1, 3 and 64 to the applicant were created after the date of the applicant’s request. Records 2, 63, 65 and 66 were also created after the date of the applicant’s request. Accordingly, I will give no further consideration to those records in this review.
Accordingly, this review is concerned solely with whether the Council was justified in refusing access to the relevant planning files under section 15(1)(d) of the FOI Act and in refusing access to records 4, 9, 13, 17 to 20, 25, 35, 37, 40, 46 to 52, and 56 of the planning enforcement file under sections 32(1)(a)(i) and 32(1)(a)(ii) of the FOI Act.
Section 15(1)(d) provides that an FOI body may refuse to grant a request where the information sought is already in the public domain. The two relevant planning files were refused by the Council under section 15(1)(d), as it said the records were already in the public domain and are available to view on its ePlan platform. It said the online files contain external and internal documents received in relation to both files and all documents are labelled.
The applicant does not dispute that records relating to the planning application are available to the public to view online. According to the applicant, his issue, however, is that access to specific documents, namely planning impact assessments and planning enforcement procedures are not accessible or comprehensible to the ordinary person by viewing planning details online. In response, the Council said that the full scope of the assessments and appraisals undertaken with respect to both planning applications are set out in the planner’s reports on both files which have been published and are available online to view.
From a search of the Council’s ePlan webpage I am satisfied that the planning files in question are publicly available. And that the planner’s reports are labelled and accessible to the public. Accordingly, I find the Council was justified in refusing access to the two planning files under section 15(1)(d) of the Act.
Section 32(1)(a)(i) of the Act provides for the refusal of a request if the FOI body considers that access to the record concerned could reasonably be expected to prejudice or impair the prevention, detection or investigation of offences, the apprehension or prosecution of offenders or the effectiveness of lawful methods, systems, plans or procedures employed for the purposes of the matters aforesaid. Section 32(1)(a)(ii) provides for the refusal of a request if the FOI body considers that access to the record concerned could reasonably be expected to prejudice or impair the enforcement of compliance with or the administration of any law.
Where an FOI body relies on section 32(1)(a) to withhold a record, it should identify the potential harm in relation to the matters specified in the relevant sub-paragraph that might arise from disclosure of the record. Having identified that harm, it should then consider the reasonableness of any expectation that the harm will occur. The FOI body should explain how and why, in its opinion, release of the record could reasonably be expected to give rise to the harm envisaged. A claim for exemption under section 32(1)(a) must be made on its merits and considering the contents of the particular record concerned and the relevant facts and circumstances of the case. The test in section 32(1)(a) is not concerned with the question of possibilities or probabilities but with whether or not the expectation of harm is reasonable. Moreover, an FOI body relying on section 32(1)(a) should show how release of the particular records could reasonably be expected to result in the harm(s) identified. A mere assertion of expected harm is not sufficient. The FOI body should specify what it is about the particular information in the record which if released is expected to cause the harm envisaged and it should explain how or why that harm is expected to occur. Submissions by FOI bodies should be sufficiently detailed to demonstrate that link.
The records at issue are contained on a planning enforcement file. The records primarily comprise emails relating to the applicant’s planning enforcement complaint, both internal and with the applicant. Record 13 comprises a system entry containing details of representations received from a named County Councillor relating to the development while record 17 comprises a planning enforcement report.
The Council said the records at issue are the subject of an ongoing investigation under Part VIII of the Planning and Development Act 2000 as amended. It said that release of the records would serve to undermine the integrity of the investigation as a result of a failure to have due regard to procedural fairness. It said this would seriously weaken the Council’s ability to comply with its legal obligations under the Planning and Development Act 2000. It said premature release would contaminate the decision-making process. It added that if an enforcement notice is served, it would provide the applicant with a copy of same or if a decision not to serve an enforcement notice is made, it would notify him of same with the reason(s) why.
I accept that the records at issue relate to an ongoing investigation under the relevant planning legislation. However, this of itself does not mean that the release of related records, regardless of their content, could reasonably be expected to prejudice or impair the prevention, detection or investigation of offences, the apprehension or prosecution of offenders, the effectiveness of lawful methods, systems, plans or procedures employed for the purposes of the matters aforesaid, or the enforcement of compliance with or the administration of any law. The Council has not identified any particular information in the records whose release might comprise a failure to have due regard to procedural fairness and thus give rise to the harms outlined in section 32(1)(a)(i) and 32(1)(a)(ii). Rather, it appears to have taken a blanket approach to the withholding of the records arising out of a general concern about the possibility of a procedural fairness breach.
I note that the records are simply reflective of the complaint made and the action taken by the Council to date to investigate the matter. Indeed, I note that the Council has already issued a warning letter to the developers concerning its findings in relation to compliance with the planning permission granted and that it has already informed the applicant of the steps and decisions it has taken to date and of the substantive findings set out in the planning enforcement report (record 57 refers). I also note that it has already provided the applicant with a copy of the warning notice issued (records 23 and 24 refer). As such, it is not apparent to me how the release of the records might comprise a failure to have due regard to regard to procedural fairness. Accordingly, I find the Council was not justified in its decision to refuse access to the records at issue under section 32(1)(a)(i) or 32(1)(a)(ii) of the FOI Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Council’s decision. While I find that the Council was justified in its decision to refuse access to the planning files under section 15(1)(d) of the Act, I find that it was not justified in refusing access, under sections 32(1)(a)(i) or 32(1)(a)(ii) of the Act, to the relevant records held on the planning enforcement file and I direct their release.
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 requester 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.
Stephen Rafferty
Senior Investigator