Cinneadh
Mr. X and Tipperary County Council
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-147165-P5N7K1
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-147165-P5N7K1
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Council was justified in refusing access to records relating to the extension of the Chief Executive’s tenure on the basis of sections 31(1)(a) and 37(1) of the FOI Act
25 July 2025
In a request dated 8 January 2024, the applicant sought access to records relating to specific correspondence between solicitors representing the Council and a separate named solicitors firm dated 22 April 2021. The substance of this correspondence related to the extension of the tenure of the Council’s former Chief Executive in line with section 47 of the Local Government Act 1991.
In a decision dated 2 February 2024 the Council identified 55 records as falling within the scope of the applicant’s request. It granted access to six records (records 1, 8, 28, 29, 30 and 31) and refused access to the remaining records on the basis of sections 31(1)(a) and 37(1); relating to legal professional privilege and personal information respectively.
On 9 February 2024 the applicant sought a review of this decision. As part of his request for an internal review, the applicant referred to two records which he considered should have been identified as falling with the scope of this request. On 29 February 2024 the internal reviewer affirmed the original decision.
On 13 March 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 applicant’s comments in his application for review, to the submissions made by the Council in support of its decision and to comments received from a third party. I have also had regard to the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision.
In the course of the review by this Office, the Council supplied its various decisions as referred to above as well as the records at issue in this case. Upon review of these, a slight disparity emerged between the schedule of records supplied to this Office and the actual records supplied with respect to records 8 and 9. More particularly, while record 9 was described in the Council’s submissions as relating to correspondence from a third party; an elected member of the Council, seeking to have certain information appended to the minutes of the Council meeting of 14 December 2020, upon review it was clear that this description corresponded with record 8 as supplied to this Office.
I am satisfied that as record 9 as supplied to this Office comprises an extract of the Council minutes from 14 December 2020, which is freely available on the Council website, that the Council’s arguments cannot relate to this record. I am therefore satisfied that the Council’s arguments with respect to record 9 in fact relate to record 8 as supplied to this Office. I will therefore refer to record 8 in the ensuing decision as relating to the letter from the third party and will consider the arguments made by the Council with respect to this record.
In addition, as set out above, the applicant, in his application for an internal review of the Council’s original decision submitted, made reference to two specific records which he was seeking; namely, minutes of Council meeting where the then Chief Executive Officer’s (CEO’s) commencement of tenure was agreed and a copy of the then CEO’s contract of employment. While the applicant made no reference to such records in his appeal to this Office, I nonetheless sought further information from the applicant as to whether he considered that such records should have been identified as falling within the scope of his request.
In response, the applicant said that the appointment or extension of tenure of a CEO of a County Council is a reserved function of the elected members of the Council and as such should be recorded in the relevant minutes. The applicant further referred to the Openness of Local Government Bodies Regulations 2014; which would appear to be an enactment of the UK Parliament, and said that in line with this piece of legislation, and in the interests of fairness and transparency, he said that he considers that the two records he referred to should fall within in the scope of his request.
I therefore sought further details from the Council with respect to the two records and queried, in particular, why such records were not identified as falling with the scope of the applicant’s request. In response the Council said the following. First, with respect to minutes of the Council meeting where the CEO’s commencement of tenure was agreed to, the Council referred to an email from a Council official to the applicant dated 22 February 2024. The Council said that it was clear from this email and associated attachments that the commencement of tenure of the CEO was based on legislation, i.e. the position of CEO was created by Section 16(3) of the Local Government Reform Act 2014. The Council further said that the requirement as set out in Section 145 of the Local Government Act 2001, as amended by Section 54 of the Local Government Reform Act 2014, concerning the appointment of a CEO which is a reserved function of the elected council did not apply to this tenure and therefore no record exists in the minutes of the Council as per Section 15 (1)(a) as the matter was not required to come before the Council. The Council also said that all of the minutes of Tipperary County Council since its inception are on the Council’s website at www.tipperarycoco.ie and are publicly available.
Secondly, with regard to the applicant’s query in relation to the CEO’s contract of employment, the Council said the following. It said that as the CEO’s contract was held on his personnel file it had not initially been considered as a relevant record falling within the scope of the applicant’s request. It further said that it does now accept that the contract falls within the scope of the current request. However, the Council also indicated that the contract, was released to the applicant on 22 February 2024, with certain information refused on the basis of section 37 relating to personal information.
In correspondence dated 26 November 2024 I provided the above information to the applicant and provided him with a final opportunity to make any further submissions he deemed appropriate in relation to these two records.
In a response dated 5 December 2024, the applicant raised a number of questions in relation to the manner of this Office’s review. However, the applicant did not make any substantive comment in relation to the two records referred to above. For the avoidance of any doubt, I emailed the applicant on 12 December 2024 and in the course of that email I specifically noted that he had not disagreed with my preliminary assessment that the Council had identified all records relevant to his request. I provided the applicant with a final opportunity to comment thereon.
By way of correspondence dated 7 January 2025 the applicant responded. The applicant said that he finds it very difficult to understand why the position of the new CEO, if created by one-off legislation, was nonetheless not records in the Council minutes, at least for record purposes. The applicant further said that he considers that the absence of such a crucial detail in the minutes to represent a significant oversight, either by the executive or by the elected members of the Council. The applicant said he considers the omission of the matter in the minutes to be analogous to a newly formed company failing to record the appointment of its first CEO in its official minutes. The applicant further said that this omission undermines the transparency and accountability which should be expected of public bodies. The applicant said the omission of a reference to the creation of the position of the new CEO in the Council minutes warrants further investigation and the applicant asked this Office to investigate the circumstances surrounding this omission. Finally, the applicant made no substantive comment on the Council’s assertion that it released the CEO’s contract of employment to him on 22 February 2024, with certain information refused on the basis of section 37 relating to personal information.
As has been previously explained to the applicant, this Office does not examine the manner in which public bodies carry out their functions generally, nor does it investigate complaints. Our role is confined to a determination that a body has taken all reasonable steps to ascertain the whereabouts of the records sought. The FOI Act is concerned with providing access to records actually held by FOI bodies as opposed to records that a requester believes the body should hold. If no such records are held, then that is the end of the matter and the FOI Act has no further application. While the applicant may consider that certain information should be contained in the Council minutes, specifically information in relation to the creation of the new CEO position by virtue of the 2014 Act, it remains the case that such information has not been included in the minutes. In addition, the applicant has not disputed the Council’s assertion that it released a redacted version of the former CEO’s contract of employment to him. In the circumstances, and bearing in mind the explanations provided by the Council, I am satisfied that I can exclude these two records from the scope of my review.
This review is concerned therefore solely with whether the Council was justified in refusing access to certain records identified as falling with the scope of the applicant’s request on the basis of sections 31(1)(a) and 37(1) of the FOI Act.
Before I address the substantive issues arising, I would like to make a number of preliminary comments. First, as referred to above, 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.
Secondly, 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. 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.
Thirdly, section 18(1) of the FOI Act provides that if it is practicable to do so, access to an otherwise exempt record shall be granted by preparing a copy, in such form as the body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). This Office considers neither the definition of a record under section 2 of the Act, nor the provisions of section 18 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.
Fourthly, it is important to note that a review by this Office is considered to be de novo, which means that it is based on the circumstances and law as they pertain at the time of the decision. Accordingly, in light of the de novo nature of our reviews, I consider it appropriate to consider the applicability of section 37, a mandatory exemption, to a wider range of records that the Council had sought to rely on in its decisions on the request.
Finally, while I am required by section 22(10) of the FOI Act to give reasons for my decisions, this is subject to the requirement at section 25(3) that I take all reasonable precautions to prevent the disclosure of information contained in an exempt record or matter that, if it were included in a record, would cause the record to be exempt. Therefore, the description I can provide of certain parts of the records at issue and of my reasoning in this case is somewhat limited.
As set out above, the Council has refused access to records on the basis of sections 31(1)(a) and 37(1) of the FOI Act. More particularly, it refused access to the following records on the basis of section 31(1)(a); records 8, 10-27 and 32-55 and it refused access to the following on the basis of section 37(1); records 2-8, 10-27, 34-35 and 37-55.
As I consider section 31(1)(a) to be of the most relevance, I propose to consider that provision first.
Section 31(1)(a)
As set out above, the Council has relied on section 31(1)(a) to refuse access to records 8, 10-27 and 32-55.
In its submission to this Office, the Council said that the relevant records attract legal privilege as the records contain a reference to the third party being in ‘legal argument’ with the Council in relation to the extension of tenure of the former Chief Executive. It said that the Council continues to have a reasonable expectation of third party litigation in relation to this matter. In support of its position, it referred to a reference in record 18, dated 4 February 2021, which contained the following reference: ‘to avoid [the third party] having to apply to the courts for remedy’. The Council said that no indication has since been given that contemplation of litigation has been abandoned.
Section 31(1)(a) provides for the mandatory refusal of a request if the record concerned would be exempt from production in proceedings in a court on the ground of legal professional privilege. Legal professional privilege enables the client to maintain the confidentiality of two types of communication:
• confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege), and
• confidential communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation (litigation privilege).
Where a claim for exemption is made on the basis that the records are covered by legal professional privilege, each record should be considered in its own right. It is important to note that, provided the prerequisites of advice privilege or litigation privilege are present, the fact that a professional legal adviser is employed as an in-house legal adviser does not prevent the client from asserting privilege over the communications at issue. Furthermore, records which may not, on an individual basis, satisfy the criteria for legal advice privilege may nevertheless qualify for exemption under section 31(1)(a) where they form part of a continuum of correspondence resulting from the original request for advice. Privilege may, in certain circumstances, also apply to communications between non-legal advisory staff which detail legal advice sought or received or are part of a continuum of communications arising from an initial request for legal advice.
On the question of whether the records are in fact privileged, I have examined each relevant record and, firstly, note that certain records – namely, records 10 (page 1), 15 (the first email on page 1 dated 8 February 2021 at 16:57), 18 (pages 1-4), 20, 21, 22 and 25 – very clearly comprise confidential communications between the Council and its legal adviser, for the purposes of obtaining or giving legal advice. While some of the records contain explicit requests for legal advice, others form part of a series of communications which was for the purpose of giving or receiving legal advice. It is the well-established position of this Office is that privilege attaches to records that form part of a continuum of correspondence resulting from the original request for advice. In my view these records are subject to legal advice privilege, as they show the Council seeking the professional opinion of its legal adviser, on a confidential basis, on a number of matters besides contemplated litigation.
In addition, record 19 comprises a hand-written note of a meeting between Council officials and solicitors representing the Council. Having examined the record, I am satisfied that it contains details of legal advice proffered by the Council’s solicitors and as such I am satisfied that legal advice privilege attaches to this record.
Record 10 contains attachments to the correspondence from the Council’s legal advisers to the Council. Record 15 also contains attachment to the correspondence relating to a request for legal advice. Record 18 contains attachments to the email to the Council’s legal adviser on pages 5-10 of the record. In addition, pages 11-14 of record 18 appear to comprise correspondence between the Council and its legal advisers enclosing a pro forma request for legal services template. It is not unusual for records which already exist to be attached to requests for legal advice. The normal principle is that a document would not be privileged if it is not brought into existence for the purpose of seeking or giving legal advice. Previous decisions of this Office found that, in general, legal professional privilege would not apply to an attachment to a request for legal advice unless it was a copy of a document that would not ordinarily be in the possession of the client (i.e. a copy of a document, the original of which was not held by the client, that the client had to take certain steps to acquire, possibly for the purpose of collecting evidence in anticipation of litigation) or unless release would result in the disclosure of legal advice previously received.
The attachments comprising pages 2-10 of record 10, the remainder of record 15 and pages 5-10 of record 18 are records that would ordinarily be held by the Council and do not disclose legal advice previously received. Having examined them, I am satisfied that such pages comprise pre-existing documents and I am not satisfied that the release of the documents would reveal the nature or trend of the advice sought. Equally, I am not satisfied that pages 11-14 of record 18 attract legal privilege, comprising as they do a completed standard Council form authorising the engagement of legal services on behalf of the Council. As such, I am satisfied that section 31(1)(a) does not apply to pages 2-10 of record 10, the remainder of record 15 and pages 5-14 of record 18.
Further, with regard to records 17, 26, 32, 36 and 37, while these records comprise correspondence with between Council officials and their legal representatives, I am satisfied that they are not privileged as they relate solely to administrative arrangements such as the scheduling of meetings, standard acknowledgements of correspondence received or forwarding on of correspondence. I am therefore not satisfied that these records are exempt on the basis of legal advice privilege. I am satisfied that section 31(1)(a) does not apply to these records.
In addition, record 44 is an invoice from solicitors representing the Council for legal services rendered and record 45 comprises internal Council correspondence in relation to the manner in which the invoice was to be recorded. Having reviewed these records, I am satisfied that they do not contain confidential communication between a client and their legal adviser for the purposes of obtaining or giving legal advice. I am therefore not satisfied that these records are exempt on the basis of legal advice privilege.
I further note that records 8, 11-14, 24, 27, 34-35, 39, 41-43, 46-51 and 53-55 comprise correspondence exchanged between the Council and the third party in relation to the extension of the term of office of the Chief Executive and certain other related matters. Having reviewed these records, I am satisfied that they do not contain confidential communication between a client and their legal adviser for the purposes of obtaining or giving legal advice. These are not confidential communications between a client and his legal adviser, as by definition they were created for the intention of corresponding with a third party, and were in fact shared with that party. I am therefore not satisfied that these records are exempt on the basis of legal advice privilege.
Record 16 comprises correspondence from solicitors representing the third party to the Council and record 23 comprises correspondence from solicitors representing the Council to solicitors representing the third party dated 22 April 2021. Record 38 is correspondence from the Council’s solicitors directly to the third party. In all cases, I am satisfied that legal advice privilege cannot apply to these records as they self-evidently do not comprise confidential communications between the Council and its legal adviser, for the purposes of obtaining or giving legal advice. In particular, with regard to record 38, I am satisfied that the designation of ‘personal and confidential’ attached to this correspondence does not change this position.
Record 33 comprises correspondence from an official of the Council and an official of the Department of Housing, Local Government & Heritage dated 18 October 2021 in relation to the extension of the Chief Executive’s term of office. Record 40 comprises correspondence from an official of the Council to the Cathaoirleach in relation to the extension of the Chief Executive’s tenure. Record 52 comprises correspondence between Council officials seeking to formulate a response to correspondence from the third party on the matter. Having examined these records, I am satisfied that they do not disclose confidential legal advice sought and/or received in relation to the substantive matter at issue. I am therefore satisfied that section 31(1)(a) does not applies to these records.
I have also considered the Council’s reasoning that section 31(1)(a) applies to these records on the basis of litigation privilege. In order for the records to enjoy litigation privilege, they must comprise confidential communications made between the client and a professional legal adviser, or the professional legal adviser and a third party, or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation. While it is relatively straightforward to show that litigation is pending (in other words, where legal proceedings have in fact been instituted), the question of contemplated litigation, which is at issue here, is more difficult to demonstrate. The view of this Office is that the mere possibility of legal proceedings is insufficient to engage litigation privilege. Generally, our approach is that, in order for litigation privilege to attach to a record, there must be a definite prospect, apprehension or threat of litigation, as opposed to a mere anticipation of same.
Having carefully considered the matter, I cannot accept that when the remaining records were created, litigation was contemplated. While it would appear that the third party made reference to potential litigation in the course of his protracted engagement with the Council, it remains the case that no legal proceedings arose, nor do I consider that the mere mention of potential further legal proceedings in the course of such lengthy engagement between the parties is sufficient to constitute a definite prospect of litigation. I am therefore satisfied that litigation privilege does not apply to records the remaining records for which section 31(1)(a) has been claimed.
On the basis of the above analysis, I am satisfied that record 10 (page 1), 15 (the first email on page 1 dated 8 February 2021 at 16:57), 18 (pages 1-4), 19, 20, 21, 22 and 25 are legally privileged and exempt from release under section 31(1)(a). I am therefore not required to consider whether they might also be subject to other exemptions cited by the Council. It remains for me to examine whether the records to which I have found section 31(1)(a) does not apply, are exempt under the other relevant provisions of the FOI Act.
Section 37 – personal information
In its submission to this Office, the Council sought to rely on section 37(1) to refuse access to records 2-8, 10-27, 34-35 and 37-55. As I have already found section 31(1)(a) to apply to records 10 (page 1), 15 (the first email), 18 (pages 1-4), 19, 20, 21, 22 and 25, I do not consider it necessary to consider these records further under this provision, with the exception of the remaining parts of records 10, 15 and 18.
Section 37(1) 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) or where the individual concerned has consented to release (section 37(2)(b) refers).
For the purposes of the Act, personal information is defined as information about an identifiable individual that either (a) would ordinarily 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. The Act details fourteen specific categories of information which are included in the definition without prejudice to the generality of the forgoing definition including (xiv) the views or opinions of another person about the individual.
Certain information is excluded from the definition of personal information, as set out in section 2 of the FOI Act. Paragraph (I) provides that where the individual is or was a staff member of an FOI body, or held an office or position remunerated from public funds, the definition does not include the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or occupies or occupied that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of those functions. Paragraph (II) of the definition provides that were the individual is or was a service provider, the definition does not include 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. 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.
Record 2 comprises a response from a member of the Council’s human resources team to the third party councillor following the latter’s request under the FOI Act for access to records relating to the appointment of the then Chief Executive as well as another position at the Council. As set out above, records 4-6, 8, 10, 11-15, 24, 27, 34-35, 39, 41-43, 46-50 and 53-55 comprise correspondence exchanged between the Council and the third party in relation to the extension of the term of office of the Chief Executive and certain other related matters. Records 3, 17, 26 and 37 comprises correspondence between staff members of the Council and solicitors acting on behalf of the Council. Records 7, 40 and 52 comprise correspondence between officials of the Council and/or the Cathaoirleach in relation to the third party’s correspondence. Record 51 also comprises correspondence from the third party solicitor to officials in the Council in relation to the extension of the term of office of the Chief Executive but also includes further correspondence relating to a particular issue which arose in relation to the handling of post by staff of the Council.
Record 16 comprises correspondence from solicitors representing the third party to the Council. Record 23 comprises correspondence from solicitors representing the Council to solicitors representing the third party in relation to the extension of the Chief Executive’s tenure. Record 38 comprises correspondence from solicitors representing the Council to the third party in relation to the same matter. As set out above, record 44 comprises an invoice from solicitors representing the Council for legal services rendered and record 45 relates to internal Council correspondence in relation to the manner in which the invoice was to be recorded. Finally, as outlined above, the remaining information in record 18 comprise pre-existing documents not forming part of the request for legal advice as well as pro forma templates for the engagement of legal services.
In its submissions to this Office, the Council said that records at issue contain personal information of an individual other than the requester, including ‘contentions’ made by him. With regard to certain records; namely records 3, 23, 26, 52 and 55, the Council argued that the information comprised personal information specifically as it contained ‘the views or opinions of another person about the individual i.e. Tipperary County Council and its law agent’.
In the course of my review, I contacted the third party in question, provided him with an overview of the request and invited him to make submissions. In response the third party indicated that he had no objection to the release of any information relating to him in the records at issue. Following this, I informed the Council of my exchange of correspondence with the relevant third party and provided them with an opportunity to make any further submissions they considered appropriate. In response, the Council informed me that it did not wish to make any further submissions in this matter.
As noted above, paragraph (I) excludes certain information relating to staff members and office holders of public bodies from the definition of personal information i.e. the name of the individual, and the office that he or she holds, the functions of that office, the terms on which it is held, and anything recorded by the individual for the purposes of the performance of his or her functions. This exclusion is intended, in essence, to ensure that section 37 cannot be used to exempt the identity of a public servant in the context of the particular position held or any records created by the individual while carrying out his or her official functions, or information relating to the terms, conditions or functions of positions. The exclusion does not deprive public servants of the right to privacy generally.
Having carefully considered the matter, and in light of the specific contents of the records, I am satisfied that, with the exception of what I will refer to below, much of the information in the relevant records does not, in my view, comprise personal information and therefore does not come within the scope of section 37(1). Specifically, I am satisfied that the correspondence received from the third party councillor querying the manner in which the tenure of the Council’s Chief Executive’s tenure was extended can appropriately be said to relate to the performance by him of his functions and accordingly falls within the scope of the exclusion from the definition of personal information contained in Paragraph (I) as referred to above. I am also satisfied that correspondence from staff members of the Council on the subject, both between themselves and in response to the third party, is also excluded from the definition of personal information for this reason. I consider that the information relates to the relevant staff members in the context of those staff performing their official functions.
In addition, as set out above, the Council has made specific arguments with regard to certain records (records 3, 23, 26, 52 and 55) to the effect that information in such records comprises personal information as it relates to (xiv) of the definition of personal information; namely the views or opinions of another person about the individual. As set out above, record 23 comprises correspondence from solicitors representing the Council to solicitors representing the third party in relation to the extension of the Chief Executive’s tenure while records 3 and 26 comprise correspondence between officials of the Council and solicitors acting on their behalf. Finally, records 52 and 55 comprise intra-Council correspondence regarding the matters raised by the third party councillor. I have carefully examined these records and having done so I am satisfied that they do not contain the views or opinions of another personal about an individual specifically, nor do they contain the personal information of individuals other than the requester more generally. I am therefore satisfied that, with the exception of what I will say in relation to record 26 below, section 37(1) does not apply to these records.
That said, I am satisfied that section 37(1) applies to certain information which I will now enumerate. I am satisfied that information in the relevant records relating to mobile phone numbers comprises the personal information of identifiable individuals and that section 37(1) applies to this information. I am also satisfied that the personal email address of the third party councillor which is referred to throughout the records comprises their personal information and that section 37(1) applies to this information.
In addition, with regard to the names and contact details of individuals who are staff members of a service provider, I am satisfied that the firm providing legal services to the Council is itself the service provider and that individuals who are named in the records in relation to that company are staff members, rather than service providers for the purposes of the FOI Act. I am therefore satisfied that the exclusion at Paragraph (II) does not apply and the names and details of individual staff members of the legal services firm contained in the relevant records comprise personal information and that section 37(1) of the Act applies to this information.
In addition, I find that the following information in records 17, 24, 26, 27, 32, 35 and 45 is similarly excluded:
• record 17:
o part of the third sentence of the email dated 16 February 2021 at 17:16; beginning ‘I am ……’ and ending ‘…. Thursday’
o the second sentence of the email dated 16 February 2021 at 14:56; beginning ‘Yes ….’ and ending ‘….well’.
• record 24:
o the last sentence of the correspondence dated 10 September 2021; beginning ‘The matter …’ and ending ‘…. addressed’.
• record 26:
o the second sentence of the email dated 15 September 2021 at 10:31; beginning ‘[third party name] is …..’ and ending ‘… present’
o the second sentence of the email dated 8 July 2021 at 10:19 beginning ‘Hope all …’.
• record 27:
o the last sentence on the first page of the correspondence dated 17 September 2021; beginning ‘As I have ….’ and ending ‘… this’
o the fifth paragraph on the third page of the same correspondence; beginning ‘The ….’ and ending ‘…. private sector’ and the last two sentences of the correspondence; beginning ‘No Councillor …’ and ending ‘…. representation’
o the second sentence of the email dated 15 September 2021 at 10:31; beginning ‘[third party name] is …..’ and ending ‘… present’
o the second sentence of the email dated 8 July 2021 at 10:19 beginning ‘Hope all …’.
• record 32:
o the first clause of the first sentence of the email dated 18 October 2021 at 16:48; beginning ‘I was …’ and ending ‘…. and’
o the first clause of the second sentence of the same email; beginning ‘I …’ and ending ‘…. but’
o the second sentence of the email dated 15 September 2021 at 10:31; beginning ‘[third party name] is …..’ and ending ‘… present’
o the second sentence of the email dated 8 July 2021 at 10:19 beginning ‘Hope all …’.
• record 35:
o the second last sentence of the letter dated 8 November 2021 beginning ‘The ….’ and ending ‘…. enormous’.
With regard to record 51, I have carefully considered whether this record contains personal information. While I am constrained by the provisions of section 25(3) in the description I can give of certain parts of the record, I can say that, as alluded to above, parts of the record comprise information relating to a certain issue which arose in the handling of post intended for the third party councillor by staff of the Council. At this juncture, I consider it important to recall the comments of this third party to this Office wherein he indicated that he had no objection to the release of information relating to him in the records at issue.
Having examined record 51, I am satisfied that, bearing in mind the provisions of section 18 as outlined above, the following parts of the record comprise the personal information of individuals other than the requester:
• the first sentence of the email dated 11 June 2023 at 08:14 beginning ‘Apologies ….’ on page 2 of the record.
• the first sentence of the email dated 26 July 2023 at 13:43 beginning ‘I am ….’ on page 2 of the record.
• the first sentence of the email dated 14 June 2023 at 10:09 beginning ‘Yes I had ….’ on page 7 of the record.
Page 9 of record 51 contains a letter dated 26 June 2023 to the third party councillor. I have carefully considered whether section 37 applies to this correspondence. Having done so, and bearing in mind the provisions of section 18, I am satisfied that this letter contains the personal information of individuals other than the requester, and indeed other than the third party councillor, and as such I am satisfied that section 37(1) applies to this letter.
Furthermore, I find that some other information in record 32, which was refused by the Council under section 31(1)(a), also comprises the personal information of individuals other than the applicant and the exclusions at (I) and (II) do not apply. Given that section 37(1) is a mandatory exemption for the protection of the personal information of third parties, and that this is a de novo review, I am satisfied that I can find that section 37(1) also applies to this information. The relevant parts of these records are as follows:
• record 32: part of the first sentence in the email dated 18 October 2021 at 16:48; beginning ‘I was …’ and ending ‘…. and’ and part of the second sentence in the same email; beginning ‘I appreciate …’ and ending ‘…. but’. The second sentence of the email dated 15 September 2021 at 10:31; beginning ‘[third party name] is …..’ and ending ‘… present’ and the second sentence of the email dated 8 July 2021 at 10:19 beginning ‘Hope all …’.
Section 37(1) of the Act is subject to the other provisions of the section. Therefore, as I have found section 37(1) to apply to certain information in the records, I must proceed to consider whether any of those other provisions serve to disapply section 37(1) in respect of any or all of the above information.
Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. I am satisfied that none of those circumstances arise 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 grant of the information would be to the benefit of the person to whom the information relates. I am satisfied that the release of the information at issue would not be to the benefit of the individuals concerned and that section 37(5)(b) does not apply.
In relation to paragraph (a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the right of privacy of the individuals to whom the information relates.
In its submission to this Office, the Council said that while it accepts that there is a public interest in ensuring openness and transparency in the manner in which it delivers its service, there remains a strong public interest in protecting the privacy rights of individuals. It also said there is a public interest in ‘protect[ing] the reputation and standing of a public authority in the public view from the dissemination of erroneous allegations which have been shown to have no legal basis’.
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 in so far 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 may 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.
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.
On the other hand, 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 correspondence with this Office the applicant said that all material should be released in the interests of fairness and transparency. While I accept that the release of the records at issue would serve somewhat to enhance transparency in relation to the manner in which the Council carries out its functions, this must be balanced against the fact that the information in the records at issue is personal to third party individuals and, while perhaps not inherently sensitive, is nonetheless of private nature relating to, amongst other things, the employment of the relevant individuals. Furthermore, I must regard the release of the records as being effectively, or at least potentially, release to the world at large. In the circumstances, I do not accept that the public interest in the releasing the relevant information in the records, outweighs, on balance, the privacy rights of the relevant individuals. I find, therefore, that section 37(5)(a) does not serve to disapply the application of section 37(1) to the information in the records that I have identified as personal information.
I also consider it appropriate to comment on the Council’s contention that ‘protect[ing] the reputation and standing of a public authority in the public view from the dissemination of erroneous allegations which have been shown to have no legal basis’. This Office does not generally accept that the possibility that released information will be misinterpreted, or will not be properly understood, is a valid reason for refusing access to the information, nor does the FOI Act provide for the withholding of information on the grounds that it is factually inaccurate. Apart from anything else, such arguments appear to the based on an assumption that public bodies are incapable of explaining their records to the public and are unable to present information to the public in a way which will allow any objective observer to draw accurate and balanced conclusions.
Accordingly, I find that, with the exception of the information which I have identified above as comprising personal information for the purposes of section 2 of the FOI Act, the Council was not justified in refusing access to the relevant records on the basis of section 37(1) of the Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Council’s decision. I find it was justified in refusing access to the following records, or parts of records on the basis of section 31(1)(a) and 37(1) of the FOI Act:
• mobile phone numbers contained throughout the records;
• the personal email address of the third party councillor which is referred to throughout the records;
• the names and contact details of individuals who are staff members of service providers to the Council throughout the records;
• records 19, 20, 21, 22 and 25 in full;
• record 10: page 1 of the record;
• record 15: the first email on page 1 dated 8 February 2021 at 16:57;
• record 17:
o part of the third sentence of the email dated 16 February 2021 at 17:16; beginning ‘I am ……’ and ending ‘…. Thursday’
o the second sentence of the email dated 16 February 2021 at 14:56; beginning ‘Yes ….’ and ending ‘….well’.
• record 18: pages 1-4 of the record.
• record 24:
o the last sentence of the correspondence dated 10 September 2021; beginning ‘The matter …’ and ending ‘…. addressed’.
• record 26:
o the second sentence of the email dated 15 September 2021 at 10:31; beginning ‘[third party name] is …..’ and ending ‘… present’
o the second sentence of the email dated 8 July 2021 at 10:19 beginning ‘Hope all …’.
• record 27:
o the last sentence on the first page of the correspondence dated 17 September 2021; beginning ‘As I have ….’ and ending ‘… this’
o the fifth paragraph on the third page of the same correspondence; beginning ‘The ….’ and ending ‘…. private sector’ and the last two sentences of the correspondence; beginning ‘No Councillor …’ and ending ‘…. representation’
o the second sentence of the email dated 15 September 2021 at 10:31; beginning ‘[third party name] is …..’ and ending ‘… present’
o the second sentence of the email dated 8 July 2021 at 10:19 beginning ‘Hope all …’.
• record 32:
o the first clause of the first sentence of the email dated 18 October 2021 at 16:48; beginning ‘I was …’ and ending ‘…. and’
o the first clause of the second sentence of the same email; beginning ‘I …’ and ending ‘…. but’
o the second sentence of the email dated 15 September 2021 at 10:31; beginning ‘[third party name] is …..’ and ending ‘… present’
o the second sentence of the email dated 8 July 2021 at 10:19 beginning ‘Hope all …’.
• record 35:
o the second last sentence of the letter dated 8 November 2021 beginning ‘The ….’ and ending ‘…. enormous’.
• record 51:
o the first sentence of the email dated 11 June 2023 at 08:14 beginning ‘Apologies ….’ on page 2 of the record;
o the first sentence of the email dated 26 July 2023 at 13:43 beginning ‘I am ….’ on page 2 of the record;
o the first sentence of the email dated 14 June 2023 at 10:09 beginning ‘Yes I had ….’ on page 7 of the record; and
o the letter contained on page 9 of the record
I find it was not justified in refusing access to the remaining records at issue in this case and direct that they be released to the applicant.
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.
Mary Connery
Investigator
24 July 2025