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Whether the Council was justified in refusing the applicants' request for access to records concerning planning enforcement files on the basis of section 35(1) and section 42(m) of the FOI Act

Conducted in accordance with section 22(2) of the FOI Act, by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 9 March 2015 the applicants made an FOI request to the Council for access by inspection to "planning complaint files regarding [planning file] 12/3481", and also requested other information by way of a list of questions. The FOI request concerned records originally held by Wicklow Town Council now amalgamated with Wicklow County Council. The Council issued its decision on 2 April 2015 refusing access to the records on the basis of section 35(1) of the FOI Act as it contended that Planning Enforcement Files are not available for public inspection "as a matter of policy". The Council also answered the questions put to it by the applicants and stated that there was no Wicklow Town Council unauthorised development (UD) file relating to planning file 12/3481. Following an application, the internal reviewer affirmed the original decision. He stated that a UD file did exist in Wicklow Town Council and also relied on section 42(m) to refuse access to all the records. The applicants applied for a review by the Information Commissioner of the Council's decision on 15 June 2015.

Submissions have been received from the applicants and the Council, I therefore consider that the review should now be brought to a close by the issue of a formal, binding decision. In conducting my review I have had regard to the application and many detailed submissions from the applicants, the submissions from the Council and to correspondence between the applicants and the Council. I have also had regard to the contents of certain records provided to this Office by the Council and to the provisions of the FOI Act.

Scope of the Review

The issue in this review is whether the Council was justified in its decision to refuse access to the requested records on the basis of sections 35(1) and 42(m) of the FOI Act. I stress that this Office has no role in adjudicating on any of the complaints detailed by the applicants.

Preliminary Matters

It is relevant to note that section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request under section 12 shall be presumed not to have been justified unless the head of the relevant FOI body shows to the Commissioner's satisfaction that its decision was justified. This means that the onus is on the Council of satisfying this Office that its decision to refuse access to the records at issue was justified.

Analysis and Findings

The applicants' request and application
It would appear from the application to this Office and the many detailed submissions provided by the applicants that they are very dissatisfied with the action taken by Council concerning their complaints in relation to a development by their neighbour which they claimed had affected their property. In their original FOI request, the applicants made allegations of unlawful actions by the Council, posed questions and also requested access by inspection to the "planning complaints file" concerning the development. The Council identified the complaints file as the Unauthorised Development file or UD file. The applicants contended that they inspected the planning file and that a number of documents were missing from the file including a number of complaints which were submitted by them. In their ten page internal review request the applicants made further allegations about Council staff and asked additional questions of the Council which were not relevant or appropriate to the FOI Act. However, they also identified records which they contended were not filed in the Council's files such as their letters of complaints and reports sent to Wicklow Town Council in 2013/2014, prior to it being amalgamated with Wicklow County Council.

During the course of this review, the applicants sent 14 detailed submissions/copy letters (one of which comprised over 27 pages) to this Office. They also provided 16 large files of documents, the majority of which were not relevant to this review as the documents set out in detail the applicants' grievances with the Council. I must emphasise that the jurisdiction of the Commissioner does not extend to examining how the Council dealt with the applicants' complaints or any procedures in this regard. The remit of the Commissioner is to review decisions taken by FOI bodies concerning access to records and not to adjudicate on disputes between FOI bodies and members of the public. The applicants were advised on 28 August 2015 that it may be more appropriate for them to contact the Office of the Ombudsman.

The Council's handling of the FOI request and review
The Council in its original decision of 2 April 2015 stated that there "was no Wicklow Town Council UD file relating to [planning file] 12/3481". It also refused access to the Wicklow County Council UD file relating to planning file 12/3481 as it claimed that it is the policy of the Council that Planning Enforcement Files are not available for inspection and are generally refused on the basis of section 35(1) of the FOI Act. The Council did not elaborate further on the reasons for refusal and did not address the public interest test in section 35(3). In its internal review decision, the Council affirmed the original decision, said that it had determined that a UD file did exist in Wicklow Town Council and refused access to the complete file on the basis of section 35(1) and again it did not undertake a public interest balancing test. It also relied on section 42(m) to refuse access to both files. When requested by this Office, the Council provided the records which it deemed were relevant to this review and which comprised 28 records with 494 pages.

On 3 September 2015, Ms Alison McCulloch, Investigator in this Office, wrote to the Council stating that it was not acceptable that a blanket exemption was applied to the complete unauthorised development file. She requested that the individual records on the file be reviewed with a view to releasing additional records. She also sought additional information from the Council concerning records the applicants contended should be on the planning/UD files held by the Council. In response, the Council stated that Wicklow Town Council held all documents concerning a planning application on the one file including letters of complaint. According to the Council, following the amalgamation of the Councils, there was a change in the way files were treated and maintained and that in order to ensure consistency and transparency all files coming from all Town Councils were maintained in accordance with the County Council's procedures. The Council stated that in this case, it removed correspondence from the planning file and placed it on the UD file and it contended that this correspondence should have been returned to the planning file as it concerns matters of compliance and should be publicly available. The Council provided seven schedules of records of which two schedules referred to UD files. These UD files comprise of 134 records and 762 pages and therefore, the Council has identified additional records which were not considered in the original decision or internal review decision and are clearly within the scope of this FOI request. The Council however again applied a blanket exemption; it did not examine the files on a record by record basis.

It appears to me that there has been some degree of confusion on the part of both the applicants and the Council regarding the application and the existence of the records being sought under the FOI Act. In my opinion, some of the confusion arose due to the manner in which the request was framed by the applicants by way of questions to the Council. The large volume of documents sent to this Office by the applicants did not assist in clarifying matters but added to the confusion. The FOI Act gives a right of access to certain records and there is an onus on requesters to set out clearly what records they require. It seems to me that additional commentary, questions and criticism is unhelpful when attempting to identify particular records. However, on any reading, the applicants sought access by inspection of the "complaints files" relating to the planning file 12/3481 in their original request.

Exemptions applied by the Council
In its decisions, the Council relied on section 35(1) and 42(m) to refuse access by inspection to the requested records. Both of these exemptions are designed to protect confidentiality of information in certain circumstances. The Council contended that the records would identify the person who made complaints about the development. However, in this case the applicants made the complaints to the Council and it is not clear who the Council is trying to protect as it did not address this issue when requested to do so by this Office. The Council, in its submission to this Office, also claimed that all reports prepared by Council staff are prepared in anticipation of possible legal action. The Council adopted a blanket approach by claiming that these exemptions applied to all the records within the scope of this request and did not examine the files on a record by record basis or under take a public interest balancing test under section 35(3). Neither did the Council differentiate between records prepared by its staff and other records as required by section 35(2). It may well be the case that certain records are exempt from release on the basis of these or other exemptions of the Act such as personal information, legal professional privilege etc. and that certain other records do not qualify for exemption. It seems that the Council has not undertaken any substantial consideration of the content of the individual records as required by the FOI Act. I would refer the Council to the Department of Public Expenditure and Reform's (DPER) guidelines and further information on www.foi.ie as regards the requirements of a proper FOI decision. Of course, these requirements, including the public interest test, where appropriate, are clearly set out in sections 13(2) and 21(1) of the FOI Act.

I consider that it is not appropriate for the Commissioner to carry out the Council's role in assessing the records. Therefore, following careful consideration, it is my view that the decision of the Council should be annulled. The effect of this is that the Council is required to make a new, first instance decision on the applicants' original request in respect of the "planning complaints file regarding 12/3481" which should include the records which came to light during the course of this review as identified on the schedules provided to this Office by the Council on 15 September 2015. It would appear that access to the unauthorised development files concerning planning file 12/3481 will be within the scope of this request as the list of questions and criticisms are not proper or relevant to the FOI Act.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby annul the decision of the Council in this case and direct that the Council now conducts a new decision-making process in relation to the "planning complaints file regarding 12/3481" which should include the records which came to light during the course of this review as identified on the schedules provided to this Office by the Council on 15 September 2015 and inform the applicants of the outcome in accordance with the requirements of the FOI Act.

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.

Elizabeth Dolan
Senior Investigator