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Case Number: 150381

Whether the Authority was justified in its decision to refuse access to records concerning an apartment complex on the basis that sections 15(1)(a) and 37(1) of the FOI Act applied.

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

In her FOI request of 16 July 2015, the applicant sought a copy of all surveys and reports (fire safety and structural) relating to a named apartment complex. In its decision of 25 August 2015, the Authority refused to release one record, a Fire Safety Assessment Report, on the basis that it contained matter relating to the deliberative processes of the Authority (section 29(1) of the FOI Act refers). The applicant sought an internal review of this decision. On 18 September 2015, the Authority affirmed its original decision. On 28 October 2015, the applicant applied to this Office for a review of the Authority's decision. Both the applicant and the Authority made submissions in the course of this review. I have decided to conclude this review by issuing a formal binding decision as the applicant requires this.

In conducting this review, I have had regard to correspondence between the applicant and the Authority, to correspondence between the Authority and this Office, to correspondence between the applicant and this Office, to the contents of the records at issue and to the provisions of the FOI Act.

Scope of Review

The scope of this review is confined to the following issues:

- Whether the Authority has justified its decision that section 15(1)(a) of the FOI Act applies as no further records exist or can be found after all reasonable steps to locate further records have been taken;
- Whether the Authority has justified its decision to refuse to release three additional records which came to light during the course of this review;
- Whether the Authority has justified its decision to refuse to release parts of the Fire Safety Assessment Report on the basis that the parts withheld contain personal information and are exempt under section 37(1) of the Act.

The Fire Safety Assessment Report
In its internal review decision, the Authority identified a single report which was relevant to the applicant's request. The report in question, a Fire Safety Assessment Report of 23 December 2014, was commissioned by the Authority itself. On 24 February 2016, the Investigator wrote to the Authority and pointed out that in a previous review by this Office on 19 January 2016, the Commissioner directed the Authority to release the Fire Safety Assessment Report. The Investigator pointed out that in that case (reference no. 150208) the Authority had also sought to rely on section 29 of the Act in refusing to release this Report. The Investigator also pointed out that in the same case the Commissioner directed the Authority to release two related reports which were both created by the same Fire Safety Engineer who created the Assessment Report. The reports in question, a Progress Report of 8 October 2014, and Fire Safety Engineers Report of 23 December 2014, both concerned the apartment complex referred to in the applicant's request. On 26 February 2016, the Authority wrote to this Office and confirmed that it would release all three reports to the applicant. No explanation was put forward by the Authority as to why these records were not identified previously.

On 29 February 2016, the three reports were released to the applicant. However, all references in the Assessment Report to properties owned by third parties were withheld. This information had previously been withheld in case 150208, with the consent of the applicant in that case, on the basis that it was the personal information of third parties. When contacted by the Investigator about this issue, the applicant stated that she was not satisfied with this information being withheld. I will address this issue later on in the decision.

Preliminary Matters

Handling of the Request and Review
I must say here that I am disappointed in the Authority's handling of this case. I find it difficult to understand how reports clearly lying within the scope of the request came to light only when queries were raised by this Office in the course of the review. The FOI Act makes it clear that records "held" by an FOI body are subject to access rights regardless of who commissioned them.

Section 18
I should explain the approach to granting access to parts of records. Section 2 of the FOI Act defines "record" as including "anything that is a part or a copy" of a record. Section 18 of the Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. However, the Commissioner takes the view that neither the definition of a record 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, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent.

Section 22(12)(b)
Section 22(12)(b) of the FOI Act provides that a decision to refuse a request shall be presumed not to have been justified unless the head of the FOI body shows to the Commissioner's satisfaction that its decision was justified. This means that the onus is on the Authority to satisfy the Commissioner that its decision to refuse access to the records was justified.

Section 25(3)
Although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the records at issue and the material that I can refer to in the analysis is limited. The release of a record under the FOI Act is considered, effectively, as release to the world at large.

Analysis and Findings

The applicant states that she is an owner occupier of one of the apartments in the complex referred to in her FOI request. She claims that there are fire safety issues affecting the complex and that the Authority, as the owner of the common areas in the complex, commissioned surveys in relation to these fire safety issues. The applicant got access to three reports from the Authority during the course of this investigation; however she argues that the Authority holds further relevant reports which have not been released. It is clear therefore that section 15(1)(a) of the Act is relevant in this review, though the exemption was not claimed by the Authority at any point.

Section 15(1)(a)
Section 15(1)(a) provides that a request for access to a record may be refused if the record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. In such cases, the Commissioner's role is to review the decision of the public body and to decide whether the decision that no further records exist is 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 his/her decision. The evidence in "search" cases consists of the steps actually taken to search for records along with miscellaneous other evidence about the record management practices of the public body on the basis of which the public body concluded that the steps taken to search for records was reasonable. My Office's understanding of its role in such cases was approved by Mr. Justice Quirke in the High Court case of Matthew Ryan and Kathleen Ryan v the Information Commissioner [2002 No. 18 M.C.A.] (available on www.oic.ie).

Adequacy of Searches
The applicant claims that further records ought to exist which are relevant to her request. She provided this Office with a letter of 19 June 2015, written by a public representative to residents, which refers to the Authority seeking tenders for the balance of fire safety improvement works. She also provided this Office with a copy of a letter to residents dated 18 December 2015, in which the developer of the apartments refers to his attempts to obtain reports from the Authority.

On 7 March 2016, the Investigator contacted the Authority and asked it to reply to his queries in relation to the steps taken to search for records and in relation to the record management practices of the Authority. In its reply of 14 March 2016, the Authority referred to attempts to locate certain reports specifically identified by the applicant. However it did not address all the "search" questions. For example, it provided no details of its record management practices or of what areas had been searched etc. On 14 March 2016, the Investigator again contacted the Authority about the search issue and pointed out that replies to these questions were required in order to reach a conclusion on whether the searches undertaken by the Authority were adequate and reasonable in this case. On 15 and 22 March, the Authority referred to searches for the reports identified by the applicant, it did not however provide the details requested.

In these circumstances, I am not satisfied that adequate searches for records were carried out by the Authority. The appropriate course of action is to annul the decision of the Authority in respect of any further records held and to direct that it conducts a fresh decision making process in relation to the applicant's request. I would like to take this opportunity to remind the Authority of the requirements on FOI bodies when searching for records and to draw its attention to the adequacy of search case guidelines contained in this Office's procedure manual which is accessible at www.oic.ie.

Additional Reports identified by the applicant
During the course of this review, that applicant identified four additional reports which she believed the Authority holds. The reports identified are as follows:

1. Building Survey and Schedule of Works Report;
2. Defect Snagging Report;
3. Building Control Compliance Report;
4. Service Shafts and Fire Alarm Systems Report.

Following queries from this Office, the Authority said that it conducted further searches for these reports and located reports 2, 3 and 4. The Authority stated that it was unable to locate report 1. The Authority stated that, unlike the Fire Safety Assessment Report and the two related reports, it had not commissioned any of the reports identified by the applicant. The Authority stated that report 2 was commissioned by the Management Company for the apartment complex and reports 3 and 4 were commissioned by Receivers appointed in relation to the apartment complex. The Authority stated that these report were located following further searches of its archives and following requests to consultants working on its behalf to search for relevant records. The Authority argued that reports 3 and 4 were exempt under sections 32(1)(a)(iv), 36(1)(b) and 36(1)(c) of the Act. I note that this is not a decision under the FOI Act and that, for example, the FOI Body has not considered the public interest balancing test where relevant. It also stated that while it did not object to releasing report 2, it had not contacted the Management Company to seek its views in relation to release. Again no explanation was put forward by the Authority as to why these reports were not previously identified.

In cases where an FOI body locates additional records during the course of a review, it is the general practice of this Office to bring the review to a close without a determination on the question of access to those records. In exceptional cases the records may be considered as part of a current review. In this case the Investigator sought copies of the records to ascertain whether this would be possible. However, having examined the records it is clear that they are lengthy and third party interests are an issue in relation to the three records. I do not consider that, in this case, this Office should be required to make a first instance decision on these records. I therefore propose to annul this aspect of the Authority's decision and direct that a fresh decision making process be undertaken in respect of these three additional records which will be subject to the same rights of review and timelines applicable to the original request.

Section 37
As outlined above, the Authority refused to release part of the Fire Safety Assessment Report on the basis that the information refused was the personal information of third parties. Section 37(1) of the FOI Act provides that access to a record shall be refused if access would involve the disclosure of personal information. The FOI Act defines the term "personal information" as information about an identifiable individual that either (a) would, in the ordinary course of events, be known only to the individual or his/her family or friends or, (b) is held by a public body on the understanding that it would be treated by it as confidential. The Act lists fourteen categories of information that is personal including "(ix) information in relation to the property of the individual (including the nature of the individual's title to any property". The information withheld from the Fire Safety Assessment Report identifies third parties properties and provides information about those properties. I find that the information withheld in this report is exempt on the basis of section 37(1) subject to the provisions of section 37(2) and section 37(5), which I examine below.

Section 37(2) and Section 37(5)
There are some circumstances, provided for at section 37(2) of the FOI Act, in which the exemption at section 37(1) does not apply. Section 37(2)(a) provides for an exception to section 37(1) where the information concerned relates to the requester. I note that the applicant is the owner of one of the apartments in the complex referred to in her request. However, the Authority has stated that it did not withhold any details relevant to the applicant's property when it released the Fire Safety Assessment Report to the applicant. I am satisfied therefore that section 37(2)(a) is not applicable, I am also satisfied that none of the other circumstances identified at section 37(2) 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. In my view, the grant of the request would not benefit the individuals to whom the information relates. I am satisfied that section 37(5)(b) does not apply in this case.

The Public Interest
Section 37(5)(a) provides for access to the personal information of a third party where the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates. In relation to the question of where the public interest lies, I have had regard to the judgment of the Supreme Court in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner [2011] IESC 26 [more commonly referred to as "the Rotunda Hospital case"]. In the Rotunda Hospital case, the Supreme Court drew a distinction between private interests and public interests. The comments of Fennelly J. indicate that a request made "by a private individual for a private purpose" is not a request "made in the public interest". Moreover, in the opinion of Macken J., the public interest would require "a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law".

The FOI Act itself recognises a public interest in ensuring the openness and accountability of public bodies, regarding how they conduct their business. To a large extent, this public interest has been served by the release of the substantive record albeit with a small number of redactions. On the other hand, the FOI Act also recognises a very strong public interest in protecting privacy rights in the language of section 37. It is also worth noting that the right to privacy also 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. I find that, in the circumstances of this case, the right to privacy of the third parties whose personal information is in the record outweighs the public interest in granting the applicant's request.

In summary, I find that sections 37(1) applies and that none of the exceptions under section 37 apply to the withheld information.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of the Authority in this case. I annul the decision of the Authority in respect of the three additional records which came to light during the review and in respect of the Authority's reliance on section 15(1)(a) of the Act. I direct that a fresh decision making process be undertaken in relation to the applicant's request, to include the three records located. This fresh decision making process will be subject to the same rights of review and timelines applicable to the original request. I affirm the Authority's decision to refuse to release information in the Fire Safety Assessment Report on the basis of section 37(1) of the Act.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

Elizabeth Dolan
Senior Investigator