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Case Number: 160041

Whether the Council was justified in its decision to refuse a request under sections 15(1)(a), 15(1)(d), 31(1)(a), 32 and 37(1) of the FOI Act, for access to records concerning a planning and enforcement matter

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 22 October 2015, the applicant submitted a request under the FOI Act for access to records of the Council's procedures and processes for applications under section 5 of the Planning and Development Act and records relating to site visits and documents on a particular planning file. The planning file concerned an application from the applicant's neighbours for an extension to their property. The Council released a number of records and refused access to others under section 15(1)(a) on the basis that they were not held. It referred also to section 15(1)(d), stating that the procedures for section 5 applications are available in documents on a website and so are in the public domain. The Council also refused access to six other records on the basis of sections 31(1)(a) and 32 of the FOI Act, citing legal privilege. The applicant submitted a request for an internal review, following which, the Council affirmed the original decision. On 26 January 2016, the applicant made an application to this Office for a review of the Council's decision.

In conducting my review, I have had regard to the submissions of the Council and the applicant and to correspondence between the applicant and the Council. I have also had regard to the content of the records at issue and to the provisions of the FOI Act. I consider that the review should now be brought to a close by the issue of a formal, binding decision.

 

Scope of Review

During the course of this review, the Council made a submission to this Office and advised that one record, which it had refused under section 32 of the FOI Act, was also now refused the basis of section 37(1) of the Act, which protects personal information. This Office advised the applicant of the decision of the Council to exempt the record under section 37 and invited him to make a submission on that basis.

Consequently, this review is concerned with whether the Council was justified in deciding to refuse access to the records on the basis of sections 15(1)(a), 31(1)(a), 32 and 37(1) of the FOI Act.

Preliminary Matters

Section 13(4) of the Act requires that, subject to the Act, any reasons a requester gives for making a request shall be disregarded.

When a record is released under the FOI Act, it effectively amounts to disclosure to the world at large, as the Act places no restrictions on the type or extent of the subsequent use to which a record may be put.

I would note here that reviews carried out by this Office are de novo reviews, which means that the Commissioner considers all of the circumstances and information which exist on the date of a decision.

Findings

Section 15(1)(a)
Section 15(1)(a) of the FOI Act 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. 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 the records, along with miscellaneous other evidence about the record management practices of the FOI body, on the basis of which the FOI body concluded that the steps taken to search for the records were reasonable. The 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 this Office's website, www.oic.ie).

In a submission to this Office, the applicant explained that he was seeking a "Staff Handbook/Operation Manual", used by the Council, and that "Virtually every workplace on the country has such a handbook". The applicant also stated that he was "not satisfied that two public officials who made site visits could come back to the office with nothing". In addressing the matter of a Staff handbook, the Council stated that no such document exists, and that it would not be practical or advisable to set up a standard set of rules concerning the procedures or assessments of information relating to the matters at issue. I note that in its original decision on this matter, the Council advised the applicant that certain planning guidelines were available on the website of the Department of the Environment, Community and Local Government. I take it that the applicant accepts that certain national guidelines are in the public domain but that his claim is that a handbook or manual specific to the Council ought to exist. Thus, I see no need to address the section 15(1)(d) claim further in this decision. In its submission, the Council stated that it engaged in an "extensive search" of both electronic and hard copy records, and that all the information gathered as a result of that search was either released to the applicant or accounted for in the decision schedule issued to the applicant, including those records which were withheld.

The Council did not specifically mention site visits in its submission but in a follow-up conversation with the Investigator, it explained that all records relating to site visits were released and that, as stated in its original decision, "there are no further documents". As such, given its explanation about a "Staff Handbook/Operation Manual", records relating to site visits and its responses to queries posed by this Office, I have no reason to dispute the position of the Council.
The Council's position is that it has taken all reasonable steps to look for records of relevance to the applicant's request. I do not believe that the FOI Act requires me to direct the Council to carry out indefinite new searches. In view of the information provided by the Council relating to the searches undertaken, I consider that it has taken all reasonable steps to ascertain the whereabouts of any further relevant records. The fact that the applicant believes that certain records ought to have been created and held does not change my position. I find therefore that section 15(1)(a) of the FOI Act applies.

Section 31(1)(a)
Section 31(1)(a) is a mandatory exemption which protects records which would be exempt from production in proceedings in a court on the ground of legal professional privilege.

Legal professional privilege enables a client to maintain the confidentiality of two types of communication:

(a) 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
(b) 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).

The Council refused access to five records (nos. 11, 15, 17, 18, and 20), on the basis of section 31(1)(a).
Advice Privilege
The former Commissioner has considered records which may not, on an individual basis, satisfy the criteria for the attraction of legal professional privilege but which form part of a series of communications arising from an ongoing request for legal advice. For example, case 020281 (Mr. X and the Department of Education and Science available at www.oic.ie).
I have adopted this approach. Having examined the five records, I am satisfied that they either contain confidential communications between the Council and its legal advisers, asking for or receiving legal advice, or are part of a continuum arising from the Council's request for legal advice on the particular enforcement matter. I consider that they fall within the first limb of legal professional privilege. I find that the records are exempt under section 31(1)(a).

Section 37
The Council withheld one record (13) under section 37(1) of the FOI Act. That section provides for the refusal of a request where access to the record sought would involve the disclosure of personal information relating to an individual or individuals other than the requester. For the purposes of the Act, personal information is defined 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 that is personal, without prejudice to the generality of the foregoing definition, including

"(xii) the name of the individual where it appears with other personal information relating to the individual or where disclosure of the name would, or would be likely to, establish that any personal information held by the public body concerned relates to the individual", and

"(xiii) information relating to the property of the individual (including the nature of the individual's title to any property)".

Record 13 is a letter forwarded by the Planning and Enterprise Department of the Council to the neighbour of the applicant. In a separate letter to the applicant, the Council had described in some detail the content of the letter to the neighbour. However, in its internal review decision, the Council incorrectly referred to record 13 as exempt on the basis of "section 32 - Legal Privilege". Section 32 of the FOI Act is an exemption on the basis of 'Law enforcement and public safety'. The Council's description caused some confusion to the applicant, who questioned how such a record (the content of which having been previously described to him by the Council) could be exempt on the basis of legal professional privilege. Following communications with this Office, the Council, while affirming its decision to exempt the record under section 32, also claimed exemption for the record on the basis of section 37(1) of the FOI Act. As stated earlier, the applicant was informed of the Council's revised position by this Office and invited to make a submission on the matter.
Having reviewed the relevant record and taking into account the submissions of the applicant and the Council on the matter, I am satisfied that the withheld information is personal information. Accordingly, I find that section 37(1) of the Act applies to record 13.

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. That is to say, (a) the information contained in the records does not relate solely to the applicant; (b) the third parties have not consented to the release of that information; (c) the information is not of a kind that is available to the general public; (d) the information at issue does not belong to a class of information which would or might be made available to the general public; and (e) the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.

Section 37(5) of the FOI Act provides that
Where, as respects an FOI request the grant of which would, but for this subsection, fall to be refused under subsection (1), in the opinion of the head concerned, on balance-
(a) the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld, or

(b) the grant of the request would benefit the individual aforesaid,
the head may, subject to section 38, grant the request.
I cannot see how granting access to the record would benefit the person involved, so I need not consider subsection (b) any further.

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 considering the public interest test at section 37(5)(a), I have had regard to the judgment of the Supreme Court issued in July 2011 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] (available at www.oic.ie). Following the approach of the Supreme Court, "a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law" must be distinguished from a private interest for the purpose of section 37(5)(a).

In this case, the applicant seeks to invoke the public interest in the context of planning and enforcement matters, but in the particular context of a private dispute between the applicant and his neighbour.
There is, in this case, a public interest in ensuring openness and accountability as to how the Council carried out its functions and I accept that release of the details at issue in the record may offer further insight into the operations of the Council in this regard. The applicant stated that the Council has a statutory duty to administer planning functions in an open and transparent manner. He further stated that "The Planning process is not a private or secret matter".

I note that section 2 of "A Guide to Planning Enforcement in Ireland", published by the Department of Environment, Community and Local Government, states as follows:
"Generally speaking, all documentation relating to enforcement actions (including, for example, correspondence; planner's report to the Manager; Manager's decisions; representations made under section 152 of the Planning Act; warning letters; enforcement notices; notes on site visits, etc.) should be readily available to all parties directly involved and to the general public."

The Council confirmed to this Office that record 13 "was not a Statutory warning letter pursuant to S.152 of the Planning and Development Act". It stated that had the letter been issued under those provisions, it "would have been made available to the complainants [the applicant]". Consequently, as already outlined, I am satisfied that the record at issue concerns the personal information of a third party.

I am of the opinion that the public interest in ensuring openness and accountability has been met to a large degree by the release of other records to the applicant, as described above. In any case, the Council informed the applicant of the substance of its approach to the neighbour's development. The Council informed this Office that the application for the extension to the neighbour's property had been approved by An Bord Pleanála on 3 March 2016. In the circumstances of this case, I consider that, on balance, the public interest that the right to privacy of the third party to whom the information relates should be upheld outweighs the public interest that the request should be granted.

Having found all the records at issue to be exempt under either section 31(1)(a) or section 37(1), I do not consider it necessary to make a decision on whether the Council's reliance on section 32 of the Act is justified.

 

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Council in this case.

 

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 not later than four weeks after notice of the decision was given to the person bringing the appeal.

 

Elizabeth Dolan
Senior Investigator