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Case Number: 160562

Whether the Council's decision to partially grant a request for access to records relating to works carried out on certain properties was justified

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

Background

On 22 September 2016, the applicant made a 6 part request to the Council for copies of correspondence and records relating to works carried out on certain properties.

On 19 October 2016, the Council decided to part-grant the request. It identified 70 records as coming within the scope of the first four parts of the request, granting full access to 13 records, partial access to 56 records and refusing access to one record. It refused access to records coming within the scope of parts 5 and 6 of the request. On 7 November 2016, the applicant sought an internal review of the Council's decision.

On 1 December 2016, the Council released additional records in respect of parts 1 to 4 of the request that were originally deemed to fall outside the scope of the request. It affirmed the decision to refuse access to information relating to points 5 and 6. On 16 December 2016, the applicant sought a review by this Office of the Council's decision.

I have decided to conclude this review by way of a formal binding decision. In conducting this review, I have had regard to the contents of the records coming within the scope of the request and to the submissions of the parties. In referring to the records at issue, I have adopted the numbering system used by the Council in the schedule of records it appended to its internal review decision.

Scope of the Review

In respect of parts 1 to 4 of the request, the Council refused access to one record and granted only partial access to 51 other records. It refused access to all 80 records it identified as coming within the scope of parts 5 and 6 of the request. Therefore, the scope of this review is concerned solely with whether the Council was justified in its decision to refuse access, or to grant only partial access, to the records concerned. I note that some redactions have been applied to the records relating to parts 1 to 4 of the request on the basis that the information relates to properties other than those specified by the applicant in his request, and I am satisfied that such information is outside of scope.

Preliminary Matters

Section 18(1) of the 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). I take the view that 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, I am not in favour of the cutting or "dissecting" of records to such an extent. Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.

It is also important 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 Department of satisfying this Office that its decision to refuse access to the records sought, either in whole or in part, was justified.

Analysis and Findings

Parts 1 to 4
The Council redacted certain information from 51 records coming within the scope of parts 1 to 4 of the request under section 37(1) of the FOI Act, while access to record 54 was refused under section 36.

Section 37
This exemption provides for the mandatory refusal of a request where access to the record sought would involve the disclosure of personal information relating to a person other than the requester. For the purposes of the Act, personal information is information about an identifiable individual that (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 an FOI body on the understanding that it would be treated by it as confidential. Section 2 of the Act details fourteen specific categories of information which is personal information without prejudice to the generality of (a) and (b) above. Section 2 of the Act also excludes certain information from the definition of personal information. In particular, paragraph (I) provides that personal information does not include the following information relating to an employee of an FOI body:

"... 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 the functions aforesaid".

The Council redacted a relatively small amount of information in the partially released records. The information released falls into a number of categories, as follows:

1. mobile telephone numbers of its staff,
2. information relating to residents of the relevant properties or their property,
3. the identities and contact details of companies/organisations providing services for the Council, including company emails, addresses and telephone numbers, and
4. the names and personal contact details of individuals employed by those companies, including individual emails and mobile phone numbers.

I am satisfied that all of the information redacted from the records comprises personal information, apart from the information falling into category 3 above. I find, therefore, that section 37(1) applies, except in respect of the information falling into category 3 above in the following records:

Records 4, 5, 6, 8, 9, 10, 11, 14, 15, 16, 22, 33, 38, 56, 57, 58, 59, 60, 61, 62, 63, and 66.

Section 37(2) of the FOI Act sets out certain circumstances in which 37(1) does not apply. However, 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 in question would not be to the benefit of the individuals to whom the information relates. On the matter of where the balance of the public interest lies, while I acknowledge that there is a public interest in enhancing the transparency and accountability of the Council, I fail to see how the release of the particular information at issue would serve that purpose to any real extent. On the other hand, there is a significant public interest in the protection of the privacy rights of individuals. I find therefore that section 37(5)(a) does not apply.

Section 36
As I outlined above, access to record 54 was refused under section 36(1).

Section 36(1) provides as follows:

"Subject to subsection (2), a head shall refuse to grant an FOI request if the record concerned contains --
(a) trade secrets of a person other than the requester concerned,
(b) financial, commercial, scientific or technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation, or
(c) information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates."

Subsection (2) contains a number of exceptions to the exemption. Subsection (3) contains a public interest balancing test.

The record comprises a number of quotations from various contractors for the supply of a mobile home, and an invoice for same. In its submission to this Office, the Council argued that access was refused as it was felt that the disclosure of prices quoted by other contractors would give an unfair advantage to the applicant when submitting quotations in the future and that it "may result in material/financial loss to the other contractors and may affect the negotiations of that contractor for future tenders".

It appears, therefore, that the Council considers subsections (b) and (c) of section 36(1) to apply. During the course of the review, Simon Noone, Investigator with this Office, notified the five companies and invited them to make submissions on the matter. He stated that if no response was received within a specified time frame, he would proceed on the assumption that there was no objection to release. One of the third parties contacted this Office by telephone to confirm that it consented to the release of the record. No other responses were received.

I note that the standard of proof necessary to meet the second part of section 36(1)(b), as well as section 36(1)(c), ('could prejudice' etc.) is relatively low. However, I am not satisfied that this standard has been met in this instance. The invoices/quotations set out, with relatively little detail or explanation, the price for the items and/or services to be provided by the third parties. There is nothing to suggest that these prices were unique to the Council, or were otherwise commercially sensitive. It does not seem to me that the release of this information to the applicant could prejudice the competitive position of the third parties, or possible future negotiations involving them. Furthermore, there has been no objection to the release of the information from the relevant parties. Therefore, I find that section 36 is not applicable to the record.

Parts 5 and 6
The Council refused access to all 80 records it identified as coming within the scope of parts 5 and 6 of the request under section 30(1)(a). This exemption provides that access to a record may be refused if such access could reasonably be expected to "prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct thereof." It is subject to a public interest balancing test (subsection (2).

In its submissions to this Office, the Council stated that an internal audit was commissioned to investigate certain issues regarding the maintenance of a particular property. It stated that "The internal investigation is still in draft format and the investigation has not yet been concluded. Therefore it is our concern that releasing any such records prior to conclusion of this investigation may prejudice the outcome of the investigation." It did not provide any further justification or explanation for its decision to apply this exemption.

When refusing access to records under section 30, an FOI body must, firstly, identify the potential harm to the functions covered by the exemption that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur. A general prediction without any supporting evidence is not sufficient to demonstrate that the application of the exemption was justified. In Sheedy v Information Commissioner [2005] IESC 35, [2005] 2 IR 272, Kearns J held that the onus to produce evidence of prejudice falls on the FOI body and, in the absence of such evidence, this Office is entitled to hold against the FOI body.

In this instance, I do not consider that the Council has adequately demonstrated that the release of the records could reasonably be expected to prejudice the effectiveness of its audit. It appears to have applied a 'blanket' exemption to all records relating to the audit without considering whether section 30 is appropriate to each of them on a record-by-record basis. Furthermore, it has not shown how the release of all of the records, or any of them, could reasonably be expected to prejudice the effectiveness of the audit. It has, in my opinion, made a mere assertion of harm without any evidence. The fact that the investigation is ongoing is not, of itself, sufficient to justify the refusal of access. Indeed, I am quite satisfied that the release of many of the records could not reasonably be expected to give rise to the harms identified.

However, even a cursory examination of the records demonstrates that they contain a significant amount of information relating to third parties. It would not be appropriate, therefore, to direct release of this information without consideration of whether other exemptions, e.g. sections 35, 36 or 37, may be applicable to protect the interests of the third parties. As this Office is an appellate body which reviews decisions of FOI bodies, I do not believe that it would be appropriate for me to make a first-instance decision on whether exemptions other than section 30 are applicable to the records, in circumstances where no consideration has been given to the matter by the Council.

Therefore, I consider it appropriate to remit the matter back to the Council, in order for it to carry out a fresh decision making process in respect of the information in the records relating to third parties. If the Council wishes to refuse access to any or all of the records, or any parts of the records, it must identify the relevant exemptions and, pursuant to section 13(2), provide reasons for the refusal, any findings on any material issues relevant to that decision, and particulars of any matter relating to the public interest taken into consideration for the purposes of the decision.

Decision

In respect of parts 1 to 4 of the request, I direct the Council to release record 54 in full and to release the identities and contact details of companies/organisations providing services for the Council, including company emails, addresses and telephone numbers, that have been redacted from records 4, 5, 6, 8, 9, 10, 11, 14, 15, 16, 22, 33, 38, 56, 57, 58, 59, 60, 61, 62, 63 and 66. I affirm the Council's decision to refuse access to the remainder of the redacted information under 37.

In respect of parts 5 and 6, I annul the Council's decision to refuse those parts of the request and I direct it to carry out a fresh decision making process in respect of the records.

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.

Stephen Rafferty
Senior Investigator