Whether the PRA was justified in its decision to refuse access to specified instruments, on the ground that they are exempt under section 41 of the FOI Act 

21/10/2018

Background

On 13 November 2017, the applicant made an FOI request to the PRA for three specified instruments. On 16 November 2017, the PRA refused access to the records under section 41 of the FOI Act. On 8 December 2017, the applicant applied for an internal review of the decision on the records. On 29 December 2017 the PRA issued an internal review decision, in which affirmed its original decision. On 18 May 2018 the applicant applied to this Office for a review of the PRA's decision. 
In conducting my review, I have had regard to the correspondence between the applicant and the PRA and to the correspondence between this Office and both parties, as well as the content of the records that were provided to this Office by the PRA for the purposes of this review. 

Scope of this Review

The question for this review is whether the PRA was justified in refusing access to the records under section 41 of the FOI Act. 

Preliminary Matter

I should note that the applicant requested an oral hearing in this case. In National Maternity Hospital v Information Commissioner [2007] IEHC 113, the High Court found that the Information Commissioner's review "was intended to be inquisitorial rather than adversarial. The procedures to be adopted by the Commissioner in respect of such reviews are entirely within [her] discretion provided that they do not offend recognised principles of natural and constitutional justice". I do not see any matter arising in this case which would require an oral hearing. I am satisfied that an oral hearing is neither necessary nor appropriate and that by refusing such a request, the applicant has not been denied fair procedure. The applicant was informed of this Office's position on 10 October 2018. He did not respond.

Analysis and Findings

The PRA submits that the records are exempt under section 41(1)(a) of the FOI Act. That section is a mandatory exemption that requires an FOI body to refuse to grant an FOI request if the disclosure of the record concerned is prohibited by law of the European Union or any enactment (other than a provision specified in column (3) of Part 1 or 2 of Schedule 3 of an enactment specified in that Schedule). 

The PRA says that access to Land Registry instruments is governed by Rule 159 of the Land Registration Rules 2012, S.I. 483/2012 (the 2012 Rules) and that in the circumstances of this case, it is prohibited from granting access to the instruments sought. As the 2012 Rules are not specified in Schedule 3, it follows that if they are found to prohibit the disclosure of the records sought, then section 41(1)(a) applies and the request must be refused. 
The PRA has explained that when an application for registration of property is completed, the legal effect of the documents lodged is registered on the folio. The title documents are subsequently filed in the Land Registry in a file known as an instrument.

Rule 159(1) of the 2012 Rules provides that the registered owner of property and any person authorised by such owner, or by an order of the court or by these Rules, but no other person, may inspect a document filed in the Registry on a dealing or transaction with the property of the owner (my emphasis). Rule 159(8) provides that any person entitled to inspect a document filed in the Registry may obtain a copy of it. Rule 159(9) provides that the Authority may, in special circumstances and such terms as it shall think fit, permit a person to inspect or obtain a copy of, a document filed in the Registry. 

In June 2017, the applicant applied for the specified instruments under Rule 159(9). Following correspondence between the PRA and the applicant, an Examiner of Title decided in December 2017 that the applicant was not entitled to inspect or copy the instruments concerned. The decision letter said that if the applicant wished to appeal, he could regard the letter as a decision for the purposes of section 19(1) of the Registration of Title Act, 1964. That section provides for an appeal to the Court by any person aggrieved by an order or decision of the Registrar.

The applicant says that the FOI Act clearly states that "an FOI body, in performing any function under this Act, shall have regard to the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principle of transparency in government and public affairs" (section 11(3) of the FOI Act). He submits that the PRA's refusal of his request violates the primary principle of the FOI Act. He says that he owns the land lease pertaining to the folios to which the instruments are attached and that he feels he has proven that through correspondence and presentation at the PRA's offices.

As to the relevance of section 11(3) of the FOI Act to this case, it is important to note that section 41(1)(a) is a mandatory exemption. As I have outlined above, if the disclosure of the record sought is prohibited by a provision of an Act that is not specified in Schedule 3, then the FOI body must refuse the request and no right of access exists. 

Rule 159 prohibits disclosure of a record such as the specified instruments in this case, unless it is (i) sought by the registered owner of the property, (ii) sought by any person authorised by the registered owner, (iii) pursuant to an order of the court, or (iv) pursuant to the 2012 Rules. 
The applicant has not argued that categories (ii) or (iii) apply in this case. Regarding category (i), the applicant argues that he owns the land lease pertaining to the folios to which the instruments are concerned. Regarding category (iv), the applicant sought the specified instruments under Rule 159(9). 
The PRA is satisfied that the applicant is not the registered owner of the properties concerned and does not have a right of access to the instruments concerned on this basis and therefore no right of access exists under category (i). The PRA confirmed to this Office that the folios contain, as a matter of fact, details of the registered owner for the purpose of the 2012 Rules and pointed this Office to the relevant pages of the folios. Having examined the folios concerned, I note that the applicant does not appear in the folios as the registered owner. Furthermore, the Examiner of Title considered the applicant's application under Rule 159(9) and concluded that he was not entitled to inspect or copy the instruments and therefore no right of access exists under category (iv). It is not this Office's function to review the validity or otherwise of the substantive decisions of the PRA under the 2012 Rules. The Commissioner is not a general appellate body and has no jurisdiction to review a substantive decision of the PRA under the 2012 Rules. As I outlined above, the PRA has previously informed the applicant that he could regard its decision on its application under Rule 159(9) as a decision that may be appealed to the Court under section 19(1) of the Registration of Title Act, 1964. 

In the circumstances, I am satisfied that disclosure of the records sought is prohibited by Rule 159 of the 2012 Rules. I therefore find that the PRA was justified in refusing access to the records under section 41(1)(a) of the FOI Act. 

Decision

Having carried out a review under section 22(2) of the FOI Act, I affirm the PRA's decision under section 41 of the FOI 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 not later than four weeks after notice of the decision was given to the person bringing the appeal.  




                                   
Elizabeth Dolan
Senior Investigator