Whether OSI was justified in its decision to refuse access, under sections 37(1) and 15(1)(a) of the FOI Act, to a number of records, either in whole or in part, relating to the surveying of the applicant’s property and an adjoining property

 

OIC-106520-T9B5N3

 

Background

 

The applicant submitted an FOI request to OSI on 31 January 2021 for all records relating to the inspection, survey or mapping work or any other work-related task at his property and any reports or circulation of same, from the date the property was first registered in the 1970s. He also sought the same records in respect of a neighbouring property.

 

On 1 March 2021, OSI issued a decision on the request. Of the 20 records it identified relating to the first part of his request concerning his property, it granted access in full to nine records and partial access to five others, whilst refusing access to the remaining six. OSI cited sections 37(1) (third party personal information) and 15(1)(a) (records do not exist or cannot be found) in support of its refusal of the records, in whole or in part. It refused the second part of the request, relating to the neighbouring property, in full, citing section 37(1) of the Act as the basis for its refusal.

 

On 7 March 2021, the applicant sought an Internal Review of OSI’s decision, wherein he also argued that he should have received other relevant records. On March 2021, OSI issued its Internal Review decision, wherein it varied its original decision by releasing one additional record, which it stated would be numbered Record 1 in a revised Schedule of Records being released with its Internal Review decision. OSI affirmed the remainder of its original decision. On 19 April 2021, the applicant sought a review by this Office of the decision of OSI on his request.

 

I have now completed my review in this case. I have decided to conclude the review by way of a formal binding decision. In conducting the review, I have had regard to the correspondence between the applicant and OSI, and to the correspondence between this Office and both the applicant and OSI on the matter. I have also had regard to the contents of the records at issue. In referring to the records, I have adopted the numbering system used by OSI when processing the applicant’s request, with one exception as follows: an additional record was released at Internal Review stage by OSI and referred to in OSI correspondence as Record 1. However, there already exists a “Record 1” in the schedule of records identified by OSI in response to the original request made by the applicant. Therefore, for the sake of clarity, I will refer below to the additional record released by OSI in its Internal Review decision as “Internal Review Record 1”.

 

 

Scope of the Review

 

This review is concerned solely with whether OSI was justified in its decision to refuse access to five records – namely Records 1, 2, 5, 6, and 7 – and to grant only partial access to a further five records – namely Records 3, 8, 9, 10 and 15 – as sought by the applicant. In addition, the applicant has also asserted that additional records should exist, and should have been released to him, in relation to Internal Review Record 1 and Record 8, and this review will also address this matter.

 

 

Preliminary Issues

 

It is important to note that, while I am required by section 22(10) of the FOI Act to give reasons for decisions, this is subject to the requirement, under section 25(3), that I take all reasonable precautions in the course of a review to prevent the disclosure of exempt material. This means that I am constrained in this case from providing a fuller explanation for my findings than that set out below.

 

Furthermore, section 13(4) of the Act provides that, subject to the Act, in deciding whether to grant or refuse and FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. This means that I cannot have regard to the applicant's motives for seeking access to the records at issue, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the records where the Act requires a consideration of the public interest.

 

In relation to the exemption under section 15(1)(a) of the Act, as cited by OSI in its decision as the basis for withholding Record 20, it should be noted that, in its submissions to this Office, OSI outlined that in fact the record in question existed, and could be found, but existed only in hard copy. It advised that – due to protocols in place in its office relating to Covid-19 – it had not been possible to retrieve and copy this record in order to provide it to the applicant. OSI further explained that, subsequent to it issuing its decision to the applicant, a member of its staff had been able to attend at its office and create a scanned copy of this record, and had provided it to the applicant. I note that in his submissions to this Office, the applicant confirmed that he was in receipt of this record and that it did not form part of his application for a review. As such, an examination of the applicability of section 15(1)(a) to Record 20 does not form part of this review.

 

However, as outlined in the preceding section, in the course of his application to this Office, the applicant indicated his belief that certain additional records that he believed ought to exist had not been provided. OSI addressed these points in its submissions, in particular in relation to Record 8 and Internal Review Record 1. Although it has not specifically cited section 15(1)(a) of the Act, I consider that OSI’s arguments amount to an administrative refusal of this aspect of the applicant’s request, and have therefore addressed these points below with reference to section 15(1)(a) of the Act.

 

It should also be noted that this review does not address the second part of the applicant’s initial FOI request, which was refused by OSI on the basis that it related to the neighbouring property and, as such, that the information contained in any records would be exempt from release under section 37(1) of the Act. It is noted that the applicant himself made no reference to the second part of his initial request in his application to this Office for a review of OSI’s decision. In any event, my comments and findings below re the applicability of section 37(1) of the Act to certain information contained in the records relating to the applicant’s property would, in my view, apply to any such records relating to the neighbouring property.

 

Analysis and Findings

 

Section 37

In its submissions to this Office, OSI cited section 37(1) of the FOI Act as a basis for refusing access in full to records 1, 2, 5, 6 and 7, and for partly-withholding access to records 3, 8, 9, 10 and 15.

 

Section 37(1) of the FOI Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information. This does not apply where the information involved relates to the requester (section 37(2)(a) refers). However, section 37(7) provides that, notwithstanding section 37(2)(a), an FOI body shall refuse to grant a request if access to the record concerned would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester (commonly known as joint personal information).

 

Section 2 of the FOI Act defines 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 members of the family, or friends, of the individual, or (b) is held by an FOI body on the understanding that it would be treated by that body as confidential”. Section 2 goes on to specify 14 categories of information which, without prejudice to the generality of the above definition, constitute personal information, including (xii) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to, establish that any personal information held by the FOI body concerned relates to the individual, and (xiii) information relating to property of the individual (including the nature of the individual's title to any property)”.

 

It is important to note that the applicant is in dispute with his neighbour over the location of the boundary between the two properties. The records at issue essentially relate to boundary issues. As such, it will be apparent that many of the records relating to the applicant’s property will invariably also relate in some way to the property owned by a third party, the applicant’s neighbour.

 

Having examined the records withheld in full or in part, I am satisfied that the withheld information comprises either third party personal information relating to a third party or third parties other than the applicant, or joint personal information relating to the applicant and a third party. I am satisfied that such joint personal information cannot be redacted so as to allow for the release of information relating solely to the applicant. I find, therefore, that the release of any of the withheld information would involve the disclosure of personal information relating to an individual or individuals other than the applicant and that section 37(1) applies to that information.

 

However, that is not the end of the matter as section 37(1) is subject to the other provisions of section 37. Section 37(2) provides that section 37(1) does not apply in certain circumstances. I am satisfied that no such circumstances arise in this case and that section 37(2) does not, therefore, apply.  

 

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 request would benefit the person to whom the information relates. I am satisfied that section 37(5)(b) of the Act does not apply.

 

In relation to the question of whether section 37(5)(a) applies, the question I must consider is whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the individual or individuals to whom the information relates.

 

In carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. Section 11(3) provides that an FOI body must have regard to the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. It is important to note that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (“the Enet judgment”), the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and “there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure”. Although the Court’s comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.

 

In relation to the issue of the public interest, it is also important to have regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner [2011] IESC 26 ("the Rotunda case"). It is noted that a public interest ("a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest.

 

In its submissions to this Office on the applicability of section 37(5)(a) of the Act, OSI indicated that it had weighed up the public interest arguments in this regard. It stated that, in favour of the view of release of the records in the public interest, it had had regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. It added, however, that its view was that general principles of openness and transparency did not provide a sufficient basis for directing the release of otherwise exempt information in the public interest, as per the Enet judgment. OSI made the point that, while section 11(3) recognises the need to enhance public scrutiny and accountability of government and public affairs, particularly the activities and decision making of FOI bodies, the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. Moreover, OSI stated that – unlike other public interest tests provided for in the FOI Act – there was a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy, and suggested that 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.

 

OSI further noted that the release of information to an applicant under the FOI Act is considered release to the world at large, and it staged that it had considered at every opportunity balancing the public interest in release versus factors for consideration against release. OSI contended that the public interest factor favoured withholding the personal information within the records in protecting the right of privacy of members of the public and that they should be entitled to a degree of personal privacy when they have dealings with its office. It stated the information provided to its office by individuals was indeed held by it on the understanding that it would be treated by it as confidential. OSI argued that there was a strong public interest in members of the public being able to communicate in confidence with public bodies and without fear of disclosure in relation to personal or sensitive matters. Having regard to the contents of these records, OSI stated that it was satisfied that placing the details concerned in the public domain would significantly breach the rights to privacy of identifiable individuals other than the applicant. It indicated that it had found there was no exceptional circumstance in this case that would warrant release of these particular records and therefore its decision was to find that the public interest was best served by the refusal of access to the records.

 

In his submissions to this Office, the applicant also addressed the matter of the public interest in disclosing personal information relating to individuals that might be contained in these records. In particular, he argued that the record should verify whether or not the background matters that he indicated gave rise to his initial FOI request to OSI had been handled correctly, fairly, impartially and with proper conduct by that office. He indicated his firm belief that it was in the interest of greater transparency and accountability of state bodies, and how they conducted their business with the public, that this information in these records should be released either fully or partly redacted. The applicant emphasised that he was not seeking the personal information of any individuals, but that the content and substance of the records was crucially important for him to satisfy himself that correct procedures had been adhered to.

 

I am strongly minded to concur with the OSI in its assessment of where the public interest should lie in relation to these records. Indeed, I can only echo the sentiments of OSI in relation to its arguments regarding the interpretation of the Enet judgment, the Constitutional aspect to the right to privacy, the discretionary element to the public interest test in section 37(5)(a) of the FOI Act, and the fact that the release of information under the Act is considered release to the world at large. I consider all of these arguments to have been put forth entirely correctly by OSI. The applicant’s arguments in favour of the release of the record in the public interest, while well-reasoned, are based on a general principle of openness and transparency which the Supreme Court in the Enet Case indicated was not sufficient to tip the public interest balance in favour of disclosure. As such, I find that section 37(5)(a) of the Act does not apply to these records.

 

It should be noted that the applicant made certain further submissions in respect of the records. In particular, he argued that the records contained information that he considered crucial and which directly affected his property and his rights as a property owner. Moreover, he stated his view that the withheld records revealed communications that ultimately led to OSI’s taking certain decisions in relation to his property and the adjoining property. He indicated his belief that he had a right to access such information because it influenced what OSI had or had not done in relation to his property since 2015. While I have every sympathy for the applicant in this regard, and in particular while I appreciate his position that he feels he is being denied access to information he considers crucial, it is the case that the right to information contained in records, as provided for by the FOI Act, is not unfettered. In particular, notwithstanding the arguments made by the applicant, it remains the case that, as I have outlined above, I consider that each of these records contains the personal information of individuals, so as to bring it within the scope of section 37(1) of the Act, and that none of the other provisions of section 37, to which section 37(1) is subject, are applicable.

 

Accordingly, I find that OSI was justified in withholding, either in whole or in part, the relevant records on the ground that section 37(1) of the Act applies to the information in question.

 

Section 15(1)(a)

In his application to this Office, the applicant outlined a number of additional perceived shortcomings that he had identified in the response of OSI to his request. In particular, he indicated dissatisfaction with the amount of information provided relating to a site visit at the start of December 2020, and a further site visit in January 2021, stating that additional records ought to exist in this regard. Specifically, the applicant indicated that he had been informed via email from OSI that the site was visited by an OSI reviser on 1 December 2020 (adding however that further communication from OSI had the date as 2 December 2020). The applicant noted that this information was repeated in Record 8. He stated that another note within Record 8, and also Internal Review Record 1, indicated that a site visit took place in January 2021, but the record did not provide any detail as to when that might have been.

 

The applicant argued that additional information in relation to these site visits, in particular records confirming when the visits were requested and scheduled by OSI, and on what date and time the visits took place, should exist. In addition, he stated that a scheduling record should exist and, if it did not, he contended that the OSI reviser who carried out the site visit would have lodged an expense claim which would confirm the date and length of any such site visits. Furthermore, with particular reference to Internal Review Record 1, the applicant argued that the record as released did not provide any report, notes or recorded result of action taken, and indicated his belief that such additional information should be available.

 

Internal Review Record 1 is a record of a job visit (titled Job 193810) to the applicant’s property by an OSI officer on 19 January 2021.  In its submissions to this Office, OSI addressed the arguments made by the applicant in relation to the additional records he claimed should exist regarding the site visits alluded to in this record and in Record 8. OSI stated that it managed its revision workload within what it called its Geospatial Management System (GMS). OSI indicated that its revisers used this web-based environment when working on revisions in the field, and any amendment made to a feature was directly uploaded to its GMS via data transfer, which occurred by means of field equipment incorporating 4G technology, with any amendments made on foot of the revision being recorded directly into its database. Accordingly, OSI stated, the resulting map created on foot of a site visit would become the only record kept.

 

Thus, in respect of the map created on foot of job 193810 that comprises Internal Review Record 1, OSI advised that its surveyor downloaded the job on 12 January 2021 and reported that he visited the site on 19 January 2021. OSI indicated that it did not have any records of the exact time of the surveyor’s visit on this date, and nor did it have any other notes related to this visit other than the information recorded on a helpdesk call on 1 January 2021 (which information was released to the applicant, with redactions, as part of Record 8) regarding the surveyor being approached and asked not to survey.

 

In relation to the site visit in December 2020, as alluded to in Record 8, OSI indicated that it appeared that the surveyor mistakenly stated that he visited the site on 1 December 2020 when in fact the job was only allocated to him on 2 December 2020 to allow him visit the site on that date.  I note that the released material from Record 8 attests to this by way of comment dated 2 December 2020 concerning the allocation of the job. Furthermore, OSI stated that an update from an Operations Manager in its Surveying Department following a phone call with a Team Leader in its Ennis Office on 3 December 2020 referred to the surveyor’s visit on 2 December 2020, which update mentioned that the surveyor was unable to take any measurements as he was advised there was an unresolved dispute and subsequently left.  I note that this information is also contained in the released material from Record 8. OSI indicated that no other notes related to this field visit existed, on the basis that, as outlined above, given the manner in which OSI site visits are managed using the GMS, the map resulting from any such site visit becomes the only record kept.

 

In relation to the above ground of appeal made by the applicant – regarding additional records which he believes ought to exist and which have not been provided – I consider that OSI’s response as outlined above amounts to an administrative refusal of this aspect of the request under section 15(1)(a) of the FOI Act. This provision of the Act states that an FOI body may refuse a request on administrative grounds, specifically on the basis that the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. It is clear from OSI’s explanation above that its position is that the additional records sought by the applicant do not exist.

 

In order to afford fair procedures to the applicant (in circumstances where OSI did not explicitly cite section 15(1)(a) of the Act as the basis for not providing the additional records that the applicant claimed should exist, and where the applicant had not had an opportunity to consider section 15(1)(a) of the Act), this Office wrote to him to put these matters to him and to offer him the chance to make any further submissions, observations or comments in this regard that he wished. In response, the applicant provided a number of arguments as to why he found the position of OSI unsatisfactory. In particular, he stated as follows:

 

1. The applicant indicated that, if on foot of a particular site visit no revised map was created, according to OSI’s stated position there would be no record of the site visit on the GMS. In those circumstances, the applicant questioned how OSI monitored what was actually done after a job is downloaded as described when no revised map was subsequently lodged to the GMS. The applicant indicated that he found this proposition difficult to accept.

 

2. The applicant argued that it appeared by OSI’s account that it not did have a system in place for monitoring where its staff worked and what out-of-office trips were made, for example for health and safety reasons and for monitoring work productivity, expenses etc. The applicant stated that he found this hard to believe.

 

3. The applicant took further issue with OSI’s explanation regarding the lack of records relating to a site visit on 1 December 2020 (ie. that the date entered for the visit was an error and that the visit in question in fact occurred on 2 December 2020). The applicant stated in this regard that Record 8 showed an entry by an OSI surveyor, dated 2 December 2020 stating, to the effect that he had visited the site on 1 December (it is this date that OSI contended was an error), and met an individual who advised him of the existence of a property dispute. The applicant stated that the entry further indicated that the surveyor advised two OSI colleagues of the situation and left the site. The applicant questioned whether a record should exist in the form of a logged phone call, message or email record to show the surveyor’s communication to his two OSI colleagues. The applicant pointed to a further entry in Record 8 by an OSI officer, who indicated that he had spoken with a colleague who confirmed the fact of the surveyor’s visit (that OSI state occurred on 2 December 2020 and which the applicant suggests took place on 1 December 2020). The applicant stated that the two entries taken together indicated that at least three OSI staff spoke about the December site visit, and indicated that as such additional records relating to these staff interactions/communications ought to exist.

 

This Office put the above submissions of the applicant to OSI for further explanation. OSI subsequently reverted to address the issues raised by the applicant. In respect of the applicant’s first point of contention, regarding the manner in which jobs were monitored after being downloaded by a reviser, OSI stated that, in the GMS, an OSI job planner had an option to search for all types of job statuses from the time the job was created until it was completed. It advised that each job transitioned through various statuses in its lifecycle from being created, allocated to a user, activated and downloaded from the database into the users’ workspace, and that all changes to a feature were required to be validated before uploading. It advised that changes to a job status were databased before the job was set to a completed status, but that no further records were generated. Additionally, OSI advised that its Data Quality Helpdesk was another mechanism allowing job monitoring, from notification of a data quality issue to the completion of a data quality issue. It stated that updates were added at various stages to the Data Quality Helpdesk by Data Quality Technicians, Surveying Technicians and also Customer Service staff. OSI stated that Record 8 was released to the requester, with exemptions applied in accordance with the FOI Act, and that a copy of metadata for the job was provided to the applicant at Internal Review Stage.

 

In relation to the applicant’s second submission, regarding the monitoring of jobs as carried out by revisers in the field, OSI reiterated that it actively monitored all types of job statuses from the time the job was created until it was completed in the GMS. In respect of work expenses, OSI advised that its field staff were unable to claim travel costs, as field revisers drive fleet vehicles and mileage was not payable as a result. In respect of subsistence claims, OSI advised that subsistence was only payable in accordance with certain government circulars, and that there were no subsistence claims made for the revisions within scope of the planned revisions at the site in question. In respect of Health and Safety, OSI stated that field revisers were bound by OSI’s Health and Safety Management System. In respect of individual Jobs, OSI stated that its Health and Safety Policy around risk assessments involved the creation of a Safe Plan of Action (SPA) risk assessment form when visiting a Job for revision. It advised that these potential records were considered within scope of the applicant’s request.

 

OSI indicated that SPA forms were normally generated once the Reviser had been given permission to carry out his Surveying activities in and around any given property. In this case, OSI stated that permission was not granted to either Reviser, as both Revisers had indicated that they were met at the properties before they carried out an assessment of the health and safety risks in the area, thus not affording the opportunity to create a SPA Form for a resulting survey and left without carrying out any surveying activities. In addition to this, OSI indicated that it operated internal helpdesks in order to assist with the progress of business tasks around customer services and data quality issues, including communications on specific jobs. It stated that this was where communications with respect to jobs to be put on the GMS existed, and that these were considered within scope of the FOI request, and released to the applicant with exemptions applied in accordance with the FOI Act, by way of Record 8.

 

In relation to the applicant’s third argument, regarding the lack of additional records pertaining to the site visit in December 2020, OSI stated that it operated internal helpdesks in order to assist with the progress of business tasks around customer services and data quality issues, including communications on specific jobs. It advised that it was here that communications with respect to jobs to be put on the GMS exist, and these were considered within scope of the FOI request. It advised that field revisers used handheld tablets, and field revision ancillaries in the course of their activities, which was mostly field based. OSI advised that, as a result, communication was most appropriate, apt and convenient on field revisions by phone call, with related actions related on jobs recorded on the associated helpdesk calls. OSI advised that other records such as voice recordings (as alluded to by the applicant) were included within scope of the search for records for OSI, and that no such records existed, and that similarly no emails records existed, due to the nature of the field revision activities. OSI advised that the record of communications existed within the helpdesk calls, as released to the applicant with exemptions applied in accordance with the FOI Act, by way of Record 8.

 

I have considered the submissions in this regard made by both parties to the review. On the basis of the information provided by OSI, I consider that there is nothing to suggest that all reasonable steps or relevant searches were not carried out in relation to the records sought. Moreover, it should be noted that the background and context to the site visit that constitutes Internal Review Record 1, and the earlier site visit on 2 December 2020, has been documented elsewhere in the records released to the applicant (particularly in the released material in Record 8). I find that the account from OSI as outlined above constitutes a clear and sufficiently detailed explanation of its systems and processes that accounts for the non-existence of the additional records sought by the applicant in this regard. As such, I find that this aspect of the applicant’s appeal has been addressed satisfactorily by OSI.

 

 

Decision

 

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of OSI in this case. I find that OSI was justified, under section 37(1) of the Act, in withholding, in full or in part, the records at issue. I find that it was justified, under section 15(1)(a) of the act, in refusing access to any further relevant records on the ground that no further records exist or can be found.

 

 

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.

 

 

Stephen Rafferty

Senior Investigator