Whether OSI was justified in its decision to refuse access, under sections 37(1) and 15(2)(b) of the FOI Act to a number of records relating to an onsite examination of the boundary area between his property and an adjoining property

 

OIC-107514-Q9C1R3

 

Background

 

On 31 December 2020, the applicant sought access to all records held by OSI relating to an onsite examination by that body of the boundary area between his property and an adjoining property, conducted in late July or early August 2020, and the subsequent redrafting of the official land registry map of this boundary area. On 28 January 2021, OSI indicated that it had identified nine records relating to his request, granting access in full to two records, part-granting access to a further five records, and refusing access to two records. Of the records to which it refused access in whole or part, OSI cited sections 15(2)(b) and (37)(1) of the Act as the bases for its refusal.

 

On 8 February 2021 the applicant sought an Internal Review of OSI’s decision. On 26 February 2021, OSI issued its Internal Review decision, varying its original decision by releasing one of the records to which access had originally been refused. It also identified two additional records, to which it refused access under section 37(1) of the Act. On 12 May 2021, the applicant sought a review by this Office of the decision of OSI in relation to his request.

 

I have decided to conclude this 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. In addition, I have had regard to the contents of the records at issue. In referring to the records, I have adopted the numbering system used by OSI in the schedule of records it prepared with its internal review decision.

 

 

Scope of the Review

 

This review is concerned solely with whether OSI was justified in its decision to refuse access to three records – namely Records 5, 10 and 11 – and to partially withhold access to a further five records – namely Records 1, 2, 3, 6 and 8 – as sought by the applicant.

 

 

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 an 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 (see below).

 

 

Analysis and Findings

 

Section 37(1)

In its submissions to this Office, OSI cited section 37(1) of the FOI Act as the basis for withholding access in full to records 10 and 11, and in part to records 1, 2, 3, 6, and 8. 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 their family or friends, 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 that, without prejudice to the generality of the above definition, constitute personal information. Amongst these categories are:

 

“(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,

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

 

Records withheld in full by OSI: 10 and 11

Record 10 comprises communication from OSI to a customer, dated 23 April 2020. Record 11 also comprises communication from OSI to the customer, dated 12 August 2020. Both records also include the original customer communication of 12 January 2020 (Record 1).

 

I have examined the content of these records and I accept that their disclosure would involve the disclosure of personal information relating to a party or parties other than the applicant. I find that that the nature of the information contained in these records is such as to bring it within the categories of personal information specifically provided for in points (xii) and (xiii) of section 2.

 

In his submissions, the applicant argued that the third party customer had no legitimate expectation that their communications with OSI would be treated as confidential (as required by paragraph (b) of the definition of personal information in section 2), on the basis that nowhere on the OSI website was it explicitly stated that such communications would be kept confidential.

 

It is important to note that 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"), the Supreme Court held that paragraphs (a) and (b) of the definition of personal information are not "overarching prior requirements", and that information falling into the categories set out at (i) to (xii) constitutes personal information, even if neither of the requirements of paragraphs (a) or (b) are satisfied. The FOI Act 2014 extended the number of those categories to 14. Accordingly, I am satisfied that section 37(1) applies to Records 10 and 11.

 

However, that is not the end of the matter, as subsection (1) is subject to a number of other subsections. Subsection (2) provides that subsection (1) does not apply if one or more of a number of conditions are met. Furthermore, subsection (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, must also be considered.

 

In relation to section 37(2), I am satisfied that none of the other grounds set out this provision of the Act are applicable to the information contained in Records 10 and 11.

 

In respect of section 37(5), I am firstly satisfied that section 37(5)(b) of the Act does not apply to either of the records. As regards 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 person or people 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.

 

In its submissions to this Office on the applicability of section 37(5)(a) of the Act to Records 10 and 11, OSI indicated that it had considered the general principles of openness and transparency set out in section 11(3) of the FOI Act. It stated, however, that a general principle of openness and transparency did not provide a sufficient basis for directing the release of otherwise exempt information in the public interest.

 

OSI cited the judgment of the Supreme Court in the Rotunda Hospital case referenced above, wherein it was 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. OSI also cited the judgment of McDermott J., in December 2016 in the case of F.P. and the Information Commissioner [2014 No. 114 MCA] ("the F.P. case") which was subsequently upheld by the Court of Appeal, where the judge stated that private as opposed to public interests were not a sufficient basis upon which to exercise the discretion in favour of the appellant under the relevant public interest test in that case. He also said that "the ‘public interest’ in granting access is not to be determined on the basis of the appellant’s personal circumstances or desire to explore or pursue civil proceedings or criminal complaints.”

 

OSI also referenced The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (“the Enet judgment”), wherein the Supreme Court found that a general principle of openness did 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, OSI said it considered them to be relevant to the consideration of public interest tests generally.

 

OSI said that the FOI Act recognised the public interest in the protection of the right to privacy both in the language of section 37 and the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with the right to privacy). It also  said that the right to privacy had a constitutional dimension, as one of the unenumerated personal rights under the Constitution. Moreover, OSI submitted that, unlike other public interest tests provided for in the FOI Act, there was a discretionary element to section 37(5)(a), which was a further indication of the very strong public interest in the right to privacy, and stated that privacy rights should therefore be set aside only where the public interest served by granting the request (and breaching those rights) was sufficiently strong to outweigh the public interest in protecting privacy.

OSI argued that the aforementioned judgments made clear that OSI could not, in examining a decision to release personal information on the right of access under FOI, take into account a requester’s private interests in the grant of access to the withheld information. Furthermore, it said it would not be appropriate for OSI to release third party personal information in the public interest. It argued that the recognition of a public interest in promoting procedural fairness through FOI was more properly understood as an acknowledgement that the public interest in openness and accountability is entitled to significant weight when the constitutional rights of individuals may be affected by the actions of public bodies. OSI argued that it had duly acknowledged any public interest through the release of records to the applicant. It said it accepted that this public interest was entitled to significant weight in the circumstances, hence its granting or part-granting of access to certain of the other records sought. OSI reiterated that both the language of section 37 and the Long Title to the FOI Act recognised a very strong public interest in protecting the right to privacy. OSI said it was satisfied that placing the details concerned in the public domain would significantly breach the rights to privacy of an identifiable individual other than the applicant.

 

OSI further noted 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 OSI. OSI stated it held such personal information on the understanding that it would be treated as confidential, and argued that a public interest existed 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 the records, OSI stated that it was satisfied that placing the details concerned in the public domain would significantly breach the rights to privacy of an identifiable individual other than the applicant. It stated that it had found there was no exceptional circumstance in this case that would warrant release of these particular records and therefore the decision was to find that the public interest was best served by refusal.

 

In his submissions to this Office, the applicant addressed the matter of the public interest in disclosing personal information relating to a third party individual, and argued that insufficient weight had been given by OSI to the public interest in transparency around what he regarded as unusual actions by a public body. He also argued that OSI had given insufficient weight to his strong personal interest in the matter. The applicant submitted that he had no interest in obtaining the identity of the third party, but rather that he wished to understand the thinking which led to certain actions being undertaken by OSI. At the same time, he argued that the name of the third party should not be withheld on the basis that it was already known to him. In addition, the applicant claimed that the relevant third party was “a person who has held high public office and this should be taken into account; that public interest is the public interest in having assurance that wealthy politicians cannot exercise disproportionate influence on public bodies”.

 

I agree 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 relevant court judgments, 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.

 

In relation to the applicant’s arguments in favour of the release of the record in the public interest, it should first of all be noted that, in relation to his view that insufficient weight had been given to his personal interest in the matter, as outlined above the Irish courts have made clear that a private interest, based on an individual’s circumstances, is distinguishable from a public interest, and moreover is insufficient as a basis on which to exercise discretion in favour of the disclosure in the public interest. In relation to the applicant’s argument that the greater public interest lay in transparency of the activities of a public body (in circumstances where he stated his belief that he had been subject to unusual activities on the part of that body), I consider that such an argument is 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. Regarding the applicant’s argument that the name of the third party should not be withheld on the basis that (he believes) it was already known to him, I must reiterate that the release of records under the FOI Act is considered release to the world at large as there is no limitation that this Office can apply to the subsequent use to which such records might be put after such release.

 

Accordingly, I find that section 37(5)(a) of the Act does not apply to Records 10 and 11 and, on that basis, that OSI was justified in withholding Records 10 and 11 pursuant to section 37(1) of the Act.

 

Records released by OSI with redactions: 1, 2, 3, 6, and 8

Record 1 comprises customer communication to OSI dated 21 January 2020.
Record 2 is a Data Quality Helpdesk call raised on 22 January 2020 to investigate the customer’s query.

Record 3 is a so-called Non–Conformance/Corrective-Preventative Action Report, created for use by the OSI field revisor, in respect of the relevant Data Quality call.

Record 6 is a letter for OSI field revisers to carry during COVID -19 Restrictions.

Record 8 comprises OSI Customer Service communication with the customer spanning the period 12 August to 30 October 2020.

 

I have examined the content of these records and consider that the redacted material falls within the definition of personal data contained in section of the Act, and that section 37(1) applies. The applicant argued that section 37(2)(a) of the Act should be applicable to the redacted sections of these records. In particular, he stated in his request to OSI for an Internal Review that OSI’s position (that certain personal information had been redacted from the records on the basis that it related to a person’s property) implied that OSI had formed the view that the property in question (which had been surveyed) belonged to the customer who had sought the survey.

 

The applicant stated: “No explanation is given as to how the OSI came to such a conclusion, which cannot be self-evident given the ownership of the land in question is openly disputed…this is highly relevant because Section 37(2)(a) of the Act states that the requirement to exempt does not apply if the information relates to the requester”. In its Internal Review decision, OSI rejected this argument, stating that “…the personal information relating to the applicant is inextricably linked to personal information relating to joint personal information. Section 37(7) provides that, notwithstanding section 37(2)(a), access to a record shall be refused where access to it 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. It is not feasible to separate out information relating solely to the applicant”.

 

The applicant took issue with this response in his submissions to this Office, stating that, where there was information relating to both parties in the records, it should be possible to separate any such information relating to him from the information relating to the third party. Furthermore, the applicant stated his view that that certain of the information redacted from the records was likely to be his personal information as he believed it related to his property.

 

I have considered the arguments of the applicant, as they relate to the information contained in the records, and I do not accept that section 37(2)(a) applies. I find that none of the other subsections of section 37(2) apply to these records, and moreover that section 37(5) is similarly inapplicable. My analysis above in relation to the applicability of section 37(2) and 37(5) to Records 10 and 11 refers in this regard.

 

Accordingly, I find that OSI was justified in partly-withholding access to Records 1, 2, 3, 6 and 8 pursuant to section 37(1) of the Act.

 

Section 15(2)(b)

Section 15(2)(b) affords discretion to an FOI body to refuse a request for access to a record “…a copy of which is available for purchase or removal free of charge by members of the public”. OSI cited this provision of the Act as a basis for withholding access to Record 5, which is a land registry-compliant map.

 

In its Internal Review decision, OSI noted that under Section 4 of the Ordnance Survey Ireland Act 2001, it was obliged to conduct its business at all times in a cost effective and efficient manner. In balancing the organisations obligations under both the FOI and OSI Act, OSI stated that it was not feasible to operate by issuing mapping that may be purchased through its sales office or website, and as such Section 15(2)(b) of the FOI Act served to protect such interests.

 

In his correspondence with this Office, the applicant took issue with this position, arguing that OSI was under no obligation not to disclose the map at issue, and moreover that, in meeting the provisions of section 4 of the Ordnance Survey Ireland Act, was required to do so within the context of its wider remit to operate in the public interest. In response to this argument, OSI stated in its submissions to this Office that, on assessment of the records within scope of the FOI process, it had reviewed the relevant provisions of the Act, including Section 15(2)(b), which it said commonly arose in matters where features are being surveyed. OSI stated that, in line with the availability of this map for purchase, it was not released under the FOI Act. OSI noted that the applicant had not contested the availability of the map for purchase, and stated that in its Internal Review decision it had attempted to reason the decision by means of inclusion of some detail on this. It stated that the reference to Section 4 of the Ordnance Survey Ireland Act had been provided to give the applicant some context regarding OSI’s statutory obligations in this regard.

I do not accept the arguments of the applicant in relation to this record. OSI has not argued, as suggested by the applicant, that it was “obliged” to withhold the map at issue. Rather, OSI submitted that its obligation under section 4 of the Ordnance Survey Ireland Act was to conduct its business at all times in a cost effective and efficient manner. This is a specific obligation placed on OSI by section 4(3)(b) of the Ordnance Survey Ireland Act. In any case, section 15(2)(b) of the FOI Act is unequivocal, inasmuch as it entitles an FOI body to refuse access to a record a copy of which is available for purchase by members of the public. In circumstances where this is clearly the case in respect of the record at issue, I find that OSI was entitled to refuse access to Record 5 pursuant to section 15(2)(b).

 

Additional arguments made by the applicant

In addition to his disagreement with the exemptions under the Act cited by OSI, the applicant made a number of arguments in relation to what he considered to be deficiencies in the response of OSI to his request. These arguments included that there had been an inadequate search for, scheduling of and reasons given for the withholding of records by OSI, and that he should have been consulted on the manner in which Record 2 should have been released to him (pursuant to section 17(3) of the FOI Act). I have considered in full the applicant’s arguments in this regard, and where appropriate the comments made in response by OSI in its submissions. I do not consider that there is sufficient basis to accept any of these additional arguments made by the applicant.

 

 

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 in withholding in full and in part the records in respect of which it claimed exemptions under sections 37(1) and 15(2)(b) 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.

 

Stephen Rafferty

Senior Investigator