Whether the Council was justified in refusing access to records relating to a specified planning enforcement file on the basis that section 32(1)(a)(i), (ii) and (iv) of the FOI Act applied

22 March 2022

Background

On 2 October 2020, representatives for the applicants submitted a request to the Council for copies of all records taken into account in its decisions to issue a warning letter and an enforcement notice in relation to alleged unauthorised development at a neighbouring property. They also sought full particulars of the warning letter, the minutes of any meetings held on 12 November 2019, and the reasons for the decision made to issue an enforcement notice. For the sake of convenience, all references to communications with the applicants in this decision should be taken to include communications with their representatives.

In a decision dated 14 October 2020, the Council refused the request under sections 32(1)(a)(i), (ii) and (iv) of the FOI Act. It said the enforcement file in question was an active file. The applicant sought an internal review of that decision on 22 October 2020, following which the Council affirmed its refusal of the request. On 1 April 2021, the applicant sought a review by this Office for a review of the Council's decision.

During the course of the review, the Investigator informed the applicants that sections 37 and 42(m)(i) of the FOI Act may be relevant to the review. Section 37 protects personal information relating to third parties, while section 42(m)(i) provides for the protection of the identity of persons who have given information to FOI bodies in confidence in relation to the enforcement or administration of the law. In response, the applicants confirmed that they are not seeking access to any personal details which might identify any persons who had correspondence with the planning authority in relation to the enforcement matter but that they believe they are entitled to be informed of the issues raised. 

I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the submissions made by the applicant and to the submissions made by the FOI body in support of its decision. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with whether the Council was justified in its decision to refuse the applicant's request for records relating to its decisions to issue a warning letter and an enforcement notice in relation to alleged unauthorised development at a specified site.

Preliminary Matters

Before I address the substantive issues arising, I would like to make two preliminary comments. First, I note that the Council did not give any indication of the number of records it identified as relevant to the request, nor did it provide the applicant with a schedule of those records. As the Council is no doubt aware, the Central Policy Unit of the Department of Public Expenditure and Reform has published, pursuant to section 48(1) of the Act, a Code of Practice on FOI for public bodies (see www.foi.gov.ie). Under section 48(3) of the Act, FOI bodies are required to have regard to that Code in the performance of their functions under the Act. The Code provides that a schedule should be included with decisions providing details of those records being released in full, of those to which partial access is being given, and of those being refused and setting out the reasons why access is not being granted in full or in part and referencing relevant sections of the Act where refusals are made. I expect the Council to take measures to ensure that it has regard to the Code of Practice when processing all future FOI requests.

Secondly, it is important to note that section 22(12)(b) of the FOI Act provides that a decision to refuse to grant an FOI request 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 Council of satisfying this Office that its decision to refuse access to the records at issue was justified.

Analysis and Findings

Section 32(1)(a)

The Council identified nine records as coming within the scope of the request in this case, copies of which were provided to this Office for the purposes of the review. It refused access to all nine records under sections 32(1)(a)(i), (ii) and (iv) of the Act. The records include a warning notice issued, minutes of a meeting, a planner's report, and records referred to in that report, comprising various emails and other correspondence.

Section 32(1)(a) provides for the refusal of a request if the FOI body considers that access to the record concerned could reasonably be expected to prejudice or impair

(i) the prevention, detection or investigation of offences, the apprehension or prosecution of offenders or the effectiveness of lawful methods, systems, plans or procedures employed for the purposes of the matters aforesaid

(ii) the enforcement of, compliance with or administration of any law, or

(iv) the fairness of criminal proceedings in a court or of civil proceedings in a court or other tribunal.

In its submissions to this Office, the Council said a planning enforcement file was opened in June 2019 as a result of a complaint received. It said a warning letter was served on 9 August 2019 under section 152 of the Planning and Development Act 2000 (the Act of 2000) in relation to specified alleged unauthorised works to the property in question. It said that following correspondence with the owner's representatives, a decision was taken to issue an enforcement notice under section 153 of the Act of 2000 but that no enforcement notice issued under section 154.

The Council added that an application for retention was received in February 2020 and that permission for retention was refused in March 2020. It said a second planning application was received in November 2020 and that further information was sought in January 2021 and May 2021. It said no decision has been made on that application to date.

The Council said that the planning enforcement file in question remains open at this time with the potential for a prosecution/court case. It said that all documentation on the enforcement file, including warning letter, minutes, reports etc. constitutes the Council's case should a prosecution take place. The essence of its argument is that to release information or documentation relating to the enforcement matter to a party who is neither acting on behalf of the complainant or respondent in advance of any court hearing could prejudice the Council's case.

Section 32(1)(a) is a harm based exemption. It applies where access to the record concerned could reasonably be expected to prejudice or impair the matters specified in the relevant sub-paragraphs (subparagraphs (i), (ii) and (iv) in this case).

Where an FOI body relies on section 32(1)(a), it should identify the potential harm to the matters specified in the relevant sub-paragraph that might arise from disclosure and having identified that harm, consider the reasonableness of any expectation that the harm will occur. It should explain how releasing the particular record could reasonably be expected to cause the harm which it has identified. The FOI body should specify what it is about the particular record or the particular information in the record which, if released, is expected to cause the harm envisaged and it should explain how or why that harm is expected to occur. A mere assertion of an expectation of harm is not sufficient. Moreover, the fact that the records may relate to matters specified in one or more of the relevant sub-paragraphs does not, in and of itself, establish a link between their release and the harms envisaged in section 32(1)(a).

In the case ofWestwood Club v The Information Commissioner[2014] IEHC 375, the High Court, when considering a claim by an FOI body for the exemption of records under what is now section 36 of the Act on the ground that they were commercially sensitive, found that it was not sufficient for the body to merely repeat the requirements of the section and refer to the nature of the records at issue. It found that the body's argument did little more than repeat the requirements of the exemption and refer to the nature of the documents held. It found that the body's argument did not in any sense engage with why the particular documents, if disclosed, could give rise to the harm identified in the exemption. While the Court's findings were in respect of what is now section 36, I consider them to have general applicability to the consideration of all harm based exemptions, including section 32.

In my view, the Council has not shown how the release of the records at issue could reasonably be expected to give rise to any of the harms identified in subparagraphs (i), (ii), or (iv). Instead, it has sought to adopt a "blanket approach" to the request by seeking to refuse access to all records under section 32(1)(a), regardless of the nature or contents of the records coming within the scope of the request. Moreover, it is not apparent to me how the release of the records could reasonably be expected to give rise to any of the harms set out in the relevant subparagraphs.

On the applicability of subparagraph (i), this Office has previously accepted, as a general proposition, that an investigator must be allowed a fair degree of latitude, subject to the need for fair procedures, to decide when information already in his or her possession should be made available to a party which is the subject of the investigation. We also accept that the premature release of certain types of information could reasonably be expected to prejudice the effectiveness of investigations and the methods employed for conducting such investigations. Examples of such information would include information that would facilitate the amendment, destruction, or fabrication of evidence, would allow for evasive measures to be taken in advance of evidence gathering, or would allow persons under investigation to prepare fabricated responses to expected enquires.

In this case, it is relevant that the Council's position in respect of the alleged unauthorised development and the details of that alleged unauthorised development have already been made known to the owner of the property in question. Indeed, both parties have exchanged correspondence on the matter. In such circumstances, it is not apparent to me how the release of the records at issue to a third party who is neither acting on behalf of the complainant or respondent in advance of any court hearing could possibly give rise to the harm identified in subparagraph (i), nor has the Council explained how such harm might arise.

Similarly, in relation to the applicability of sub-paragraph (ii) and/or (iv), the Council has not explained how the harms identified in those subparagraphs might arise, nor is there anything in the records whose release could, in my view, reasonably be expected to give rise to those harms. In conclusion, therefore, I find that none of the relevant sub-paragraphs of section 32(1)(a) apply to the records.

However, that is not the end of the matter. While the presumption set out in section 22(12)(b) as described above provides that a decision to refuse a request is presumed not to have been justified unless the FOI body satisfies this Office that it was justified, I must also have regard to the findings of the Supreme Court inThe Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors[2020] IESC 57 ("the Enet Case"). In that case, the Court noted that while the presumption places an onus on the FOI body to justify refusal, that does not mean that the conclusion is always that disclosure is to be ordered.

In this case, I do not consider it appropriate to simply direct the release of the records in circumstances where their release is likely to affect the interests of a third party. While the Council refused the request at issue under sections 32(1)(a)(i), (ii) and (iv) of the Act, I agree with the Investigator that section 37 is also of relevance in this case. While the Council did not rely on that exemption to refuse the request, it is important to note that a review by this Office is considered to be "de novo", which means that it is based on the circumstances and the law as they pertain at the time of the decision. A number of the exemptions in the FOI Act are designed to protect the interest of third parties, one of which is section 37. Accordingly, in light of the "de novo" nature of our reviews, I consider it appropriate to consider the applicability of section 37 to the information at issue in this case, notwithstanding the fact that the provision was not relied upon by the Council as a ground for withholding the information.

Section 37

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 relating to an individual other than the requester.

Section 2 of the FOI Act defines personal information as information about an identifiable individual that either (a) would ordinarily be known only to the individual or to members of his/her family or to his/her friends, or (b) is held by an FOI body on the understanding that it would be treated by the FOI body as confidential. Furthermore, the Act details fourteen specific categories of information that is personal without prejudice to the generality of the foregoing definition, including at paragraph (xiii) information relating to property of an individual (including the nature of the individual's title to any property).

All of the records at issue in this case concern the Council's investigation of alleged unauthorised development at an identified property. As such, I am satisfied that the release of the records would involve the disclosure of personal information relating to the owner of that property and that section 37(1) applies.

Section 37(2)(c)

However, that is not the end of the matter as subsection (1) is subject to the other provisions of section 37. Subsection (2) provides that section 37(1) does not apply in certain specified circumstances, as set out in paragraphs (a) to (e). In my view, only paragraph (c) is of potential relevance in this case. That paragraph provides that section 37(1) does not apply where information of the same kind as that contained in the records in respect of individuals generally, or a class of individuals that is, having regard to all the circumstances, of significant size, is available to the general public. I consider this paragraph to be of relevance as the applicants have argued that much of the information at issue should have been made available under planning legislation.

I would note at the outset that the records at issue are of a type that the Council simply does not make publicly available. In its internal review decision, the Council said its Enforcement Section operates a protocol whereby it does not provide copies of warning letters, planners reports, or enforcement notices to any party other than those upon whom they were served or their agents. The appropriateness, or otherwise, of such a protocol is not a matter for this Office to determine, although I would merely note that any refusal of a request made under the FOI Act for access to such records must be based on one or more of the exemptions contained in the Act. The protocol, of itself, does not provide a valid basis for refusing a request.

In their application to the Council for an internal review of its original refusal of the request, the applicants argued that Section 7(2) of the Act of 2000 requires the planning authority to enter on the planning register, and make available to the public:

(r) "particulars of any warning letter issued under Section 152, including the date of issue of the letter and the fact of its withdrawal if appropriate";

(s) "the complete decision made under section 153 on whether an enforcement notice should issue, including the date of decision"

Section 152 provides that where it appears to the planning authority that unauthorised development may have been carried out, it shall issue a warning letter. Section 153 provides that the planning authority must, following investigation, make a decision on whether to issue an enforcement notice and that the decision made and the reason for same must be entered in the planning register. Section 154 provides that where a decision to enforce is made under section 153, the planning authority shall, as soon as may be, serve an enforcement notice.

In its submissions to this Office, the Council argued that section 7 of the Act of 2000 does not provide for copies of warning letters, planning reports or minutes of meetings to be made available to the general public in relation to planning enforcement files. It said the decision made in relation to section 152 including the date the warning letter issued was entered on the planning register at the time of the decision. It said the decision in relation to section 153 and the date of same was entered on the planning register at that time. It said no enforcement notice issued under section 154.

The Act of 2000 requires the inclusion of the details specified above in the Planning Register. Under section 7(6)(a), the Register shall be kept at the offices of the planning authority and shall be available for inspection during office hours. I agree with the Council that the Act of 2000 does not amount to a requirement to make the records at issue in this case publicly available. They contain considerably more information than is required to be included in the Register. I also note that the Council has the discretion, under section 152, to give a copy of the warning letter to any other person who in its opinion may be concerned with the matters to which the letter relates. This does not equate to a requirement to make the information publicly available, nor does it mean that the warning letter can be regarded as being publicly available.

I would add that the Council has also brought to the attention of this Office a guidance document concerning planning enforcement that was published by the then Department of Environment, Community and Local Government in 2012, entitled "A Guide to Planning Enforcement in Ireland". That Guidance provides 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. Exceptions to this general approach arise where

• availability of documents could prejudice a possible court action;
• availability of documents would reveal the identity of complainants (in order to prevent possible intimidation);
• the planning authority exercises a discretion that sensitive personal data should not be disclosed."

Having considered the Guidance, it seems to me that it cannot reasonably be interpreted as meaning that the documents that are suggested for publication are therefore available to the general public. I note that the guidance is simply that; it is not, nor does it purport to be, a statutory requirement. Moreover, the guidance suggests that it remains at the discretion of the Council to decide what documents it wishes to make publicly available and it also acknowledges that such documentation may not always be appropriate for publication.

Having considered the matter, as I am not aware of any provision of the Act of 2000 that requires a planning authority to make documents such as those at issue in this case publicly available so that they might meet the requirements of section 37(2)(c), I find that the section does not apply.

Section 37(5)

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 at issue in this case would not be to the benefit of the individuals to whom the information relates and that section 37(5)(b) does not apply.

In relation to the applicability of section 37(5)(a), 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 inThe Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors[2020] IESC 57 ("the eNet Case"), 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. 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.

As I mentioned above, the Department with responsibility for planning legislation published guidance which indicates that documents such as those at issue in this case should be made publicly available, with certain exceptions. As such, it might reasonably be argued that such guidance represents a general policy of promoting openness in respect of planning enforcement matters. On the other hand, the Act of 2000 provides that only certain, specified information relating to planning enforcement must be made available, through the entry of certain specified details on the planning register which must be available for public inspection. This contrasts with a requirement for a far more significant level of transparency in respect of planning application processing, where, for example, the entire planning file must be publicly available. It seems to me that had the Oireachtas seen fit to afford the same levels of transparency to enforcement matters as it did to the planning application process, it could have provided for same in the Act of 2000 but did not.

In any event, it seems to me that the guidance would, of itself, fall well short of the requirement, as set out by the Supreme Court in the eNet case referenced above, that there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure. In the eNet case, the Court found that when conducting a public interest balancing test, the engagement is with specific documents for the purposes of analysing whether release or refusal would better serve the public interest and that the public interest cannot, therefore, be the same public interest as that broadly stated in the Act. The guidance essentially supports a general principle of openness in matters relating to planning enforcement but acknowledges that the principle is not absolute. In this case, the Act requires the public interest in favour of release to be balanced against the privacy rights of the individual to whom the information relates.

The FOI Act recognises 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 is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. Moreover, unlike other public interest tests provided for in the FOI Act, there is a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. 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.

Having examined the records at issue in this case, I have not been able to identify any sufficiently specific, cogent and fact-based reason for finding that the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates. I find, therefore, that section 37(5)(a) does not apply.

In conclusion, therefore, I find that the records at issue are exempt from release, under section 37(1) of the Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Council's refusal of the request in this case. While I find that it was not justified in refusing access to the records under section 32(1)(a), I find that they are exempt under section 37(1).  

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