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However, while FOI bodies must justify their decisions, the eNet judgment in particular also said that a failure by an FOI body to do so does not lead to an inevitable or statutorily mandated outcome. Rather, I must adjudicate the merits of the decision to refuse by reason of an analysis of the records and the interests engaged, which might suggest either disclosure or refusal.
Part 2 of the applicant's request was for the name of the relevant scheme or grant. During the course of the review, the Council and the third party or parties accepted that the Council's letter of 11 October 2022 also effectively confirmed that an application(s) was made to the Council under the Local Improvement Scheme (LIS), given that this is the only way in which the Council could be involved in the upgrade of a private road. Accordingly, I am satisfied that I am not in breach of section 25(3) by referring to the LIS in this decision.
The Council's website contains details of the LIS and the Council's basic eligibility requirements. I have summarised these, by way of context for my decision, as follows:
- An LIS involves improvement works on private/non-public roads, and the Council may provide assistance by way of carrying out works on eligible roads.
- To be eligible, the relevant road must be in private ownership and must meet one of the following criteria:
provide access to parcels of land of which at least two are owned or occupied by different persons. o provide access for harvesting purposes (including turf or seaweed) for two or more persons. o road projects which provide access to at least one parcel of land, owned or occupied by a person engaged in agricultural activities AND which separately provides access for harvesting purposes (including turf or seaweed) for at least one other person.
shall, in the opinion of the road authority, be used by the public - definition of such road is a road which may connect two public roads or give access to a beach or commonage, and thus serve the local community.
works can be carried out on amenity roads. Amenity roads are non-public roads leading to important community amenities such as graveyards, beaches, piers, mountain access points or other tourist/ heritage sites.
- A local contribution of 10% or 15% of the cost of the project (including VAT) is payable by the applicant, i.e. 10% up to and including 5 residences and 15% for 6 or more residences (capped at €1,200 per household).
Section 37(1)
Section 37(1), subject to other provisions of section 37, requires the refusal of a request if access to the record concerned would involve the disclosure of personal information relating to an individual other than the requester (including personal information relating to a deceased individual).
Section 2 of the FOI Act defines personal information as information about an identifiable individual that (a) would ordinarily be known only to the individual or members of the family, or friends, of the individual, or (b) is held by a public body on the understanding that it would be treated by it as confidential. Section 2 also lists 14 non-exhaustive examples of what must be considered to be personal information, including (ii) information relating to the financial affairs of the individual and (xiii) information relating to property of the individual. Where information is captured by one or more of these 14 examples, there is no need for the requirements at (a) or (b) of the definition to also be met.
In addition, section 2 of the FOI Act provides that certain information relating to public servants and contractors cannot be considered as their personal information. However, the exclusions do not apply to the staff of contracted entities. The entity is the contracted party, not its individual staff.
The parties' arguments
Both the Council and the third party/parties argue that the records in their entirety comprise personal information. They say that the records (i) identify any third party or parties who made an application and (ii) relate to the private property and financial interests of any such party or parties.
The applicant says that he has no interest in the name or address or any personal information of any individual or individuals who may be associated with the road upgrade. He suggests that the records could be redacted in some way so as to protect identities of individuals and rights to privacy, and that he wishes to know how much taxpayers' money the Council spent on the upgrade, and what were the satisfying criteria. He also argues that certain parts of the request concern the Council's decision making and expenditure of monies and therefore do not seek personal information.
Analysis
Records 1 to 16 all concern matters relating to an application(s) for financial assistance regarding a private access road. It is important to note that the request for records was specific and identified the particular road, two related Eircodes, and a specified private farmyard. In the circumstances, I am satisfied that the release of the records would involve the disclosure of information relating to both the financial affairs and the property of the relevant property owners, regardless of whether or not a particular owner submitted a grant application. Disclosure of the fact that an identifiable individual did not make an application would still involve the disclosure of information about such a party's property and financial interests.
While part 1 seeks the name of the grant applicant(s), the applicant now says that names, addresses and other specific identifying information may be redacted. However, I am satisfied, given the specific nature of the request made, that it is not possible to release records 1 to 16 in anonymised fashion. Any release would, in my view, involve the disclosure of personal information relating to identifiable individuals. I find, therefore, that section 37(1) of the FOI Act applies to records 1 to 16, including to names of contractor staff.
On the other hand, I am not satisfied that the release of the parts of pages 30 and 31 (records 17 and 18) that remain within the scope of this review would involve the disclosure of personal information relating to identifiable individuals. At part 5 of his request, the applicant sought overall totals relating to the LIS scheme. Pages 30 and 31 contain some such information, although it is not entirely clear to me that they contain the precise information sought. Nevertheless, I cannot see how the release of total costs, expenditure etc. could possibly involve the disclosure of personal information relating to identifiable individuals.
Accordingly, I find that section 37(1) does not apply to the relevant parts of records 17 and 18 that remain within the scope of this review. I note here from the Investigator's contacts with the Council that it does not object to the disclosure of the details concerned.
In the circumstances, I need only go on to consider sections 37(2) and (5) in relation to records 1 to 16.
Section 37(2) of the FOI Act sets out certain circumstances in which 37(1) does not apply. The applicant has not argued that any of the circumstances set out in section 37(2) apply and I am satisfied they do not apply in this case.
Section 37(5) of the FOI Act 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 would not be to the benefit of any relevant third party individuals and that section 37(5)(b) does not apply.
Before I consider the applicability of section 37(5)(a), there are a number of important points to note. First, section 13(4) 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. In relation to the question of the public interest, 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, or overlap with, what might be regarded as true public interest factors in favour of release of the records, i.e. insofar as the concerns raised in relation to the request may also be matters of general concern to the wider public.
Secondly, it is important to note that the release of records under the FOI Act must be regarded, in effect, as release to the world at large, given that the Act places no constraints on the uses to which a record released under the Act can be put. This means that in considering whether a right of access exists to records under section 37(5)(a) of the Act, any decision to grant access would be on the basis that there is an overriding public interest in the release of the records effectively to the world at large that outweighs the privacy rights of the third party individuals concerned.
It is also important to note that 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.
In considering where the balance of the public interest lies in this case, I have had regard to section 11(3) of the Act which provides that in performing any functions under the Act, an FOI body must have regard to, among other things, 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. However, in doing so, I have also had regard to the judgment of the Supreme Court in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 ("the Enet judgment"). In that 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.
The parties' arguments
The Council says that its website contains general details about the LIS, the total amount allocated under the scheme, and blank application forms. It says that it does not publicise details of grants paid to individuals. It says that if it receives representations from a Councillor on behalf on any individual, it advises the Councillor whether the applicant was successful but gives no further details because these are considered personal to the individual concerned. It appears to argue that disclosure under FOI would breach the General Data Protection Regulation (GDPR).
The Council says that it administers the LIS fairly and in accordance with the rules of the scheme, with no favouritism shown to one grant applicant over another. It says that the Local Government Auditor (LGA) carries out regular audits. It says that there is no evidence of any wrong-doing in this case. It says that there are no exceptional circumstances that would require the disclosure of the information in the public interest, and that there is no specific, fact-based and cogent reason to set aside the mandatory protection provided for in section 37(1). It refers to the comment in this Office's decision in Case No. OIC-122728 about the constitutional dimension to the right to privacy.
The Investigator also invited submissions from the third party or parties. While I cannot include her comments here because they relate to and describe the contents of the withheld records, I can say that she noted that there appears to be very little in the public domain about the Council's administration of LIS applications.
Again, section 25(3) precludes me from elaborating on the arguments made by the third party or parties. They say that the records contain significant personal information. They refer to their Constitutional right to privacy, and the discretionary nature of section 37(5)(a), which they say should be very carefully exercised having regarding to the very strong public interest in protecting their right(s) to privacy. They say that the Council's 40 elected members are responsible for Council oversight and are circulated with information about the administration of the LIS.
The third party or parties describe certain matters, which they say support their view that disclosure of the details would breach their GDPR rights. They say also that the Council's policy is not to disclose details of the sort requested so as to comply with GDPR, and that similar reasoning should be applied under FOI. They say that the Council's LIS application form did not say that any information might be releasable further to the FOI Act.
The third party or parties say that this Office's decisions in Case Nos. 120084 and OIC142863 are relevant. They say also that disclosure of records relating to any one LIS application will not enhance the transparency of the scheme overall, and suggest that this Office should instead direct the release of more general information about the LIS e.g. criteria, total funding allocation for any given year, number of schemes completed/ length of road upgraded for that year, etc.
The Investigator informed the applicant of her view that disclosure of the records would add to the general understanding of how the Council performs its functions, but that this would result in breaches of rights to privacy. She also noted that the FOI Act reflects a strong public interest in protecting the right to privacy.
In summary, the applicant responds that an individual(s) appear(s) to have voluntarily opted to apply to the Council for publicly funded grant/aid assistance. He says that it is central to the public interest, particularly in ensuring that value is being delivered for public monies spent, to reveal how much public money was spent by the Council on this particular upgrade, and what the satisfying criteria were. He says that such disclosure goes to the very core and essence of what FOI means for accountability & fair procedures operated by public bodies in their dealings with the general public.
I will now firstly address the relevance of certain of the parties' arguments, and then consider the weight of those that are relevant.
GDPR
Article 86 of the GDPR provides that personal data in official documents held by a public authority or a public body or a private body for the performance of a task carried out in the public interest may be disclosed by the authority or body in accordance with Union or Member State law to which the public authority or body is subject in order to reconcile public access to official documents with the right to the protection of personal data pursuant to the Regulation. Section 44 of the Data Protection Act 2018 provides that, for the purposes of Article 86, personal data contained in a record may be disclosed where a request for access to a record is granted under and in accordance with the FOI Act 2014 pursuant to an FOI request.
In short, data protection legislation does not prohibit public bodies from processing FOI requests where the records sought contain personal information relating to individuals other than the requester. The FOI Act is entirely independent of data protection legislation and FOI requests for access to records must be processed in accordance with the provisions of the FOI Act. Indeed, the FOI Act provides for the release of personal information of third parties in certain circumstances, including where the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the individuals concerned. As such, in considering where the balance of the public interest lies in this case, I am satisfied that the question of whether or not release is in compliance with GDPR is not a relevant factor that I must consider.
Case Nos. 120084, 122728 and 142863
These cases also concerned the question of the release of personal information. Case Nos. 120084 and 142863 found that the public interest did not weigh in favour of releasing the relevant details. However, while the Council refers to Case No. 122728 in the context of the constitutional dimension to privacy rights, the relevant Investigator found that the public interest lay in favour of releasing most of the relevant record in that case, subject to the redaction of identifying information and certain other details.
Regardless of the ultimate outcome of the above decisions, they do not necessarily create precedents for other cases. Each review by this Office is conducted on its own merits, having regard to the contents of the particular records at issue and the individual circumstances of the case. I will also say that the circumstances of Case Nos. 120084, 122728 and 142863 differ to those of the case at hand. Case No. 120084 concerned "third party claims" paid by an FOI body regarding lands owned by the requester concerned; Case No. 142863 concerned the purchase of two specific burial plots in Fingal Cemetery; and Case No 122728 concerned an audit report into the finance handling practices of a former local authority employee.
Disclosure of general information/the Council's forms
My review is confined to the records identified by the Council as coming within the scope of the applicant's request. It is not open to me to direct the Council either to release other types of information or to direct the publication of general information about the scheme on foot of a review.
By way of general comment, I understand that all local authorities generally publish very little about LIS applications. It seems to me that local authorities could strike an appropriate balance between protecting privacy rights and providing better transparency on the matters at hand, for instance by including a notice in LIS application forms specifying particular details of successful applications that will be published. That said, it is not relevant to my decision that the Council's LIS application forms do not mention the potential release of any information under FOI. The FOI Act has applied to records held by local authorities since 1998.
Analysis of relevant arguments
As I have indicated above, section 11(3) of the Act provides that in performing any functions under the Act, an FOI body must have regard to, among other things, the need to achieve greater openness in the activities of FOI bodies and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. The fact that certain oversight mechanisms might already exist does not mean that no further transparency or accountability should be required. This Office does not generally accept that the existence of current safeguards in relation to public expenditure means that there is no public interest in creating further safeguards. The very existence of secrecy carries with it the scope for abuse. In contrast, openness in relation to public expenditure is an important additional safeguard against abuses of all kind.
It is important, in my view, to have regard to the nature and purpose of the LIS in considering where the balance of the public interest lies in this case. The LIS allows for the expenditure of public funds on the carrying out of works on private roads, provided certain eligibility criteria are met. It is relevant to note that while the Council publishes the yearly amount it allocates under the LIS, it publishes no information about either the basis for, or amounts of, individual successful applications. This means that there is little or no public understanding or scrutiny possible of the Council's administration of the LIS e.g. of whether the projects for which the Council has awarded grants met the scheme's eligibility requirements or the basis on which certain projects may have been approved ahead of others. Indeed, I note in particular that the Council's application forms say that "the value of applications to carry out works will far exceed the annual allocation by the Department of the Rural & Community Development for this scheme and consequently it will be necessary to place applications on a List."
As a general proposition, it seems to me that there is a significant public interest in the disclosure of information such as the basis on which a local authority decides that any particular LIS application is eligible for inclusion, the basis on which projects are included in any one year, the details of the works undertaken and the extent of the use of public monies on such projects. The disclosure of such information would, among other things, serve as a significant aid to ensuring effective oversight of public expenditure on LIS schemes, to ensuring the public body obtains value for money, to preventing fraud and corruption, to preventing the waste or misuse of public funds, and to ensuring that all LIS applicants are treated fairly.
I accept that the release of such information would also likely involve the disclosure of certain personal information about identifiable individuals. As such, I must also take account of the extent to which privacy rights would be breached by such disclosure.
I will firstly address the applicant's comment about the voluntary nature of LIS applications. I take him to argue that grant applications are analogous to parties voluntarily entering into contractual business arrangements with FOI bodies, and that there should be similar levels of transparency regarding the expenditure of public monies. Unlike business arrangements, applications for grant assistance are often prompted by the applicant's highly sensitive personal circumstances. For instance, the Housing Aid for Older People programme provides for the award of grants for essential repairs to be made to privately-owned homes, so that older persons may continue living at home. Such grants are payable for e.g. the repair or replacement of a roof, windows and doors, electrical wiring upgrades, or the provision of central heating. It follows that the circumstances in which these applications may be sought and approved reflect the intrinsically private and sensitive circumstances of the applicant's age and health, and the general condition of their home. In turn, I consider that there would be considerable weight to the public interest in protecting such intrinsically private and sensitive personal information.
On the other hand, the LIS scheme envisages the upgrade of privately owned roads for access, harvesting, or agricultural purposes, or where roads shall be used by the public or are amenity roads. Like the Housing Aid for Older People programme, assistance is payable regarding private property. However, it seems to me that the general circumstances in which LIS grants may be sought and approved are not a factor of the applicant's highly sensitive personal circumstances. Rather, they reflect the benefit that the relevant private property (a road) provides to a wider section of the general public, as well as to the applicant. Generally speaking, therefore, I would consider certain personal information relating to an individual's LIS application to be less private and sensitive than other personal information that the associated records may contain.
I recognise that the disclosure of even such less sensitive details must be considered as being effectively, or at least potentially, release to the world at large and therefore will give rise to breaches of privacy rights. However, I consider that the disclosure of less sensitive personal information results in a lesser breach of privacy rights. It follows that there is less weight to the public interest in protecting such less sensitive personal information.
I have applied the above general comments to the contents of the records and also taken account of the circumstances of this case. While I cannot elaborate due to section 25(3), I am satisfied that records 1 to 16 include what I consider to be less sensitive personal information as well as what I am satisfied is more intrinsically sensitive personal information. I am satisfied, therefore, that the disclosure of the records in full would result in significant breaches of privacy rights. On balance, I do not consider such significant breaches to be warranted in the public interest.
Rather, in the particular circumstances of this case and again having regard to section 25(3), I am satisfied that the competing public interests can be appropriately balanced by directing the disclosure of the following excerpts:
- Record 3, page 4 - the subject line of the email, the text in the body of the email from "applying" to "vault"
- Record 3 - pages 5-7 in full
- Record 6, page 14 - the first email dated 4 February 2021 except for the reference number
- Record 7 - page 15 in full except for the reference number
- Record 8, page 16 - in full apart from the reference number and all text in "Ref:" heading
- Record 11, page 20 - the subject line of the email dated 4 January 2021 and the text in the body of the email from "applying" to "vault"
- Record 13, page 22 - all apart from the financial amounts contained in the record and name of contractor staff member
- Record 13 - page 24 in full
- Record 16, page 29 - all apart from points 4 to 6.
Disclosure of the above details provides some insight into the basis on which the application was made, and into some aspects of the Council's examination, administration and approval thereof, while minimising the resultant breach of privacy rights.
The records do not contain a specific figure for the final cost to the public purse of upgrade. However, they contain a specific figure for the Council's initial estimated cost. The Council confirms that this figure is based on its own internal costing figures. In other words, the figures do not comprise the contractor's unit or other costings.
Furthermore, having regard to this estimate and the Council's published eligibility requirements, it is possible to calculate the required personal contribution(s), and in turn, the estimated overall cost borne by the taxpayer.
While disclosure of, and calculations based on, an estimate would provide no certainty on these matters, it nonetheless gives more of an insight than is the case at present. Furthermore, it would also enable an indicative assessment of the value for public monies, when considered in light of the limited details of the works so funded that I am also directing be released. It seems to me that, overall, there is considerable weight to the public interest in disclosure of the estimated cost.
On the other hand, I accept that disclosure of the estimate (and the calculations that this would enable) would result in a breach of privacy rights. However, I am satisfied that this would result in somewhat lesser of a breach of privacy rights than would be caused by disclosure of other information in the records.
I have given careful consideration to the disclosure of the Council's estimated cost. In all of the circumstances, I am satisfied that the weight of the public interests in disclosure of the estimate is sufficient to outweigh the public interest in protecting against the resulting breach of privacy rights.
I do not consider it in the public interest to direct the release of any contribution(s) paid. I have already described the Council's requirements for contributions, including the cap. I accept that disclosure of any contributions paid would give further insight into the Council's administration of the LIS' financial requirements. However, I am satisfied that in the particular circumstances of this case, such disclosure would require the disclosure of what I consider to be more private and sensitive personal information. Therefore, on balance, I do not consider the disclosure of any information concerning any contribution(s) paid to be justified in the public interest.
Finally, the applicant does not seek names of any applicant(s) or other identifying information. Therefore, there is no need for me to consider whether such details would be releasable in the public interest.
I have directed the Council to grant access to the name of the contractor under section 37(5)(a). However, the Council's decision making centred solely on third party personal information rights under the FOI Act. It did not consider any rights that the contractor, a separate third party, may have in the matter.
In general terms, section 36 is concerned with commercial information. Section 36(1)(a) provides for the refusal of trade secrets. Section 36(1)(b) provides for the refusal of information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates, or could prejudice the person's competitive position in the conduct of their business. Section 36(1)(c) provides for the refusal of information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates.
My Investigator invited comment from the Council and the contractor. In particular, she told the contractor that she did not see how sections 36(1)(a) or (c) apply. She said also that it is already likely to be publicly known that it is under contract to the Council for the provision of certain services and that such information would not generally be considered to be commercially sensitive for the purposes of section 36(1)(b) in any event.
The Council's response to the Investigator does not suggest that it considers the contractor's name to be commercially sensitive or otherwise exempt from release. The contractor says that it is not willing to consent to its information or rates being disclosed, because this could affect its competitive stance. However, third parties do not have a right of veto over the disclosure of information affecting their interests.
WhiIe I am directing the disclosure of the estimated cost figure of the upgrade, I have already noted the Council's confirmation that this figure is based on its own internal costing figures rather than the contractor's unit or other costings. Therefore, I do not see how disclosure of this figure could prejudice the contractor's competitive position in the conduct of its business, or cause the other harm that section 36(1)(b) is designed to protect against. I find that section 36(1)(b) does not apply to the Council's cost estimate.
Furthermore, it is not apparent to me, nor has it been explained, how disclosure of the contractor's name, as the provider of a particular service further to a contract with the Council, could prejudice its competitive position in the conduct of its business, or otherwise qualify for exemption under section 36(1)(b) of the FOI Act. I find that the name of the contractor is not exempt under section 36(1) FOI Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Council's decision.
I affirm the Council's application of section 37(1) to records 1-29 but I annul its refusal of the following excerpts:
- Record 3, page 4 - the subject line of the email, the text in the body of the email from "applying" to "vault"
- Record 3 - pages 5-7 in full
- Record 6, page 14 - the first email dated 4 February 2021 except for the reference number
- Record 7 - page 15 in full except for the reference number
- Record 8, page 16 - in full apart from the reference number and all text in "Ref:" heading
- Record 11, page 20 - the subject line of the email dated 4 January 2021 and the text in the body of the email from "applying" to "vault"
- Record 13, page 22 - all apart from the financial amounts contained in the record and name of contractor staff member
- Record 13 - page 24 in full
- Record 16, page 29 - all apart from points 4 to 6.
I direct the Council to grant access to the details at the above bullet points, further to section 37(5)(a) of the FOI Act.
I annul the Council's refusal of those parts of pages 30-31 that are covered by part 5 of the request. I direct the Council to grant access to these details. Should the applicant feel that these details do not fully address part 5, he should address his queries to the Council and it is also open to him to make a fresh request to the Council for any details he feels may have been omitted.
Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.
Stephen Rafferty, Senior Investigator
BAILII: