Mr and Mrs X and Wicklow County Council

• Court: Information Commission
• Judge: Elizabeth Dolan Senior Investigator
• Judgment Date: 30 October 2015
• Case Outcome: The Senior Investigator decided to annul the decision of the Council and directed the Council to conduct a fresh examination and decision making process on the records in respect of the "planning complaints file regarding 12/3481" which should include the records which came to light during the course of this review as identified on the schedules provided to this Office by the Council on 15 September 2015
• Record Number: 150180
• Respondent: Wicklow County Council

Whether the Council was justified in refusing the applicants' request for access to records concerning planning enforcement files on the basis of section 35(1) and section 42(m) of the FOI Act

Conducted in accordance with section 22(2) of the FOI Act, by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 9 March 2015 the applicants made an FOI request to the Council for access by inspection to "planning complaint files regarding [planning file] 12/3481", and also requested other information by way of a list of questions. The FOI request concerned records originally held by Wicklow Town Council now amalgamated with Wicklow County Council. The Council issued its decision on 2 April 2015 refusing access to the records on the basis of section 35(1) of the FOI Act as it contended that Planning Enforcement Files are not available for public inspection "as a matter of policy". The Council also answered the questions put to it by the applicants and stated that there was no Wicklow Town Council unauthorised development (UD) file relating to planning file 12/3481. Following an application, the internal reviewer affirmed the original decision. He stated that a UD file did exist in Wicklow Town Council and also relied on section 42(m) to refuse access to all the records. The applicants applied for a review by the Information Commissioner of the Council's decision on 15 June 2015.

Submissions have been received from the applicants and the Council, I therefore consider that the review should now be brought to a close by the issue of a formal, binding decision. In conducting my review I have had regard to the application and many detailed submissions from the applicants, the submissions from the Council and to correspondence between the applicants and the Council. I have also had regard to the contents of certain records provided to this Office by the Council and to the provisions of the FOI Act.

Scope of the Review

The issue in this review is whether the Council was justified in its decision to refuse access to the requested records on the basis of sections 35(1) and 42(m) of the FOI Act. I stress that this Office has no role in adjudicating on any of the complaints detailed by the applicants.

Preliminary Matters

It is relevant to note that section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request under section 12 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

The applicants' request and application
It would appear from the application to this Office and the many detailed submissions provided by the applicants that they are very dissatisfied with the action taken by Council concerning their complaints in relation to a development by their neighbour which they claimed had affected their property. In their original FOI request, the applicants made allegations of unlawful actions by the Council, posed questions and also requested access by inspection to the "planning complaints file" concerning the development. The Council identified the complaints file as the Unauthorised Development file or UD file. The applicants contended that they inspected the planning file and that a number of documents were missing from the file including a number of complaints which were submitted by them. In their ten page internal review request the applicants made further allegations about Council staff and asked additional questions of the Council which were not...