Mr and Mrs X and Wicklow County Council

CourtInformation Commission
JudgeElizabeth Dolan Senior Investigator
Judgment Date30 October 2015
Case OutcomeThe 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 Number150180
RespondentWicklow 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...

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