Mr and Mrs X and Cork County Council

• Judge: Elizabeth Dolan Senior Investigator
• Judgment Date: 24 September 2015
• Case Outcome: The Senior Investigator found that the Council was not justified in deciding to refuse access to the record in accordance with sections 35(1)(a) and 42(m)(i) of the FOI Act. She varied the Council's decision, directing it to release the record subject to the redaction of personal information relating to the complainant.
• Court: Information Commission
• Record Number: 150153
• Respondent: Cork County Council

Whether the Council was justified in refusing the applicant access to a copy of a complaint furnished to the Council in relation to an alleged unauthorised development

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

This review has its origins in a complaint made to the Council alleging an unauthorised development at the applicant's address. On 16 February 2015, the applicants sought a copy of "all records in relation to representation [representation reference] including inter alia; enforcement representation submitted, identity and qualifications of the party submitting, details of verification and analysis under 152(1)(a) of the Act." In its decision of 10 March 2015, the Council identified one record relevant to the applicant's request, and refused access to this record under sections 35(1)(a) and 37(1) of the FOI Act. It relied on section 35(1)(a) on the ground that the information contained in the record was given in confidence to the Council, and relied on section 37(1) on the basis that the record contains the personal information of third parties.

On 13 March 2015, the applicants sought an internal review of the Council's decision. On 2 April 2015 the decision to refuse the request was upheld by the Council on internal review. On 20 May 2015 the applicants sought a review by this Office of the Council's decision.

I note that during the course of this review Mr Benjamin O'Gorman of this Office informed the applicants during a telephone call of his view that the Council was justified in its decision to refuse access to the record at issue on the basis that the information had been given to the Council in confidence. I note that the applicant did not accept this position and also proposed that the record be released with the personal information of the complainant redacted.

Consequently, I have decided to conclude this review by way of a formal binding decision. In conducting this review, I have had regard to the contents of the relevant record, to the correspondence between the applicant and the Council, to the correspondence between the applicant and this Office, and to the provisions of the FOI Act.

Scope of the Review

The scope of this review is concerned solely with whether the Council was justified in refusing access to the record at issue.

Preliminary Matters

During the course of this review, the Council identified a further seven records relevant to the applicants' request, and made a decision to release four records, redact information in another two records, and refuse access to one record. As the Council did not consider these records in its original decision of 10 March 2015, or its internal review decision of 2 April 2015, there is no decision of the Council in relation to these records for this Office to review. Consequently, the scope of this review is as is outlined above. Should the applicants be dissatisfied with the Council's decision in relation to the seven newly identified records, it is open to them to seek an internal review of that decision, and then, should they remain dissatisfied, appeal the Council's internal review decision to this Office, in accordance with the FOI Act.

It is important 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 record at issue was justified.

Analysis and Findings

The record at issue consists of a complaint alleging an unauthorised development at the applicant's address. The record comprises a one-page covering letter to the Council, a two-page completed handwritten "Enforcement Representation Form", a one-page typed submission detailing the alleged non-compliance, and two area maps (6 pages in total).

Section 42(m)(i) of the Act
While the Council relied on section 35(1)(a) of the FOI Act to withhold the record in question, it also cited section 42(m)(i) of the Act in its submission to this Office. Section 42(m)(i) provides that the Act does not apply to a record relating to information whose disclosure could reasonably be expected to reveal or lead to the revelation of the...