Mr X and Ordnance Survey Ireland

CourtInformation Commission
JudgeSenior Investigator
Judgment Date15 Sep 2021
Case OutcomeThe Senior Investigator affirmed the decision of OSI
RespondentOrdnance Survey Ireland
Record NumberOIC-106520-T9B5N3
Whether OSI was justified in its decision to refuse access, under sections 37(1) and 15(1)(a) of the FOI Act, to a number of records, either in whole or in part, relating to the surveying of the applicant’s property and an adjoining property

OIC-106520-T9B5N3

Background

The applicant submitted an FOI request to OSI on 31 January 2021 for all records relating to the inspection, survey or mapping work or any other work-related task at his property and any reports or circulation of same, from the date the property was first registered in the 1970s. He also sought the same records in respect of a neighbouring property.

On 1 March 2021, OSI issued a decision on the request. Of the 20 records it identified relating to the first part of his request concerning his property, it granted access in full to nine records and partial access to five others, whilst refusing access to the remaining six. OSI cited sections 37(1) (third party personal information) and 15(1)(a) (records do not exist or cannot be found) in support of its refusal of the records, in whole or in part. It refused the second part of the request, relating to the neighbouring property, in full, citing section 37(1) of the Act as the basis for its refusal.

On 7 March 2021, the applicant sought an Internal Review of OSI’s decision, wherein he also argued that he should have received other relevant records. On March 2021, OSI issued its Internal Review decision, wherein it varied its original decision by releasing one additional record, which it stated would be numbered Record 1 in a revised Schedule of Records being released with its Internal Review decision. OSI affirmed the remainder of its original decision. On 19 April 2021, the applicant sought a review by this Office of the decision of OSI on his request.

I have now completed my review in this case. I have decided to conclude the review by way of a formal binding decision. In conducting the review, I have had regard to the correspondence between the applicant and OSI, and to the correspondence between this Office and both the applicant and OSI on the matter. I have also had regard to the contents of the records at issue. In referring to the records, I have adopted the numbering system used by OSI when processing the applicant’s request, with one exception as follows: an additional record was released at Internal Review stage by OSI and referred to in OSI correspondence as Record 1. However, there already exists a “Record 1” in the schedule of records identified by OSI in response to the original request made by the applicant. Therefore, for the sake of clarity, I will refer below to the additional record released by OSI in its Internal Review decision as “Internal Review Record 1”.

Scope of the Review

This review is concerned solely with whether OSI was justified in its decision to refuse access to five records – namely Records 1, 2, 5, 6, and 7 – and to grant only partial access to a further five records – namely Records 3, 8, 9, 10 and 15 – as sought by the applicant. In addition, the applicant has also asserted that additional records should exist, and should have been released to him, in relation to Internal Review Record 1 and Record 8, and this review will also address this matter.

Preliminary Issues

It is important to note that, while I am required by section 22(10) of the FOI Act to give reasons for decisions, this is subject to the requirement, under section 25(3), that I take all reasonable precautions in the course of a review to prevent the disclosure of exempt material. This means that I am constrained in this case from providing a fuller explanation for my findings than that set out below.

Furthermore, section 13(4) of the Act provides that, subject to the Act, in deciding whether to grant or refuse and 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. 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 what might be regarded as public interest factors in favour of release of the records where the Act requires a consideration of the public interest.

In relation to the exemption under section 15(1)(a) of the Act, as cited by OSI in its decision as the basis for withholding Record 20, it should be noted that, in its submissions to this Office, OSI outlined that in fact the record in question existed, and could be found, but existed only in hard copy. It advised that – due to protocols in place in its office relating to Covid-19 – it had not been possible to retrieve and copy this record in order to provide it to the applicant. OSI further explained that, subsequent to it issuing its decision to the applicant, a member of its staff had been able to attend at its office and create a scanned copy of this record, and had provided it to the applicant. I note that in his submissions to this Office, the applicant confirmed that he was in receipt of this record and that it did not form part of his application for a review. As such, an examination of the applicability of section 15(1)(a) to Record 20 does not form part of this review.

However, as outlined in the preceding section, in the course of his application to this Office, the applicant indicated his belief that certain additional records that he believed ought to exist had not been provided. OSI addressed these points in its submissions, in particular in relation to Record 8 and Internal Review Record 1. Although it has not specifically cited section 15(1)(a) of the Act, I consider that OSI’s arguments amount to an administrative refusal of this aspect of the applicant’s request, and have therefore addressed these points below with reference to section 15(1)(a) of the Act.

It should also be noted that this review does not address the second part of the applicant’s initial FOI request, which was refused by OSI on the basis that it related to the neighbouring property and, as such, that the information contained in any records would be exempt from release under section 37(1) of the Act. It is noted that the applicant himself made no reference to the second part of his initial request in his application to this Office for a review of OSI’s decision. In any event, my comments and findings below re the applicability of section 37(1) of the Act to certain information contained in the records relating to the applicant’s property would, in my view, apply to any such records relating to the neighbouring property.

Analysis and Findings

Section 37

In its submissions to this Office, OSI cited section 37(1) of the FOI Act as a basis for refusing access in full to records 1, 2, 5, 6 and 7, and for partly-withholding access to records 3, 8, 9, 10 and 15.

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