Mr X and the Cork County Council

• Judge: Peter Tyndall Information Commissioner
• Judgment Date: 12 August 2015
• Case Outcome: The Commissioner upheld the Council's refusal under section 28(5A) of the FOI Act to confirm or deny the existence of the requested records. He found that the records, if they existed in the context of the applicant's specific request, would constitute personal information within the meaning of the FOI Act and that the disclosure of the existence or non-existence of such records would also disclose personal information.
• Court: Information Commission
• Record Number: 140157
• Respondent: Cork County Council

Whether the Council was justified in refusing to confirm or deny the existence of certain records sought by the applicant, which he contended related to an investigation into the conduct of a named Council employee

Conducted in accordance with section 34(2) of the FOI Act, by Peter Tyndall, Information Commissioner

Background

On 7 March 2014, the applicant made the following request to the Council under the FOI Act.

" ... My request primarily relates to an investigation that was carried out into an agreement to buy land at Deerpark, Charleville. The land in question was the focus of an investigation into the conduct of [name of Council official]. It arose from the purchase of land from [two named parties].

I seek

• A copy of all investigation reports or reviews, draft or otherwise, in relation to this deal;
• A copy of all affidavits sworn on behalf of the council (sic) arising from or related to this case;
• A copy of any report, memo or document from the internal audit department arising from this case;
• A copy of any correspondence with Cork City Council or the Local Government Auditor in relation to this case.

The Council's decision of 9 May 2014 refused to confirm or deny the existence of the records requested above on the basis that do so "would disclose personal information contrary to section 28(1) of the legislation".

The schedule to its decision also referred to section "28(5A)(b) of the FOI Act", as well as other provisions of the Act it considered potentially applicable to such documents. The Council also released records to the applicant further to the three other aspects of his request, the details of which I see no reason to include in this decision.

The applicant sought an internal review of the Council's decision on 12 May 2014, in which he made a number of arguments as to why he felt his request should be granted. On 9 June 2014, the Council affirmed its refusal to confirm or deny the existence of the records requested at parts 1. to 4. of his request, again relying on what it referred to as "section 28(5A)(b)" of the FOI Act. On 17 June 2014, the applicant sought a review by this Office of the Council's decision.

In carrying out my review, I have had regard to the above correspondence; to various correspondence between the Council and this Office; and to the provisions of the FOI Act.

In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997-2003, notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Scope of the Review

The scope of this review is confined to whether the Council has justified its refusal to confirm or deny the existence of the records requested by the applicant at parts 1. to 4. of his FOI request of 7 March 2014.

Findings

Section 28(5A)
Although the Council's internal review decision, and its initial submission to this Office, referred to "section 28(5A)(b)"/section 28(5)(A)(b)", I am satisfied that section 28(5A) is the primary provision of the FOI Act on which the Council intended to rely in refusing to confirm or deny the existence of the requested records.

Section 28(5A) provides as follows:

"Where-

(a) a request under section 7 relates to a record to which subsection (1) applies but to which subsections (2) and (5) do not apply or would not, if the record existed, apply, and

(b) in the opinion of the head concerned the disclosure of the existence or non-existence of the record would have the effect specified in subsection (1),

he or she shall refuse to grant the request and shall not disclose to the requester concerned whether or not the record exists."

This provision of the Act is intended to protect the personal information of a third party in situations where knowledge of the existence, or non-existence, of particular records would effectively disclose that party's personal information. The usefulness of the section 28(5A) depends upon it being invoked both in instances in which relevant records do not exist as well as in cases in which relevant records do exist. For reasons I will elaborate on below, to confirm that an employee had been under investigation for alleged wrong-doing would be to disclose personal information of that employee. It is also the case that to state that no such investigation was conducted would also disclose personal information of that employee.

Consideration of section 28(5A) must be conducted on the basis of what would be the case were the Council to hold records of the kind sought by the requester, rather than on whether or not such records are actually held. Furthermore, while section 34(10) of the FOI Act requires me to give reasons for my decision, section 43(3) also requires me not to disclose information that is exempt or which is claimed to be exempt. Therefore, I cannot outline in detail the reasons for certain aspects of my decision in the circumstances of this case, and I must be careful not to disclose whether or not the specific records sought by the requester do, or do not, exist.

Analysis

The Terms of the Request

At the outset, I wish to make it clear that I take the view that it is in the public domain that an inquiry or investigation was held by the Council into its agreement to buy lands at Deerpark, Charleville in April 2006. It seems to me that to refuse to confirm or deny the existence of any records concerning the fact that such an investigation took place would not be a realistic proposition in circumstances where the Council had previously confirmed this fact.

For example, I note that, as early as 13 July 2006, the Irish Examiner reported that the County Manager had appointed the Head of Personnel to conduct an internal investigation following complaints about the Council's handling of the land deal. On 12 June 2007, the Irish Examiner further reported that a published Local Government Audit Service Report made reference to the land deal and investigations concerning staff members of the Council. I note also that the minutes of the Council meeting held on 11 June 2007 record that the then ongoing investigation into property dealings in North Cork was referred to in the course of a discussion on the Local Government Auditor's Report for the year 2005. On 23 February 2008, an Irish Times report quoted a Council statement to the effect that a disciplinary process had commenced into the conduct of an...