Whether the PRA was justified in its decision to refuse access, under section 37(1) of the FOI Act, to a record relating to the applicant’s property and whether it was justified in refusing access to any other relevant records on the ground that no further records cold be found

10 September 2021

Background

It appears that the applicant in this case is involved in a dispute with his neighbour concerning the boundary of his property. On 7 March 2021, he submitted an FOI request to the PRA for all records for the period 1 January 1972 until the date of his request relating to his property, including folio maps, ordnance survey maps, folio documents and any work-related task including folio alterations, for example mapping changes, showing all requests and/or submissions concerning the property, history, and/or alterations completed, including dates (including but not limited to emails, notes, letters, voice recordings, reports, memos, internal communication etc.). The applicant also sought records as described above relating to the property adjoining his.

In its decision of 6 April 2021, the PRA explained that when an application for registration is completed, the legal effect of the documents lodged is registered on the folio. It said the title documents are subsequently filed in the Land Registry in a file known as an “Instrument”. It said an inspection of the folio will give the relevant Instrument number of all applications completed and registered on a folio. It said access to Land Registry Instruments is governed by Rule 159 of the Land Registration Rules 2012 and that any person who is entitled to inspect an Instrument may obtain a copy of the Instrument, on payment of the appropriate fee. It refused access to the instruments held by Land Registry under section 41(1) of the FOI Act. It also refused access to what it described as a correspondence application, under section 37(1) of the Act.

On 13 April 2021 the applicant sought an Internal Review of the PRA’s decision. While he said he accepted the PRA’s explanation about the access to the instrument, he continued to seek access to all other relevant records. On 30 April 2021, the PRA issued its Internal review decision, wherein it affirmed the original decision.  On 10 May 2021, the applicant sought a review by this Office of the PRA’s decision, wherein he also suggested that additional relevant records should exist.

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 the PRA as set out above, and to the correspondence between this Office and both the applicant and the PRA on the matter. I have also had regard to the contents of the records at issue.

Scope of the Review

The record at issue in this case, described by the PRA as a correspondence application, comprises various documents held in connection with a query submitted by a third party. The PRA refused the record in its entirety. Accordingly, this review is concerned with whether the PRA was justified in refusing access, under section 37(1) of the FOI Act, to the record in question.

As the applicant is also of the view that the PRA failed to identify other relevant records, the review is also concerned with whether the PRA was justified in effectively refusing, pursuant to section 15(1)(a) of the Act, to grant access to any other relevant records.

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 (which I address below).

Analysis and Findings

Section 37(1)

Section 37(1) of the FOI Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information. This does not apply where the information involved relates to the requester (section 37(2)(a) refers). However, section 37(7) provides that, notwithstanding section 37(2)(a), an FOI body shall refuse to grant a request if access to the record concerned would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester (commonly known as joint personal information).

Section 2 of the FOI Act defines personal information as information about an identifiable individual that either (a) would, in the ordinary course of events, be known only to the individual or members of their family or friends, or (b) is held by an FOI body on the understanding that it would be treated by that body as confidential. Section 2 goes on to specify 14 categories of information that, without prejudice to the generality of the above definition, constitute personal information. Amongst these categories are:

(xii) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to, establish that any personal information held by the FOI body concerned relates to the individual, and

(xiii) information relating to property of the individual (including the nature of the individual's title to any property).

In its submissions to this Office, the PRA said the correspondence application related to a query lodged by a third party, and that it considered the information therein to be personal information relating to the party who had made the application.

Having examined the record, I am satisfied that it is personal information relating to a third party or joint personal information relating to the applicant and a third party. I note that the applicant expressed the view the PRA could have redacted the record to remove third party personal information. He said he was concerned with the substance of the record insofar as it related to his property, and was not seeking to access third party personal information. Given that the record is concerned with property boundaries, I am satisfied that the information relating to the applicant is inextricably linked with personal information relating to a third party, such that it cannot be released without also disclosing third party personal information. I should add that this includes correspondence between the applicant and the PRA that forms part of the record, given the subject matter of that correspondence. I am satisfied that section 37(1) applies to the entirety of the record.

However, this is not the end of the matter because I must go on to consider the other provisions of section 37 to which section 37(1) is subject. In relation to section 37(2), I am satisfied that none of the grounds set out in this provision of the Act are applicable to the information contained in record.

Section 37(5) provides that a record which is otherwise exempt under section 37 may be released if (a) on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld or (b) the grant of the request would benefit the individual.

I am satisfied that section 37(5)(b) does not apply. In relation to the question of whether section 37(5)(a) applies, the question I must consider is whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the person or people to whom the information relates.

In carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. Section 11(3) provides that an FOI body must have regard to the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. It is important to note that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (“the Enet judgment”), the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and “there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure”. Although the Court’s comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.

In relation to the issue of the public interest, it is also important to have regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner [2011] IESC 26 ("the Rotunda case"). It is noted that a public interest ("a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest.

In his submissions to this Office, the applicant argued that there was a public interest in the release of the record, namely its release in the interest of greater transparency in public affairs. He submitted that the FOI Act stated that public bodies in performing any function under the Act were required to have regard to the need to achieve greater openness in their activities, and to promote adherence to the principles of transparency in government and public affairs. The applicant stated that it was his belief that the PRA was neither open not transparent in its dealing with him, and that the content and substance of the record was crucially important in order to satisfy himself as to whether correct procedures were adhered to in his interactions with the PRA.

As the applicant points out in his submissions, the FOI Act recognises that there is a public interest in promoting openness and accountability of public bodies in the performance of their functions. On the other hand, however, the FOI Act recognises the public interest in the protection of the right to privacy both in the language of section 37 and the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with the right to privacy).  It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution.  Privacy rights will therefore be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy.

It is also important to note that the release of information under the FOI Act is, in effect, release to the world at large given that the Act imposes no constraints on the uses to which information released under FOI may be put. The applicant’s arguments in favour of the release of the record in the public interest, while well-reasoned, are based on a general principle of openness and transparency which the Supreme Court in the Enet Case indicated was not sufficient to tip the public interest balance in favour of disclosure.

Having examined the record, I am aware of no public interest factors in favour of its release that, on balance, outweigh the right to privacy of the third party to whom it relates. I find, therefore, that section 37(5)(a) of the FOI Act does not apply. Accordingly, I find that the PRA was justified in withholding the record under section 37(1) of the Act.

Additional records sought by the applicant

In his submissions to this Office, the applicant further argued that additional records should exist, apart from the record identified by the PRA to which he was refused access. In particular, the applicant stated as follows:

“Further, I also believe that certain other records exist in connection with my property which should have been located and released. These include my own communications to PRA in 2015 and further communications again in 2020 and 2021. My solicitor and I both wrote to PRA in 2015 specifically informing them that I do not consent to any changes whatsoever to my folio and folio map without my written approval after hearing of an unannounced site survey by OSI being carried out on the then newly repositioned fence. Those communications were never answered then or any time since.

I registered on PRA website for site alerts and I received an alert in May 2020. It turned out later that this alert seemed to have been issued due to an administrative error. Nevertheless it was issued to me under my folio number, so this correspondence should be on file including replies from me and my solicitor”.

On the matter of the communications in 2020 and 2021, I have already noted above that the record to which access was refused under section 37(1) includes the applicant's correspondence with the PRA. Indeed, the PRA said it had engaged in correspondence with him during this time in relation to the query lodged by the registered owner of particular folio , and that as such it considered the application to be the personal information of that party – hence its refusal of the applicant’s request for access to the Record under Section 37(1).

In relation to the communications in 2015 referred to by the application, the PRA said that the applicant had become the registered owner of a certain folio in 2015 under application reference D2015LR050568M. It said the 2015 correspondence referred to by the applicant may be held under that application number, that it had provided an explanation of how completed applications (Instruments) are handled under FOI, and that information on how to apply to the PRA for access under the Land Registration Rules was provided in its decision letter to the applicant. It said its records showed no further correspondence with the applicant from 2015. 

In relation to the applicant’s arguments regarding site alerts following his registration on the PRA website, the PRA said Property Alert Service allowed any person to sign up for an alert if an application for registration is lodged against a folio on which an alert has been created. It explained that if an alert was triggered, an automated email issued to the email address held on its database. It said a copy of any such email was not retained by the PRA, and that Property Alerts did not affect or make changes to the register.

The PRA added that there existed a designated mailbox for follow up queries relating to property alerts. In this regard, it indicated that it had now located email correspondence with the applicant regarding a Property Alert which took place in 2020. The PRA confirmed that this alert had mistakenly issued to the applicant due to an administrative error. It said it would be happy to provide a copy of this correspondence to the applicant, and noted that the FOI decision maker in its Office would not have been aware that a Property Alert existed against a folio, as this would not show on internal searches against the folio. This correspondence apart, which the PRA is willing to release, I find, on the basis of the information provided by the PRA, that the PRA has, at this stage, taken all reasonable steps to ascertain the whereabouts of relevant records.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the PRA in this case. I find that it was justified in withholding in full the record at issue in respect of which it claimed exemption under sections 37(1) of the FOI Act and that it was justified in refusing access to any other relevant records on the ground that no further relevant records can be found.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision.  In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision has been given to the person bringing the appeal.

Stephen Rafferty

Senior Investigator