Whether the Council was justified in refusing access to records relating to the Athletic Track and Clubhouse in Belleek, Ballina on the basis of various provisions of the FOI Act and in refusing access to any further records on the basis that no further records exist or can be identified

22 March 2023

Background

This request has as its background in a Management Agreement between Ballina Athletic Club and Mayo County Council relating to the management of the Athletic Track and Clubhouse in Ballina referred to as -�the Track-�.  It would appear that issues have arisen between the parties in relation to the management of the facility.

In a request dated 14 June 2021, the applicant sought access to all records relating to lands at Belleek, Ballina, Co. Mayo, known as the Athletic Track and Clubhouse and referred to as -�the Track-�, including records relating to the boundaries of the site, from 13 February 2021 to the date of her request.    A similar request was made by another applicant (Case OIC-116327) and I am also issuing decision on this separate matter today.

Following correspondence with the Council, the applicant agreed to narrow her request to encompass the following list of seven specific types of records:

1. Funding applications for works on Road L11205 (Road along boundary wall at Ballina Athletic track) and any other proposed works at Ballina Athletic Track;

2. Funding Application for Road Number L11205 -�Belleek Woods to Ballina athletic track and looped walks - provision of a link footpath between the Belleek Woods and Ballina town walking trails and the athletic track;

3. Proposed maps and plans of road widening, roadside car parking, plans, permissions, and consultations process, stakeholder engagement for works carried out to date and opening of gateway to a public road. Plans and permissions for the excavation of lands under the management of Ballina Athletics Club;

4. Details of funding for the large area that was excavated which according to an official in an email dated 5 November 2020 was not part of the project, all records, communications, plans and budgets for possible future development of this area as well as tenders and budgets for all works;

5. Proposed plans, funding applications and tenders for any proposed works including new track lighting;

6. All records, email, phone, messages that refer to the beech hedging/hedging at Ballina Athletic, receipts for purchase of hedging specially for Ballina Athletic track;

7. All correspondence between Moy Valley Athletic Club and MCC [Mayo County Council] since 12 February 2021.

On 4 August 2021 the Council issued its decision.  It identified 136 pages of records as falling within the scope of the applicant-�s request and part-granted access to these records.  It refused access to certain information on pages 3, 22-23, 25, 39, 42, 46 and 111 of the records on the basis of section 37(1) relating to personal information.  It also refused access to certain information on page 35 of the records on the basis of section 31(1)(a) relating to legal professional privilege. 

On 24 August 2021 the applicant appealed the matter and in doing so indicated that she believed that further records relevant to her request existed which had not been identified.  The applicant provided examples of the types of records which she believed existed and which had not been identified. 

On 14 September 2021 the internal reviewer issued his decision.     A further 10 pages of records (pages 137-146) were identified as falling within the scope of the applicant-�s request.  The decision of the internal reviewer indicated that these pages were to be released to the applicant with any relevant personal information redacted on the basis of section 37(1).   However, it would appear from my review of the casefile that pages 137-146 were released in full to the applicant.    The internal reviewer also affirmed the original decision to refuse access to information on pages 3, 22-23, 25, 39, 42, 46 and 111 on the basis of section 37(1) and information on page 35 of the records on the basis of section 31(1)(a) relating to legal professional privilege. 

On 23 November 2021 the applicant applied to this Office for a review of the Council-�s decision.

I have now completed my review in accordance with section 22(2) of the FOI Act.  In carrying out my review, I have had regard to the applicant-�s comments in her application for review and to the submissions made by the Council in support of its decision.  I have also had regard to the contents of the records concerned.  I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

In the course of the review by this Office, the Council identified a number of additional records.  Pages 147-154 were released in full to the applicant on 30 May 2022.   The Council also identified a further 54 pages of records (pages 155-226) of which pages 155-167 and 186-226 were released in full to the applicant on 24 March 2022.  However, the Council refused access to pages 168-185 on the basis of sections 35(1)(a), 35(1)(b), 37(1) and 42(m). In addition, on 16 June 2022 the Council part-released a further tranche of records (pages 227-235) to the applicant, with certain information redacted on the basis of section 37 relating to personal information.  Finally, on 20 January 2023 the Council released a further 100 pages of records to the applicant.    These records, which were numbered 1-100 and not consecutive from the previous records, were released in full, with the exception of certain information on pages 40 and 41 of the records which was refused on the basis that it was personal information within the meaning of section 37.  

Following the multiple releases of additional records in the course of the review by this Office, it is now the Council-�s position is that it has released, in whole or in part, all relevant records coming within the scope of the applicant-�s request. This is, in essence, a refusal of any further relevant records under section 15(1)(a) of the Act, which provides for the refusal of a request where the records sought do not exist or cannot be found.

In addition, as set above as it would appear that pages 137-146 of the relevant records have been released in full to the applicant I do not consider it necessary to examine these records further as part of my review. 

The scope of this review is therefore concerned with whether the Council was justified in refusing access, under sections 31(1)(a), 35(1)(a), 35(1)(b), 37(1) and 42(m) to certain information in the relevant records, and to any other records apart from those already identified during the processing of the request on the ground that no further relevant records exist or can be found.

Preliminary Matters                                                                        

Before I address the substantive issues arising, I would like to make a number of preliminary comments. First, as has previously been explained to the applicant, this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.

Secondly, section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that this Office cannot have regard to the applicant's motives for seeking access to the records in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest.

Thirdly, section 18 of the Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. However, the Commissioner takes the view that neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent.
Finally, as referred to above, it is important to note that a review by this Office is considered to be -�de novo-�, which means that it is based on the circumstances and the law as they pertain at the time of the decision. Accordingly, in light of the -�de novo-� nature of our reviews, I consider it appropriate to consider the applicability of exemptions that were not initially relied upon by the Council during its processing of the applicant-�s requests.

Analysis and Findings

Section 15(1)(a)

Section 15(1)(a) of the FOI Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. In such cases, the role of this Office is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision and I must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.

In her correspondence with this Office, the applicant argued that further records relevant to her request exist and should have been released to her. She provided details of the types of records which she believed existed. 

During the course of the review, the Council provided submissions to this Office in which it provided details of the searches carried out for relevant records and of its explanation as to why no further relevant records could be found. As this Office has already provided the applicant with those details, I do not propose to repeat them in full here. In summary, it said it maintains a general file on Ballina Track in Ballina Civic Office and this file was checked for records relevant to the applicant-�s request.  In addition, the Council indicated that specific records relating to procurement, engineering works, parks issues are held by staff with responsibility for those areas and these staff were consulted for any records relevant to the request.   

Regarding the applicant-�s specific queries in relation to -�proposed plans, funding applications and tenders for any proposed works, including new track lighting-� relating to the Track in Ballina, the Council indicated that pages 189, 193-200, 201-209, 211-217, 221-222, 223-224 and 225-226 as released to the applicant relate to procurement matters.  

The Council also indicated that page 165 of the relevant records was the funding application for the provision of a footpath from the Track to Belleek Woods.  The Council further indicated that pages 230-234 of the records, as released to the applicant with some small redactions on the basis of section 37 which I will examine further below, comprise the invoices paid to contractor who was engaged to undertake these works.  

When I supplied details of the searches undertaken by the applicant to the Council to the applicant, she responded and raised a number of further queries in relation to the records which she considered to exist which had not been identified.   I subsequently provided the applicant-�s comments to the Council who responded in substance on the matters raised by the applicant.    As the Council-�s responses were provided directly to the applicant I do not consider it necessary to repeat them here.   

In conclusion, it is the Council-�s position that in light of the searches undertaken, it is satisfied that all records falling within the scope of the applicant-�s request had been identified. 

It is important to note that the FOI Act is concerned with access to records held by public bodies that actually exist, as opposed to records that a requester believes ought to exist. If the record sought is not held by the body, then that is the end of the matter. The Act does not require public bodies to create records in order to respond to requests for information or questions that a requester may have. The question I must consider is whether the council has taken all reasonable steps to ascertain the whereabouts of relevant records.

The piecemeal manner in which the Council released records in this case is unfortunate and clearly gave good cause for the applicant to have concerns as to the completeness of the information released.  However, the fact that further records were located during the course of the review does not prevent me from finding that the Council have now undertaken all reasonable searches to locate relevant records. 

Having considered the matter carefully, and bearing in mind the details of the searches undertaken and its explanation as to why no further records exist or can be found, I am satisfied that the Council has taken all reasonable steps to ascertain the whereabouts of any remaining relevant records. With regard to the tender documents as submitted by the contractor in advance of such works, I am satisfied that such records would fall outside the scope of the applicants request, as based on a review of the records such works began in late 2020. 

I find, therefore, that the Council was justified in refusing access to further relevant records under section 15(1)(a) on the ground that records in question do not exist or cannot be found.  

Section 31(1)(a)

The Council is relying on section 31(1)(a) to refuse access to information contained on page 35 of the relevant records. 

Section 31(1)(a) provides for the mandatory refusal of a request if the record concerned would be exempt from production in proceedings in a court on the ground of legal professional privilege. Legal professional privilege enables the client to maintain the confidentiality of two types of communication:

• confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege), and
• confidential communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation (litigation privilege).

The Council states that it is claiming both types of legal professional privilege for the information on page 35.

The concept of "once privileged always privileged" applies where privilege is based on legal advice privilege, but not where it is based on litigation privilege. Thus, unless otherwise lost or waived, legal advice privilege lasts indefinitely. For advice privilege to apply, the communication must be made between a client and his/her professional legal adviser in a situation where the legal adviser is acting in a professional capacity. Furthermore, this Office is of the view that privilege attaches to records that form part of a continuum of correspondence that results from the original request for advice.

In its submission to this Office, the Council argued that the information at issue attract legal privilege as it related to a request for legal advice in relation to possible legal proceedings against Ballina Athletic Club.   More particularly, the Council argued that both legal advice privilege and litigation privilege attach to the correspondence.    With regard to the latter, the Council indicated that legal proceedings had now been initiated against Ballina Athletic Club. 

The information redacted on page 35 consists of a short email from a Council official to its legal advisers in a named solicitors firm essentially forwarding on an email which has been received by a third party.  Having examined the information which has been redacted on page 35, I do not accept that it can reasonably be described as confidential communications made between the Council and its professional legal adviser for the purpose of obtaining and/or giving legal advice, nor do I consider that they form part of a continuum of correspondence that results from an original request for advice.   I am also satisfied that it cannot be argued that the dominant purpose for the creation of same was in contemplation of litigation. I consider that the correspondence is purely administrative in nature and as such I find that section 31(1)(a) does not apply to the redacted information on page 35. 

Section 37

The Council has refused access to information on pages 3, 22, 23, 25, 39, 42, 46, 111, 230, 231, 232, 233 and 234 of the relevant records on the basis of section 37(1).   The Council has also refused access to pages 168-185 on the basis of this provision, amongst other exemptions.    In addition, with regard to the additional 100 pages of records released to the applicant on 20 January 2023 certain information on pages 40 and 41 of these records were refused on the basis of section 37.  

Section 37(1) 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 relating to an individual or individuals other than the requester.

For the purposes of the Act, personal information is defined as information about an identifiable individual that either (a) would ordinarily be known only to the individual or members of the family, or friends, of the individual, or (b) is held by an FOI body on the understanding that it would be treated by that body as confidential. The Act details fourteen specific categories of information which are included in the definition without prejudice to the generality of the forgoing definition, including (xiii) information relating to property (including the nature of the individual-�s title to any property).  

Having reviewed the relevant records, I am satisfied that the information redacted on pages 3, 42 and 46 relates to the personal information of individuals other than the applicant and that section 37(1) applies to this information.  I am also satisfied that the mobile phone number which has been redacted on page 233 comprises personal information.  I am further satisfied that the email address and mobile phone number redacted on pages 40 and 41 of the records released on 20 January 2023 comprises personal information. 

Pages 168-195 relate to a complaint made under the Data Protection Act 2018 and subsequent engagement with the Data Protection Commission (DPC).   I am satisfied that release of these pages would result in the disclosure of personal information of individuals other than the applicant and that section 37(1) applies to this information. 

The Council has also relied on section 37(1) to refuse access to supplier identification numbers on pages 230, 231, 232, 233 and 234 of the relevant records as well as details of the Council-�s bank account on page 233.   However, beyond making reference to section 37(1), the Council have not made any specific arguments in relation to the applicability of that section to this information.  Having considered the matter, I do not consider that this information relates to identifiableindividualsand I am therefore satisfied that section 37(1) does not apply to this information. 

With regard to the redaction of an email address on pages 22, 23, 25, 39, 111, the Council indicated that it had originally understood that this email address was not in the public domain and it had therefore refused access to it on the basis of section 37(1).  However, it further indicated that it now understood that this email address was publically available and it therefore has no objection to releasing this information to the applicant.    It is unclear to me if this information has in fact been released to the applicant and if not I direct that the Council proceed to do so. 

Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. I am satisfied that none of those circumstances arise in this case.  

Section 37(5) of the FOI Act provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance, (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the information would be to the benefit of the person to whom the information relates. I am satisfied that the release of the information at issue would not be to the benefit of the individuals concerned and that section 37(5)(b) does not apply.  

In relation to paragraph (a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the right of privacy of the individuals 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. In sum, section 11(3) recognises the need to enhance public scrutiny and accountability of government and public affairs, particularly the activities and decision making of FOI bodies.

However, in a judgment delivered on 25 September 2020 (The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors, available on our website), the Supreme Court held that general principles of openness and transparency do not provide a sufficient basis for directing the release of otherwise exempt information in the public interest. Rather, a -�sufficiently specific, cogent and fact-based reason-� is required -�to tip the balance in favour of disclosure-�. While the comments of the Supreme Court were made in the context of the public interest test in section 36, which is concerned with the protection of commercially sensitive information, I consider them to be relevant to the consideration of public interest tests generally.

Moreover, while the Court stated that the public interest balancing test involves a -�weighing of the respective private and public interests in the analysis of the records in issue-�, it did not disturb the guidance that it previously gave inThe Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner[2011] IESC 26 ("the Rotunda Hospital case") in which it drew a distinction between private and public interests. Relevant private interests are those that are recognised by law and, in particular, through the protection afforded by the exemption provisions. 

On the matter of the applicability of section 37(5)(a), 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. Moreover, unlike other public interest tests provided for in the FOI Act, there is a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. 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.

Having examined the records at issue, and having regard to the fact that the release of records under FOI is, in effect, regarded as release to the world at large, given that the Act places no constraints on the uses to which the information contained in those records may be put, I find no relevant public interest in granting access to the records at issue that, on balance, outweighs the right to privacy of the individual to whom the information in question relates.

I find, therefore, that the Council was justified, under section 37(1) of the Act, in refusing access to information on pages 3, 42 and 46 of the relevant records as well as the mobile phone number on page 233.    In addition, I find that it was justified in refusing access to pages 168-185 as well as the information redacted on pages 40 and 41 of the records released on 20 January 2023.

However, I find that it was not justified in refusing access to supplier identification numbers on pages 230, 231, 232, 233 and 234 or the Council-�s bank account details on page 233.   In addition, bearing in mind the Council-�s position that it was no longer relying on section 37(1) to refuse access to an email address on pages 22, 23, 25, 39, 111, I direct that the Council release this information to the applicant if it has not already done so. 

Having found section 37(1) to apply to pages 168-185, it is not necessary for me to consider whether the other sections of the Act also apply.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Council-�s decision.  I affirm its decision to refuse access to information on pages 3, 42 and 46 of the relevant records as well as the mobile phone number on page 233 on the basis of section 37(1) of the Act.  I also affirm its decision to refuse access to pages 168-185 on the same basis.  I further affirm its decision to refuse access to certain information on pages 40 and 41 of the records released on 20 January 2023.

However, I annul its decision to refuse access to information on page 35 of the relevant records on the basis of section 31(1)(a) of the Act.  I also annul its decision to refuse access to supplier identification numbers on pages 230, 231, 232, 233 and 234 as well as the Council-�s bank account details on page 233.   I direct that this information be released to the applicant.  In addition, bearing in mind the Council-�s position that it was no longer relying on section 37(1) to refuse access to an email address on pages 22, 23, 25, 39, 111, I direct that the Council release this information to the applicant if it has not already done so. 

Finally, I affirm its decision to refuse access to further relevant records under section 15(1)(a) on the ground that records in question do not exist or cannot 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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

Mary Connery
Investigator