Here at thestory.ie we appeal lots of decisions of public authorities to the Information Commissioner. Of course the one that has taken the longest is our appeal against NAMA and Anglo Irish Bank in relation to environmental information (via AIE not FOI). We are awaiting judgment from the High Court in relation to that appeal.
However many of these appeals often result in what are known as ‘settlements’. These are situations where the OIC acts as a neutral arbiter, and the requester and public authority come to an agreement on the release of information.
But in situations where no agreement can be reached, the OIC must make a formal decision, about who is right and who is wrong with regards to exemptions being applied to information releases. On this occasion no agreement could be reached, as the IDA insisted that they were not in a position to release the information I had requested.
Following a series of submissions, and again with the help of Fred Logue, the Information Commissioner has ordered the IDA to release data I had requested. This process in total cost €240 (a figure we should be ashamed of, as one of the only countries in the world that charges for this type of process). It also took a large amount of time – I sent this request for information in January 2011.
The issue of the release centred mainly on Section 28 – Personal Information. This is one of the most oft used exemptions in Irish FOI and is often misapplied by public authorities (indeed I have just submitted another appeal to the OIC which again centres on Section 28). The long and short of it was this: I wanted to know who leased property to the IDA. I was given some names and the names of some companies, but not all names. The IDA decided that releasing the names of individuals who lease property to the IDA would be a breach of their privacy rights and that the public interest would not be served by their release.
We disagreed and argued strongly that this was wrong on a number of levels. In their preliminary view several months ago, the OIC agreed with the IDA that the information was potentially personal. After 2 years and lengthy submissions, the OIC has agreed with our position, insisting that:
“…whilst I empathise with the affected third parties in relation to any concems they might have over their personal safety in particular, I consider that the public interest in optimising openness and transparency in relation to the use of public funds outweighs, on balance, the public interest in protecting the right to privacy of the individuals in question.”
Here is the decision in full and the submission we made in relation to it. For those of you who have Section 28 applied to your requests, it is worth reading in full. We will publish the data released as soon as we have it.
This was our submission to the OIC:
I wish to respond to your preliminary view dated 11 July 2012 and to request that the Information Commissioner orders full release of the records requested as is my statutory right under the Freedom of Information Acts 1997 and 2003 (the Acts) and the Access to Information on the Environment Regulations (AIE).
I also wish to express some dissatisfaction with the excessive delay in dealing with this appeal in your office. While I appreciate the office is working under some considerable backlog, it has taken over a year for a preliminary view to issue and in my view a delay of this length represents a significant violation of my right of access to records held by the IDA.
I also note that you appear to assume that my motive for making the request for access is so that the IDA may be held to account for its expenditure of public moneys and that since the information already disclosed is sufficient for that purpose then no further disclosure is necessary.
As you know the Act is applicant blind, and it is fundamental to freedom of information law that the motivation of the request is not relevant and should not form part of the decision to grant or deny access unless there is a degree of unreasonableness which would merit refusal. Suffice it to say that there is a strong public interest in public bodies being transparent in their dealings with land. This includes accountability for expenditure but goes far beyond it.
On 11 January 2011 I made a request to the IDA concerning leases and rental agreements which the IDA had entered into with third parties for the years 2007 to 2010.
Rather than dealing with my request the IDA took it upon itself to generate a list of leases with information provided under some headings. The IDA further redacted the names of the lessor in cases where the lessor was an individual and where the lessor, in the opinion of the IDA, did not appear to work in the sector. The IDA made this redaction on the basis of Section 28 of the Acts.
I then appealed this decision to your office.
In your preliminary view dated 11 July 2012 you agree that Section 28(1) applies to the redacted information and that it is not in the public interest that it be released under Section 28(5). However you did not consider whether Section 28(1) was dis-applied under
Scope of the request
The Acts give every person a right to access any record held by a public body, including records held by the IDA. The fact that the right of access is akin to “a release to the world at large” is neither here nor there. The IDA is under a statutory obligation to release records to the public except where one of the limited exemptions applies.
Secondly, as you point out, the obligation to provide access applies only to records (as defined in the Acts) which exist at the date on which the request is made. There is no obligation to create records.
Therefore my request relates to the underlying records which contain the information sought and these are the documents which form the subject matter of this appeal to the Information Commissioner, not the limited extracts which are derived from the records and were provided in redacted form to me. My request was sufficiently particularised to enable IDA identify the records it held relating to it.
Normally a public body will provide a schedule of records which are relevant to a request for access. In this case I do not recall receiving such a schedule from the IDA. However I am almost certain that a body such as the IDA with an extensive portfolio of leases will have significant documentation relating to lease and rental agreements and is highly likely to have a dedicated property register. It is access to these records that I am seeking.
In order to clarify my request and to avoid any doubt I am looking for access to all records which record the details of leases and rental agreements for the years cited; including but not limited to the IDA’s property register for that period.
It is neither acceptable nor permitted by the Acts for the IDA or the Information Commissioner to limit the scope of my request to a list of selected information derived from the records that have been requested.
I respectfully request that the Commissioner deals with the underlying records in making her decision.
Section 28 Exemption does not apply
In my view the exemption under Section 28(1) relating to personal information does not apply to this request.
I agree that the records sought contain personal information of identifiable individuals and the IDA would be obliged not to grant access unless Section 28(1) does not apply under Section 28(2) or the public interest favours release under Section 28(5).
The Section 28(1) exemption is a mandatory exemption to the right of access where such access would involve the release of personal information (as defined in the Acts).
The IDA has already released a portion of the personal information based on an arbitrary criterion
The IDA has already released certain information extracted and derived from the underlying records in relation to the leases and rental agreements which are the subject matter of my request. The IDA has released information relating to both companies and individuals who it considers to “appear to work in the sector”. Therefore the IDA has already released some personal information yet is asserting that other personal information is exempt from release. This position is inconsistent.
I would like to point out that a distinction between individuals who work in the property sector and those who do not has no basis in the Acts and therefore is not a valid reason for refusing to release records. In fact this is an arbitrary and subjective distinction and allows the IDA to effectively decide which details it releases and which it won’t. By definition a person who enters into a commercial lease with the IDA is involved in the business of property rental.
Therefore the IDA’s selective redaction of a portion of these individuals is both baffling and suspicious.
Furthermore, since the IDA has released personal information of certain individuals whom it considers to be “involved in the business” and since there is no statutory basis for distinguishing between classes of individuals in this way in relation to the release of personal information the IDA accepts that personal information relating to leases is not exempt under the Acts. Therefore the IDA must as a matter of law release all of the records which it held on the date of the request.
Section 28(2)(c) applies
Under Section 28(2)(c) the exemption relating to personal information does not apply where:
information of the same kind as that contained in the record in respect of individuals generally, or a class of individuals that is, having regard to all the circumstances, of significant size, is available to the general public,
In my view Section 28(1) does not apply since information relating to commercial leases is a kind of information that is available to the general public. This information is available to the public through the Property Registration Authority in the case of registered land or the Registry of Deeds in relation to unregistered land. In fact I have been able to access details in relation to some of the leases listed in the IDA’s disclosure through the PRA website (please see attached documents in relation to a lease in Athlone).
Therefore it is quite clear that Section 28(2) applies here since details of commercial leases are available to the public albeit at a cost in terms of paying search fees. This is information “of the same kind” as that contained in the records for which access is sought in my request.
The precise meaning of “available to the general public” under Section 28(2)(c) was canvassed by the Supreme Court in its decision in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women –v- The Information Commissioner  IESC 26. In the Rotunda case the issue related to information on the General Register of Births.
Fennelly J in his judgment found that “it makes no difference that searches in individual cases may be difficult or time consuming. The fact is that the information is there and open to be inspected “by any person.”
This is also the case in relation to leases recorded at the PRA or the Registry of Deeds.
The findings of Denham J and Macken J can be distinguished. Macken J’s judgment concerned the interaction between Section 28 and Section 26 which is not relevant to this appeal. Denham J held that Section 28(2)(c) did not apply since a member of the public would not be able to find the age of a person with a common name by consulting the General Register. This is not the case here since the address of a property is unique and this enables a member of the public to accurately locate records of leases in the appropriate registry including the names and addresses of the lessors.
Public Interest Test
Even if Section 28(1) applied it is in the public interest to release these records.
I would firstly like to point out that the extract from the Rotunda judgment that you quote in your preliminary view was a purely obiter comment by Macken J. The public interest argument was not argued before the High Court or Supreme Court by the parties in the hearing. Macken J stated (emphasis added):
My comments on how I would have approached the exercise had it been necessary to do so, are therefore wholly obiter, and must be considered from such perspective.
Given that the comment in relation to the public interest was made very much obiter and in the absence of argument, the Commissioner should not give much weight to it. But even if she decides to follow this line of reasoning, I wish to point out that there is a clear policy adopted by the Oireachtas in favour of public disclosure of details relating to land tenure.
Along with most developed democracies, Ireland has benefited from a land registration system dating from the 18th century in which freehold and leasehold interests are publicly available. It goes without saying that transparency and certainty in relation to land tenure is one of the pillars of a modern market economy.
Furthermore the Oireachtas has enacted the Property Services (Regulation) Act 2011. Section 87 of this act provides for a register of commercial leases in order to provide a better functioning property market.
Therefore it is not true to say that there is no established policy relating to the publication of details of leasehold interest in land.
Furthermore given our recent history there is a very strong public interest in having full disclosure of the dealings of public bodies in land transactions with third parties.
Finally in relation to the interaction of the Section 28 public interest test with the right to privacy, Fennelly J was of the view that even where Section 28(1) did not apply the right to privacy was well protected through the Section 26 for confidential information.
Quoting from the judgment:
I have noted the submission of the Hospital to the effect that the exclusion of the exemption
by reference to section 28(2)(c) has implications for privacy of persons such as patients. I do not believe that point can defeat the simple and objective test laid down by paragraph (c). If there is a danger of abuse by infringement of confidentiality, I believe the relevant provision is section 26.
Given that there is no question of confidential information being contained in the records sought then the public interest is strongly in favour of release since there does not appear to be any private interest or right at stake.
Because the information requested applies to land, which is an element of the environment,
the Access to Environmental Information Regulations also apply to this request and the IDA should have considered the request under these regulations in addition to the Acts.
It is my view that the Commissioner should also do this and should order release of all environmental information under AIE and further find that the IDA is in breach of the AIE for not considering my request under AIE within the statutory time limits.
As you know the exemptions to AIE differ from those under the Acts and in many cases there is less scope to refuse a request for environmental information including refusals relating to confidential personal information.
I request that the Commissioner requires the IDA to release the records relating to my request since no exemption has been activated under the Acts or the AIE save for commercially sensitive information relating to the rents paid by the tenants and to which I have already agreed.
I also request that the Commissioner finds the IDA to be in breach of the AIE for not considering my request under those regulations within the relevant time limits.