Case Number: 160047

Whether the Council was justified in its decision to refuse access to records containing the names of hotels and B&Bs used to provide temporary emergency accommodation and a related breakdown of costs, on the ground that they are exempt under section 30 and 36 of the FOI Act

Conducted in accordance with section 22(2) of the FOI Act by the Information Commissioner (the Commissioner)

Background

On 22 October 2015 the applicant made an FOI request to the Council for records of the number of people housed in temporary emergency accommodation between 1 January 2015 - 22 October 2015; the cost of providing this and a breakdown of the costs (a list of the hotels, B&Bs and other accommodation). By letter dated 19 November 2015, the Council granted part of the request by supplying details of the number of people accommodated and total cost for each month. It refused access to the remaining information sought, without making any attempt to justify its refusal. On 9 December 2015, the applicant applied for an internal review of the decision in respect of the withheld records and noted that the Council had given no reason for this decision. The Council issued an internal review decision by letter dated 14 January 2016. It stated that the original decision-maker had "unintentionally omitted the reasons and legislative exemptions". It affirmed the original decision, on the ground that the withheld records were exempt under sections 29(1)(a) (deliberations), 30(1)(b) and (c) (functions and negotiations) and 36(1)(b) (commercial sensitivity) of the FOI Act, but did not apply the public interest balancing tests required under each exemption. On 29 January 2016 the applicant applied to my Office for a review of the Council's decision.

In conducting my review, I have had regard to the Council's decision on the matter; the Council's communications with the applicant and with this Office; the applicant's communications with the Council and with this Office; the content of the withheld records, provided to this Office by the Council for the purposes of this review; and the provisions of the FOI Act. I have also taken account of the results of my Office's contacts with those whose interests would potentially be affected by the release of the payments information.

Scope of this Review

When this Office contacted the applicant about the scope of his FOI request, he clarified that he did not seek any personal information relating to the people accommodated. Accordingly, the scope of my review is confined to the information within the records which the applicant sought: namely, the list of hotels/B&Bs and the costs payable to each of those, with the names of individuals redacted. In its submissions to my Office, the Council expressed concern that individuals and families who were accommodated might be identified through releasing the information under review. I want to assure the Council that these names do not fall within the scope of my review.

I should also mention that it transpired in the course of the review that one accommodation provider was a private home-owner, rather than a hotel, B&B, hostel or other such commercial entity. The Council has advised the Investigator that it does not generally use this person's home for temporary emergency accommodation and I accept that this is the case. In the particular circumstances, I am satisfied that this individual's name is personal information and falls outside the scope of the applicant's FOI request and therefore outside of the scope of my review.

Preliminary Matters

Before I consider the exemptions claimed, I wish to make the following points.

First, section 22(12)(b) of the FOI Act provides that when I review a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore, in this case, the onus is on the Council to satisfy me that its decision is justified.

Secondly, as noted above, the Council did not justify its original decision or engage in the public interest balancing test required under the exemptions which it cited in its internal review decision. I would remind FOI bodies of their obligation under section 13 of the FOI Act to provide reasoned decisions. I encourage decision-makers to use the FOI resources available, including guidance on the FOI Act published by the Central Policy Unit of the Department of Public Expenditure and Reform and by this Office, to assist them in their decision-making process. While the Council's decision making process was unsatisfactory, I must say that its staff were extremely co-operative with my Office in engaging with it to provide necessary clarifications and information to enable the review to be carried out efficiently and thoroughly.

Thirdly, in communications with this Office, the Council commented on the fact that the applicant was a journalist who had previously written about housing. In this regard, it is important to emphasise that, subject to the other provisions of the FOI Act, section 13(4) of the FOI Act requires FOI bodies and my Office to disregard an applicant's reasons for an FOI request. Furthermore, the FOI Act places no restrictions on the use of records released under FOI, so that such release is taken as "release to the world at large" rather than release restricted to a particular individual. If the Council's concern is that any released information could be misinterpreted in some way, it would be open to it to issue explanations or clarifications as it sees fit.

Analysis and Findings
During this review, the Council clarified that it was no longer relying upon section 29(1)(a) of the FOI Act. Therefore, the question for me is whether the Council is justified in withholding the records under section 30(1)(b) and (c) and 36(1)(b) of the FOI Act.

Section 30(1)(b) and (c) - functions and negotiations
Section 30(1) of the FOI Act provides, among other things that :

"A head may refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, reasonably be expected to -
...
(b) have a significant, adverse effect on the performance by an FOI body of any of its functions relating to management (including industrial relations and management of its staff), or

(c) disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations carried on or being, or to be, carried on by or on behalf of the Government or an FOI body".

The Council claims that both section 30(1)(b) and section 30(1)(c) apply in this case.

Section 30(1)(b)

When a public body relies on section 30(1)(b), it should first identify the potential harm to the performance of any of its functions relating to management and secondly consider the reasonableness of the expectation that the harm will occur. In identifying the harm, it should identify the significant adverse effect on its management functions. The public body must show me that there are adequate grounds for its expectation if it is to justify its refusal of access.

The Council submits that releasing the records could have a negative impact on the emergency accommodation providers' commercial interests by "putting off paying customers". It says that this could thereby deter accommodation providers from assisting the Council in the future, which in turn would negatively affect the Council's ability to source suitable accommodation for people in need of housing. It argues that if it is known that the Council released details of the accommodation providers, this may deter others from assisting with future accommodation needs. The Council accepts that there is a public interest in knowing how a public body performs its functions and that it is held accountable for its use of public funds. However, it submits that this is outweighed by the public interest in ensuring that FOI is not used to the detriment of public bodies being able to perform their functions in an effective and efficient manner and in this case, ensuring the provision of emergency, temporary accommodation for homeless households.

There may be a question as to whether the Council's role under the Housing Act in the provision of temporary accommodation is a function performed by it relating to management as envisaged by section 30. In this regard, I recall the previous Commissioner's observation in the decision in Case 010459 (Mr X and Dublin City Council) that the performance of functions relating to management is a narrower category than that of the performance of statutory functions more generally. However, for the purposes of this review, I accept that matters relating to the Council's arrangements for the provision of emergency accommodation for homeless persons have an element of strategic planning and management of operations and are part of its functions relating to management.

When invoking section 30(1)(b), it is clear that the Council believes that the harm that it expects is a "significant adverse effect". In my view, however, while it is possible that some accommodation providers might be deterred from doing business with the Council, no evidence has been offered that this could be expected to happen to such a degree as to have a significant adverse effect on the Council's ability to find suitable emergency accommodation. While the co-operation of the accommodation providers is important, the fact is that they are paid for the service provided. While the Council made reference in submissions to the "national implications" of releasing the records under FOI, it did not point to any experience of other housing authorities in this regard. Generally, an assertion of an expectation of harm is not sufficient to engage a harm based exemption such as section 30(1)(b).

Given that the Council is also claiming that the information is commercially sensitive (section 36 dealt with below) and having regard to the emphasis it placed on the impact that release of the records would have on the accommodation providers, my Office decided to seek the views of the businesses concerned. To this end, the Investigator e-mailed over forty hotels/B&Bs listed as having received payment in the 2015 period covered by the request. My Office received no submissions in response. There is therefore no evidence before me from the hotels/B&Bs to support the Council's view that the release of the records under FOI could reasonably be expected to deter them from contracting with the Council to supply the necessary accommodation.

I must emphasise that I do not underestimate the gravity of the housing situation which the Council has outlined. I accept that the Council is under pressure to provide the necessary accommodation as outlined in its submissions and have sympathy with it. However, I am required to consider this matter within the framework of the FOI Act and the exemption claimed.

The Council has not satisfied me that releasing the records could reasonably be expected to cause a significant adverse effect on the performance of its management functions. I therefore find that section 30(1)(b) does not apply.

Section 30(1)(c)

Section 30(1)(c) does not contain a harm test; however, public bodies should identify the relevant negotiations at issue. The Council submits that releasing the records could impact on the Department's capacity to negotiate with interested parties. However, the Council has not demonstrated to me that the records disclose particular positions which it would adopt in any negotiations and such policy positions do not appear in the records. Neither has the Council pointed to specific negotiations which are likely to take place. I therefore find that section 30(1)(c) does not apply.

Section 30(2)

As I have found that section 30(1) does not apply, I am not required to consider the public interest balancing test under section 30(2).

In summary, I find that the Council's refusal of access to the withheld information is not justified under section 30(1)(b) or (c) of the FOI Act.

Section 36(1)(b) - commercial sensitivity

The Council invokes section 36(1)(b) in this case which provides that:
"Subject to subsection (2), a head shall refuse to grant an FOI request if the record concerned contains -
... (b) financial, commercial, scientific or technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation".
However, section 36(1) does not apply if the public interest would, on balance, be better served by granting rather than refusing the request (section 36(3) refers).

The essence of the test in section 36(1)(b) is not the nature of the information but the nature of the harm which might be occasioned by its release. The harm test in the first part of subsection (1)(b) is that disclosure of the information could reasonably be expected to result in material financial loss or gain. I take the view that the test to be applied in this regard is whether the decision-maker's expectation is reasonable.

The Council submits that releasing the records may adversely affect the business and competitive position of the accommodation providers, by "putting off paying customers". It accepts that there is a public interest in openness and transparency with regard to the expenditure of public monies, but submits that this is outweighed by the public interest in ensuring that people are able to conduct commercial transactions with public bodies without fear of suffering commercially as a result. It claims that the public interest in the openness and transparency of expenditure of public funds has been served to a large extent by releasing the records which disclose the total amount of money paid to the organisations to provide emergency accommodation for homeless people. Finally, it indicates that although releasing the actual identities of the organisations may satisfy public curiosity, this does not mean that there is a public interest in disclosing the information. The Council cites this Office's decision in Case 99602 (X and the Department of Justice, Equality and Law Reform) in support of this last point.
The applicant submits that the public has a right to know what businesses are profiting from the expenditure of public money on homelessness and that there is an interest in openness, transparency and accountability around how the Council's money is being spent.
As noted above, the Investigator received no submissions on commercial sensitivity or otherwise from the proprietors of the hotels/B&Bs, despite having written to those identified in the records. The Investigator also made contact with a social services organisation which sources accommodation for the Council. The organisation expressed concern that some accommodation providers would not be comfortable with their details being given out and stressed that it was facing a housing crisis, in that it was very difficult to find beds for families and children. The Investigator followed up that telephone conversation by emailing the organisation to invite written submissions, but received none in response.
Having considered the parties' submissions and having examined the records, I am not satisfied that the first part of section 36(1)(b) applies. The Council has not demonstrated that there is a "reasonable expectation" of "material loss" accruing to the third parties.
The standard of proof necessary to meet the second test in section 36(1)(b) is considerably lower than the standard required to meet the test of "could reasonably be expected to" in the first part. The Council does not have to demonstrate that harm is certain to occur, but merely that there is a possibility of it occurring, i.e. that it "could prejudice the competitive position etc." Given the circumstances of this case and the concerns of the Council and the housing organisation that the businesses involved might not continue to deal with the Council if the records were released, I am prepared to proceed on the basis that section 36(1)(b) applies and that there is some possibility of prejudice to the third parties' competitive positions.
Section 36(2)

Section 36(2) provides for the release of information to which section 36(1) is found to apply in certain circumstances. I am satisfied that none of the circumstances identified at section 36(2) arises in this case.

Section 36(3)

Section 36(3) of the FOI Act requires me to consider whether, on balance, the public interest would be better served by granting than by refusing the request. I take the approach that in considering the public interest in cases of this kind, I must consider the interests of each party.

The FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies as to how they conduct their business. I take the view that there is a public interest in the proper administration of public contracts and in ensuring that value for money is obtained. I consider that openness about the expenditure of public funds is a significant aid in ensuring the effective oversight of public expenditure and that the public obtains value for money, and in preventing fraud and corruption and the waste or misuse of public funds.

Set against that, section 36(1) itself reflects the public interest in protecting commercially sensitive information. There is a legitimate public interest in entities being able to conduct commercial transactions with public bodies without suffering commercially as a result. As my predecessor observed in Cases 98114, 98312, 98164 and 98183 (Eircom Plc & Department of Agriculture and Food & Ors), the public interest in openness about the expenditure of public funds is not absolute; for example where the effect of disclosure would be to totally undermine the business of the company and thereby deter companies from transacting business with the State. In this case, however, I consider that I am entitled to assume that if any of the businesses involved were truly concerned that their commercial interests would be undermined to a significant extent by the release of the information about payments to them by the Council, they would have expressed their views to my Office when invited to do so.

I do not consider, as the Council appears to do, that releasing the identities of the hotels/B&Bs is merely a question of "satisfying public curiosity". Although I am not legally bound by my predecessor's previous decisions, I would like to say why I consider the case cited by the Council to be distinguishable. Case 99602 concerned personal information; specifically, whether certain individuals had applied for Irish citizenship. The former Commissioner could not identify a public interest in granting access to this information. I believe that this is quite different to the case at hand, which concerns the expenditure of public funds i.e. payments to commercial entities which have done business with the Council.
Section 11(3) of the FOI Act requires public bodies to have regard to the need to achieve greater openness in their activities and inform scrutiny, discussion, comment and review by the public of their activities. I consider this to be relevant here, in that it is a public interest which equates with "a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law " as referred to by Macken J. in Rotunda Hospital v Information Commissioner [2011] IESC 26.

I believe that this openness includes being open about who the State does business with and to whom it pays taxpayers' monies, in order that it is accountable in relation to such activities. I acknowledge that this public interest has been served to some degree by releasing information about the total expenditure by the Council for the period concerned. However, I believe that real transparency about value for money and efficiency on the Council's part would require access to information not only about total expenditure, but also the number and identities of contractors and the amounts being paid to each of them. Having regard to the above, I find that, on balance, the public interest is better served by releasing the records.

Accordingly, I find that the Council's refusal of access to the withheld information is not justified under section 36(1)(b) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I find that the Council is not justified in withholding access to the information sought, under section 30(1) or 36(1) of the FOI Act. I hereby annul the Council's decision and direct the release of the information within the records which falls within the scope of this review, as identified above.
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 was given to the person bringing the appeal.

Peter Tyndall
Information Commissioner