Whether the Council was justified in its decision to refuse the applicant’s request for access to additional housing records other than those already released to him under section 15(1)(a) and to refuse access to certain information contained in his housing records under sections 37(1) of the FOI Act

17 June 2019

Background

On 25 October 2018 the applicant submitted a request to the Council for a copy of his file relating to his housing, his transfer request, and communications regarding house maintenance and repair issues.

On 3 December 2018, the Council part granted the request. It redacted certain information from a number of records under section 37(1) and refused access to one record under section 35. On 12 December 2018 the applicant sought an internal review of the Council’s decision. On 2 January 2019 he provided further information in relation to additional records not received. On 21 January 2019 the Council issued its internal review decision, wherein it affirmed its original decision. On 22 January 2019, the applicant sought a review by this Office of the Council’s decision.

I have now completed my review in accordance with section 22(2) of the FOI Act.  In conducting my review, I have had regard to the correspondence between the Council and the applicant as outlined above and to correspondence between this Office and both the Council and the applicant on the matter.  I have also have had regard to the contents of the records at issue.  In referring to the records at issue, I have adopted the page numbering/record numbering system used by the Council in relation to the batch of records issued to this Office on 29 March 2019.

Scope of Review

The Council refused access to page 38 of the applicant’s Tenancy File under section 35 of the FOI Act.  However, I note that this page was released to the applicant as record 65 of his Transfer File. Accordingly, page 38 does not need to be considered further.

This review is concerned with whether the Council was justified in refusing the applicant’s request for access to additional housing records other than those already released to him and in redacting certain information from pages 39, 50, 51, 54, 77, 78, 83, 84, 85, 88, 92, 95, 107, 115, 125, 133, 147, 148, 156, 164, 168, 170, 174, 191 and the final unnumbered page of his Tenancy File and from records 4, 7, and 8 of his Transfer File under section 37(1).

Preliminary Matters

Before I address the substantive issues arising in this case, I would like to make a number of preliminary comments.

Firstly, in his correspondence with the Council and this Office, the applicant expressed concerns about the manner in which the Council had treated him in relation to his housing matters. It is important to note that this Office has no role in the investigation of complaints regarding the manner in which FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies. If the applicant is dissatisfied with the actions of the Council he may wish to contact the Office of the Ombudsman to determine if that Office might be in a position to examine his complaint.

Secondly, while the purpose of the Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from a public body must make a request for records that contain the information sought. Requests for information or for answers to questions, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information or for an answer to a question can reasonably be inferred to be a request for a record containing the information or answer sought.  

Finally, it appears from the applicant’s submissions to this Office that he is seeking to amend certain records and is looking for a statement of reasons in relation to the Council’s decision to change the grounds of his transfer. While the FOI Act allows individuals to seek the amendment of incorrect, or misleading personal information and a statement of reasons for administrative decisions or acts affecting them in certain circumstances, this particular review is limited to determining whether the decision taken by the Council on the original request for access to records was justified.  The applicant can submit a fresh application to the Council under section 9 of the Act, if he wishes to have any records amended, and under section 10 of the Act, if he wishes to request a statement of reasons for an act of the Council affecting him.

Analysis and Findings

Section 15(1)(a) – “Search” Issues
Section 15(1)(a) of the FOI Act provides that a request for access to records may be refused if the records sought either do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner’s role in such cases is to review the decision of the FOI body and to decide whether the decision was justified. This Office has regard to the evidence available to the decision maker in arriving at his/her decision. The evidence in “search” cases generally consists of the steps actually taken to search for the records along with miscellaneous other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.

It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations arise where records are lost or simply cannot be found. Furthermore, this Office can find that an FOI body has satisfied the requirements of section 15(1)(a), even where records that an applicant believes ought to exist have not been located.

In its submissions to this Office, the Council provided details of its record storage practices and the searches conducted in response to the applicant’s request. As this Office has already provided the applicant with those details, I do not propose to repeat them in full here. In short, it stated that two hard copy files are of relevance, the applicant’s Tenancy File and Transfer File.  It explained that the Tenancy File, which is located in the Rents Assessments Office, holds all correspondence relating to the applicant's tenancy, rent and maintenance and, following a search carried out by address, was located and released to him. It explained that his Transfer File, which is located in the Housing Assessments and Allocations Section, holds all correspondence relating to his transfer application and, following a search carried out by reference number, was located and released to him.  

The Council stated that as the Tenancy and Transfer files are held in hard copy, where there are relevant electronic records these are printed and placed on the relevant file. It stated that an electronic MailMeter search was carried out by name and address. It also stated that no records relating to the applicant had been destroyed and that all relevant individuals were consulted, including the Rent Account Manager and the Administrative Officer within the Housing Assessment Unit.

The general thrust of the applicant’s arguments is that having regard to the nature of his engagements with the Council, additional records should exist. The Council’s position is that no such records exist, apart from the records already released. While the applicant may be unhappy with the Council's response, this review is confined to considering what relevant records actually exist as opposed to what records the applicant considers should exist. The FOI Act is concerned with the provision of access to records actually held and it does not provide a right of access to records which ought to exist, nor does it place an obligation on a public body to create a record where none exist.  

Having considered the details of the searches undertaken, I am satisfied that the Council has carried out all reasonable steps in an effort to ascertain the whereabouts of all relevant records coming within the scope of the request. I find, therefore, that the Council was justified in refusing access to any additional records on the ground that no further relevant records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

Section 37 – Personal Information
Section 37(1), subject to the other provisions of section 37, provides for the mandatory refusal of a request where access to the records concerned would involve the disclosure of personal information relating to an individual or individuals other than the requester. Section 2 of the FOI Act defines the term “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 the family, or friends, of the individual or (b) is held by an FOI body on the understanding that it would be treated by the body as confidential.

Having reviewed the redactions at issue, I am satisfied that the information withheld from pages 39, 50, 51, 77, 78, 83, 84, 85, 88, 92, 95, 107, 125, 148, 156, 168, 170, 174, 191 of the Tenancy File and records 4, 7, and 8 of the Transfer File is personal information relating to individuals other than the applicant.  Accordingly, I find that section 37(1) applies to such information.

Section 37(2) sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of those circumstances arise in this case. Furthermore, section 37(5) 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.  

As no evidence has been presented to this Office to suggest that the release of the information at issue would be to the benefit of the third parties concerned, I find that section 37(5)(b) does not apply in the circumstances. On the matter 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 to whom the information relates.

In considering where the public interest lies, I have had 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.

The FOI Act acknowledges that there is a public interest in promoting the openness and accountability of public bodies in the manner in which they perform their functions. However, the FOI Act also 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.

While I accept that there is a public interest in both promoting openness and accountability of the Council, the release of the redacted information would involve the disclosure of personal information relating to third parties. Therefore, the question I must consider is whether the public interest in support of release of the information outweighs, on balance, the public interest in protecting the privacy rights of the individuals to whom the information relates. Having regard to the nature of the information concerned, I am satisfied that it does not. In holding this view, I am particularly cognisant of the fact that release under FOI is, in effect, release to the world at large given that the Act places no constraints on the uses to which information released under FOI may be put. I find therefore, that section 37(5)(a) does not apply.  

Consequently, I find that the Council was justified in its decision to refuse access to certain information from pages 39, 50, 51, 77, 78, 83, 84, 85, 88, 92, 95, 107, 125, 148, 156, 168, 170, 174, 191 of the Tenancy File and records 4, 7, and 8 of the Transfer File.

Remaining Information
The Council redacted the names of medical professionals and social welfare employees from pages 54, 115, 133, 147 and 164 of the Tenancy File. Section 2 of the Act excludes certain information from the definition of personal information described above. Where the individual holds or held a position as a member of the staff of an FOI body, the definition does not include his or her name, or information relating to the position, the functions of the position, the terms upon and subject to which the individual holds or held that position, or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of his or her functions (Paragraph I refers). Having regard to the exclusion at Paragraph I, I am satisfied that the names the medical professionals and social welfare employees are not personal information for the purposes of the FOI Act and that section 37 does not, therefore, apply.

The Council also redacted information which relates solely to the applicant from the final unnumbered page of the Tenancy File. I am satisfied that section 37 does not apply to that information.

Decision 

Having carried out a review under section 22(2) of the FOI Act 2014, I hereby vary the Council’s decision.  While I find that it was justified in refusing access to further records under section 15(1)(a) of the FOI Act and in refusing access to certain information contained in his housing records under section 37(1), I direct release of the following information held within his Tenancy File:

Page 54 – All
Page 115 – All
Page 133 – All
Page 147 – All
Page 164 – All
Final unnumbered page – All

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.

 

Stephen Rafferty
Senior Investigator