Whether the PSRA was justified in refusing access to records relating to four investigations undertaken by the PSRA in relation to a property services company

17 August 2021

Background

In a request dated 14 September 2020, the applicant sought access to the files relating to four investigations undertaken by the PSRA. All four files relate to the same property services company (the company). 

In a decision dated 8 October 2020, the PSRA refused the request. With regard to two of the four investigative files (File 04/20/1030 and File 04/20/1118), it refused the request under section 15(1)(i) which allows for the refusal of a request where the request relates to records already released and available to the requester. It noted that the complaints were made by the applicant and that it had declined to investigate the complaints. It indicated that the complaint and decision letter in each case were already in his possession.

With regard to the other two files (File 04/15/1132 and File 04/19/1226), the PSRA refused the request under section 15(1)(i) and section 37(1) which is concerned with the protection of third party personal information. It did not, however, provide the applicant with a schedule indicating how many records had been identified following his request. 

On 12 October 2020, the applicant sought an internal review of the PSRA’s decision on the grounds that other relevant records should exist in respect of Files 04/20/1030 and 04/20/1118 and that section 37(1) did not apply to the records as the complaint was about a company. On 30 October 2020, the PSRA affirmed its refusal of the request, following which the applicant sought a review by this Office of the PSRA’s decision.

During the course of the review, the Investigator notified the company of the review and invited it to make submissions on the matter. As part of those submissions, the company indicated that it maintained an ongoing dialogue with the PSRA over a period of eight years between 2012 and 2020 centering on the applicability of the Property Services (Regulation) Act 2011 to the activities of the company and in particular the questions as to whether some of the company’s activities fell within the licensing requirements of the 2011 Act. It further indicated that the company did not receive a resolution or finding from the PSRA on the matter and it subsequently incorporated a subsidiary in Ireland which applied for, and obtained, a PSRA licence. 

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 correspondence between the applicant and the PSRA as set out above and to the correspondence between this Office and the applicant, the PSRA, and the company on the matter. I have also had regard to the contents of the records at issue. I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

During the course of the review, the PSRA provided a schedule which listed 49 records as falling within the scope of the applicant’s request. A slightly amended version of this schedule was subsequently provided to the applicant. 

This schedule identifies 49 relevant records, broken down as follows:

• File 04/20/1030 - 6 records
• File 04/20/1118 - 3 records
• File 04/15/1132 - 14 records
• File 04/19/1226 - 26 records

During the course of the review, the PSRA released records 9, 10, 15, 39, and 48 to the applicant. As such, I have no need to consider these records any further. In addition, in its submission to this Office, the PSRA sought to rely on two new exemptions in support of its refusal of the request. With regard to those records to which it had originally refused access under section 37(1), it instead argued that section 35, which is concerned with the protection of information provided in confidence, and section 36, which is concerned with the protection of commercially sensitive information, apply. Specifically, it argued that section 36 applies to records 2, 3, 4, 5, 6, 18, 19, 34, 35, 37 and 49 and that section 35 applies to records 12 and 13. With regard to the applicability of section 37, the PSRA limited their reliance on this exemption to the personal email addresses and phone numbers contained in records 4, 6, 12, 13, 21, 24, 25, 26, 27, 33 and 36.

The scope of this review is therefore concerned with whether the PSRA was justified in refusing access, under sections 15(1)(i), 35, 36, and section 37(1) of the FOI Act to the records relating to Files 04/15/1132, 04/19/1226, 04/20/1030 and 04/20/1118 other than those released during the review.

Preliminary Matter

At the outset I wish to address the matter of the schedule of records in this case. The Minister for Public Expenditure and Reform has published a Code of Practice for public bodies pursuant to section 48(1) of the Act. The Code is available on the website of the Department’s Central Policy Unit (www.foi.gov.ie). The Code provides that a schedule should be included with decisions, providing details of those records being released in full, of those to which partial access is being given, and of those being refused and setting out the reasons why access is not being granted in full or in part and referencing relevant sections of the Act where refusals are made. Under section 48(3), public bodies must have regard to that Code of Practice in the performance of their functions under the Act.

Had the PSRA provided the applicant with a schedule of records with its original decision, he would have been in a position to make an informed decision as to whether the PSRA had properly refused access to certain records on the ground that they are already available to him and whether it had identified all of the relevant records sought. Indeed, it is clear that the PSRA’s decision letters did not refer to all of the records subsequently identified. I expect the PSRA to have regard to the Code of Practice when processing requests in the future.

In addition, although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. Accordingly, the extent to which I can describe the records in this case is somewhat limited.

Analysis and Findings

Section 15(1)(i)

The PSRA refused access to records 1, 7, 8, 11, 14, 16, 17, 20, 22, 23, 28, 29, 30, 31, 32, 38, 40, 41, 42, 43, 44, 45, 46 and 47 under section 15(1)(i). That section provides for the discretionary refusal of a request where the request relates to records already released, either to the same or a previous requester, where the records are available to the requester concerned. For the section to apply, the public body should be able to show that (i) the records sought were already released and (ii) they are available to the requester.

Records 14, 20, 28, 32, 38, 43, 46 and 47 relate to Files 04/20/1030 and/or 04/20/1118. In both cases, the applicant complained to the Authority under section 63(1) of the Property Services (Regulation) Act 2011 alleging that improper conduct by a licensee had occurred or was occurring. It would appear that in both cases the Authority indicated that as the Company was not licensed to provide property services it was not in a position to carry out an investigation into allegations of improper conduct.  

Records 1, 7, 8, 11, 16, 17, 22, 23, 29, 30, 31, 40, 41, 42, 43, 44, 45, and 46 relate to Files 04/15/1132 and/or 04/19/1226.   Both of these cases relate to complaints made by the applicant to the PSRA in relation to the company engaging in alleged unlicensed property service provision, which is a criminal offence contrary to section 28 of the Property Services (Regulation) Act 2011. From a review of File 04/15/1132 it would appear that, following an investigation, the Authority deemed that the Company, by virtue of the fact that it was not established in the State, did not fall within the scope of the 2011 Act and therefore did not require a licence to provide property services. With regard to File 04/19/1226 the records in this case do not indicate the final outcome of the investigation. 

Records 1, 7, 8, 11, 14, 16, 17, 20, 22, 23, 28, 29, 38, 46 and 47 comprise correspondence between the applicant and the PSRA while records 30, 31, and 32 comprise correspondence from the applicant to the Property Services Appeal Board. Given the nature of the records, I am satisfied that it was reasonable for the PSRA to assume that the applicant was in possession of those records. I note that the applicant has not argued that the records are not available to him. I find, therefore, that the PSRA was justified in refusing access to those records under section 15(1)(i). Having found section 15(1)(i) to apply, I do not need to consider the applicability of any other exemptions to these records.

Records 40, 41, 42, 43, 44 and 45 comprise correspondence between the Property Services Appeal Board (PSAB) and the PSRA. In its submission to this Office, the PSRA said it assumed that a copy of this correspondence would have been provided to the applicant by the PSAB.   However, it has provided no further evidence in support of its position. That said, it has also indicated that it is prepared to release these records to the applicant. 

As I have nothing before me to indicate that the applicant is in possession of these records, I find that the PSRA was not justified in refusing access to records 40, 41, 42, 43, 44 and 45 under section 15(1)(i). I therefore direct that the PSRA release these records to the applicant, in line with its express willingness to do so. 

Section 35

Section 35(1)(a) provides that an FOI body shall refuse to grant an FOI request if the record concerned contains information given to an FOI body in confidence and on the understanding that it would be treated by it as confidential, and the body considers that its disclosure would be likely to prejudice the giving to it of further similar information from the same person or other persons and that it is of importance to the body that such further similar information as aforesaid should continue to be given to the body.

For the exemption to apply, it is necessary to show the following:

• that the information was given to an FOI body in confidence, 
• that the information was given on the understanding that it would be treated by the FOI body as confidential,
• that disclosure of the information would be likely to prejudice the giving to the body of further similar information from the same person or other persons, and
• that it is of importance to the body that such further similar information should continue to be given to the body.

Section 35(2) provides that section 35(1) does not apply to a record prepared by a staff member of an FOI body or a service provider in the course of the performance of his or her functions unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than an FOI body or head or a director, or member of the staff of, an FOI body or of such a service provider".

Records 12 & 13

The PSRA argued that section 35(1)(a) applies to records 12 and 13. Record 12 is an email from a third party company and contains information in relation to the company.  The record indicates that the third party understood the information was provided ‘on the understanding of strict confidentiality’.  Record 13 is a follow-on email from the third party company in relation to the same matter. 

While I am required by section 25(3) of the Act to take all reasonable precautions to prevent disclosure of information contained in an exempt record or matter, that if it were included in a record, would cause the record to be exempt, I am satisfied, having regard to the nature and contents of the records at issue, that the third party corresponded with the PSRA in confidence and that both parties understood that the information provided would be treated as confidential. In the circumstances, I am satisfied that the first two requirements of section 35(1)(a) have been met.

I am also satisfied that the PSRA was justified in forming the view that the disclosure of the record would be likely to prejudice the giving to it of further similar information from the same person or other persons. Finally, I am satisfied that it is important to the PSRA that it should continue to receive similar information to that at issue in this case in the future, given its statutory functions relating to the investigation of complaints.  I find that the fourth requirement for section 35(1)(a) to apply has been met in this instance. I am therefore satisfied that section 35(1)(a) applies to records 12 and 13.

Records 4, 6, 21, 27 and 34

In its submissions to this Office, the company indicated that following a request by the PSRA the company had engaged with it and provided detailed information in relation to its business operations, clients and employees. It indicated that it engaged with the PSRA in an open and cooperative manner and all information it provided was done so in confidence and for the purpose of determining whether its activities fell within the licensing requirements of the Property Services (Regulation) Act 2011.

The company argued that section 35(1)(a) applies to records 4, 6, 21, 27 and 34. With regard to record 4, the company argued that it contains staff details, details of the aggregate value of transactions, its professional indemnity insurance cover, legal advice and details of its tax residency and other matters. With regard to record 6 (mistakenly referred to as record 5 in part of the correspondence), the company argued that it contains details of its estimated assets, overall value and proposed marketing process as well as specific details in relation to a potential business venture. With regard to records 21, 27 and 34 the company argued that these records contain details of its internal processes, legal advice, the nature of its transactions, details in relation to its client base and the nature of its marketing activities, its corporate history and ownership structure, its asset holdings as well as a number of other matters.   

In all cases, the company indicated that this information was provided to the PSRA in confidence and on the understanding that it would be treated as confidential. The company further argued that disclosure of this information would likely prejudice the giving to the PSRA of similar information in the future from other actors in the market as they would likely be concerned that good faith efforts to cooperate with the regulator could be used against them.  The company further indicated that it would consider that a willingness to share similar information in confidence is crucial to the PSRA being able to rapidly gather information in connection with reviews under the PSRA Act. 

I note that the PSRA previously informed the applicant of its processes in relation to the investigation of complaints. Record 7, comprising an email issued to the applicant states the following:

Section 63 of the Property Services (Regulation) Act 2011 allows for complaints of improper conduct against licensed property service providers to be made to the Authority and investigations into licensees under section 65 follow. Complainants in such investigations are routinely kept informed on progress with investigations by the investigating inspector as required by section 65(5). Your complaint to the Property Services Authority concerns a company that is not licensed by the Authority. The Authority has no powers to investigate complaints of improper conduct against unlicensed companies. One avenue open to the Authority to carry out an investigation into the provision of property services without a licence is where an offence may have taken place under Section 28 of the Act.

Section 28 of the Act provides that a person shall not provide, offer or advertise a property service as defined by the Act, unless the person is the holder of a licence which is in force in respect of that property service. In any such cases the Authority is the prosecuting authority for the alleged offence. The offence, which is deemed to be a criminal matter, can lead to a criminal conviction and is almost always dealt with by the District Court. Being a criminal matter the standard of proof is "beyond reasonable doubt". It should be noted that in such cases investigations do not automatically lead to prosecution in court. It should also be noted that unlike section 65 investigations, it is neither required nor is it the policy of the Authority to make comment on individual cases until they reach the public forum of a court or to keep the original notifier of a section 28 offence updated. Natural justice and due adherence to the judicial process both inform and dictate that this is the proper and appropriate approach. Accordingly, from the Authority's perspective, it should be understood that any direct involvement for a person reporting such a complaint ceases upon their reporting of the matter and our acknowledgement of the complaint to the person in question. Any investigation conducted under section 89 of the Act does not provide a person with entitlement under the Act to know of the progress or outcome of any such an investigation. Any potential future involvement for a person in the investigation of this complaint would arise solely where it was deemed necessary to the investigation by the Inspector and/or to be required as a witness in court.

Having regard to the nature and contents of the records, to the company’s submissions, and to the processes described by the PSRA in the extract above, I find that section 35(1)(a) applies to records 4, 6, 21, 27, and 34. 

Public Interest

Section 35(3) provides that section 35(1)(a) does not apply where the body considers that the public interest would, on balance, be better served by granting than by refusing the request.

On the matter of 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] 1 IR 729, [2011] IESC 26. It is noted that any public interest considered by the Commissioner must be a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law.

On the matter of the type of public interest factors that might be considered in support of the release of the information at issue in this case, I have had regard to the findings of the Supreme Court in The Minister for Communications, Energy and Natural Resources v The Information Commissioner & Ors [2020] IESC 5. In her judgment, Baker J. indicated that the public interest in favour of disclosure cannot be the same public interest as that broadly stated in the Act. She said the public interest in disclosure must be something more than the general public interest in disclosure and the reason must be found from the scrutiny of the contents of the record. She said there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure.

While the comments of the Supreme Court in both judgments cited above were made in relation to other provisions of the FOI Act, I consider them to be relevant to the consideration of the public interest.

Section 35(1)(a) itself reflects the public interest in the proper preservation of confidences. As I have outlined above, I accept that the release of the relevant records in this particular case would be likely to prejudice the flow of important confidential information to the PSRA in the future and that this would, in turn, prejudice the effectiveness of the Authority’s investigations.  Having carefully considered the contents of the records, I am aware of no public interest factors to suggest that the public interest would be better served by the release of the records at issue.

I find, therefore, that the PSRA was justified in refusing access to records 4, 6, 12, 13, 21, 27, and 34 under section 35(1)(a) of the FOI Act. Having found section 35(1)(a) to apply, I do not need to consider the applicability of any other exemptions to these records.

Records 2, 3, 5, 18, 19, 35, 37 and 49

The PSRA has argued that section 36 applies to records 2, 3, 5, 18, 19, 35, 37 and 49. However I consider that section 35(1)(b) of the Act is of most relevance to these records and I therefore propose to consider the applicability of that exemption to the records. 

That section provides for the mandatory refusal of a request if disclosure of the information concerned would constitute a breach of a duty of confidence provided for by agreement, enactment or otherwise by law. A duty of confidence provided for “otherwise by law” is generally accepted to include a duty of confidence arising in equity. This Office accepts that breach of an equitable duty of confidence is comprehended by section 35(1)(b).

When considering the existence of an equitable duty of confidence, this Office has regard to the three elements of what are generally known as the "Coco" tests (Coco v. A. N. Clark (Engineers) Ltd. [1969] R.P.C. 41):

"First, the information itself … must ‘have the necessary quality of confidence about it’. Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it."

However, as set out above, further to section 35(2) of the FOI Act, section 35(1) does not apply to records created by an FOI body in the course of the performance of its functions "unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than a FOI body, or a head or a director, or member of staff of, an FOI body".

Records 2 and 3 comprise correspondence between the PSRA and the property services company.  Record 5 is a note of the phone conversation between a staff member of the PSRA and a representative of the property services company.  Record 18 is correspondence from the PSRA seeking details from the company in relation to its activities.  Record 19 is an unsigned copy of record 18.  Record 35 is correspondence between members of the staff of the PSRA in relation to the investigation in File 04/19/1226.  Both records 37 and 49 are reports of conference calls between staff of the PSRA and representatives of the property services company. 

Having carefully considered the matter, I consider that the records relate to investigations carried on by the Authority in furtherance of their statutory functions and by their very nature contain information with the necessary quality of confidence.  I am also satisfied that the information was imparted to the PSRA in circumstances importing an obligation of confidence on it. I also accept that disclosure under FOI (which is essentially the same as releasing information to the world at large) of the information would result in an unauthorised use of it to the detriment of the party communicating it. I am satisfied that the PSRA owes the third party an equitable duty of confidence in respect of information contained in records 2, 3, 5, 18, 19, 35, 37 and 49 and that section 35(1)(b) applies to these records.

Section 35(1)(b) is not subject to the general public interest balancing test in section 35(3). However, it is established that the action for breach of confidence is itself subject to a public interest defence and the Commissioner may consider the public interest defence in the context of section 35(1)(b).  This Office has previously recognised that the parameters of the public interest defence to an action for breach of confidence continue to be in a state of development in various jurisdictions. The public interest grounds which may justify or excuse a breach of a duty of confidence are quite narrow and include, for example, the revelation of wrongdoing or danger to the public.  In my view, there is no basis for setting aside the requirements of section 35(1)(b) in this case.

Having regard to the above, I find that records 2, 3, 5, 18, 19, 35, 37 and 49 are exempt under section 35(1)(b) of the FOI Act. There is no need for me in such circumstances to consider whether section 36 applies to these records.

Section 37

As set out above, the PSRA are now limiting their reliance on section 37(1) to the personal email addresses and phone numbers contained in records 4, 6, 12, 13, 21, 24, 25, 26, 27, 33 and 36.  

In its submission to this Office the PSRA indicated that access to these records had been refused as they contained the personal email addresses of individuals.  However, the Authority would appear to have refused access to the entirety of these records and not just the personal email addresses and/or phone numbers.    

In its submission the property services company has made a general argument in relation to the names and contact details of its employees which are contained in the records in this case.   The company has argued that while the names and identities of the company’s senior executives were in the public domain, it considered that the names and contact details of its staff to comprise personal information within the meaning of section 37(1).    Its submission made specific reference to this information as contained in records 2, 4, 6, 18, 21, 24, 25, 26, 27, 33, 34 and 36.   

As I have already found records 4, 6, 12, 13, 21, 27 and 34 to be exempt under section 35 of the FOI Act I do not consider it necessary to consider them further. 

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. This does not apply where the information involved relates to the requester (section 37(2)(a) refers).

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.

Having reviewed the records, I accept that the personal email addresses and mobile phone numbers of individuals other than employees of the PSRA, as contained in records 25, 26, 27, 33 and 36, is personal information within the meaning of section 37(1).  I also accept that the mobile numbers of PSRA staff is their personal information and also falls within section 37(1).

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.

The FOI Act also recognises the public interest in the protection of the right to privacy. This is evident both in the language of section 37 and in 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 relevant to note 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.

Having regard to the nature of the information at issue, I am aware of no public interest factors in favour of the release of the information that, on balance, outweigh the right to privacy of the individuals to whom the information relates. I find, therefore, that subsection (5)(a) does not apply.

I find, therefore, that the PSRA was justified in refusing access to the email addresses and mobile phone numbers of individuals other than employees of the PSRA and the mobile phone numbers of PSRA staff as contained in records 24, 25, 26, 33 and 36.   However, I find that the PSRA was not justified in refusing access to any other information contained in these records on the basis of section 37(1). 

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the decision of the PSRA.   I affirm the decision of the PSRA to refuse access to records 1, 7, 8, 11, 14, 16, 17, 20, 22, 23, 28, 29, 30, 31, 32, 38, 46 and 47 on the basis that these records are already in the possession of the applicant.  I further affirm the decision of the Authority to refuse access to records 2, 3, 4, 5, 6, 12, 13, 18, 19, 21, 27, 34, 35, 37 and 49 on the basis of section 35. 

In addition, I affirm the decision of the PSRA of refuse access to the email addresses and mobile phone numbers of individuals other than employees of the PSRA and the mobile phone numbers of PSRA staff as contained in records 24, 25, 26, 33 and 36.      However, I find that the PSRA was not justified in refusing access to the remainder of these records and I direct their release. 

Finally, I annul the decision of the PSRA to refuse access to records 40, 41, 42, 43, 44 and 45 under section 15(1)(i) and I direct their release. 

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