Whether the RTB was justified, under sections 37(1) and 35(1)(a) of the Act, in refusing access to details of rent set dates and rent amounts contained in two tenancy registration records relating to the apartment rented by the applicants

11 June 2021

Background

On 10 November 2020, the applicants submitted a request to the RTB seeking access to the rent set dates and rent amounts contained in the tenancy registration records for the apartment that they rent, prior to their tenancy.

On 7 December 2020, the RTB issued a decision wherein it refused access to three tenancy registration records in full under section 37(1) of the FOI Act on the ground that release of the information sought would involve the disclosure of personal information relating to third parties. It provided a schedule of the three records refused which contained the date of each record. It also provided the applicants with information on the RTB’s dispute resolution service and complaints mechanism, which are available outside of the FOI process. On 19 December 2020, the applicants sought an internal review of the RTB’s decision to refuse access to the first two records listed on the schedule provided to them. 

On 13 January 2021, the RTB issued its internal review decision wherein it refused access to the records under both sections 37(1) and 35(1)(a) (information obtained in confidence).  It also explained that the dates of the records on the schedule may not reflect the actual start dates of the tenancies, but the dates on which the records were created in its tenancy management system, as landlords are allowed to retrospectively register tenancies under the Residential Tenancies Act 2004 (as amended). On 23 February 2021, the applicant sought a review by this Office of the RTB’s decision to withhold the rent set dates and rent amounts contained within the tenancy registration records. 

I have now completed my review in accordance with section 22(2) of the FOI Act. In conducting the review, I have had regard to the correspondence between the RTB and the applicants as outlined above and to correspondence between this Office and both the RTB and the applicant on the matter. I have also had regard to the content of the relevant records.  In referring to the records at issue, I have adopted the record numbering system used by the RTB when processing the request.

Scope of the Review

The scope of this review is concerned solely with whether the RTB was justified, under sections 37(1) and 35(1)(a), in refusing access to the details of the rent set dates and rent amounts contained in records 1 and 2 of the tenancy registration records relating to the apartment rented by the applicants.

Preliminary Matters

Before I address the substantive issues arising, I would like to make a number of preliminary comments.  Firstly, 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 applicants' motives for seeking access to the information 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. I will address the public interest balancing test contained in section 37 later in this decision.

Secondly, it is important to note that the release of a record under the FOI Act is, in effect, regarded as release to the world at large, given that the Act places no constraints on the potential uses to which released records may be put.

Thirdly, 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.

Analysis and Findings

Section 37(1) of the FOI Act provides, subject to the other provisions of the section, for the mandatory refusal of 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.

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. The FOI Act details fourteen specific categories of information which is personal without prejudice to the generality of the foregoing definition, including (ii) information relating to the financial affairs of the individual and (xiii) information relating to property of the individual (including the nature of the individual’s title to any property).

It is the applicant’s position that rent set dates and rent amounts do not comprise personal information. It is important to note that the release of information that does not contain the identity of an individual may still qualify as personal information for the purposes of the FOI Act. The question that must be considered is whether the release of the information would involve the disclosure of personal information relating to an identifiable individual. In the circumstances of this case, I am satisfied that it would. As such, I find that the release of the information sought would involve the disclosure of personal information relating to an individual other than the applicants and that section 37(1) applies to that information

However, that is not the end of the matter as section 37(1) is subject to the other provisions of section 37. Subsection (2) sets out certain circumstances in which section 37(1) does not apply. I am satisfied that none of those circumstances arise in this case. Subsection (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 benefit the person to whom the information relates. I am satisfied that subsection (5)(b) does not apply in this case.

On the matter of whether the public interest in granting access to the information at issue would, on balance, outweigh the privacy rights of the individual concerned (subsection (5)(a) refers), 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) (“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.

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. 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 provisions of the FOI Act other than section 37, I consider them to be relevant to the consideration of public interest tests generally.

Both the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy (which has a Constitutional dimension, as one of the unenumerated personal rights under the Constitution). Unlike other public interest tests provided for in the FOI Act, there is also 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.  Furthermore, as noted above, it is relevant to note that the release of records under FOI is, in effect, regarded as release to the world at large.

In their submissions to this Office, the applicants argued that they have a right to know some information relating to their tenancy.  It appears that they are seeking the information in the context of a dispute lodged with the RTB. It seems to me that they have expressed what is, in essence, a private interest in release.  It is clear from the above judgments that I cannot, in making this decision on the right of access under FOI, take into account the applicants’ private interests in the grant of access to the information withheld.

The RTB outlined to this Office that it balanced the public interest in disclosing tenancy related information for the purposes of transparency and regulation of the rental sector with the privacy of the applicant’s landlord.  It referred to sections 127 and 128 of the Residential Tenancies Act 2004 as amended (the RTA), which provide that no information contained in the RTB’s residential tenancies register shall be disclosed, save in accordance with the RTA, and that the RTB’s published register shall not contain any information, as respects a particular dwelling, that discloses or could reasonably lead to the disclosure of the identity of the landlord or the tenant or tenants of the dwelling and the amount of the rent payable under a tenancy of the dwelling.

As outlined above, I cannot have regard to any private interests that the applicant may have in obtaining the information sought.  Furthermore, in keeping with the comments of the Supreme Court, I am not aware of any sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure of the information in this case. 

Having regard to the nature of the information sought, and given the strong public interest in protecting the right to privacy, I find no relevant public interest in granting access to the information sought that, on balance, outweighs the right to privacy of the individual to whom the information in question relates. I find therefore, that section 37(5)(a) does not apply. Consequently, I find that the RTB was justified in refusing access to the information sought under section 37(1). 

Given my findings regarding section 37(1), it is not necessary for me to consider the applicability of section 35(1)(a) in this case.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the RTB to refuse access, under section 37(1), to the details of the rent set dates and rent amounts contained in the two tenancy registration records at issue.

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.

 

Stephen Rafferty

Senior Investigator