Whether the Council was justified in refusing access, under section 15(1)(a) of the FOI Act, to further records containing details of the number of emergency accommodation facilities in Dublin that were subject to enforcement proceedings by the fire authority and of the reasons for the enforcement action in each case
OIC-107885-V4K9K9
Background
On 19 February 2021, the applicant made a request to the Council for access to records indicating how many emergency accommodation facilities in Dublin were currently subject to enforcement proceedings by the fire authority, and to records showing reasons for the enforcement action in each case. The applicant stated that names and addresses of specific hostels could be redacted or withheld.
On 19 March 2021, the Council refused the request under section 15(1)(a) of the FOI Act on the ground that no relevant records existed in circumstances where no relevant legal action had been undertaken. It added that as of the date of the request, Dublin Fire Brigade was actively engaging or had recently engaged with the Dublin Region Homeless Executive and/or service operators with respect to 14 emergency accommodation facilities. It said Dublin Fire Brigade was currently working in co-operation with the Dublin Region Homeless Executive and the service operators in those cases to address fire safety issues where identified.
On 31 March 2021, the applicant sought an internal review of the Council’s decision, wherein she indicated that her request was for records in relation to enforcement proceedings and not legal action, as referenced in the Council’s original decision. She alleged that the Council had already confirmed via FOI and subsequent email that enforcement proceedings were being taken in relation to homeless hostels.
In its Internal Review decision dated 30 April 2021, the Council varied its original decision. It said it had sought clarification in respect of the meaning of the term “enforcement proceedings”, and had arrived at the understanding that same was defined as the point at which Dublin Fire Brigade (Fire Prevention Section), under the aegis of the Council, was notified with regard to fire safety issues in relation to a particular premises that required investigation as part of Dublin Fire Brigade’s enforcement processes.
The Council identified one record, relating to nine properties, as coming within the scope of the request, to which it granted partial access, with the redaction of certain information under section 37(1) of the Act (third party personal information). It said five further properties were identified in respect of which enforcement proceedings were commenced during the course of normal day to day duties of Dublin Fire Brigade personnel. It said no records existed in respect of those proceedings and as such, that section 15(1)(a) of the Act applied. On 20 May 2021, the applicant sought a review by this Office of the Council’s decision.
I have now completed my review of the Council’s decision. It should be noted that, in the course of carrying out the review, this Office corresponded with the Council in relation to the subject matter at hand. On foot of that correspondence, the Council released certain further information to the applicant. This Office subsequently engaged with the applicant to ascertain whether the release of this information was sufficient in her view to settle the matter. The applicant indicated that she did not consider this to be the case. Accordingly, I have decided to conclude the review by way of a formal, binding decision. In the course of the review, I have had regard to the correspondence between the applicant and the Council as set out above and to the correspondence between this Office and both the applicant and the Council on the matter. I have also examined the record at issue.
Scope of the Review
In her application for review to this Office, the applicant expressed the view that the Council had repeatedly changed its reasoning for its decision. She stated that, in emails issued by the Council subsequent to its internal review decision, it had cited a number of provisions of the FOI Act that it had not sought to rely on at Internal Review stage. This Office has not had sight of any such emails and, in any case, it is clear from the internal review decision that issued to the applicant that the Council relied solely on sections 37(1) and 15(1)(a) of the Act in making its decision. In addition, the Council clarified in its submissions to this Office that it was not seeking to rely on any additional provisions of the Act. As such, this review does not consider the applicability of any sections of the Act besides those cited by the Council in its decision in respect of this request, and is concerned solely with whether the Council was justified in withholding access to the records at issue, under the provisions of the Act cited in response to the applicant’s request.
Analysis and Findings
The relevant part of the applicant’s request was for records that contained the reasons for enforcement action taken by the Council in relation to the relevant properties. In its response to the applicant’s request, the Council indicated that, in relation to the initial nine properties, the reason for enforcement proceedings being commenced was the receipt of an email raising concerns about those premises, and that in respect of the remaining five properties, the reason for the commencement of enforcement proceedings was that fire brigade personnel had become aware of the properties in the course of their day to day activities, and that no records existed in this respect.
Section 15(1)(a) of the FOI Act provides that access to records may be refused if the records concerned do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The role of this Office in such cases is to decide whether the decision maker has had regard to all of the relevant evidence and, if so, whether the decision maker was justified in coming to the decision that the records do not exist or cannot be found, after all reasonable steps to ascertain their whereabouts have been taken. The evidence in such cases includes the steps actually taken to search for records. It also comprises miscellaneous other evidence about the record management practices of the FOI Body, on the basis of which the decision maker concluded that the steps taken to search for records were reasonable.
In the course of carrying out its review of this matter, this Office formed the view that the above response from the Council may have been based on an overly restrictive interpretation of the applicant’s request. In the opinion of this Office, it seemed to be the case that the email flagging nine properties was the trigger for further investigation into the fire safety status of the properties, but that this alone did not constitute enforcement proceedings. It would seem that enforcement proceedings could be said to commence when the relevant body, having identified a cause for concern, decides to pursue remediation of the cause for concern. If a premises is flagged for investigation, as by way of the email in question, such investigation could conceivably reveal no issues requiring further attention – and as such could not be said to constitute enforcement proceedings. It seemed to this Office that the plain and ordinary meaning of “reasons” for enforcement proceedings, as sought by the applicant, would be particular issues of concern with the individual properties that might require enforcement action. It did not seem to be the case that the applicant’s request was for the information that triggered the Council’s involvement (in the form of the email relating to the first nine properties, for example), but rather for the details of the reasons identified by the Council (or by Dublin Fire Brigade personnel) as to why enforcement proceedings may have been required in respect of any of the properties identified – in other words, information outlining any issues of concern on the part of Dublin Fire Brigade and/or the Council in respect of the various properties identified.
In light of these concerns, this Office engaged with the Council to determine if additional records existed which related to issues of concern on the part of Dublin Fire Brigade and/or the Council in respect of the individual properties identified. In the course of this correspondence, the Council indicated that such additional records may exist in the case of certain of the properties. The Council went on to express the view that such records might be considered exempt from release under the FOI Act, and in particular that said records could potentially form the basis of future legal proceedings. As such, the exemptions that may potentially be cited in support of any potential refusal on the part of the Council to grant access to any such records would be under different provisions of the Act from those cited in respect of the records it had identified as falling within the scope of this request.
Regardless of whether or not any such additional records might be exempt from release, it seems to me that in the circumstances, it is simply not open to me to find that the Council was justified in refusing the relevant part of the applicant’s request on the ground that no records exist that contain reasons for enforcement action take. It would appear, having regard to what I consider to be a reasonable interpretation of the applicant’s request, that further relevant records do, indeed, exist. As such, I consider that the most appropriate course of action is to annul the decision of the Council in respect of this request, and to remit the matter back to the Council for fresh consideration. In particular, the Council should consider the request to cover any records that it holds that relate to specific concerns related to the individual properties at issue.
Decision
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the Council to refuse the applicant’s request under section 15(1)(a) of the Act and I direct it to conduct a fresh decision making process on the request.
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