Whether the Council was justified in refusing access to various statistical information regarding individuals in receipt of social housing and on the Council’s housing list

03 November 2021

Background

In a request to the Council dated 12 March 2021, the applicant sought access to the following:

A. A numerical breakdown of the social housing built by the council each year going back to 2014.
B. The number of houses per year given to individuals who were born outside the island of the state going back to the year 2014.
C. The number of houses per year given to individuals who do not hold Irish citizenship going back to the year 2014.
D. The number of individuals on the council's housing list.
E. The number of individuals on the council's housing list who were born outside the island of Ireland.
F. The number of individuals on the council's housing list who do not hold Irish citizenship.
G. Any relevant figures regarding the presence of non-nationals on the housing list in particular the specific breakdown of A-F by relevant nationality.

The Council’s decision of 12 April 2021 part granted the request. It provided the applicant with the statistics sought at part A. It refused the other parts under section 15(1)(a) of the FOI Act on the basis that relevant records do not exist. The applicant sought an internal review of this decision, which the Council received on 4 May 2021. The Council’s internal review decision of 24 May 2021 varied its original decision. It said that information requested under part D was publicly available on the Council’s website and provided the applicant with related details. It also provided the applicant with details that it said were relevant to part E. It affirmed the refusal of the other parts of the request under section 15(1)(a). On 26 May 2021, the applicant applied to this Office for a review of the Council’s decision.

I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges and correspondence between this Office, the Council and the applicant. In particular, I note that no reply has been received to this Office’s letter to the applicant of 10 August 2021. I have also had regard to the provisions of the FOI Act.

Scope of the Review

This Office’s letter of 10 August 2021 informed the applicant of the Investigator’s view that I need not address parts A and D of the request in light of the details provided by the Council. I have received no objections from the applicant and in the circumstances, I do not intend to consider these parts of the request further.

The Council’s internal review decision says that it is granting part E by providing details for “individuals on the Council’s housing list who were born outside of the island of Ireland” under the categories of Irish, EEA and non-EEA. However, it clarifies that these details actually relate to the citizenship of applicants for social housing supports at the time they made those applications. As the applicant has been told, the Council says it provided the figures in good faith because they appeared closest to what was requested. However, it remains that the Council has not granted part E of the request.

Accordingly, the scope of the review is confined to the sole issue of whether the Council was justified under the FOI Act in refusing to grant parts B, C, E, F, and G of the applicant’s request. It does not extend to any details sought by him at later stages of the FOI process.

Findings

Section 15(1)(a) – whether records exist
Section 17(4) – extraction of information held electronically

It is important to note at the outset that, while the purpose of the FOI 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, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information can reasonably be inferred to be a request for records containing the information sought.

Furthermore, the Act does not require public bodies to create records if none exist, apart from a specific requirement, under section 17(4), to extract records or existing information held on electronic devices. Under section 17(4), where a request relates to data contained in more than one record held on an electronic device by the body concerned, the body must take reasonable steps to search for and extract the records to which the request relates. The reasonable steps are those that involve the use of any facility for electronic search or extraction that existed on the date of the request and was ordinarily used by the FOI body. Where these reasonable steps result in the creation of a new record, that record is, for the purposes of considering whether or not such a new record should be disclosed in response to the request, deemed to have been created on the date of receipt of the request. However, if the body does not hold a record containing the information sought and cannot search for and extract the electronically held records by taking reasonable steps, then that is the end of the matter.

The applicant says that each application form for housing support submitted to the Council requires the provision of the information he is seeking (i.e. part 2 on page 7 of the form at this link (https://www.fingal.ie/sites/default/files/2019-05/shs_application_form_converted.pdf). Part 2 of this form contains the following fields for completion in relation to an applicant for housing support and a spouse/partner (“applicant 2”): place and/or country of birth, usual language spoken and citizenship status. Citizenship status is broken down into Irish, other EEA (with relevant countries listed on the form) and non-EEA. The Council confirms that the tick-box for “Irish” refers to citizenship of the Republic of Ireland at the time of application. Those who are not EEA nationals are required to provide details of (i) the basis of their stay in Ireland and (ii) their date of entry. Copies of certain documents are also required. While I understand from the Council that the form was amended in April 2021, the amendments and reasons for the changes are not relevant to my review, given that they post-date the request.

The Council says that the format of the social housing application form is provided for under the housing regulations and that the details supplied accordingly are assessed to establish a party or parties’ eligibility for housing support. However, it says that it only records on its electronic systems whether an applicant is an Irish, other EEA or non-EEA citizen at the time of application. It says that it does not electronically record any subsequent changes to a person’s citizenship. In addition, it says that it does not electronically record any details relating to country of birth because such information is not relevant to determining eligibility for housing support. I have no reason to dispute what the Council says in this regard.

The applicant also cites figures that he says were contained in a newspaper article from 2011 and that described details provided by the Council to a Councillor as follows: “There are a total of 4,108 applicants seeking social housing support with Fingal County Council of non-Irish nationality. Of this group, there are currently a total of 2,362 applicants who are of non-EU nationality." The applicant indicates that this is the sort of detail he is looking for. He also goes on to ask for certain further information that was not covered by the original request and which, as explained earlier, I cannot consider in my review.

The Council says that the figures quoted are the same type of information that all local authorities provide to the Housing Agency on a yearly basis, further to which the Housing Agency publishes a “Summary of Social Housing Assessments” report. It refers to Table A1.9 on page 42 of the Housing Agency’s 2020 Summary report (https://www.gov.ie/en/publication/970ea-summary-of-social-housing-assessments-2020-key-findings/). I note that this table gives figures for “Nationality (Main Applicant)” under the categories of Irish Citizen, EEA Citizen and Non-EEA Citizen. The relevant details for the Council for 2020 seem to me to be what was released at internal review stage in this case for part E. I also note that Figure 2.9 and Table 2.9 on page 23 of the report give figures for “nationality” of the main applicant in terms of citizenship i.e. Irish, EEA and Non-EEA.

This Office’s letter of 10 August 2021 gave the above details to the applicant and noted that it is reasonable to suppose that some persons’ citizenship status may change after they make an application for housing support.

Parts B and E of the request seek information in terms of the country of birth of individuals and parts C, F and G are concerned with the citizenship/nationality of individuals on the housing list. Noting the Council’s position as set out earlier, it seems to me that its electronic records do not contain any details relevant to parts B or E, nor do they necessarily contain accurate details of the sort requested in relation to parts C, F and G. It follows that I do not need to clarify whether “nationality” (Part G) refers to country of birth or citizenship or whether “island of the state” (part B) refers to the Republic of Ireland or the island of Ireland.

I should also say that the Housing Agency’s 2020 Summary report does not appear to me to contain any details of the particular sort requested by the applicant. Furthermore, although the 2011 figures quoted by the applicant refer to “non-EU nationality” rather than “non-EEA” nationality, in the overall circumstances I do not consider this to give me a basis to further query the Council’s position as to the nature of details it records electronically.

Having regard to all of the foregoing, it seems to me that the Council is not in a position to produce any records containing the information sought at parts B, C, E, F and G of the request further to the requirements of section 17(4). Although some relevant information would be contained in hard copy housing support application forms, the FOI Act does not require the Council to examine these forms, extract the relevant details and compile a record to meet the requirements of the request. In the circumstances, it seems to me that the Council does not hold any record containing the information sought at parts B, C, E, F, and G of the applicant’s request. I find that section 15(1)(a) applies.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Council to refuse parts B, C, E, F, and G of the applicant’s request on the basis that section 15(1)(a) applies.

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.

Deirdre McGoldrick
Senior Investigator