Whether the Council was justified in refusing access, under section 15(1)(a) of the FOI Act, to further records relating to the applicant’s housing application on the ground that no further relevant records could be found after all reasonable steps to ascertain their whereabouts had been taken

17 January 2022

Background

In a request dated 24 February 2021, the applicant sought access to copies of all records held about her “regarding housing, homeless, medical including communication internal and from/with external parties”. On 25 February 2021, the Council sought photographic evidence of her identity and also informed her that, as per section 15(1)(i) of the FOI Act, it would only be required to release records since the date of her last request when records had been released to her.

In response, the applicant informed the Council that she did not have access to the previously released records as she was in homeless accommodation and did not have access to her belongings. She asked the Council to provide her with a full set of the requested records. On 1 March 2021, the Council reiterated that it need only provide records since the date of the last request but that if she could identify any particular record from the previous request it would include same in the current request. In response, the applicant again sought access to all records.

While this Office subsequently reviewed a decision of the Council to extend the time-frame for issuing its decision on the request, that matter is not relevant to this review. The Council issued its decision on 20 April 2021, in which it said it had decided to grant the request with the redaction of certain information from one of the records under section 37 of the FOI Act. It included a schedule of records for the previous FOI request, stating that the applicant could advise the FOI office of the records she required from her previous FOI request.

On 24 April, the applicant sought an internal review of the Council’s decision on the ground that she had not received all relevant records. On 11 May 2021, the Council varied the original decision. It released the records from the previous FOI request and stated that all reasonable steps had been taken to locate relevant records. On 4 August 2021, 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. I have decided to conclude this review by way of a formal, binding decision. In carrying out my review, I have had regard to the correspondence between the Council and the applicant as outlined above and to the communications between this Office and both the applicant and the Council on the matter.

Scope of the Review

The scope of this review is solely concerned with whether the Council was justified in refusing access, under section 15(1)(a) of the Act, to further relevant records relating to the applicant on the ground that no further records exist or could be found.

Analysis and Findings

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 correspondence with this Office, the applicant outlined numerous records she believed had not been included in the file provided to her by the Council on foot of the original request. The Investigating Officer provided the Council with details of those records, along with samples of emails that the applicant provided to this Office, which she stated were not included in the records released to her. The Council was invited to make a submission, in which it was asked to outline details of the searches conducted for relevant records and its reasons for why it concluded that no further records exist or could be found.

In its response, the Council argued that the scope of the review is confined to the period following the initial request. I do not accept that argument. While the Council initially sought to refuse access to records previously released on foot of the earlier request under section 15(1)(i), it did not do so in its internal review decision and instead released further copies of the records originally released. As described above, the applicant’s request was for all records held about her, “regarding housing, homeless, medical including communication internal and from/with external parties”. As such, the request is not confined to records created on or after a particular date.

On the matter of the searches undertaken and its relevant records management practices, the Council said that housing applicant files are hard copy files and all important/relevant information is physically put on the file. It said the purpose of the file for Social Housing Support is to retain information relevant to the application for social housing support and that not all emails/communications are put on file simply because they are not considered relevant to the housing application as they do not contain any substantive information.

The Council added that in cases such as the applicant’s, where the applicant is on a priority list for medical reasons and is in homeless accommodation, a lot of communication will take place by phone as this is the most expedient way to progress. It said these phone calls are only recorded on the hardcopy file where they are considered to have a bearing on the housing application.

The Council explained that its housing department always provides a copy of the physical file to the requester in response to FOI requests, except where the file is particularly large. It said that in such cases, the applicant is requested to refine the request. It added that because of the emotive nature of housing/homelessness, the housing department does its utmost not to refuse requests on the grounds that they are voluminous, and very rarely does. In order to avoid refusals due to volume, and charges, it said the housing department takes a reasonable approach to searching for and retrieving records/communications other than those held on the physical file.

In this particular case, the Council said that there has been a large volume of communication with the applicant, public representations from Councillors/TDs, and liaison with other support services. It said the applicant’s case was being dealt with by the housing allocations section and the homeless services section simultaneously. It said that in responding to the FOI request, a copy of all documentation on file was provided. In addition to this, staff in housing allocations section, welfare, medical and homeless services were asked to do a search of their emails for communications with the applicant and any other communications relevant to her file.

The Council added that as part of its investigation in response to the review the assistance of the Council’s IT department had been sought to search for records. It said two members of staff in the Council’s IT unit, specifically the Head of IT and the Cyber Security Officer, have access to Mail Meter to search across all email accounts. It said conducting searches in this manner is very disruptive to the work of the IT unit as all mails retrieved must be checked/triaged by the IT Unit before being released to a member of staff in the housing department. It said this is necessary to prevent sharing data with staff or a Department where it is not appropriate to do so. For this reason, it said the IT unit was asked to quantify the number of emails involved but not to release the emails to the Housing Department.

The Council further explained that the IT department was requested to search for records pertaining to the applicant’s email address, her file reference number, homeless reference, her surname and a reference of her initials for the period 08/08/2019 to 28/02/2021 which relates to the second request and that this produced 40,974 records. It said this amount of data is considered too voluminous to be checked.

In relation to e-mails with the FOI department that the applicant contended should have been provided to her on foot of her request, the Council stated that they are not part of the applicant’s Housing File and do not come under the scope of the FOI request, which in its view related to her housing file. I agree that records of the applicant’s correspondence with the FOI department relating to the processing of any requests she may have made are not captured by the scope of a request for records relating to the matters she identified in her request, namely housing, homeless, medical, regardless of whether or not the request or requests might relate to those matters.

In her submissions to this Office, the applicant stated that further records of communication with South Dublin County Council from 2019 – 2020 had not been provided to her and should be on file. The Council stated that any relevant communications with South Dublin County Council are on file and have been provided. It said that although the relevant communication has been put on the file, there may be other correspondence, but this may not mention the applicant and would not have been considered relevant to the housing file.

In relation to a Housing Needs Assessment (HNA) that the applicant contended was missing from her file, the Council stated that such an assessment is done to establish that an applicant is still in need of, and qualifies for Social Housing Support. It stated that this assessment is carried out on an annual basis in the main and if the applicant is still eligible, their application remains open. It stated that in this case, where the applicant is single and in receipt of Social Welfare and no question arises in relation to eligibility, the HNA document is not put on the file.

Similarly, in relation to a completed Garda check document that the applicant contended was not on file, the Council stated that, as per its standard practice, Garda checks returned with “no convictions” are destroyed and not kept on file. It said that the Tenancy Management section are notified by email that the Garda check was returned with “no convictions”, and this email was provided to the applicant as part of the FOI request.

The Council stated that as the applicant was not in Homeless Services in February 2020, there would be no records with Housing First from this time, which the applicant contended there should be. It stated that referral to the Housing First Services was not made until February 2021, and therefore there would not be any other records of this kind. It stated that any records relevant to the application including records of phone calls or text would be kept on the housing file.

In her submissions, the applicant contended that there should be further records of communication with the Office of a named TD. The Council stated that it would be too broad a search to carry out for the office of an elected representative as this might include several of their staff members and cover a number of e-mail addresses for each one, and it would be difficult to define the scope of this search.

The Council stated that it reviewed the records held on the housing file for the applicant, which included the relevant correspondence in application for Over All Priority, Medical Documents, Homeless Assessment, general correspondence with the applicant and in relation to support services. It stated that it searched across the following sections of the Housing Department and identified 12 staff across these sections to search for relevant records:

• Homeless Section
• Medical Section
• Welfare Section
• Allocations Section
• General Administration

The Council stated that due to the volume of housing applications it processes, and the communications associated with those applications, it is not practicable to place or retain all communications on the hardcopy file. It noted that it is moving to an electronic filing system, which it stated will greatly assist with the retention and retrieval of records. However, it stated that it will be some time before it completes this transition. The Council stated that the Housing Department receives a large number of FOI requests each year and a considerable amount of time is given to processing these requests. It stated that the amount of time that can be given to one individual must be balanced against all other Housing Applicants/Tenants/Homeless persons. The Council stated that the applicant is seeking a search that would prove voluminous and would mean it would have no option but to refuse.

Following discussions with this Office regarding reasonable steps to be taken to search for records, the Council was asked if the number of records returned by the search was significantly reduced if the applicant’s initials were not included as a search term.

In its reply, the Council stated that, on examination, the removal of the reference to the applicant’s initials would reduce the number of records to in excess of 1,950. The Council stated that a conservative estimate of the time taken to retrieve and examine each of these records is estimated to be 5 working days. The Council stated that this number of records remaining would still be considered at a level that would be voluminous in accordance with Section 15(1)(c) of the FOI Act. Section 15(1)(c) provides for the refusal of a request where the FOI body considers that granting the request would, by reason of the number or nature of the records concerned or the nature of the information concerned, require the retrieval and examination of such number of records or an examination of such kind of the records concerned as to cause a substantial and unreasonable interference with or disruption of work (including disruption of work in a particular functional area) of the FOI body concerned. The Council noted that, should the applicant refine the search to be more specific in the records she requires, to records from an identified person within a shorter timeframe, it would be happy to assist her.

Based on the above, it would appear that further email records relating to the applicant’s request may well exist. In essence, the Council is refusing access to these records on the basis that processing them would cause an unreasonable disruption to its work. The question I must consider is whether the Council can reasonably argue that it has taken all reasonable steps to locate all relevant records in circumstances where it has not conducted a search of emails that it accepts may well contain relevant records. In my view, it cannot. As such, I find that the Council was not justified in refusing to grant access to any further relevant records under section 15(1)(a) of the FOI Act.

However, that is not the end of the matter. In my view, it would not be appropriate to simply direct the Council to examine all of the many records it has identified as potentially relevant in circumstances where it has argued that to do so would cause a substantial and unreasonable interference with its work. However, neither would it be appropriate to simply affirm the Council’s refusal of the request under section 15(1)(c), in light of the fact that under section 15(4) of the Act, a request cannot be refused under section 15(1)(c) unless the body has assisted, or offered to assist, the requester in amending the request so that it no longer falls to be refused under that section.

I therefore consider that the most appropriate course of action to take in this case is to annul the decision of the Council to refuse access, under section 15(1)(a), to any additional relevant records and to remit the matter back to the Council to consider the applicant’s request afresh and make a new, first instance, decision in accordance with the provisions of the FOI Act. The applicant will have a right to an internal review and a review by this Office if she is not satisfied with the Council’s decision.

Having regard to the Council’s concerns as to the volume of records that might have to be examined and the potential disruption to its other work that such a task might cause, I strongly urge both parties to engage with a view to reaching agreement on the proposed scope of the request. It seems to me that there may be some merit in the applicant engaging with the Council with a view to establishing the precise nature of the information she wishes to access that is of relevance to her housing application. I would also draw the Council’s attention to section 15(4) of the Act if it remains of the view that the request falls to be refused under section 15(1)(c).

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