Irish Information Commissioner's Decisions

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Cite as: [2023] IEIC 132555

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Mr Y and The Housing Agency

Case number: OIC-132555-V7L0D7

Whether the Housing Agency was justified in refusing access to records including Board Minutes and Correspondence in respect of a named AHB between 2014 and 2018

8 December 2023

Background

In a request dated 25 August 2022, the applicant submitted a request to the Housing Agency (the Agency) for a complete copy of the Engagement File held by the Agency's Regulation Office concerning a named Approved Housing Body (AHB). On 2 September 2022, the Agency informed the applicant that it considered the request too voluminous to process and it asked the applicant to refine his request. The applicant subsequently refined his request to the AHB's board minutes for 2014 to 2016 that were provided to the Agency's Regulation Office and copies of the Agency's correspondence with the AHB contained on its engagement file.

On 30 September 2022, the Agency issued its decision. Of the 90 records it identified as coming within the scope of the refined request, it decided to grant access to 21 records in full and to grant partial access to 22 records. It refused access to 45 records and informed the applicant that it was unable to open two records as the files were corrupted. It cited sections 35(1)(b), 36(1)(b) and (c) and 37(1) as a basis for withholding records in whole or in part. On 24 October 2022, the applicant sought a review of that decision. The Agency issued its internal review decision on 14 November 2022, affirming the original decision. On 22 November 2022, the applicant applied to this Office for a review of the Agency's decision.

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 submissions made by the applicant, the relevant housing body and the Housing Agency. I have had regard to the correspondence between the applicant and the Agency and to the correspondence between this Office and all relevant parties 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. In referring to the records at issue, I have adopted the numbering system used by the Agency in the schedule of records it prepared when processing the request.

Scope of Review

The Agency redacted certain information from the records to which access was granted in part under section 37(1) of the Act, which provides for the protection of third party personal information. As the applicant indicated during the course of the review that he is not seeking access to any personal information contained in those records, I have excluded them from the scope of the review. Moreover, a number of the records in question are duplicates of other scheduled records. I have, therefore, excluded the following records from the scope of the review:

record 23 (a duplicate of record 12),
record 28 (a duplicate of record 27A),
record 30 (a duplicate of record 6),
record 59A (a duplicate of record 29), and
record 64A (a duplicate of record 63)

I also note that in its submissions to this Office, the relevant AHB cited section 40(1)(d) as a ground for withholding the records at issue. This exemption was not relied on by the Agency. Section 40 is concerned with the protection of the financial and economic interests of the State. Section 40(10(d) provides for the refusal of a request where the FOI body considers that access to the records sought could reasonably be expected to result in an unwarranted benefit or loss to a person or class of persons. This Office takes the view that the context of the section 40 exemption suggests that it is intended to protect the financial and economic interests of the State and of public bodies. To the extent that it may also protect the interests of persons generally, as suggested by section 40(1)(d), it seems to me that this would be the case only to the extent that harm to a person (other than the State or a public body) would also result in harm to the State or a public body. I note that the commercial interests of persons generally are protected by section 36. It is noteworthy that section 40 is a discretionary exemption and that the Agency did not rely on that exemption as a ground for withholding the records. Accordingly, I will give no consideration to the applicability of section 40(1)(d) in this case.

Accordingly, this review is concerned solely with whether the Agency was justified in its decision to refuse access, under sections 35(1)(b), 36(1)(b) and 36(1)(c) of the FOI Act, to the 45 records at issue.

Preliminary Matters

Before I address the substantive issues arising, I would like to make a number of preliminary comments. First, a review by this Office under section 22 of the FOI Act is de novo which means that in this case, it is based on the circumstances and the law as they apply on the date of the decision. It should be noted that a decision made by this Office in one particular case does not create a binding precedent for other cases.

Secondly, 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 my analysis and reasoning is somewhat limited.

The Regulation of AHBS

AHBs are independent legal entities that own, lease and manage social housing. They are private not-for-profit organisations formed for the purpose of relieving housing need. They independently source housing on the open market. They compete with each other and also with private developers and/or landlords in bidding processes for houses and land for the provision of housing. They acquire units through leasing and management arrangements. They submit competitive bids to the Agency and local authorities where these entities have established competitive processes for the development of housing and invite AHBs to make bids.

In 2013, the relevant Minister launched the AHB Voluntary Regulation Code (the Code). The Code notes that Government housing policy places AHBs at the heart of social housing provision in the coming years. It describes itself as a stepping stone to a legally binding statutory regulatory framework and provides a context in which AHBs can sign up to voluntary regulation and oversight. It sets out key governance, management, measurement and financial requirements applicable to all AHBs to some extent and classifies AHBs as Tier 1, 2 or 3 depending on levels of risk. AHBs are required to sign up to the Code and to meet certain requirements before they are eligible for certain types of public funding as provided by bodies other than the Agency.

The Housing Agency acted as the interim regulator of AHBs under the Code until the establishment of the statutory regulator, the Approved Housing Bodies Regulatory Authority (AHBRA) in February 2021. AHBRA describes its purpose as supporting stronger governance and the financial viability of the AHB sector, with a particular focus on safeguarding the significant public investment made in the delivery of social housing by AHBs. The powers of the Authority were commenced in July 2022. Importantly, the Regulatory Framework within which AHBs now operate includes the registration for AHBs, the Standards for AHBs, monitoring and assessing of compliance, education and guidance.

As part of its Regulatory Framework, AHBRA will carry out a monitoring and assessment programme. Accordingly, all registered AHBs will be required to complete and submit an Annual Monitoring Form to AHBRA each year. AHBs will be asked to provide a range of data and information relating to their organisation in the areas of tenancy management, property and asset management, financial management and reporting and governance. Section 38 of the Housing (Regulation of Approved Housing Bodies) Act 2019, allows AHBRA carry out an assessment of compliance by an AHB, including a reactive assessment, should any material issues come to their attention. AHBs assessed will receive an assessment report which provides an overall regulatory outcome of compliant or non -“ compliant.

It is also relevant to note that in February 2018, the Central Statistics Office and Eurostat re-classified 14 Tier 3 AHBs to be part of the local Government sector. In general terms, this means that their debts could be moved onto the State's balance sheet. Eurostat considered that the AHBs concerned are controlled by government having regard to such matters as the low level of private sector funding, the exposure of government to certain financial risks and the AHBs' non-market nature (e.g. their aims of relieving housing needs, the requirements not to distribute surpluses, profits etc. to members, the types of rent charged, etc.).

Analysis and Findings

The records in question

While, as noted above, I am limited in the description which I can provide of the records at issue, I believe I am not in breach of section 25(3) by explaining that the records involved at issue relate specifically to governance issues that were identified in respect of the relevant AHB, a medium sized housing association. The records largely concern the Regulation Office's engagement with the AHB to address the issues concerned over a number of years.

The records include third party reports, correspondence, thematic review reports, external reviews, notes of meetings etc. Certain records were created by the Housing Agency using information provided by the AHB, other records were prepared by third parties and provided by the AHB in question to the Regulation Office for the purposes of voluntary regulation.

In the schedule of records prepared when processing the request, the Agency indicated that records 1, 9, 27a, 35, 38, 41a 41b, 41c, 43, 44, 45a, 45b, 45c, 45d, 45e, 45f, 46, 46a, 46b, 46c, 47a, 47b, 47c, 47d, 48a, 49a, 56, 61a, and 63 were withheld under section 35(1)(b). In its submissions to this Office, it said it also wished to extend the section 35(1)(b) exemption to records 39 and 40. Records 4, 10, 11, 12, 13, 23, 29, 36, 39, 40, 58A, and 60A have been withheld under sections 36(1)(b) and 36(1)(c).
Section 35 -“ Information Obtained in Confidence

Section 35(1)(b) provides for the refusal of a request where the disclosure of the information concerned would constitute a breach of duty of confidence provided for by an 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).

Section 35(2) provides that subsection (1) shall not apply to a record which is prepared by a head or any other person (being a director or 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 staff of an FOI body or of such a service provider." The net effect of section 35(2) is that if the record at issue has been prepared by an FOI body or a service provider, then the person to whom a duty of confidence is owed cannot be an FOI body or its staff or a service provider. If it is, then section 35(1) cannot apply.

Records 1 and 38 were created by the Agency. Records 9, 27A, 35, 39, 41A, 41B, 41C, 43, 44, 45A, 45B, 45C, 45D, 45E, 45F, 46, 46A, 46B, 46C, 47A, 47B, 47C, 47D, 48A, 49A, 56, 61A, and 63 were created by the AHB or by third parties that were providing services to the AHB. Record 40, comprising an email chain, was created in part by the Agency and in part by the AHB.

Section 35(2)

The Agency's argument is that the release of the records at issue would constitute a breach of a duty of confidence owed to the AHB. The third parties that created a number of the records were providing services to the AHD, and not to the Agency or any other FOI body. The AHB is not an FOI body. Accordingly, section 35(2) is of no relevance to those records.

For the records that were created by the AHB, the question arises as to whether the AHB can be deemed to be a service provider for the purposes of section 35(2). The term "service provider" is defined as "a person who, at the time the request was made, was not an FOI body but was providing a service for an FOI body under a contract for services and contract for services in this definition includes an administrative arrangement between an FOI body and another person". The records at issue are held by the Agency in the context of its [then] role as interim regulator under the AHB Voluntary Regulation Code. The AHB is an independent not-for-profit organisation. The records at issue were not prepared in the course of the performance by the AHB of its functions as a service provider, nor do they relate to any such service provided for an FOI body. Accordingly, I am satisfied that I can appropriately consider the applicability of section 35(1)(b) to the records in question as section 35(2) does not serve to disapply section 35(1) in respect of those records.

Records 1, 38, and parts of record 40 were created by the Agency. As I have indicated above, the Agency's position is that the release of the records would constitute a breach of a duty of confidence owed to the AHB. In my view, the purpose of section 35(2) is to ensure that section 35(1) cannot be relied upon to protect records relating to the service being provided. It does not, in my view, mean that a duty of confidence can never be owed to a provider of services for an FOI body. Having regard to the nature of the records at issue and the context in which they are held by the Agency, I am satisfied that the AHB cannot be regarded as a service provider for the purposes of section 35(2) and that section 35(2) does not serve to disapply section 35(1) in respect of those records.

Section 35(1)(b)

As I have outlined above, a duty of confidence provided for "otherwise by law" is generally accepted to include a duty of confidence arising in equity and this Office accepts that breach of an equitable duty of confidence is comprehended by section 35(1)(b). In the Supreme Court decision in the case of Mahon v Post Publications Ltd [2007] 3 IR 338, Fennelly J confirmed that the requirements for a successful action based on a breach of an equitable duty of confidence, at least in a commercial setting, are found in the judgment of Megarry J in Coco v. A. N. Clark (Engineers) Ltd. [1969] R.P.C. 41, at 47:

"[T]hree elements are normally required if, apart from contract, a case of breach of confidence is to succeed. 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."

Fennelly J summarised or restated the requirements of what he called "the contours" of the equitable doctrine of confidence as follows:

1. "the information must in fact be confidential or secret: it must ... -have the necessary quality of confidence about it';

2. it must have been communicated by the possessor of the information in circumstances which impose an obligation of confidence or trust on the person receiving it;

3. it must be wrongfully communicated by the person receiving it or by another person who is aware of the obligation of confidence."

I have adopted this approach in considering whether disclosure of the information in the records at issue would constitute a breach of an equitable duty of confidence owed to the AHB in question.

In its submissions, the Agency said it considers the elements of section 35(1)(b) to be present in respect of the records at issue. It said the records contain information that the AHB gave to it in confidence and on the understanding that the information would be treated by it as confidential. It said it has taken a number of items into consideration, including the Voluntary Regulation Code, the interim Regulation Committee (iRC) Protocol, and the Regulatory Return Guidance Note.

The Agency said that the Voluntary Regulation Code (VRC) was a core document in AHBs choosing to voluntarily sign up to the Code and that the only onward disclosure of assessment reports or documents relating to the AHBs would be for the AHBs benefit. It noted that the Code provided that final regulatory assessment reports would be;

"supplied to the AHB, and if requested by the AHB, to third parties such as financial institutions. It is expected that a positive assessment report will be of assistance to an AHB in its dealings with external stakeholders."

It said it considered this element of the VRC to be significant in the understanding that

the Regulation Office would ensure that all documents and information prepared in respect of the AHB would be held on a confidential basis, and only onward-disclosed to particular third parties if requested by the AHB, and for the benefit of the AHB. It said there is also an implicit acknowledgement in the above-quoted provision that a less-than-positive assessment report would be detrimental to an AHB in its dealings with external stakeholders and that, accordingly, the VRC encouraged AHBs to submit to voluntary regulation, on the basis that information provided by the VRC would only be used for regulation/assessment purposes, and would be re-stated back to the AHB in an assessment, which assessment is clearly sensitive and confidential but capable of assisting with AHBs' relations with third parties (with prior AHB consent to disclosure), and, in some cases, capable of causing detriment if externalised.

The Agency said the iRC Protocol formed part of the Voluntary Code. It noted that the Protocol provides as follows:

"The regulation and supply functions of the Housing Agency rely for their effectiveness on, among other things, a range of information and knowledge which is obtained from a variety of sources including from Approved Housing Bodies. Some of this information and knowledge is in the public domain. Other information and knowledge are provided specifically for regulatory or supply purposes and/or are supplied on the basis that they are provided only for a specified purpose and/or that they are commercially sensitive or confidential for other reasons."

On the matter of the relevance of the Guidance on Completing Returns, the Agency said that in submitting their returns to the Agency, each organisation did so on the basis that the information contained in the return would only be provided to authorised key contacts within the Agency. It said this is clearly provided for in the guidance to AHBs for completing the return. It said it considers this to extend to any records an AHB provided as part of the returns and ongoing review.

In its submissions, the AHB in question said the Agency's regulation role included embedding the principles of regulation across the AHB sector and advancing the Regulatory Framework in preparation for statutory regulation. It said that to that end, the Agency needed to acquire information, so that it could engage, where necessary, with AHB's in need of support and advice. It said it gave the information referred to in the records to the Agency voluntarily, in pursuance of the Voluntary Code and not under any obligation to do so, on the understanding that the information would be retained as confidential and not for general circulation. The organisation referred to the same excerpt from the IRC protocol cited by the Agency.

The AHB argued that it does not matter that the regulatory function no longer rests with the Agency. It argued that allowing the release of the information would hinder the Agency in its role of supporting AHBs and embedding the principles of regulation across the AHB sector and advancing compliance with statutory regulation.

In his submissions, the applicant argued that argued that there is nothing in the Voluntary Code that expressly or impliedly provided AHBs with an assurance that all information provided as part of that regime would not be subject to FOI. HE noted that the Voluntary Code states that if regulation was done well, it would provide assurance to tenants, Boards, Government and potential investors that the AHB sector is stable and well-regulated, safeguard public investment in the sector, protect and advance the rights of existing and future AHB tenants in terms of openness and accountability. He commented on the discrepancy between these aims and the Agency's insistence that records showing poor governance practice should not be released. He argued that the AHBs in question would have been aware through notes provided in the Annual Regulatory Return that the information that they provided could be releasable through FOI.

The Applicant further noted that in our decision in Case No. 180291, the Senior Investigator found that certain information provided by AHBs as part of this regulatory process did not amount to information obtained in confidence. Moreover, he argued that even if participation in the Code was indeed voluntary, this is not a determining factor in assessing whether there was an implied guarantee of confidentiality. He argued that engagement with the Code does not inherently establish a confidential relationship. He also noted that information may lose its confidential nature with the passage of time and that in this case, some of the records in question were created as far back as 2014, with some of the more recent dating back to 2020, around three years ago.

The Applicant further noted that the information which has already been released in respect of the AHB in question reveals serious failings in the its corporate governance, and he argued that in the interest of transparency and given that the matters relate to public funds, the records should be released. He argued that the regulation process to which the records relate is no longer in existence and that as the new regulator is a statutory process, it cannot be said that the release of these records would jeopardize the flow of information.

My Analysis

The information at issue in this case concerns extensive reviews of the governance and property management information of the AHB in question. The information in question concerns the private affairs of the AHB and is not publicly available. Moreover, I do not consider that the information has lost its quality of confidence with the passage of time, given its nature and the potential effect its release could have on the AHB. I am satisfied that the information has the necessary quality of confidence about it and that the first requirement for an equitable duty of confidence to exist is met.

In relation to the second requirement, I accept that in Case 180291, the Senior Investigator concluded that the second requirement had not been met, namely that the information in the reports was not imparted in in circumstances which impose an obligation of confidence on the Agency. Her conclusion was based, among other things, on her view that compliance with the Regulation Code did not appear to be truly voluntary as she noted that only AHBs who subscribed to the Code would receive additional funding. Nevertheless, the applicant will also be aware that I subsequently explained in Case OIC-127651 that I take a different view. As I explained in case OIC-127651, while I accept that it was in an AHB's financial and overall interests not only to sign up to the Code but to engage fully with the assessment process, I do not accept that this means that the Code could not be considered truly voluntary. I also deemed it relevant that a number of AHBs did not opt in to voluntary regulation at the time and yet continued to provide the services that all AHBs provide.

I further explained in Case OIC-127651 that while there is no doubt that the voluntary process was intended a means of encouraging AHBs to prepare for the statutory regulation of all AHBs and was important for the oversight of the large public investment made, the fact remains that the process was voluntary. I found that any information the AHBs may have imparted in the course of assessments carried out was imparted in accordance with the terms of the Code. Having regard to the voluntary nature of the Code, I accepted that the AHBs who opted in to the regulation standards at the time, did so on the understanding that the information provided would be treated as confidential. The information at issue in this case was also imparted in accordance with the terms of the Code. While I note the applicant's argument that even if participation in the Code was indeed voluntary, this is not a determining factor in assessing whether there was an implied guarantee of confidentiality. I disagree. In my view, the AHB had a reasonable expectation that the information given to the Agency would be treated as confidential and not for general circulation, in pursuance of the Voluntary Code, and I accept that it was not under any obligation to give the information to the Agency.

The applicant noted the references in the Code to the stated intent of the proposed regulatory framework as set out in the Code, such as the provision of assurance to tenants, safeguarding of public investment etc. and suggested that "[i]t is difficult to reconcile those laudable aims with the Housing Agency's insistence that records that reveal poor corporate governance within the AHB sector should be refused from public release". As the then Minister stated in her Foreword, the Code "outlines the building blocks of a statutory regulation system and provides a context in which individual AHBs can sign up to voluntary regulation and oversight". The Code also states that "[p]articipation in the VRC will also provide AHBs with an opportunity to directly influence the shape of the long-term regulatory framework". It seems to me that the aims of the then proposed regulatory framework do not mean that information provided by AHBs under the voluntary Code should not be treated as confidential.

On the matter of the applicant's argument that the AHBs in question would have been aware through notes provided in the Annual Regulatory Return that the information that they provided could be releasable through FOI, it seems to me that the Return form simply notes that the Agency is subject to the FOI Act, and that information held by the Agency may be releasable, subject to the provisions of the Act itself. This does not mean that the AHBs could have had no expectation that sensitive and private information concerning their inner workings would be treated by the Agency as confidential.

Moreover, the fact that the regulation of AHBs has since been placed on a statutory footing does not mean that information given by AHBs to the Agency pursuant to a voluntary Code no longer qualifies to be treated as confidential information. In sum, I am satisfied that the information in the records was communicated by AHB to the Agency in circumstances which impose an obligation of confidence on the Agency and that the second requirement for an equitable duty of confidence to exist has been met

On the matter of the third requirement for an equitable duty of confidence to exist, this Office considers that where disclosure of the information would result in an unauthorised use to the detriment of the party who communicated it or where it is wrongfully communicated by the person receiving it or by another person who is aware of the obligation of confidence, the third requirement of establishing breach of an equitable duty of confidence is met. It seems to me that the AHB in question reasonably expected that the information in the records at issue would not be released to any third party and that it was obtained by the Agency solely for the purposes of its assessment functions. In the circumstances, I am satisfied that the third requirement is also met in this case.

In conclusion, therefore, I find that section 35(1)(b) applies to records 1, 9, 27a, 35, 38, 39, 40, 41a 41b, 41c, 43, 44, 45a, 45b, 45c, 45d, 45e, 45f, 46, 46a, 46b, 46c, 47a, 47b, 47c, 47d, 48a, 49a, 56, 61a, and 63. For the sake of completeness, I should add that while the applicant has argued that there is a significant public interest in the release of the records at issue, 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 this Office may consider the public interest defence in the context of section 35(1)(b). 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, the records at issue contain no such information and accordingly I am satisfied that there is no basis for setting aside the requirements of section 35(1)(b) in this case.

Section 36(1) -“ Commercially Sensitive Information

Section 36(1) of the FOI Act provides a mandatory exemption for what is generally described as commercially sensitive information. The Agency cited section 36(1)(b) in support of its refusal of all of the records at issue. As I have found section 35(1)(a) to apply to records 1, 9, 27a, 35, 38, 39, 40, 41a 41b, 41c, 43, 44, 45a, 45b, 45c, 45d, 45e, 45f, 46, 46a, 46b, 46c, 47a, 47b, 47c, 47d, 48a, 49a, 56, 61a, and 63, I do not need to consider the applicability of section 36(1) to those records. This leave me to consider whether section 36(1)(b) and/or section 36(1)(c) applies to records 4, 10, 11, 12, 13, 29, 36, 58A, and 60A.

Section 36(1)(b) provides for the mandatory refusal of a request where the records sought contain information whose disclosure could reasonably be expected to result in material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of the person in the conduct of his or her profession or business or otherwise in his or her occupation. The essence of the test in section 36(1)(b) is not the nature of the information but the nature of harm which might be occasioned by its release.

The harm test in the first part of section 36(1)(b) is that disclosure "could reasonably be expected to result in material loss or gain". This Office takes the view that the test to be applied is not concerned with the question of probabilities or possibilities but with whether the decision maker's expectation is reasonable. The harm test in the second part of section 36(1)(b) is that disclosure of the information "could prejudice the competitive position" of the person in the conduct of their business or profession. The standard of proof to be met here is considerably lower than the "could reasonably be expected" test in the first part of the exemption. However, this Office takes the view that, in invoking "prejudice", the damage which could occur must be specified with a reasonable degree of clarity.

The records at issue comprise mainly of records created by the Agency in the course of its engagement with the AHB in terms of its governance. In its submissions, the Agency said the specific information in the records relates to property information, and issues noted on the control and governance environment which are historic and report in a lagged environment. It again noted that AHBs are private, not-for-profit organisations that operate within the same competitive environment and compete both within the AHB Sector and the wider housing/development community. It said the release of the information outlined in the records could likely prejudice and impact negatively on the competitive process, both as between regulated and non-regulated AHBs on the one hand, and between regulated AHBs and private housing operators, on the other. It said the reputational risk to the AHB based on historic information and on a lagged environment could very definitely prejudice the outcome of contractual and negotiation in which the AHB engages during its business.

The AHB argued that the release of the records would have an impact on its reputation going forward. It said the company's relationship with existing strategic partners, such as the local authorities, who would not wish to be associated with a company with issues as described in the records, could be a potential fall out if the records were released.

While I am required, under section 25(3) of the FOI Act, to take all reasonable precautions in the course of a review to prevent the disclosure of exempt, I do not consider myself to be in breach of that requirement by stating that the records at issue contain matters of concern relating to the governance and oversight of the AHB. Having regard to the competitive environment in which the AHB operates and the nature of the matters outlined in the records, I am satisfied that the release of the records could prejudice the competitive position of the AHD, notwithstanding the historic nature of the information in the records and that section 36(1)b) therefore applies. Having found section 36(1)(b) to apply to the records, I must go on to consider the other provisions of section 36 to which subsection (1) is subject.

Section 36(2) and 36(3)

Section 36(2) provides for the release of information to which section 36(1) is found to apply in certain circumstances. I am satisfied that none of the circumstances identified at section 36(2) arises in this case. Section 36(3) provides that section 36(1) does not apply to a case in which the FOI body considers that the public interest would, on balance, be better served by granting than refusing to grant the request.

In considering where the balance of the public interest lies in this case, I have had regard to section 11(3) of the Act which provides that in performing any functions under the Act, an FOI body must have regard to, among other things, the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. However, in doing so, I have also had regard to the judgment of the Supreme Court in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 ("the Enet case"). In that case, the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and "there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure". Moreover, the Court found that section 36(1) recognises that there is a public interest in the protection of commercial sensitivity and that this may be normally served by the operation of the exemption itself, which provides for the refusal of an FOI request.

In its submissions the Agency said the AHB is a private entity that voluntarily submitted to regulation ahead of the statutory footing that is now in place, and who has therefore furthered the public interest by doing something that was not required by law, but serves the public interest, even if it might also serve its private interest. It said that in doing so, it submitted information that is confidential and commercially-sensitive. It said that even if one could point to a public interest that was served by release of any such exempt information, it would be outweighed by the public interest in upholding the rights and legitimate interests of the information-rights holders to maintain the confidentiality and secrecy of that information. It said that not only is there already a public interest, reflected in the legislation, in upholding rights to maintain commercial sensitivity of information, but it would also be contrary to the public interest for the Agency to renege or to be seen to renege on assurances of confidentiality given to AHBs who submitted their confidential information.

The Agency said it believes that the public interest will be met on a sector wide basis, without discrimination between bodies, through the forthcoming statutory framework which will include the publication of compliance reports. The Agency also noted the comments of the Supreme Court in the ENet judgment, namely that there 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, and the balancing of the interests of commercial sensitivity or confidentiality against the public interest in the disclosure of that content.

It argued that "[t]he contents of the record sought, therefore, to reveal something specific that it is strongly in the public interest to reveal -“ like corruption or bribery, or whatever - and not merely account for something -“ say, the expenditure of public funds". It argued that there is nothing of such a nature in the contents of the records and, accordingly, that the exemptions on which it relied that are subject to public interest overrides should not be overridden by the application of such override provisions, as there is nothing to balance against the public interest served by non-disclosure on the ground of upholding the interests protected by the provisions concerned.

The AHB argued that the public interest in release of the records must stem from the contents themselves and not merely "spending of public money", and that it is not in the public interest that bodies engaged in a voluntary assessment/regulation process on the basis that it is confidential should have that undermined later by release of data.

A number of public interest arguments were advanced by the applicant. In particular, the applicant said the information that has been released concerning this particular AHB reveals serious failings in its corporate governance. He argued that in the interests of transparency, and given that these matters relate to public funds, the other records should be released or un-redacted. He argued that the public ought to have the right be informed about these failings.

My Analysis

In considering where the balance of the public interest lies in this case, a key factor, in my view, is the fact that the Agency obtained the relevant information in the records at issue against a background of a Voluntary Regulation Code. While I fully accept that there were significant financial incentives for the AHBs to sign up to the Code and to engage fully with the assessment process, the fact remains that the Code was voluntary. In such circumstances, it seems to me that AHBs were entitled to expect that commercially sensitive information would not be disclosed to the world at large.
As I have mentioned above, the records at issue contain matters of concern relating to the governance and oversight of the AHB. It seems to me that the disclosure of the information could reasonably be expected to have a considerable reputational impact on the AHB. In my view, a distinction can be drawn between the public interest in disclosing information which relates purely to the business of a third party and information which relates to the activities of an FOI body e.g. the development of policy, the exercise of a regulatory function or the use of state resources. As a general principle, I do not believe that the FOI Act was designed as a means by which the operations of private enterprises were to be opened up to scrutiny.

I accept that there is a significant public interest in knowing how the Agency carried out its regulatory role in the case of the AHB in question. Where the information of a third party and FOI body overlap, this Office aims to strike a balance between ensuring openness on the part of an FOI body and limiting the impact of disclosure on the affairs of a third party. In the particular circumstances arising in this case, i.e. the voluntary code to which the AHB prescribed to pre a statutory framework for regulation, I consider that there is a strong public interest in ensuring the candid engagement of any third party to such a pre -“statutory framework, through the maintenance of the confidentiality of their commercially sensitive information.

Having carefully weighed the competing public interest factors in favour of and against release of the records at issue, I find that the public interest would, on balance, be better served by withholding the information at issue. I find, therefore, that the Agency was justified in refusing, under section 36(1)(b) of the Act, access to the records at issue.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Housing Agency's decision. I find that the Agency was justified in refusing access to the records at issue under sections 35(1)(b) and 36(1(b) of the FOI Act.

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