Whether the Council was justified in refusing access to two records held on the applicant-�s housing file in full or in part on the basis of sections 37 and 42(m) of the FOI Act, and in refusing to release additional records relating to her request under 15(1)(a)

15 May 2023

Background

All references to the applicant below should be read as referring to the applicant or her representative, as appropriate. In a request dated 29 July 2022, the applicant made a request to the Council for her full housing file and any information held in relation to her and her family-�s -�housing situation-�. As the Council failed to issue a decision on the request within the statutory time-frame, the applicant sought an internal review of the deemed refusal of the request on 29 August 2022 (Case OIC-129783-Y4L2J9 refers). Following correspondence with this Office, the Council issued an effective position on the request on 21 November 2022, wherein it released 79 records to the applicant in full or in part. This Office-�s file in Case OIC-129783-Y4L2J9 was then closed.

It subsequently transpired that the Council had issued an internal review decision to the applicant on 30 September 2022, wherein it identified nine records, six of which were released in full. The records schedule accompanying the internal review indicated that records 4 and 5 were withheld in full on the basis of sections 32(1)(b) and 35(1)(a). However, I note that the copy of record 4 provided to this Office has information redacted and appears to have been released to the applicant in part. The Council also withheld access to record 9 in part on the basis of section 37(1). The Council-�s internal review decision was not brought to this Office-�s attention by either party during the earlier case.

On 25 November 2022, the applicant sought a review by this Office of the Council-�s decision, as she was of the view that additional relevant records existed which had not been released.

During the course of this review, the Investigating Officer informed the applicant that while the Council cited sections 32(1)(b) and section 35(1)(a) of the FOI Act as the basis for withholding records 4 and 5, she had formed the view that sections 37 and 42(m) of the FOI Act were of more relevance. The Investigating Officer also provided details of the Council-�s submissions to the applicant in relation to the searches undertaken to locate records in this case, and its basis for deciding that no further records existed or could be found. The Investigating Officer invited the applicant to provide any submissions, observations or comments that she wished to make in this regard, which she duly did.

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 Council in support of its decision and to the applicant-�s submissions and correspondence with this Office. I have decided to conclude the review by way of a formal, binding decision.

Scope of Review

The applicant is of the view that further records other than those released by the Council should exist. The Council-�s position is that no additional records relating to her request exist, other than those already located and considered for release. This is, essentially, a refusal to release additional records under section 15(1)(a) of the FOI Act, which provides for the refusal of a request where the records sought do not exist or cannot be found.

In correspondence with this Office, the applicant confirmed that she is not seeking a review of the Council-�s decision to withhold record 9 in part.

Accordingly, this review is solely concerned with whether the Council was justified in refusing access to records 4 and 5 in full or in part under the provisions of the FOI Act and in refusing access to additional records on the basis that they do not exist or cannot be found under section 15(1)(a).

Preliminary Matters

Before I address the substantive issues arising, I would like to make the following preliminary comments.

The Council-�s handling of the applicant-�s request and its subsequent engagements with this Office fell well below the required standards. It failed to issue a first instance decision despite informing the applicant she would receive one, and when this Office sought an effective position, it failed to inform us that it had previously issued an internal review decision. Accordingly, it was not until receipt of the applicant-�s submissions that this Office was made aware of the fact that the Council had identified and refused access to certain records, in whole or in part, under the FOI Act. Moreover, this Office encountered significant delays in obtaining relevant information in order to progress the review. These delays necessitated a formal notification being issued to the Chief Executive of the Council under section 45 of the FOI Act, requiring the provision of the information sought.

It is important to note that section 13(4) of the FOI 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 applicant's 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.

It is also important to note that 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.

Section 25(3) of the FOI Act requires this Office to take all reasonable precautions to prevent the disclosure of information contained in an exempt record or that would cause the record to be exempt if it contained that information. This means that I am constrained in the level of detail I can give about the withheld information, as well as certain parts of the Council-�s submissions.

Finally, section 22(12)(b) of the FOI Act provides that when this Office reviews a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore, in this case, the onus is on the Council to satisfy this Office that its decision was justified.

Analysis and Findings

Record 4 - Section 37 (Personal information)

As noted above, the Council did not rely on section 37(1) to withhold access to record 4 in part. However, in view of the nature of the information withheld from record 4, I consider it relevant and, as it is a mandatory exemption, I will deal with it first. As noted above, the applicant was notified of the potential relevance of section 37 and given a chance to comment.  

Section 37(1) of the FOI Act is a mandatory exemption, which provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information. This does not apply where the information involved relates to the requester (section 37(2)(a) refers). However, section 37(7) provides that, notwithstanding section 37(2)(a), an FOI body shall refuse to grant a request if access to the record concerned would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester (commonly known as joint personal information).

Section 2 details fourteen specific categories of information that is personal without prejudice to the generality of the foregoing definition. These categories include (vi) information relating to any criminal history of, or the commission or alleged commission of any offence by, the individual, (vii) information relating to any proceedings for an offence committed, or alleged to have been committed, by the individual, the disposal of such proceedings or the sentence imposed by any court in such proceedings, and (xii) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to, establish that any personal information held by the FOI body concerned relates to the individual.

Having carefully examined record 4, I am satisfied that the withheld information is either personal information relating to identifiable individuals other than the applicant, including staff members of an external organisation and/or joint personal information relating to the applicant and other identifiable individual(s). Accordingly, I find that section 37(1) applies to such information. However, that is not the end of the matter as section 37(1) is subject to the other provisions of the section.

Section 37(2)

Section 37(2) of the FOI Act sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances in section 37(2) apply in this case.

Section 37(5)

Section 37(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 public interest that the right to privacy of the individual to whom the information relates should be upheld, or (b) the grant of the request would benefit the person to whom the information relates. I am satisfied that section 37(5)(b) of the Act does not apply in this case.

On the matter of whether section 37(5)(a) applies, the question I must consider is whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the person(s) to whom the information relates.

In carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. Section 11(3) provides that an FOI body must have regard to 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. It is important to note that inThe Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors[2020] IESC 57, 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. Although the Court-�s comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.

In relation to the issue of the public interest, it is also important to have regard to the comments of the Supreme Court inThe Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner[2011] IESC 26 ("the Rotunda case"). It is noted that a public interest should be distinguished from a private interest.

The FOI Act recognises the public interest in the protection of the right to privacy both in the language of section 37 and the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with the right to privacy). It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. 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.

As set out above, I am required to disregard the applicant-�s reasons for making the FOI request except insofar as it can be construed as a public interest. I understand from correspondence provided to this Office that the applicant is seeking the records arising out of the Council-�s decision to defer her social housing support application. On the matter of the public interest, she argued that this was a significant decision for her, in circumstances where she lost access to housing support and where she may be required to wait many more years before being considered for a further nomination or offer of social housing support. Essentially, the applicant was of the view that her right to access the information sought and the broader public interest in ensuring transparency around the decision making of a public body which affects individuals-� housing situation, outweighed any public interest against release.

While I can appreciate the reasons why the applicant is seeking access to the information contained in the records at issue, it seems to me that she has expressed a private, as opposed to a public interest. In the circumstances, I cannot identify any specific, cogent public interest reason in favour of release of the withheld information. Accordingly, I find that the public interest in granting access to the withheld information does not, on balance, outweigh the right to privacy of the individuals concerned. I find, therefore, that section 37(5)(a) does not apply and that the Council was justified in refusing access to the information withheld on the basis of section 37(1) of the FOI Act.

Given this finding, I do not need to consider the applicability of the other exemptions claimed by the Council over the record.

Record 5 - Section 42(m)(i) (Restriction of the Act)

As noted above, the Council did not rely on section 42(m)(i) to withhold access to record 5. However, in view of the nature of the information contained in record 5, I consider it relevant, and as section 42 provides that the FOI Act does not apply to certain records, I will deal with it first. As noted above, the applicant was notified of the potential relevance of section 42 and given a chance to comment. 

Section 42(m)(i) provides that the FOI Act does not apply to a record relating to information whose disclosure could reasonably be expected to reveal or lead to the revelation of the identity of a person who has provided information in confidence in relation to the enforcement or administration of the law to an FOI body, or where such information is otherwise in its possession. In essence, the section provides for the protection of the identity of persons who have given information to FOI bodies in confidence in relation to the enforcement or administration of the law, in order to ensure that members of the public are not discouraged from co-operating with such bodies or agencies.

For section 42(m)(i) to apply, three specific requirements must be met. The first is that release of the withheld information could reasonably be expected to reveal, whether directly or indirectly, the identity of the supplier of information. The second is that the information provided must have been provided in confidence, while the third is that the information provided must relate to the enforcement or administration of the law.

First Requirement

The record at issue is a complaint held on the applicant-�s housing file made by a third party(s). As I have outlined above, under section 25(3) of the FOI Act, I must take all reasonable precautions to prevent the disclosure of exempt information in the course of a review. Accordingly, while I cannot give full reasons for doing so, I am satisfied that the release of the record could reasonably be expected to reveal, whether directly or indirectly, the identity of the third party(s) concerned, and that the first condition is met.

Second Requirement

The second requirement is that information must have been provided in confidence. The Council indicated that its policy is to treat the identity of complainants as confidential. It said that it receives many complaints in relation to estate management issues and complainants must be assured that they will not be adversely affected by the making of such complaints. The Council argued that the release of the record concerned would have a negative impact on the individual(s) who provided the information and would hinder the provision of this type of information to the Council in the future, which it said was vital in assisting it in performing its functions as a public body.

This Office accepts, as a general proposition, that the purpose of section 42(m)(i) is to protect the flow of information from the public which FOI bodies require to carry out their functions relating to the enforcement or administration of the law, and that the disclosure of the identities of complainants could reasonably be expected to have a detrimental effect on other people giving such information to those bodies in the future. Having regard to the content of the letter and to the Council-�s submissions, I am satisfied that the information in the record was provided in confidence and that the second requirement is met.

Third Requirement

The third requirement is that the information provided relates to the enforcement or administration of the law.

In her submissions to this Office, the applicant argued that section 42(m) should not apply as, in her view, the Council was not a statutory body involved in the enforcement or administration of the law. Her position was that while a housing authority operates within a statutory regime, this did not mean that its functions under the Housing Acts equated to the -�administration of the law-�. She argued that section 42 should not be applied in -�such broad a fashion-� that any material relied on to make a decision by a public body was included within its ambit.

The Council has a responsibility in relation to dealing with anti-social behaviour under the relevant housing legislation, including the Housing (Miscellaneous Provisions) Act 2009. Having regard to the content of the record at issue, I am satisfied that the information provided relates to the enforcement or administration of the relevant law by the Council, and accordingly, that the third requirement is met in this case.

Having found that each of the three requirements are met, I find that section 42(m)(i) of the FOI Act applies and that the Council was justified in refusing access to record 5 on that basis. Having found section 42(m)(i) to apply, I do not need to consider the applicability of the other exemptions relied on by the Council to refuse access to the record.

Section 15(1)(a)

Section 15(1)(a) of the FOI Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. Our role in a case such as this is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at their decision and must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in -�search-� cases generally consists of the steps actually taken to search for the records along with miscellaneous and other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.

The applicant-�s submissions

In her submissions to this Office, the applicant essentially argued that specific records she had requested had not been identified or released by the Council, including communications between Tuath Housing and the Council concerning her nomination for an allocation of housing, records relating to her deferral from the housing list and her appeal against the deferral. She said that the Council had informed her that her deferral was as a result of -�information provided by Tuath Housing-�. The applicant-�s position was that it was -�inconceivable-� that her nomination for a housing allocation and her subsequent deferral from the list could have been made without some correspondence or exchange of documents between Tuath and the Council. She also stated that she appealed against the decision of the Council to defer her housing application by letter dated 4 June 2022 and followed up by emails to specific individuals as she had received no response. She indicated that none of these records were reflected in those released to her by the Council.

Her position was that the absence of such documents was a -�clear indication-� that the records received were incomplete and/or that inadequate searches were conducted by the Council.

During the course of the review, the Investigating Officer provided the applicant with details of the searches the Council said it had carried out and the reasons for its conclusion that no additional records existed relating to her request. The Investigating Officer also set out her view that it seemed to her that no further relevant records exist other than those located and released by the Council. The applicant confirmed that she had no further submission to make regarding the application of section 15(1)(a) at that point.

The Council-�s submissions

In its submissions to this Office, the Council stated that all records on the applicant-�s file have been released to her in full, other than records 4, 5 and 9.

As noted above, the Council also provided details of searches carried out to locate relevant records in this case. These details have been provided to the applicant and I will not set them out in detail here, although I can confirm that I have regard to them in full.

The Council said that all housing applicants are assigned a unique client reference number when their first application for social housing support is processed. It said this reference number, along with an applicant-�s PPS number and date of birth, were -�the key identifiers-� on its ICT system. Essentially, the Council stated that all electronic and hardcopy records relating to a housing applicant are tagged/filed using the relevant client reference number, which it used to locate records relating to the applicant in this case.

On the matter of correspondence between the Council and Tuath Housing regarding its nomination of the applicant for an allocation of housing, the Council said that email correspondence with Tuath was part-released to the applicant (i.e. record 4). Essentially, its position was that any records relating to a client-�s interview with Tuath would be held by Tuath and not the Council. The Council said that it is -�advised only of the outcome of the nomination-� and noted that it had released a record (in part) containing this information to the applicant.

During the course of the review the Investigating Officer sought additional details from the Council in relation to how emails are managed. In its response, the Council said that clients were -�encouraged-� to submit emails to the Council-�s group email addresses which were monitored by a number of staff, which prevents emails -�being potentially missed if they are sent direct[ly] to an individual staff [email address]-�. It also said that essentially, individual staff -�manually copied-� emails received to their own email accounts onto the iHouse system. The Council further stated that emails can -�get caught in spam filters/junk mail-�, particularly in cases where there may be an attachment of a larger size or an unusual file type, or if the email address of the sender is atypical, -�due to the security filters in place-�.

The Council also informed this Office that if the applicant was seeking a copy of a particular email which has not been included in the records released, -�it would be helpful to get details so we can submit a request to ICT to recover same-�. It said the details required would comprise -�the name of the staff member; the date the [email] was sent; the address of the requester, and [some information on the content]-�, in order to identify the particular record to be retrieved.

Analysis

I am satisfied that records 4 and 5 include an email from Tuath to the Council setting out its reasons for deferring the applicant-�s request. I am also satisfied that a number of the records located relate to the applicant-�s appeal of the deferral and her follow up emails to various officials as she had had no response. However, having carefully examined the records concerned, I see no record of the applicant-�s nomination to Tuath by the Council. Nor has the Council explained how this process is normally carried out, or why it would expect no records to exist relating to the nomination. Rather it has concentrated its submissions on records relating to the applicant-�s deferral from the housing list.

Furthermore, I note the Council-�s response in relation to the Investigating Officer-�s queries concerning how emails are stored on it systems, wherein it indicted that emails sent directly to individual email addressed may be caught by spam filters. I also note its comments regarding the manual addition of emails to the system by individuals, which of course, may result in some being missed due to human error. Finally, I note its offer to carry out searches for specific emails if the applicant provides the relevant details.

As noted above, the onus is on the Council to satisfy this Office that it is justified in refusing access to additional records on the basis of section 15(1)(a). Given the lack of explanation as to why no records have been located relating to the applicant-�s nomination to Tuath by the Council, and its effective acknowledgement that further potentially relevant records may exist, I am not satisfied that the Council has taken all reasonable steps to ascertain the whereabouts of all relevant records in this case. In those circumstances, I am simply not in a position to find that the Council was justified in refusing access to additional records on the basis that they do not exist or cannot be found.

Accordingly, I annul the Council-�s decision to refuse the request under section 15(1)(a) of the Act and direct it to consider the 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 necessary.

The Council may find it useful to engage with the applicant further in the first instance before the request is considered afresh with a view to coming to an agreement on the precise nature of the additional records sought.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of the Council. I find that the Council was justified in refusing access to record 4 in part on the basis of section 37(1) of the FOI Act and that the public interest, on balance, does not favour the release of the remaining information. I also find that the Council was justified in refusing access to record 5 in full on the basis of section 42(m)(i) of the FOI Act. Finally, I annul the Council-�s effective refusal to release additional records on the basis of section 15(1)(a) of the FOI Act and direct it to carry out a new decision-making process on the applicant-�s 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.

Sandra Murdiff
Investigator