Decision
Mr X and Dublin City Council
From Office of the Information Commissioner (OIC)
Case number: OIC-154547-P1B7H8
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-154547-P1B7H8
Published on
Whether the Council was justified in refusing access, under section 15(1)(a) of the FOI Act, to records relating to the applicant’s position on the housing list on the basis that no such records exist or can be found
3 March 2025
On 29 August 2024, the applicant sent his FOI request to the Housing Agency for the attention of the Council. The Housing Agency forwarded the request to the Council on 3 September 2024. In his request, the applicant sought details of his current position on the Council’s housing list and any records of communication he has had with the Council’s Housing section. The applicant provided the Council with details of his name, address, date of birth and his PPS Number.
On 7 November 2024, the applicant requested an internal review of the matter, as he did not receive a decision within the time prescribed in the FOI Act. On 12 November 2024, the Council refused the request under section 15(1)(a) of the Act as it could not locate the records sought by the applicant. On 14 November 2024, the Council subsequently issued an internal review decision affirming its original decision. On 17 December 2024, the applicant applied to this Office for a review of the Council’s decision. He said he was taken off the housing list without his knowledge.
During the course of this review, the Investigating Officer provided the applicant with details of the Council’s submissions wherein it outlined the searches undertaken to locate the records sought and its reasons for concluding that no records related to his request exist or could be found. The Investigating Officer invited the applicant to make submissions on the matter, which he 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 correspondence outlined above and to the submissions made by the applicant and the Council. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether the Council was justified in refusing access, under section 15(1)(a) of the FOI Act, to records detailing the applicant’s position on the housing list and records of his communications with the Council’s Housing section.
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 also 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.
As noted above, the Council provided this Office with details of the searches that it undertook to locate relevant records, details of which were provided to the applicant. In its submissions, the Council said the Housing Allocations Section conducted searches to identify any relevant records but were unable to locate any file relating to the applicant or matching the identifying particulars he provided. When it could not find any relevant file, the Housing Allocations Section said it contacted the FOI Liaison Officer and asked them to verify the applicant’s identifying information. The Council said the FOI Officer contacted the applicant to confirm his name, date of birth, PPSN and that his housing application was not made in any other name. The Council said the applicant confirmed that the details supplied were accurate and there was no possibility of any other name being listed on the application.
The Council said that Housing Allocations files are held on an electronic filing system and that all applications for Social Housing are scanned on to this system. When the section receives a request for records under the FOI Act, the Council said it runs a search on the system using the requester’s PPSN, name, and date of birth to obtain that requester’s housing reference number. It said a search is then carried out for that housing reference number and the file is printed for consideration and release. In this case, the Council said searches did not produce any results. The Council said it conducted searches of its electronic filing system using two names used by the applicant along with separate searches of his PPSN, date of birth, and address. It said these searches did not return any files relating to the applicant.
The Council said that if a file existed for the applicant it would be found when carrying out a search for the identifying particulars provided. It said that if the applicant had previously had a housing application with the City Council, Housing Allocations would still expect a search of the particulars provided to generate a result and direct the person conducting the search to a closed file. The Council said it concluded that no application has ever existed since the search did not return any results whatsoever. The Council said that all applications for Housing must include the applicant’s name, date of birth and PPSN. It said the PPSN and date of birth are used as unique identifiers when searching for a client on the system and records of cancelled applications remain searchable on that system.
The Council said that applications for Social Housing are processed and retained by the Housing Allocations Section. Applicants can be removed from the list, it said, if they are deemed not to be eligible under the regulations or if they are deemed not to be in need of housing. It said that applications can also be cancelled if the applicant does not respond to requests for further information from the Council in order to keep the application active. The Council reiterated that, even if an application is cancelled for one of the reasons above, a search of a PPSN, date of birth, etc. would still generate a result on the electronic filing system.
The Council provided a copy of the relevant records retention policy relating to applications for Social Housing. The policy states that records for applicants for social housing that are successfully placed on the housing list, but are not yet a tenant, are retained while still on the housing list. The applicant is asked to periodically resubmit any updated information and supporting documentation. The Policy states that the electronic filing system is not able to permanently, fully delete an application and a log of minimum information detailing the date of application, length of time on the housing list, name, PPSN, and reason for being removed from the housing list should be retained indefinitely to facilitate any future reengagement with the individual. The Policy also states that the specific information to be retained would have to be told in advance to the housing applicant and the option to not consent to this must also be pre-notified to the applicant. The Council said that, as per the policy, had there been a previous application with the details of the requester, a log of same would have been available on the system. Therefore, the Council’s position is that it is unable to locate any application for Social Housing for the applicant based on the unique identifiers provided. It said that it can only conclude that no application has ever existed.
During the course of this review, the Investigating Officer invited the applicant to make submissions or provide evidence of engagement with the Council such as emails or letters. In response, the applicant said he was unable to locate any records of engagement with the Council or of an original housing application. He noted that he had been in receipt of rental assistance and believed he needed to be on a housing list to be in receipt of same. The Investigating Officer sought further clarification from the Council based on the applicant’s submissions. The Council said that Rent Supplement Allowance is awarded by the Department of Social Protection (DSP) and qualifying for such payments was and is not predicated on being on any Social Housing List, or an individual being in receipt of HAP or Homeless HAP payment. It said that as the personal identifying particulars were verified and re-confirmed by the Council, it maintains that there is no housing file relating to him and records related to his request do not exist. The applicant made further submissions claiming to have been in receipt of a payment that necessitated his being on the housing list and provided copies of emails from the Department of Social Protection which showed that he had engaged with DSP with respect to rental assistance.
It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations can arise where records are lost or simply cannot be found. What the FOI Act requires is that the public body concerned takes all reasonable steps to locate relevant records. Furthermore, it is open to this Office to find that an FOI body has satisfied the requirements of section 15(1)(a), even where records that an applicant believes ought to exist have not been located. We do not generally expect FOI bodies to carry out extensive or indefinite general searches for records simply because an applicant asserts that records should or might exist.
Having regard to the information before this Office, and in the absence of any evidence to the contrary, I am satisfied that the Council has taken all reasonable steps to locate the records sought by the applicant and that it has adequately explained why it is unable to locate any relevant records. In the circumstances, I find that the Council was justified in refusing access to records relating to the applicant’s request, under section 15(1)(a) of the FOI Act, on the ground that no such records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Council’s decision to refuse access to the records sought by the applicant under section 15(1)(a) of the FOI Act.
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.
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Richard Crowley
Investigator