Decision
Mr and Mrs X and Cork City Council
From Office of the Information Commissioner (OIC)
Case number: OIC-126107-P8G4L1
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-126107-P8G4L1
Published on
Whether the Council was justified in refusing access, under section 15(1)(a) of the Act, to further records relating to the applicants, other than those already released, on the ground that no further relevant records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken
07 November 2022
The applicants in this case previously applied to the Council for housing through its Choice Based Letting (CBL) system. CBL is a system that allows individuals who qualify for social housing to express their interest (or ‘bid’) on advertised properties which they believe will meet their housing need. On 15 April 2022, the applicants submitted a request to the Council for certain records following on from a previous request, as follows:
“We wish to access all information Cork City Council holds on our family, whether on our housing file, or elsewhere, in whatever format (printed, handwritten, electronic, etc. ...), which has not yet been released to us.
We are particular interested in any information CCC has regarding our `bid` on [a specific property] on Cork City Council`s electronic Choice Based Letting/CBL System in early October 2020. How this `bid` was considered, where were we placed when the electronic system provided a list of the `bids` received, what `housing need category` was attached to our `bid`. We seek access to any representations made on our behalf both internally and externally regarding this `bid`, as well as any communications received from anyone, possibly suggesting why we should not be housed at this address (including any communications from the gardai).
Furthermore, we are also particular interested in our Credit Review of Years on the Housing List, which was repeatedly requested in 2019, and we were told in January 2020 it was to be undertaken. Any information regarding this, is included in this FOI request.
For the avoidance of any doubt, we are herewith looking for any and all information CCC holds on us; on our housing application, held in any format anywhere in Cork City Council, our CBL `bids` and the consideration of same, our credit review.”
The Council subsequently informed the applicants that their request did not contain sufficient particulars to enable the records sought to be identified. At the same time, it said that to search for and extract all of the records sought would cause a substantial and unreasonable interference with, or disruption to, the work of the Council. The applicants clarified that were seeking “all relevant personal information concerning the family’s housing application.”
Following a request for an internal review of the deemed refusal of their request, the Council part-granted the request on 10 June 2022. It said no record exists outlining where the applicants were placed when the electronic system provided a list of bids received and refused this part of the request under section 15(1)(a) of the Act. It provided a list of all bids received for the property specified by the applicants and redacted the personal information of third parties under section 37 of the Act. It also provided the applicants with copies of email representations to the Council by advocates on their behalf and a copy of their credit time review. On 7 July 2022, the applicants applied to this Office for a review of the Council’s decision. In their application to this Office, they argued that the information released was incomplete and provided details of a range of records they expected to be released on foot of their request.
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 between the applicants and the Council as outlined above, and to communications between this Office and both the applicants and the Council on the matter. 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 its decision to refuse access, under section 15(1)(a) of the Act, to further records relating to the applicants on the ground that no further relevant records exist.
Having regard to the applicant’s submissions to this Office, I wish make the following preliminary comments.
First, in their correspondence with this Office, the applicants expressed concerns about the Council’s handling of their FOI request. While I have noted the applicants concerns, it is important to note that this review has been conducted under section 22(2) of the Act, which is concerned solely with a review of the decision actually taken on their request.
Secondly, in their submissions to this Office, the applicants requested that this Office undertake an investigation under section 44 of the Act. Amongst other things, section 44 empowers this Office to carry out investigations into the practices and procedures adopted by FOI bodies generally or any particular FOI body or bodies for the purposes of compliance with the provisions of the Act. A decision to undertake a general investigation under section 44 of the Act is not one that is taken lightly and is quite uncommon.
Among the factors considered in deciding whether to initiate an investigation and publish a report are the resources currently available to the Office, whether the process and outcome are likely to be concerned with systemic issues within public bodies, and whether the investigation has broad public interest implications or has potential to bring about improvement in FOI practices and procedures across the public sector. To date, this Office has conducted only a small number of investigations under section 44, all of which involved more than one public body and had wider relevance across the public service. In the particular circumstances of this case, I am satisfied that an investigation under section 44 is not warranted.
Thirdly, section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall generally be disregarded. This means that this Office cannot have regard to the applicants’ 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 (not relevant in this case).
Section 15(1)(a) of the 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 his/her 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. It is important to note that a review by this Office is not concerned with access to records that a requester believes ought to exist.
It is the applicants’ position that further relevant records relating to their housing application exist. They said they sought access to their full housing file. They said they were not provided with information concerning their CBL bid or the completion of their credit review. They identified a number of records as missing from their file including several emails dating back to 2013. They said no emails prior to 2020 were released to them by the Council.
During the course of the review, the Council made the following submission to this Office:
"Records released on foot of this FOI include those dealing with their CBL bid, representations made on their behalf & Credit review. These are the records the requester specifically requested."
Following receipt of the Council’s submission, the Investigating Officer queried why the Council had limited the scope of the request to the applicants' CBL bid, representations on their behalf and credit review, when it seemed apparent to her that the applicants had sought access to their full housing file. In response, the Council said the applicants have had a number of contemporaneous processes ongoing in relation to their housing application and various records were already released in different forums. It said it was satisfied the applicants had their full file at their disposal through various avenues and it was not appropriate to release the records again. It said had it taken a broader interpretation of the request, it would have refused the request and relied on section 15(1)(i) of the Act.
I fully accept that had the Council taken a broader interpretation of the request, it may well have been in a position to rely on section 15(1)(i) of the Act to refuse many, if not all, of the records sought. That section provides for the refusal of a request where the records sought were already released, either to the same or a previous requester, and where the records are available to the requester concerned. I can fully understand an FOI body not wishing to have to process repeat requests for the same records. Nevertheless, I am satisfied that the Council took an unduly narrow interpretation of the request in this case. As I have outlined above, in the course of their communications with the Council, the applicants clarified that were seeking “all relevant personal information concerning the family’s housing application”. I also note that in their application for an internal review on foot of a deemed refusal by the Council, the applicants appeared to express concern that they had not received their full housing file.
It seems to me that the Council had sufficient information on hand to enable it to determine that the applicants (i) sought their housing file and (ii) believed they had not received their full file. In circumstances where the Council failed to address the request for the full housing file, I fail to see how the applicants could reasonably be expected to be assured that the full file had, in fact, been released previously. In my view, the Council should more appropriately have scheduled and refused access to those records it released previously under section 15(1)(i), following which the applicants would have been better placed to make an informed decision as to whether they believe other relevant records should exist.
Moreover, as things stand, this Office is simply not in a position to determine whether the Council was justified in its decision to refuse access, under section 15(1)(a) of the Act, to further records relating to the applicants on the ground that no further relevant records exist, in circumstances where we have no knowledge of precisely what records have been released to date.
In all of the circumstances, I consider that the most appropriate course of action to take in this case is to annul the Council’s decision on the applicants’ request and to remit the matter back to the Council to consider the applicants’ request afresh and make a new, first instance, decision in accordance with the provisions of the FOI Act. The applicants will have a right to an internal review and a review by this Office if they are not satisfied with the Council’s decision.
I also wish to address the matter of the bid list for a specified property sought by the applicants. I outlined above that the Council refused the applicants’ request for “where [the applicants] were placed when the electronic system provided a list of the bids received” on the ground that no such record exists. However, I also note that it provided the applicants with a bid list for the specified property, which seems to me to be at odds with its refusal under section 15(1)(a) of the Act. Following queries by this Office on a number of related matters, the Council said it interpreted the request as a request for where the applicants were placed on a listing based on their housing need category [which does not exist]. I do not accept that interpretation of the applicants’ request.
The Council said a ranked listing in order of longest credit time was provided to the applicants. It said the list, an Excel spreadsheet, displayed the applicants’ position with the personal information of other bidders redacted. The applicants contested the Council’s assertion that they were given their ranking on the list. Having reviewed the copy of the bid list provided to the applicants, I am satisfied that the spreadsheet does not contain row numbers, nor did the Council indicate that the applicants’ placing on that list represents their actual placing on the bid list. Accordingly, I direct the Council to include this part of the request when considering the request afresh.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Council’s decision. I direct the Council to conduct a new decision-making process on the applicants’ request for access to records concerning their housing application.
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