Decision
Ms Y and Wexford County Council
From Office of the Information Commissioner (OIC)
Case number: OIC-161144-W2F4Q0
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-161144-W2F4Q0
Published on
Whether the Council was justified in refusing access, under section 15(1)(a) of the FOI Act, to further records relating to the applicant’s social housing support applications on the ground that no further records exist or can be found and whether the Council was justified in redacting third party personal information from the records it released to the applicant under section 37(1) of the Act
In a request dated 17 February 2025, the applicant’s advocate requested all records relating to her client’s applications for social housing supports, including but not limited to documentation related to her requests for allocation of suitable housing on medical priority grounds. Reference to the applicant in this case may also refer to her advocate.
In a decision dated 21 March 2025, the Council part granted the applicant’s request, releasing a number of records from her Social Worker file and her Homeless file, redacting third party personal information under section 37(1) of the Act. On 15 April 2025, the applicant’s advocate requested an internal review of the Council’s decision, stating that her client wished to query why some information was redacted from her records. She said that the applicant also believed that the following records had not been provided:
• Files held by the Area Housing Officers, including all Social Housing application forms, HMD-1 forms and additional files/reports attached or forwarded at a later date.
• Records of contacts made with the Access Department/Access Officer.
• Attachments to emails and in particular evidence provided by the applicant of both hers and her child’s medical needs.
• Records regarding the allocation process and offer of accommodation.
• Records to evidence where the Housing Social Worker forwarded the applicant’s medical reports submitted by her Advocate.
• Records regarding the applicant’s requests to have a social worker appointed, with the initial request for this going back to April/May 2023, in relation to which the applicant maintains there should be email and telephone records.
On 14 May 2025, the Council affirmed its original decision, save for the reversal of some redactions that it originally made in pages 6-10 of the applicant’s Homeless file. On 1 August 2025, the applicant applied to this Office for a review of the Council’s decision, stating that she had requested her complete Housing file, but that it was only part-granted.
On 3 October 2025, following a request from the Investigating Officer for focused submissions, the Council released a number of further records to the applicant, including five email records from its Access Section (which the Council said it had initially mistakenly overlooked), 74 other emails regarding various aspects of her social housing and homeless applications, and records from its iHouse system. The Council redacted some of these records under section 37(1) of the Act. Subsequently, following further requests from the Investigating Officer, the Council located and part-released another 42 records on 11 November 2025, again with certain information redacted under section 37(1).
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 Council and by the applicant. I have also had regard to the records at issue. I have decided to conclude this review by way of a formal, binding decision.
The applicant’s position is that the Council did not provide all relevant records coming within the scope of her request. Accordingly, the scope of this review is concerned with whether the Council was justified in refusing access, under section 15(1)(a) of the Act, to further records within the scope of the applicant’s request.
The applicant also requested a review of the information the Council redacted in the records it released to her in its original and internal review decisions. This review is therefore also concerned with whether the Council was justified in redacting certain information under section 37(1) of the Act from those records it released when processing the applicant’s request. For the reasons I will outline below, I have not considered the information redacted by the Council in the two tranches of additional records it located during the course of this review.
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 to the reasoning used by the decision maker in arriving at his/her 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 records management practices of the FOI body, insofar as those practices relate to the records in question.
While I have not repeated the Council’s submissions in full here, I can confirm that I have had regard to them for the purposes of this review. In its submissions to this Office, the Council said that its Decision Maker contacted the applicant’s advocate to clarify the documents required. The Council said that the FOI request was clarified as follows, “Homeless Service, Social Work and the records held by the Area Housing Officer, including her housing application form and any correspondence with the Access Section”. The Council said that these were the only records that were within the scope of the request.
The Council said that the applicant’s physical housing file cannot be found. It said that her iHouse (electronic) file has been printed and released to her. The Council also said that there are many emails that can be made available, with redactions for personal information, although, it said, this was not part of the applicant’s clarified request. The Council provided details of the searches it undertook to locate the records sought by the applicant, including her hard copy housing file.
As noted above, on two separate occasions during the course of this review the Council located a number of additional records, which I understand it subsequently part-released to the applicant during October and November 2025, respectively. The Council made a substantial number of redactions to these records under section 37(1) of the Act on the basis that they contain personal information of individuals other than the applicant. While the Council explained how the records it released on 3 October 2025 came to light, it did not explain how the additional records located during November 2025 were found, or why these records had not been found or considered previously. Given the Council’s piecemeal approach to dealing with the applicant’s request, I cannot be satisfied that it has undertaken all reasonable steps to locate the records sought by the applicant, nor is it apparent that the Council informed the applicant that it cannot locate the hard copy of her housing file.
In the circumstances, I find that the Council’s effective refusal, under section 15(1)(a) of the FOI Act, to provide access to any further relevant records was not justified. Furthermore, I do not propose to consider the applicability of section 37 to the large tranche of records that the Council located during this review as these records have not been formally decided upon or considered in the course of the Council’s decision on the applicant’s request. While the Council may have released a redacted copy of these records to the applicant, she has not had the opportunity to formally seek a review of the redactions made by the Council. In the circumstances, I consider that the most appropriate course of action is to annul the Council’s decision to refuse access to any records that were not considered during its processing of the applicant’s original request, the effect of which is that it must consider the applicant’s request afresh and make a new, first instance, decision in accordance with the provisions of the FOI Act. The applicant will have a right to an internal review and a review by this Office if she is not satisfied with the Council’s decision.
Furthermore, it seems to me from the submissions made in this case that there is a difference of opinion between the applicant/her advocate and the Council about the scope of the applicant’s request. The Council contends that following a phone call and email exchange between one of its representatives and the applicant’s advocate in late February/early March 2025, the parties agreed to refine the applicant’s request. However, it is not clear to me from the emails provided that the advocate was, in fact, agreeing to a narrowing of the scope; indeed, the advocate’s internal review request on behalf of her client seems to indicate the contrary. I would encourage the Council, when considering the applicant’s request again, to engage with the applicant/her advocate to ensure an agreed understanding of the scope of the request. The Council should also make a fresh decision on access to the records it located during the course of this review and, in doing so, provide the applicant with a right of internal review of any redactions made to those records.
However, that is not the end of the matter as the applicant also sought a review of the information which the Council redacted, under section 37(1) of the FOI Act, in the records that it released with its original and internal review decisions.
In this review, for the reasons outlined above, I am only considering the redactions made by the Council to the records it released to the applicant in its original and internal review decisions. These records are described on the schedule that accompanied the Council’s decision as “Social worker file” and “Homeless file”.
Section 37(1) of the FOI Act 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 concerned 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). Essentially, this means that while section 37(1) does not provide a basis for refusing access to personal information that relates solely to the requester, the request shall be refused pursuant to section 37(7) if that personal information is inextricably linked to personal information relating to parties other than the applicant.
Section 2 of the FOI Act defines personal information as information about an identifiable individual that, either (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or (b) is held by an FOI body on the understanding that it would be treated by that body as confidential. Section 2 goes on to specify 14 categories of information which, without prejudice to the generality of the above definition, constitute personal information. It is important to note that the fact that a requester may be aware of the nature of the information at issue or may have even provided some of the information to the body in question does not mean that it cannot be regarded as personal information relating to a third party for the purposes of the FOI Act.
While section 22(10) of the FOI Act requires that I give reasons for my decisions, section 25(3) requires that I take all reasonable precautions to prevent the disclosure of information contained in an exempt record or matter that, if it were included in a record, would cause the record to be exempt. Therefore, the extent to which I can describe the redacted information at issue is somewhat limited. The redacted information in these records comprises the names or other personal information of third party individuals.
In its submissions to this Office, the Council stated that the records withheld under this section of the Act contain personal information of other individuals who are identifiable from the records. The Council explained that it does not have the consent of these third parties to release their personal information and that, in the circumstances, it does not believe that it is appropriate for their consent to be sought as on balance, it is not in the public interest. The Council concluded that it is therefore its decision that these documents are exempt from release.
The Council explained that some of the redacted information relates to employees of organisations which are not public bodies, i.e. Focus Ireland. The Council pointed out that in these cases it had only redacted names and mobile phone numbers such that it is obvious from the remainder of the record that the organisation is Focus Ireland. Having reviewed the records, I am satisfied that all of the information withheld comprises either personal information relating to other parties or joint personal information relating to the applicant and other individuals. I find, therefore, that section 37(1) applies. However, that is not the end of the matter as section 37(1) is subject to the other provisions of the section, specifically subsections (2) and (5). Accordingly, I must proceed to consider whether any of those other provisions serve to disapply section 37(1) in respect of any or all of the information at issue.
Section 37(2) provides that section 37(1) does not apply if:
a) the information concerned relates to the requester concerned,
b) the individual to whom the information relates consents, in writing or other such form as may be determined, to its disclosure to the requester,
c) information of the same kind as that available in the record in respect of individuals generally or a class of individuals that is, having regard to all the circumstances, of significant size, is available to the general public,
d) the information was given to the FOI body concerned by the individual to whom it relates and the individual was informed on behalf of the body, before it being so given, that the information belongs to a class of information that would or might be made available to the general public, or
e) disclosure of the information is necessary in order to avoid a serious and imminent danger to the life or health of an individual.
The purpose of section 37(2)(a) is to ensure that section 37(1) cannot apply to information relating solely to the requester. I am satisfied that the withheld information in the records that relates to the applicant is inextricably linked with personal information relating to third party individuals. I am satisfied, therefore, that section 37(2)(a) does not apply. No argument has been made that any of the circumstances outlined above at subsections (b) to (e) are relevant in this case, nor do I consider any to apply.
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 right to privacy of the individual to whom the information relates, or (b) the grant of the request would benefit the person to whom the information relates. No argument has been made that section 37(5)(b) applies in this case and I am satisfied that it does not apply.
Before I consider the applicability of section 37(5)(a), there are a number of important points to note. First, section 13(4) provides that, subject to the Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. In relation to the question of the public interest, this means that I cannot have regard to the applicant's motives for seeking access to the records at issue, except in so far as those motives reflect, or overlap with, what might be regarded as true public interest factors in favour of release of the records, i.e. insofar as the concerns raised in relation to the request may also be matters of general concern to the wider public.
Secondly, it is important to note that the release of records under the FOI Act must be regarded, in effect, as release to the world at large, given that the Act places no constraints on the uses to which a record released under the Act can be put. With certain limited exceptions provided for under the Act, FOI is not about granting access to information to particular individuals only and as noted above, a requester's reasons for making a request are generally not of relevance. Thus, records are not released under FOI for any limited or restricted purpose.
All of this means that in considering whether a right of access exists to records under section 37(5)(a) of the Act, any decision to grant access would be on the basis that there is an overriding public interest in the release of the records effectively to the world at large that outweighs the privacy rights of the third-party individuals concerned.
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 that“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 its submissions, the Council said that it considered the following factors in favour of release:
• the promotion of openness, transparency and accountability;
• the facilitation of scrutiny, discussion, comment and review of activities of FOI bodies;
• the enhancement of public participation in decisions that affect them, and
• the need to strengthen the accountability and improve the quality of decision making of FOI bodies.
The Council said that it considered the following factors to be against release:
• the public interest in protecting the right to privacy of employees of Focus Ireland;
• the public interest in public bodies being able to perform their functions effectively, and
• protecting the flow of information to public bodies.
The Council stated that there is a public interest in it being able to make informed decisions in the course of carrying out its functions and in being able to maintain the confidentiality of records submitted to it by individuals and companies. The Council concluded that, having reviewed the records, it found that there is no exceptional circumstance in this particular case that would warrant release of the personal information at issue, and that its decision is therefore that the public interest is best served by refusal.
I accept that there is a public interest in individuals ensuring that information held about them is accurate and in enhancing the transparency and accountability of public bodies such as the Council. It seems to me that those interests have been served to a significant degree by the release of the vast majority of the information within the records that the Council released, and it is not apparent to me that the release of the withheld information at issue would further enhance that transparency and accountability to any significant degree. The question I must consider is whether those public interest factors in favour of release of the withheld information outweighs, on balance, the privacy rights of the relevant third parties. In my view, they do not.
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 it 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. Moreover, even where an overriding public interest in granting the request exists, there is a discretionary element to the application of section 37(5)(a). While I accept that some of the information is not of a particularly sensitive nature, I must have regard to the fact that the release of the records must be regarded, in effect, as release to the world at large.
Having considered the matter and bearing in mind the strong public interest in protecting the right to privacy, I do not accept that the public interest in releasing the information at issue outweighs, on balance, the privacy rights of the relevant third parties. I am not satisfied that any sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure of the information at issue exists in this case. Accordingly, I find that section 37(5) does not serve to disapply section 37(1) in respect of the information at issue. In conclusion, I find that the Council was justified in refusing the information it redacted under section 37(1) of the Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Council’s decision. I find that the Council was justified in redacting third party personal information in the records it released with its original and internal review decisions under section 37(1) of the FOI Act. I find that the Council was not justified in refusing access to further records under section 15(1)(a) of the Act and direct it to undertake a fresh decision, in accordance with the provisions of the FOI Act, on access to any records that it did not consider when processing the applicant’s original request.
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.
Richard Crowley
Investigator