Decision
Ms X and Dublin City Council
From Office of the Information Commissioner (OIC)
Case number: OIC-158969-L2D9Y9K
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-158969-L2D9Y9K
Published on
Whether the Council was justified in refusing access, under section 15(1)(a) of the FOI Act, to further relevant records relating a residential property on the ground that no further records exist or can be found and whether it was justified in redacting certain information from the records released under section 37(1) of the FOI Act
10 April 2026
On 20 December 2024, the applicant submitted a request to the Council for records concerning a specified residential property. Specifically, she sought a copy of an inspection request she had submitted to the Council on 11 May 2021, and certain identified Council communications made on specified dates. Following the Council’s failure to deal with the request, the applicant contacted this Office. On 16 May 2025, the Council issued its effective position on the request wherein it said it decided to release records with certain redactions under section 37 of the FOI Act, which is concerned with the protection of third-party personal information. It granted access to 52 records in full and 15 records in part. On 29 May 2025, the applicant informed this Office that she wished to proceed with a review of the Council’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 correspondence outlined above, and to the correspondence between this Office and both parties on the matter. I have decided to conclude this review by way of a formal, binding decision.
The applicant is of the view that the Council holds further relevant records coming within the scope of her request. The Council’s position is that all relevant records within scope of the request have been released. This is, in essence, a refusal to provide further relevant records pursuant to section 15(1)(a) of the FOI Act which provides for the refusal of a request where the records sought do not exist or can be found.
Accordingly, the scope of this review is concerned with whether the Council was justified in refusing access, under section 15(1)(a) of the FOI Act, to any further relevant records coming within the scope of the applicant’s request, and in redacting certain information from part-granted records under section 37(1) of the FOI Act.
The applicant raised a concern regarding the authenticity of a record (record SRU 022689) in her correspondence with this Office. While she did not indicate why she believed that the record may not be authentic, the Council has confirmed that the copy of the record that was released is, indeed, an authentic record. Accordingly, I do not propose to give any further consideration to this matter.
I also note that in her application for review to this Office, the applicant raised several concerns about the Council’s handling of her request, including alleged breaches of the General Data Protection Regulation (GDPR). It is important to note that this review has been undertaken under section 22(2) of the Act and is concerned solely with the matters I have outlined within the “Scope of Review” section of this decision above.
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.
In its submissions to this Office, the Council said it decided to grant access to the applicant’s
full file on 16 May 2025 for her benefit as it would be easier to follow and understand. It said this approach has been taken with other FOI requesters as a Customer Care approach to benefit requesters. It said all records held within the scope of the request, as well as additional records for the applicant’s benefit, were released in full or part granted with redactions. It said records are recorded in “Action Diaries”. It said an Action Diary contains notes and links to records such as e-mails, letters etc. It said each Action Diary contains an index of notes and records and is effectively a schedule of records. It said that typically, a property will usually have a Service Request record (SRU) opened with its Action Diary recording the Service Request activity. It said that when a property is inspected, an Inspection record (INU) is opened with its Action Diary recording the Inspection record activity. It said that reading the Action Diary entries without the corresponding linked records available for reference may have made it more difficult for the applicant to follow.
The Council said that a record the applicant provided with her application for review to this Office, dated 15 May 2025, relates to a reply to a complaint she made about a member of staff and does not form part of the property file and is therefore outside the scope of the FOI request.
The Council said that with respect to the specific records requested by the applicant, the record labelled SRU 022689 was part released to the applicant. It said that a recheck was carried out with its Customer Services section to clarify if there was an automated response generated by its Case Management Computer System (CRM) for logging Service Requests. It said that the system was shut down when its new computer system was introduced and the CRM backup file only gives access to CRM Service Requests and there are no associated documents. It said that if this was the specific communication referred to in the request there is no longer any access to those documents. The Council said that there was correspondence for the inspection of the property in question for September and October 2021 between an Estate Agent and a Dublin City Council staff member (however the staff member mentioned in the applicant’s request was not part of the communication during the specific months in the applicant’s request). The Council said that there was correspondence between an Estate Agent and two Dublin City Council staff members, one of whom is noted in the applicant’s request, but they were not party to the communication until November 2021. The Council said that the only record for the time period after April 2022 and before October 2022, concerned a Time Extension Improvement letter between a Dublin City Council staff member and an Estate Agent. The Council said while that some of the applicant’s requests for records related to specific parties, it found the communications were between other parties. The Council said that the release of all records ensured that there was full release of the records sought.
The Council said that its Environmental Health Housing section carries out inspections of
private rented residential properties in its administrative area under the Housing (Standards for Rented Houses) Regulations 2019. It said that records relating to requests for inspections and the inspections are recorded in the Civica APP computer system and the local shared drive. It said that Action Diaries are used in the Civica APP to record activities and link to records on its shared drive. It said the primary locations for the records are within the Civica APP system or on the shared drive with those records linked to the Civica APP Action Diaries. It said that the Environmental Health Officer e-mails, private rented section e-mails, scanned correspondence, Customer Services (CRM system – since replaced by Citizen Hub system) are all saved to the shared drive and linked to the Action Diaries. The Council said that searches were carried out as follows:
1) The Action Diaries for the Service Request (SRU) and Inspections Update record (INU) were printed to identify the scope of the search in relation to the FOI Request.
2) Action Diaries were indexed by item number as well as a schedule of recorded actions and linked records. It said items may have a note, a link to a record or both.
3) The onscreen Action Diaries were checked entry by entry against the linked records for inclusion within the scope of the applicant’s request. All linked records identified were printed off for review and redaction as required.
4) The Environmental Health Officer was also consulted to ensure that all records were included.
The Council said that when a file is closed, the paper file records are checked to ensure that they have been scanned to the shared drive and linked to the Action Diary. It said the paper file is then shredded. The Council said that in this case the paper file only contained two paper records which were scanned in and linked to the INU Action Diary. It said the records were the contemporaneous notes taken at the first inspection and the re-inspection notes.
This Office’s Investigator provided the applicant with details of the Council’s submissions and invited her to comment. In response, the applicant provided copies of six documents, including a timeline and five email communications with third parties.
The FOI Act does not require absolute certainty as to the existence or location of records. What section 15(1)(a) requires is that the FOI body takes all reasonable steps to locate relevant records. The question I must consider, therefore, is whether the Council has, at this stage, taken all reasonable steps to ascertain the whereabouts of the specific records sought.
The applicant appears to be of the view that further relevant records coming within scope of her request should exist. As I have outlined above, she was given an opportunity to provide evidence to support that view following her consideration of the details of the searches undertaken by the Council and its explanation as to why it considers that no further records exist. We would generally expect that such evidence may comprise information that suggests that further searches or enquiries would be reasonable, e.g. details of the applicant’s interactions with particular staff or sections of the FOI body in relation to the subject matter of the records where the staff or sections concerned have not already been contacted or searched. Where an FOI body claims that a record did not exist, the applicant might provide information or evidence to suggest that the record did, in fact, exist. This could, for example, include documents which indicate the existence of the record. However, we do not generally expect FOI bodies to carry out extensive or indefinite general searches for records simply because an applicant asserts that records sought ought to exist.
Having examined the additional documentation the applicant submitted in response to the Council’s submissions, I am not satisfied that it suggests that further relevant records should exist or that additional searches should have been undertaken by the Council. Having regard to the evidence before me, and in the absence of any evidence to suggest that further specific searches might be warranted, I find that the Council has, at this stage, taken all reasonable steps to locate the records sought by the applicant in her request and that it has adequately explained why no further records exist or can be found. Accordingly, I find that the Council was justified in refusing access to further relevant records under section 15(1)(a) of the FOI Act on the basis that no such records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.
Section 37(1) provides for the mandatory refusal of a request where access to the record concerned would involve the disclosure of personal information relating to an individual other than the requester. Personal information is defined in section 2 of the FOI Act as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or their family or friends or, (b) is held by a public body on the understanding that it would be treated by it as confidential. The FOI Act also details 14 specific categories of information that is personal information without prejudice to the generality of the forgoing definition.
Certain information is excluded from the definition of personal information. Paragraph (I) of section 2 provides that where the individual holds or held a position as a member of the staff of an FOI body, the definition does not include the name of the individual or information relating to the position or its functions or the terms upon and subject to which the individual occupies or occupied that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of the functions aforesaid. The exclusion at Paragraph (I) does not provide for the exclusion of all information relating to current or former staff members of FOI bodies. This Office considers that the exclusion is intended to ensure that section 37 will not be used to exempt the identity of a staff member of an FOI body in the context of the particular position held or any records created by the staff member while carrying out his or her official functions. The exclusion does not deprive staff members of FOI bodies of the right to privacy generally.
This Office sought clarification from the Council concerning the redaction of a mobile telephone number in records SRU 022689 (items 16 and 18). In response, the Council said the telephone number was a business telephone number and not a private telephone number belonging to a Dublin City Council staff member. I find, therefore, that this information is not personal information for the purposes of the FOI Act and that section 37(1) does not, therefore, apply. While it is likely to be of little benefit to the applicant, I direct the release of that information on the basis that it is not exempt from release.
The remaining records at issue concern communications between the applicant and the Council regarding repairs to a rented residential property. Among other things, they contain details of individuals who are not directly employed by Dublin City Council, contracted or funded by the Council.
I am satisfied that the release of the records would involve the release of personal information relating to third party individuals and that section 37(1) therefore applies to record SRU 022689, SRU 022689 records (items 1, 9(a), 9(c), 19(a), 25(a), 26(a) and 33(a)) and INU 033889 records (items 9, 10, 12, 25(a), 27 and 28). However, section 37(1) is subject to the other provisions of section 37, which I will examine below.
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 such other form as may be determined, to its disclosure to the requester,
c) information of the same kind as that contained 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 its 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,
In her application for review, the applicant contended that the name of one of the individuals in the redacted records is publicly available on the RTB website since October 2022. In its submission, the Council said that the RTB does not publish landlord details, tenant information, rent amounts, or tenancy start dates on its website. Having considered the applicant’s statement, I can find no reference on the RTB website to the individual she has referred to in her application. I am satisfied that none of the provisions of section 37(2) apply in this case.
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 “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 to this Office, the Council said it considered the public interest and took into account the following factors in favour of release:
• Ensuring openness and transparency of organisational functions to the greatest possible extent,
• The public interest in members of the public exercising their rights under the FOI
• That there is more than just a transitory interest by the public in this information,
• The right to privacy is outweighed by the needs of the public.
It said that in considering the public interest factors which favour withholding the records it took account of the following:
• Allowing a public body to hold personal information without undue access by members of the public,
• That the organisation can conduct its business in a confidential manner,
• That there is a reasonable and implied expectation that personal information provided to Dublin City Council will remain confidential,
• That there is no overriding public interest that outweighs the individual's right to privacy.
The Council said that it decided that the public interest in preserving the personal information and the reasonable expectation that information can be maintained in a confidential manner by the Council outweighs the public interest which would be served were the records released. The applicant made no specific submissions in respect of the applicability of the public interest test at section 37.
I accept that there is a strong public interest in openness and accountability in relation to the manner in which public bodies carry out their functions in dealing with individuals and in relation to the information they hold on individuals. What I must consider is whether those public interests are sufficiently strong to outweigh the public interest in protecting privacy.
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). 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.
The third party information contained in the records, while not particularly sensitive, remains personal information. Having considered the matter, and bearing in mind the strong public interest in protecting the right to privacy, I do not accept that there is any public interest in releasing the information at issue, essentially to the world at large, that outweighs 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 record SRU 022689, SRU 022689 records (items 1, 9(a), 9(c), 19(a), 25(a), 26(a) and 33(a)) and INU 033889 records (items 9, 10, 12, 25(a), 27 and 28).
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 its refusal, under section 15(1)(a) of the FOI Act, to release any further records coming within scope of the applicant’s request, on the ground that no further relevant records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.
I find the Council was justified in refusing access, under section 37(1) of the Act, to certain third party personal information in record SRU 022689, SRU 022689 records (items 1, 9(a), 9(c), 19(a), 25(a), 26(a) and 33(a)) and INU 033889 records (items 9, 10, 12, 25(a), 27 and 28). I find that it was not justified in redacting, under section 37(1), certain information in SRU 022689 records (items 16 and 18) and I direct release of the records in full.
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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.
Stephen Rafferty
Senior Investigator