Decision
Ms X and Wexford County Council
From Office of the Information Commissioner (OIC)
Case number: OIC-150010-V7N2X9
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-150010-V7N2X9
Published on
Whether the Council was justified in refusing access to records relating to correspondence between a named Council official and the Department of Children, Equality, Disability, Integration and Youth (the Department) in relation to applicants for International Protection and to accommodation for Ukrainian applicants
17 December 2024
In a request dated 5 April 2024, the applicant sought access to copies of all correspondence between a named Council official and representatives of the Department, for the period 1 January 2023 until the date of the request. On 16 April 2024, the applicant refined her request to indicate that in particular she sought access to correspondence between the relevant parties in relation to the matter of “IPAS [the International Protection Accommodation Services] and Ukrainian accommodation in the Enniscorthy district” for the specified period of time.
In a decision dated 25 April 2024, the Council refused the applicant’s request, citing sections 36(1)(b) and 32(1)(a)(ix) of the FOI Act as grounds for its decision. On 13 May 2024, the applicant requested an internal review of the Council’s decision. In its internal review decision of 4 June 2024, the Council affirmed its original decision to refuse the request. On 24 June 2024, the applicant applied to this Office for a review of the Council’s decision. In additional correspondence from the Council to the applicant dated 31 July 2024 (issued on foot of a notice from this Office to the Council under section 23 of the FOI Act, a matter I address further below), it provided more details in relation to the basis for its decision to refuse the 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 submissions made by the Council in support of its decision, as well as to the correspondence exchanged between the parties and to the applicant’s comments in her application for review. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.
This review is solely concerned with whether the Council was justified, under sections 36(1)(b) and 32(1)(a)(ix) of the FOI Act, in refusing access to the records sought by the applicant.
Before I outline my analysis and findings in this matter, there are some preliminary points I wish to make. Firstly, I wish to note that section 22(12)(b) of the FOI Act provides that, when the Commissioner 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 the Commissioner that its decision to refuse access to the records was justified.
Furthermore, I wish to note that Section 13(4) of the FOI Act provides that, subject to the legislation, 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. Thus, while certain provisions of the FOI Act implicitly render the motive of the requester relevant, as a general rule, the actual or perceived reasons for a request must be disregarded in deciding whether to grant or refuse an access request under the FOI Act.
In addition, I note that in this case this Office deemed it necessary to issue a notice to the Council under section 23 of the FOI Act. Section 23 provides that where the reasons given by an FOI body in its decision to refuse an FOI request are inadequate, the Commissioner shall direct the head of the FOI body to furnish to the requester and the Commissioner a statement containing any further relevant information. In the circumstances, it is incumbent upon me to remind the Council of its obligation under section 13(2)(d) of the FOI Act to provide reasons for its refusal of an FOI request and, as outlined above, of the fact that under section 22(12)(b) the onus is on the Council to justify any such refusal. In line with these provisions of the FOI Act, and as a matter of best practice, the Council should take steps to ensure that its decisions on FOI requests that it receives are fully and adequately reasoned.
In its decision on the applicant’s FOI request, the Council identified 27 records that fell within the scope of the request, to which it refused access in full. The Council cited section 36(1)(b) as a basis to withhold record 1, and section 32(1)(a)(ix) as a basis to withhold records 2-27.
Each of the records at issue comprises email correspondence between the Council official named in the applicant’s request and the Department, within the time period specified in the request. Some of the records are standalone emails, while others are threads of email correspondence back and forth between the Council and the Department, some of which incorporate content which is repeated across various records.
As the Council relied on section 32(1)(a)(ix) to withhold access to 26 of the 27 records at issue, I consider it appropriate to examine the potential applicability of this provision of the FOI Act first of all.
Section 32 of the FOI Act protects certain records relating to law enforcement functions, public and personal safety, criminal and civil proceedings, the security of certain institutions and the security of certain communications systems. It also protects certain records where access to those records could reasonably be expected to facilitate the commission of an offence. Subsection (1)(a)(ix) of section 32 provides that an FOI body may refuse to grant an FOI request if access to the record(s) concerned could reasonably be expected to prejudice or impair “the security of a building or other structure or a vehicle, ship, boat or aircraft”.
Section 32(1)(a) is a harm-based exemption. In other words, where an FOI body seeks to rely on this section of the FOI Act, it should identify the potential harm to the matters specified in the relevant sub-paragraph that might arise from disclosure of the relevant record(s) and, having identified that harm, consider the reasonableness of any expectation that the harm will occur. In doing so, the FOI body should show how or why releasing the particular record(s) could reasonably be expected to cause the harm which it has identified.
This Office takes the view that the words "prejudice" and "impair" were not intended to be synonymous and so, taking their ordinary literal meaning, the FOI body should consider whether the matter specified could reasonably be expected to be prejudiced (that is to say, injured or potentially injured) or could reasonably be expected to be impaired (that is to say, damaged or weakened). In addition, as noted above, section 32(1) provides that an FOI body may refuse a request if access could “reasonably be expected to” lead to the harms detailed in paragraph (a). In interpreting the words “could reasonably be expected to”, the view of this Office is that the test is not concerned with the question of probabilities or possibilities, but rather with whether or not the decision maker's expectation is reasonable. The harm identified must be a harm to a matter specified in the relevant subparagraph of section 32(1)(a) and, having identified that envisaged harm, the FOI body must show how release of the particular record(s) could reasonably be expected to result in that harm. A mere assertion of an expectation of harm is not sufficient.
In its submissions, the Council argued that section 32(1)(a)(ix) applied to records 2-27 on the basis that, given the recent high-profile instances of arson and public order at premises identified or considered for accommodation for beneficiaries of, or applicants for, international protection (IP), there was ample evidence that releasing such details could lead to an attack on an identified premises, with risk to surrounding residents and/or premises. The Council also stated that the potential for an attack on, or protests or unrest in the vicinity of, any such premises would lead it to have concerns for the safety of local residents. The Council stated that it had a reasonable expectation that the public identification of relevant premises may put at risk the health and safety of contractors, civil and public Servants and any potential IP applicants who were housed there. The Council also noted that the release of records under FOI is, in effect, regarded as release to the world at large, given that the FOI Act places no constraints on the uses to which the information contained in records released under FOI may subsequently be put.
In addition, the Council noted – although I am not convinced that these arguments necessarily engage directly with the provisions of section 32(1)(a) – that there is a need to preserve confidentiality regarding the subject matter and the circumstances of the communications contained in the records at issue, particularly when no decision has been made to use any premises for the relevant purposes, and also that the release of the records would impair future discussions and therefore limit the options available. The Council also argued that the premature release of the information sought would cause unnecessary concern and upset, particularly where the location may ultimately not be chosen as a site to house applicants for international protection.
In relation to the specific buildings the security of which could the Council believes could be prejudiced or impaired by the release of the records, it identified a number of particular premises that were cited in the records as potential sites for housing IP applicants. The Council argued that it was reasonable for it to assume that, given the recent high-profile instances of arson against premises identified as, or set to become, accommodation for applicants for or beneficiaries of IP, that releasing such details could lead to an attack on the specific premises. Furthermore, the Council stated that it was reasonable to assume that if records detailing the location of objectors or concerned citizens could lead to the identification of properties, those sites could be put at risk, particularly in small local areas. Regarding the manner in which the release of the specific information in the records could result in these harms, the Council argued that the information in the records could lead to the risk of arson and civil unrest on the premises identified. It stated that, while some time had passed since the original FOI request, the threat of antisocial and/or criminal behaviour related to the issue of housing for IP applicants remains, and indeed (in the view of the Council) had intensified rather than dissipated.
In her application for a review of the Council’s decision, the applicant pointed out that she had made a similar FOI request to a separate county council, and that the other Council had released the information she had sought in full. She argued that there should be consistency in the manner in which county councils responded to similar FOI requests. Furthermore, she argued that the Council could have released the records with redactions to protect the material it considered could lead to the harms under section 32(1)(a) that it had identified.
I have considered the arguments of both parties in the context of the contents of the relevant records, and I find as follows. First of all, I consider that the Council has identified a relevant harm for the purposes of section 32(1)(a)(ix), namely that the security and safety of the buildings identified in the records would be prejudiced or impaired by their identification by way of the release of the records. In relation to the Council’s expectation that the safety of local residents, civil and public servants, contractors, etc, may be similarly prejudiced or impaired, I would note that, while generally speaking information in records that would lead to such harms might be exempt from release under separate provisions of the FOI Act not relied on by the Council, these are not matters addressed by paragraph (ix) of section 32(1)(a), which by its very nature is limited in scope.
As to the question of the reasonableness of the Council’s expectation of the harm I have identified as relevant for the purposes of section 32(1)(a)(ix), I would fully accept the Council’s position that a number of high-profile recent instances of disorder, protest, unrest and damage have taken place at sites across the country that have either housed, or were suggested as being used to house, IP applicants or beneficiaries. These matters have been extensively covered in the media. It is beyond question that issues related to Ireland’s international protection obligations, and the extent to and manner in which IP applicants should be housed, have led to widespread controversy and, in some cases, violence and damage to property in recent months. This is not to suggest that the applicant’s own motives for making her request are anything other than benign. Indeed, as outlined above, section 13(4) of the FOI Act provides that, except in limited circumstances which are not at issue here, the actual or perceived reasons that an applicant has for making an FOI request must be disregarded.
What is of more significance, in my opinion, is the fact that – as correctly identified by the Council – the FOI Act places no restrictions or constraints on the uses to which information released under FOI may subsequently be put. Therefore, release of information under FOI is not generally considered to be release to any single individual. On the contrary, such release must be regarded as disclosure of the information effectively, or at least potentially, to the world at large. Given this fact, and given the very well-documented instances of disorder, violence and damage to properties in the context of the manner and location in which the State houses IP applicants and beneficiaries, it is in my view not unreasonable to suggest that the potential exists for information relating to possible or actual accommodation centres to come to the attention of parties who may seek to engage in such activities. It follows that it is not unreasonable to suggest that the potential exists for the security and safety of the relevant buildings to be impaired or prejudiced by the release of the information at issue. It is of relevance in this regard that the test to be applied when considering whether an FOI body’s expectation of harm is reasonable is not one of certainties – that is to say, this Office need not be satisfied that the harms that the body asserts would follow from the release of the records would definitely occur. This Office only need be satisfied that the body’s expectation of harm is reasonable. In other words, it is sufficient for the FOI body to show that it expects an outcome and that its expectations are justifiable, in that there are adequate grounds for the expectations. I consider that, on the basis of the information contained in the records, and in the context of recent disorder and unrest that I have outlined above, it is not unreasonable for the Council to suggest that the release of the information in the records that identifies relevant buildings could both prejudice and/or impair the security of those premises.
I note that section 32(3) contains a limited public interest test, which requires me to consider, in certain circumstances specified in paragraph (a)(i) or (a)(ii) of section 32(3), whether on balance the public interest would be better served by granting rather than by refusing the FOI request. I am satisfied that none of the circumstances specified in sections 32(3)(a)(i) or (ii) apply in this case.
I wish to address the applicant’s arguments that, firstly, a different county council to which she made a separate, similar request had released the information to her, and secondly, that the Council could have released the records to her with redactions, rather than withholding them in full. With regard to the applicant’s first argument, it is not within my remit to comment upon the manner in which an FOI body may have responded to a separate FOI request which is not the subject of a review by this Office. Generally speaking, each review conducted by this Office must examine the FOI request, and the relevant FOI body’s decision on the request, on the individual merits of each, and in light of the particular contents of the specific records at issue. There is no requirement that separate FOI bodies, even those whose functions might be broadly analogous, must respond in similar or identical fashion to similarly-worded requests. This is especially so given that the manner of any such response will necessarily be dictated by the nature of the records that the FOI body holds, and that relevant records held by different FOI bodies are likely to vary in content. In respect of the applicant’s second argument, I would note that, had the Council decided to redact information from the records, rather than withhold them in full, it seems to me (given the nature of the arguments made by the Council) that the information it might have chosen to redact would in all likelihood have been the very information in the records to which the applicant seeks access.
Accordingly, in light of the above analysis, I am satisfied that records 2-27 are exempt from release under section 32(1)(a)(ix) of the FOI Act.
As outlined above, the Council cited section 36(1)(b) of the FOI Act to withhold access in full to record 1. Section 36(1)(b) provides for the refusal of access to a record where it contains financial, commercial, scientific or technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation. It should be noted that the essence of the test in section 36(1)(b) is not the nature of the information, but the nature of the harm which might be occasioned by its release.
The harm test in the first part of the exemption is whether disclosure of the information “could reasonably be expected to result in material financial loss or gain” and is concerned, not with probabilities or possibilities, but again with the reasonableness of an FOI body’s expectation. The body should outline the nature of the harm envisaged and a basis for a claim that the harm could reasonably be expected to flow from disclosure of the relevant information.
The second harm test in section 36(1)(b) is whether disclosure of the information “could prejudice the competitive position” of a person in the conduct of his/her profession or business or otherwise in his/her occupation. While this is a considerably lower standard of proof than in the first harm test, in invoking the phrase "prejudice” the damage which could result from disclosing the information must be specified with a reasonable degree of clarity.
In its submissions, the Council argued that section 36(1)(b) applied on the basis that, firstly, the information in the record is not in the public domain and is commercially sensitive to the businesses that had offered their premises to be used to house applicants for international protection. Secondly, in relation to the harm that would flow from the release of the record, the Council argued that the competitive position of the relevant company would be adversely affected. The Council also argued that the release of the information could be harmful to “the current process”, which I take to mean the process for sourcing suitable accommodation for IP applicants. I would note that I am not entirely convinced that harms to this process are matters that come within the scope of section 36(1)(b).
In her application for a review, the applicant made similar arguments to those that she made under section 32(1)(a)(ix), namely that a similar request to a separate council had resulted in the information sought being provided to her, and secondly that, rather than withholding the record in full, the Council could have released it with relevant financial, commercial, scientific or technical or other information redacted.
I have considered the arguments of the parties and have had regard to the contents of the record, and find as follows. Firstly, I accept that the record contains commercial information relating to a particular provider of accommodation to IP applicants (“the provider”), for the purposes of section 36(1)(b). In relation to the harms that might reasonably be expected to flow from the release of this information, it seems to me that the record (a thread of email correspondence exchanged between the Council and the Department) relates to issues relating to overdue payments to the provider. Furthermore, the information in the record suggests that the provider may be looking to have the current residents in his premises relocated to another accommodation centre, due to this non-payment.
I am not entirely satisfied that the test in the first part of section 36(1)(b) is met in terms of the harm that the provider might reasonably be expected to suffer from the release of this material. While it would appear from the record there are, or have been, issues with the provider receiving payments that are due to it from the Department, it is not totally clear to me how the release of this information might reasonably be expected to cause the provider to suffer material financial loss. Nor do I consider that the Council has elucidated any basis on which it would expect such a result to flow from the release of the record. I am therefore not satisfied that the harm test in the first part of section 36(1)(b) is met.
As noted above, the harm test in the second part of section 36(1)(b) is a considerably lower standard of proof. What must be demonstrated for this test to be met is that the release of the record “could prejudice the competitive position” of the relevant party. I am more satisfied that the information in the record meets this standard. It does not seem to me unreasonable to suggest that, for example, if it became known that the provider was no longer willing to house IP applicants, competing businesses that owned premises in the same area could offer their services to the Department in its stead, thereby strengthening their competitive position at the expense of the provider. In this regard, it is relevant to once again note that the release of information under FOI is generally considered to effectively – or at least potentially – constitute release to the world at large.
With regard to the applicant’s arguments under section 36(1)(b), the position is the same as that which I have outlined above in relation to her arguments under section 32(1)(a)(ix), and I make the same finding in respect of these arguments.
Accordingly, I am satisfied that the relevant information in the record is sufficient to meet the harm test in the second part of section 36(1)(b), and it therefore comes within the scope of the exemption in section 36(1). However, the matter does not end there, as section 36(3) provides that subsection (1) shall not apply if, on balance, the public interest would be better served by granting than by refusing access to the records at issue.
In examining where the balance of the public interest lies in this case, I have considered section 11(3) of the FOI Act which provides that, in performing any functions under the legislation, FOI bodies must have regard to, among other things, the need to achieve greater openness in their activities 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 their decision making. I am also cognisant of 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 which the Court held 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”.
In its submissions, the Council stated that, in weighing up where the correct balance of the public interest lay in this case, it had considered the public interest in ensuring that a person or company should not be unduly impeded in the effective pursuit of its business; in ensuring companies that engage with public bodies do not suffer any disadvantage because of the premature release of information; and in ensuring that the Council was able to make informed decisions in the course of carrying out its functions and in being able to maintain the confidentiality of its deliberative process in some circumstances, particularly where those deliberative processes relate to ongoing negotiations. The Council did not identify any specific public interest factors that it had considered in favour of release.
In her application, the applicant did not specifically address the public interest in section 36(3). However, she did indicate that she had concerns regarding the manner in which the Council had responded to her request (as outlined above, comparing its response to that of a separate council to which she made a similar request). I consider that the applicant has essentially expressed a private interest for seeking access to the records. This being said, I would accept – though neither party argued as much before this Office – that there is an arguable public interest in residents of a locality being able to obtain from FOI bodies information in the control of those bodies about developments in the area, of the kind that are addressed in the record. At the same time, I am of the view that the specific information in the record would further such a public interest in no significant manner, if at all.
Furthermore, I note that section 36(1) itself reflects the public interest in the protection of commercially sensitive information. The view of this Office is that there is a public interest in protecting the commercially sensitive information of third parties, and furthermore that there is a legitimate public interest in persons being able to conduct commercial transactions with public bodies without fear of resultant commercial harm. As a general principle, I do not believe that the FOI Act was intended to enable scrutiny of the operations of private enterprises. 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. I find, therefore, that section 36(3) does not apply and that the Council was entitled under section 36(1)(b) to withhold record 1.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Council. I find that it was entitled, under section 36(1)(b), to refuse access to record 1 and, under section 32(1)(a)(ix), to refuse access to records 2-27.
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.
Neill Dougan
Investigator