Decision
Mr X and Housing Agency
From Office of the Information Commissioner (OIC)
Case number: OIC-160119-G7J3J3
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-160119-G7J3J3
Published on
Whether the Housing Agency was justified under sections 15(1)(a), 32(1)(b) and 37(1) of the FOI Act in refusing access to records relating to applications made to it by the applicant under statutory schemes for financial assistance available to homeowners affected by the Irish defective block crisis
28 January 2026
By way of context, the applicant is a homeowner whose property has been affected by the well-publicised Irish defective block crisis, relating to homes which have been damaged by the use of defective concrete blocks during their construction. As part of the government response to the crisis, and by way of the Remediation of Dwellings Damaged by the Use of Defective Concrete Blocks Act 2022 (“the 2022 Act”), the Defective Concrete Blocks Scheme was established, under which affected homeowners can apply for financial support. This scheme was subsequently replaced by the Enhanced Defective Concrete Blocks Scheme, which provides for a broader and more comprehensive suite of remedial measures for affected homeowners. While it is not necessary here to go into the detail of either scheme (referred to hereinafter as “the redress schemes”), I note that the Housing Agency acts as agent to local authorities and has two main functions in relation to the current scheme: firstly, to determine whether or not a home meets the damage threshold for entry into the redress schemes, and secondly, to determine the appropriate remediation option and grant amount. For this purpose, the 2022 Act requires the Housing Agency to arrange for an engineer to assess relevant properties and make a report. The applicant has made an application to the Housing Agency under both redress schemes.
In a request dated 14 November 2024, the applicant sought access to records relating to the Housing Agency’s consideration of, and decision on, his application under the redress schemes, as well as all relevant correspondence between the Housing Agency and Donegal County Council.
In a decision dated 5 December 2024, the Housing Agency part-granted the applicant’s request. It identified 30 records as relevant to the request, of which it fully released 21 and partially withheld 9 pursuant to sections 37(1) and 32(1)(b) of the FOI Act. On 3 January 2025, the applicant sought an internal review of the Housing Agency’s initial decision. In its internal review decision of 24 January 2025, the Housing Agency affirmed its initial decision. On 27 June 2025, the applicant applied to this Office for a review of the Housing Agency’s decision.
In his request to the Housing Agency for an internal review of its initial decision, the applicant made certain comments which seemed to me to suggest a belief that additional records ought to exist which should have been considered for release. I followed up with the applicant in this regard and he confirmed his view that additional records ought to exist which should have been considered for release. I put the arguments of the applicant in this regard to the Housing Agency for comment, and in response it indicated that its position was that the additional records sought do not exist. I took the view that this amounted to an effective refusal of this aspect of the applicant’s FOI request under section 15(1)(a) of the FOI Act (relating to the administrative refusal of an FOI request where the records sought do not exist or cannot be found after all reasonable steps have been taken to locate them). Having advised the Housing Agency of my view in this regard, it made submissions under section 15(1)(a). I put the details of the Housing Agency’s submissions under section 15(1)(a) to the applicant and invited him to make any further submissions that he wished. The applicant subsequently made further comprehensive submissions which I have considered in full. I address the matter of section 15(1)(a) in more detail below.
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 Housing Agency as well as the applicant’s comments in his application for review. I have also had regard to the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision.
This review is solely concerned with whether the Housing Agency was justified, under sections 37(1) and 32(1)(b) of the FOI Act, in refusing access in part to the 9 records at issue, and under section 15(1)(a) of the FOI Act in refusing access to the additional records the applicant argued should exist.
Before I outline my analysis and findings in this matter, there are a number of preliminary points I wish to make. Firstly, I wish to highlight section 22(12)(b) of the FOI Act which, as the Housing Agency is aware, provides that a decision to refuse to grant an FOI request shall be presumed not to have been justified unless the FOI body satisfies the Information Commissioner that the decision was justified. This means that the onus is on the Housing Agency of satisfying this Office that its decision to refuse the request was justified in this case. In the case of The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (“the Enet case”), the Supreme Court found that the head of the FOI body dealing with the request must be conscious at all stages of the process that the overriding presumption is one of disclosure, with the result that any refusal to disclose must be fully reasoned and sufficiently coherent, fact specific, and logically connected to the document or record such that the justification is sufficient.
Secondly, it is important to note that a review by this Office is considered to be “de novo", which means that in this case, it is based on the circumstances and the law as they pertain at the time of the decision and is not confined to the basis upon which the FOI body reached its decision.
Furthermore, it should be noted 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.
I also wish to note that this Office has no role in adjudicating on how FOI bodies perform their functions generally, nor to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies. Our role in this case is confined to reviewing the Housing Agency’s decision regarding access to the 9 records at issue, as well as addressing the matter of the additional record that the applicant asserts may exist.
Moreover, it should be noted that the release of records under the FOI Act must be regarded, in effect, as release to the world at large, given that the legislation places no constraints on the uses to which a record released under FOI can be put. With certain limited exceptions provided for in the legislation which are not relevant here, 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.
Finally, it is important to note that, although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent the disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of certain relevant records is limited.
As noted above, in its decision on the applicant’s FOI request the Housing Agency partly withheld 9 records. It refused access in part under section 37(1) of the FOI Act to records 1, 9, 10, 12, 13, 28 and 29. The Housing Agency relied on section 32(1)(b) of the FOI Act to partly withhold access to records 18 and 19.
Bearing in mind the requirements of section 25(3), the records which are the subject of this review can be described as follows.
• Records 1 and 13 are spreadsheets showing a list of properties affected by defective blocks and containing identifying information relating to applicants such as names, addresses, telephone numbers and application reference numbers.
• Records 9, 28 and 29 are lists of applications under the redress schemes indicating whether a particular threshold (in relation to qualifying for assistance under the redress schemes) has been met.
• Records 10 and 12 are maps of parts of County Donegal showing the sites at which various houses affected by defective blocks are located.
• Records 18 and 19 consist of email correspondence between the Housing Agency and a consulting engineer, dated between 26 and 27 August 2024, in relation to applications under the redress schemes.
It should be noted that, in relation to records 1, 9, 13, 28 and 29, only one entry in each list relates to the applicant’s application under the redress schemes. The other entries in the lists relate to the applications of other homeowners.
Section 37(1) provides that, subject to the other provisions of the section, an FOI body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information relating to third parties. The effect of section 37 is that, generally speaking, access to a record shall be refused if it would involve the disclosure of personal information relating to individual(s) other than the requester, unless one of the other relevant provisions of section 37 applies.
Section 2 of the FOI Act defines personal information as information about an identifiable individual that either (a) would ordinarily be known only to the individual or to members of his/her family or to his/her friends, or (b) is held by an FOI body on the understanding that it would be treated by the FOI body as confidential. Furthermore, the FOI Act details 14 specific categories of information that is personal information without prejudice to the generality of the foregoing definition.
In addition, Paragraph (I) of section 2 of the FOI Act excludes certain information from the definition of personal information, including "... in a case where the individual holds or held office as a director, or occupies or occupied a position as a member of the staff, of a public body, the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or 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 ...". Similar information is excluded in the case of service providers under Paragraph (II) of section 2.
In the course of his exchanges with the Housing Agency and with this Office, the applicant did not address in detail the Housing Agency’s reliance on section 37(1). In its submissions regarding section 37(1), the Housing Agency stated that records to which section 37 had been applied contained the personal information of other applicants under the redress schemes, and in particular their names, reference numbers and geographical locations. The Housing Agency stated that all such redacted material comes within the definition of personal information, as it could be used to identify the individuals to whom it relates, and does not pertain to the applicant.
Having viewed the unredacted records, I consider that it is straightforwardly the case that all of the information redacted from records 1, 9, 10, 12, 13, 28 and 29. is the personal information of individuals other than the applicant. There is no additional information redacted from these records that is not personal to other individuals. As the Housing Agency has stated, the redacted information contains the names, references numbers under the redress schemes, and geographical locations of affected properties, all of which relate to individuals other than the applicant. The unredacted information – in other words, the material in the records that has been released to the applicant – is the small amount of information in each of the above records that relates solely to the applicant, his property and his applications under the redress schemes. I fully accept that the redacted information in the records is personal, for the purposes of section 2 of the FOI Act, to individuals other than the applicant, and is therefore squarely within the scope of section 37(1).
However, the matter does not end there, as 37(1) is subject to the other provisions of section 37. Section 37(2) provides that section 37(1) does not apply in certain circumstances. I am satisfied that no such circumstances arise in this case and that section 37(2) does not, therefore, 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. I am satisfied that section 37(5)(b) of the FOI Act does not apply.
Before I consider the applicability of section 37(5)(a), there are a number of important points to note. First, and as outlined above, section 13(4) provides that, subject to the FOI 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, as noted above, the release of records under the FOI Act must be regarded, in effect, as release to the world at large, given that the legislation places no constraints on the uses to which a record released under FOI can be put. With certain limited exceptions, which are not relevant in this case, 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), 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) which provides that in performing any functions under the FOI 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 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.
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 legislation (which makes 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 exists in granting the request, there is a discretionary element to the application of section 37(5)(a).
In its submissions regarding section 37(5)(a), the Housing Agency stated that, while there is a public interest in openness and accountability in respect of its operations, the information at issue consists of the personal information of third parties, which it stated is inherently private. It argued that the public interest in releasing the specific personal details does not outweigh the public interest in protecting the privacy rights of the individuals concerned.
In the course of his application to this Office for a review of the Housing Agency’s decision, the applicant outlined that his wish in making his FOI request was to seek clarity and transparency in relation to the manner in which a decision was made on his applications under the redress schemes. I consider that this is, essentially, an expression of a private interest in the release of the information. That being said, I accept that there is a clear public interest in ensuring that the Housing Agency administers the redress schemes in an effective, impartial and fair manner. To this point, and to the extent that the applicant might feel that he has been treated differently to other applicants under the redress schemes, I would accept that the release of certain information in the records pertaining to other applications (that goes to, for example, remediation options decided upon and findings in relation to similarly affected properties) might further the public interest in ensuring the correct, fair and impartial administration of the redress schemes. At the same time, my view is also that the extent to which the relevant information in the records might further this public interest is essentially very limited.
The information that I have identified in the records as falling within the scope of section 37(1) – while not material that I consider could be described as inherently private or particularly sensitive – has nonetheless been found to comprise personal information for the purposes of section 2 of the FOI Act. Having regard to the nature of the information at issue, to the fact that the release of information under the FOI Act is, in effect, release to the world at large, and to the notably strong protections given to the privacy rights of third-party individuals as outlined above, I find that the public interest in granting access to the information at issue does not, on balance, outweigh the public interest in upholding the right to privacy of the relevant individuals. I find, therefore, that section 37(5)(a) does not apply.
Accordingly, I find that the Housing Agency was justified in refusing access to the information in the records that it withheld pursuant to section 37(1) of the FOI Act.
Section 32(1)(b) provides for the refusal of a request where the FOI body considers that access to the record sought could reasonably be expected to endanger the life or safety of any person.
Section 32(1)(b) is not a commonly used exemption. As a general point, this Office takes the view that the exemption should not be applied without careful consideration having been given as to whether the expectation set out in the subsection is a reasonable one in all the circumstances. It should only be invoked in circumstances of the most serious nature. An assessment of the expected consequences of releasing particular records in terms of endangering life or safety is required. It is not necessary, or indeed possible, to establish that such harm will occur but there must be a reasonable expectation of such harm arising.
In its submissions, the Housing Agency said that, in applying exemption 32(1)(b), it had taken into consideration the broad the environment in which its staff and consultants were operating. The Housing Agency noted that the defective blocks crisis is a sensitive and emotive issue, and stated that there had been an escalation of threatening and abusive behaviour towards its employees and the consultants it had engaged to undertake the required technical assessments. The Housing Agency gave examples of this behaviour, which included a number of incidents which took place outside an employee’s home, one of which involved an individual loitering and taking photographs outside the employee’s private residence, and which was reported to An Garda Síochána. The Housing Agency also stated that both it and its appointed agents have been subject to continued inappropriate and grossly unsuitable correspondence, which it said had been received both anonymously and directly from applicants under the redress schemes. The Housing Agency stated that the receipt of this correspondence had created an unsafe and unreasonable environment for staff and agents. The Housing Agency went on to note that, in some instances, the correspondence has increased following the release of records under FOI. It noted that certain records which have previously been released under FOI appear to have been provided to the press, which had resulted in the publication of public servants’ names in a number of articles.
The Housing Agency stated that, as a direct result of the pattern of behaviour outlined above, one of its agents has been required to amend operational protocols, including placing restrictions on which staff members are permitted to undertake functions necessary to discharge obligations under the relevant framework. It said that these changes were implemented solely to safeguard staff wellbeing and to mitigate risks arising from the conduct that had been encountered.
The Housing Agency argued that, based on the above, it holds legitimate and well-founded concerns regarding both the physical and mental well-being of its staff, recognising its fundamental duty of care under the Safety, Health and Welfare Act 2005 towards them. It said that these concerns remain a top priority, as the organisation acknowledges the critical importance of fostering a safe, supportive, and sustainable working environment. Furthermore, the Housing Agency stated that it is acutely aware of the challenges associated with staff retention and the need to ensure that skilled and experienced personnel are in place to resource and support its role under the current scheme. It argued that, in this context, the release of the records at issue could reasonably be expected to lead to further inappropriate correspondence, thereby heightening the risk to staff and agents. The Housing Agency argued that withholding the records was necessary to ensure both the safety of staff and that its statutory functions can continue to be carried out in a safe and secure manner.
In his application to this Office for a review of the Housing Agency’s decision, the applicant was at pains to completely refute any suggestion that he, personally, was responsible for any behaviour of the kind referred to above, stating that he did not accept that anyone was at risk from him and that he had been nothing but courteous, patient and non-confrontational in all of his dealing with the Housing Agency. For the avoidance of any doubt, at no point has the suggestion been advanced that the applicant himself has behaved in the manner outlined by the Housing Agency, or that its reliance on section 32(1)(b) is directly linked to any actions of the applicant personally. Rather, it appears me to be the case that the Housing Agency’s arguments relate to a more general pattern of behaviour by members of the public at large, and reflect the fact that disclosure of a record under FOI is deemed equivalent to its publication to the world at large.
I have carefully considered the submissions made by the Housing Agency. As noted above, this particular exemption is not commonly used. The question I must consider is whether the expectation set out by the Housing Agency is a reasonable one in all the circumstances. In order for the exemption to be upheld, it should be possible to clearly link the expectation of serious harm to the content and context of the records. At the outset, I acknowledge that in the current climate the defective blocks crisis is an extremely well-publicised, controversial and emotive issue, and one that tends to engender strongly held views.
However, I must note that I am not entirely satisfied that a number of points made by the Housing Agency in support of its position are viable arguments, in and of themselves, for the withholding of records under section 32(1)(b) of the FOI Act. For example, the Housing Agency has noted that records previously released under FOI appear to have been provided to the press, and that the names of public servants have been published in the media as a result. However, the FOI Act generally envisages the release of the names of staff members of FOI bodies where they appear in relevant records in the context of the performance of their official functions. For example, the names of staff members are generally not considered to be personal information by virtue of the exception to the definition of such information in section 2 of the FOI Act. This Office considers that the exclusion is intended to ensure that section 37 will not be used to exempt from release the identity of a staff member while carrying out his or her official functions. Moreover, as noted above, the FOI Act places no restrictions on the uses to which information released under FOI can subsequently be put. It is therefore entirely legitimate from an FOI perspective for information released under FOI to be used as the basis for media coverage of particular issues – indeed, such use is of obvious importance in helping to ensure transparency and accountability in public bodies, which is wholly in keeping with the broad aims of the FOI Act (this is not to say that other provisions of the FOI Act cannot apply to exempt information relating to its staff, consultants and employees of related agencies, and I address this point further below).
Similarly, the Housing Agency has referenced “inappropriate and grossly unsuitable” communications that it has received, both anonymously and directly from applicants under the relevant schemes. I have absolutely no doubt that such correspondence is extremely unpleasant and upsetting for any staff members to receive, and I fully acknowledge that no employee of any organisation should be subjected to such material in the course of their work. However, it seems to me that conduct which may well be described as “inappropriate and grossly unsuitable” falls some way short of constituting behaviour that might give rise to concerns for the life or safety of an individual. As noted above, the position of this Office is that section 32(1)(b) should only be cited in the in circumstances of the most serious nature. It is not clear to me – and nor has the Housing Agency argued – that the communications it refers to contain, for example, explicit or implied threats against any individuals. To my mind, there is a dividing line between communications that might well be considered “inappropriate and grossly unsuitable” (by reason of, for example, foul language or explicit content) and those which might constitute (for instance) threats against or intimidation of a person. As a general proposition, I can envisage a scenario in which the latter category of communications might (depending on the wider context and specific circumstances) potentially serve to ground an argument for the withholding of records under section 32(1)(b). I am not satisfied that this is the case for the former, albeit that such correspondence is undoubtedly entirely unacceptable and may well be extremely distressing to the recipient.
By the same token, the Housing Agency referred to the importance generally of the well-being of its staff and its fundamental duty of care to employees under health and safety legislation, as well as the importance of fostering a safe, supportive, and sustainable working environment. It also highlighted the challenges associated with staff retention. The argument of the Housing Agency here appears to be that the current climate in relation to the defective blocks crisis will adversely affect its ability to perform its functions and fulfil its obligations in relation to these matters. Again, I am in no doubt at all that the Housing Agency might face significant challenges in these areas, and it may well be the case that these challenges manifest themselves in – for example – difficulties in retaining staff. However, again it must be noted that section 32(1)(b) should only be invoked in the most serious of circumstances. I find it difficult to accept that difficulties the Housing Agency may be experiencing in terms of obligations to its staff generally, under health and safety legislation, as well as its duty to foster a safe and supportive working environment, constitute sufficient grounds to exempt records from release under section 32(1)(b). I take the same view regarding any difficulties the Housing Agency may face in terms of staff retention which, in any case, seem to me to be challenges that are to a greater or lesser extent perennial in any organisation, albeit that they may well be significantly exacerbated for the Housing Agency by the current conditions.
This being said, I find certain other arguments made by the Housing Agency under section
32(1)(b) to be more convincing. In particular, it has referenced certain incidents when unknown individuals have attended at the home of a Housing Agency employee, which on one occasion necessitated the making of a report to An Garda Síochána. It seems clear to me that such incidents are of the utmost seriousness, the gravity of which moreover far exceeds the other factors that the Housing Agency outlined in support of its position. As noted above, in claiming section 32(1)(b) it is not necessary, or indeed possible, for an FOI body to establish that relevant harm will occur. What I must consider is whether the Housing Agency has shown that there is a reasonable expectation of this. I fully accept that, in the context of the defective blocks crisis, the Housing Agency’s expectation – that the life or safety of an employee may be endangered by individuals attending at their home – is reasonable.
The matter does not end there, however, because in order for a record to be exempt from release under section 32(1)(b), the expectation of the relevant harms that I have accepted is reasonable must be tied to the contents of that record, as well as the context in which it was created. I have outlined above the context in which the records were created. It remains for me to examine whether the specific contents of the records at issue are such that, in that context, their release could reasonably be expected to endanger the life and safety of a person.
I note that the Housing Agency has redacted material from records 18 and 19 that would tend to identify individual contractors, as well as the name of a contracting firm, involved in the email correspondence contained in the records. My view is that, given the current climate and the circumstances outlined by the Housing Agency – and in particular noting the incidents when individuals have attended at the home of a staff member, necessitating the making of a report to An Garda Síochána – it is reasonable to suggest that that the release of this information could endanger the life or safety of those individuals. I therefore find that, in the circumstances, the material relating that the Housing Agency redacted from records 18 and 19 that relates to individual contractors and a contracting firm comes within the scope of section 32(1)(b) of the FOI Act.
I am less satisfied that certain additional material that was redacted from records 18 and 19 is subject to section 32(1)(b). In particular, the Housing Agency has withheld material in these records relating to applications under the redress schemes besides that of the applicant specifically, application reference numbers. I cannot envisage any manner in which the release of this information might reasonably be expected to give rise to the harms provided for in section 32(1)(b). However, I am satisfied that the information in records 18 and 19 that relates to applications under the redress schemes, other than that made by the applicants, is personal information for the purposes of section 2 of the FOI Act, and is exempt from release under section 37(1). My analysis of section 37(1) of the FOI Act, above, refers in this regard.
In relation to the information in records 18 and 19 that I have found is subject to section 32(1)(b), I note that, under section 32(3), subsection (b) of section 32(1) does not apply to a record in certain limited circumstances and where the body considers that the public interest would, on balance, be better served by granting the request. I am satisfied that none of the limited circumstances arise in this case. I find, therefore, that the Housing Agency was justified in withholding from release the relevant information that it redacted from records 18 and 19 under section 32(1)(b) of the FOI Act.
For the avoidance of doubt, the above finding does not preclude this Office from arriving at a different conclusion in respect of similar arguments advanced in future reviews. Each case will be considered on its merits based on the particular facts and circumstances.
I note that, in his application to the Housing Agency for an internal review of its initial decision on his FOI request, the applicant specifically highlighted records 18 and 19, stating that the records contained references to comments made by a housing agency employee. The applicant stated that the records indicated that these comments were taken into account in making the final decision on his application under the redress schemes. He stated that, therefore, these comments and communications are of critical importance to him in determining whether the Housing Agency’s decision on his application was made fairly, and in ensuring transparency in the Housing Agency’s decision-making process. While I have found that the relevant redactions made to records 18 and 19 are exempt from release under section 32(1)(b) of the FOI Act, for the sake of clarity and for the benefit of the applicant I wish to note that the redacted material does not comprise Housing Agency commentary on, or any substantive analysis of, his application under the redress schemes.
As noted above, in his correspondence with the Housing Agency and with this Office the applicant expressed the view that additional records ought to exist which should have been considered for release in response to his FOI request. In particular, in his request to the Housing Agency for an internal review of its initial decision on his request, the applicant indicated his view that previous versions of a particular report should exist, and requested access to all versions of same. As noted above, the applicant also asserted that additional records should exist of the comments made by a Housing Agency employee that are referred to in records 18 and 19.
As noted at the outset, I put this to the Housing Agency and it confirmed its position that additional records do not exist. I consider that this amounts to an effective refusal of this aspect of the applicant’s request under section 15(1)(a) of the FOI Act, and both the Housing Agency and the applicant have made further submissions in this regard.
Section 15(1)(a) provides that access to records may be refused if the records concerned do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The role of this Office in such cases is to decide whether the decision maker has had regard to all of the relevant evidence and, if so, whether the decision maker was justified in coming to the decision that the records do not exist or cannot be found, after all reasonable steps to ascertain their whereabouts have been taken. The evidence in such cases includes the steps actually taken to search for records. It also comprises miscellaneous other evidence about the record management practices of the FOI Body, on the basis of which the decision maker concluded that the steps taken to search for records were reasonable.
In submissions made by the applicant, he argued that the "comments" referred to in the emails comprising records 18 and 19 should be documented in additional records, and requested access to records containing these comments, as well as records containing any documentation relating to these comments. In addition, he sought access to the draft version of the relevant files, prior to their revision on foot of the comments. Furthermore, the application noted that the email subject line of record 19 is 'Revised files uploaded to the Final folder' and argued that further additional records should exist in the form of previous versions of the report on his property, as well as additional records containing communications between the Housing Agency and the relevant contractors, and sought access to all such records.
I put these comments of the application to the Housing Agency, and in subsequent submissions in confirmed its position that no additional records relevant to the applicant’s FOI request exist. The Housing Agency stated that it is satisfied that the applicant had been furnished with all records that exist, and that no further relevant records are held. The Housing Agency noted that, while a draft report would have existed at a point in time, this draft is no longer retained in accordance with its records management policy. The Housing Agency stated that this policy provides for the lawful disposal of draft documents once they have been superseded by final versions.
I put the details of the above Housing Agency submissions to the applicant for his views. In response, he expressed his ongoing dissatisfaction with the Housing Agency’s position and made further detailed arguments in support of his view that additional records, in the form of previous versions of the relevant final report, should exist. In particular, he argued as follows.
1. In relation to the Housing Agency’s submission that, while draft versions of the relevant report would have existed at a point in time same are no longer retained in accordance with the Agency’s records management policy, the applicant stated that he had read the Housing Agency’s Record Management Policy 2024 (“the policy”), based on which he contested its assertion that it is not possible to access earlier versions of a file. As the basis for this view, the applicant pointed to the use of the SharePoint platform by the Housing Agency and noted that the policy states that: “Electronic records should ONLY be stored on the Housing Agency’s SharePoint sites. They should not be stored on local drives of PCs and/or laptops”. The applicant also noted that the policy provides that “…where possible, Version History in SharePoint should be used if there is a need to revert to or refer to a previous version.”
Based on the above, the applicant contended that it is possible to retrieve earlier drafts of the final report from the Housing Agency’s SharePoint site, and that such earlier drafts should have been furnished to him. He argued that the SharePoint platform allows users to recover and restore previous versions of documents, and that the Housing Agency’s own policy explicitly refers to using “Version History” when needed. The applicant argued that, even if a draft is deleted, SharePoint still saves each revision or version of a file. He argued that, for example, if a Word document is updated once a week and saved each time on SharePoint, it is possible to list all saved revisions and recover any previous version by date.
The applicant also argued that, in order to come to an informed conclusion on the Housing Agency’s reliance on section 15(1)(a), this Office should be furnished with the relevant Housing Agency policy on the use of SharePoint, including details of which personnel have access to SharePoint, and details of how it is decided (and by whom) whether or not previous versions of files are accessed.
2. Furthermore, the applicant stated that, if it is indeed the case that it is the policy of the Housing Agency for earlier drafts of documents to be deleted, a dated copy of the relevant instruction or directive to Housing Agency staff authorising and/or requesting the deleting of drafts should exist and should be provided to this Office.
3. The applicant also drew attention to the National Retention Policy for Local Authority Records (LGMA), and stated that the Housing Agency is subject to this National Retention Policy. He notes in particular that the section in the National Retention Policy on draft documents states that, “Draft documents illustrate the development of a proposal and its transformation into a formal policy or decision. Drafts containing handwritten notes and comments should be retained.”
4. In addition, the applicant queried whether section 52 of the FOI Act is relevant in the circumstances. Section 52 provides that “Where an FOI request has been made in respect of a record, a person who without lawful excuse and with intention to deceive destroys or materially alters a record shall be guilty of an offence and be liable on summary conviction to a class B fine”. The basis for the applicant’s argument here is that (according to him) the destruction/disposal of relevant records (including drafts) is unlawful. He argued that the Housing Agency has a clear legal obligation to retain records of handwritten notes and comments, and that the proposition that there is no requirement to retain such drafts is incorrect.
5. The applicant described it as “…extremely difficult to believe” that the Housing Agency had begun the process of destroying relevant documents before an under the relevant redress schemes had been resolved, particularly given the contentious and drawn-out nature of the Defective Blocks crisis. He argued that each application under the relevant redress scheme, including his own, is effectively an active case until completion, and in the circumstances no documents, including drafts, should be destroyed until all relevant matters are finalised.
6. Moreover, the applicant stated that he was aware of a number of other applicants to the Housing Agency under the redress schemes who were provided with draft reports in response to FOI requests. According to the applicant, this raises the question as to why some draft reports were kept and others disposed of. The applicant alleged that the disposal of draft versions of reports is a recently introduced policy, brought in in response to other FOI requests, which he described as “…highly concerning and extremely worrying, especially where it is known that there will be the potential for appeal of the outcome of the decision”. The applicant alleged that earlier drafts clearly demonstrated that the Housing Agency had advised independent engineers to make changes to their reports and amend their recommendations, which he argued has serious implications for his application and those of other homeowners under the redress schemes.
7. The applicant also argued that, in response to his FOI request, the Housing Agency should also have provided relevant records produced by the service providers that it engaged in respect of his application. He argued that additional records held by the relevant contractors should exist, and requested confirmation of whether such contractors were not requested by the Housing Agency to delete any relevant draft documents.
8. The applicant argued that, in order to come to an informed determination regarding the Housing Agency’s reliance on section 15(1)(a), it should provide to this Office the relevant Retention Policy, Record Management Policy and Record Retention Schedule, and the dates from which these policies were implemented, including any authorisation necessary under the National Archives Act for the destruction of records.
I considered that the above arguments of the applicant warranted a further response from the Housing Agency. I therefore put the details of the arguments to the Housing Agency and requested that it address same. The Housing Agency subsequently provided the following additional information in response.
1. In relation to the applicant’s arguments regarding the feasibility of recovering previous versions of the relevant report, the Housing Agency noted that Microsoft SharePoint does allow for the retrieval of previous versions of a document in some instances depending on the application used to create the document (Word, Excel, etc). The Housing Agency stated that the reports held by the Housing Agency are in .pdf format, which do not store a retrievable “version history” in the way that editable formats such as Microsoft Word do. Accordingly, it reiterated its position that earlier versions of the report are not retrievable. I should note that the Housing Agency provided this Office with a copy of its Records Management policy, and I have reviewed same. I address the relevant specific provisions of the policy in more detail below.
2. In respect of the applicant’s argument that this Office should be provided with copies of the relevant directive from relevant Housing Agency staff requesting the deletion of relevant draft reports, the Housing Agency stated that no individual or case-specific directive was issued instructing staff to delete particular drafts. It stated that, instead, once the organisation’s Records Management Policy was formally adopted, staff were issued with the standard organisational instructions governing the management of records, including the treatment and disposal of draft documents. The Housing Agency said that such instructions apply organisation-wide, and not on a per-document basis. It stated that the policy establishes that draft versions which are no longer required for business purposes may be disposed of in accordance with approved retention practices, and that staff follow this policy as part of routine records management, rather than on foot of individual directives. It stated that the relevant section head had issued one blanket directive to staff, in September 2024, that steps be taken to implement the policy, and provided this Office with a copy of that directive.
3. In response to the applicant’s arguments regarding the National Retention Policy for Local Authority Records, the Housing Agency stated that it is not subject to this policy.
4. With respect to the applicant’s reference to section 52 of the FOI Act, the Housing Agency stated that it acts at all times in strict accordance with its Records Management Policy. It added that, for the avoidance of doubt, this policy operates entirely separate and completely independent to any past or present FOI request or any such request that may be made in the future. It stated that it strongly refutes any suggestion that it had acted in any manner that would engage section 52 of the FOI Act.
5. In response to the applicant’s arguments regarding the deletion of draft documents relating to an application under the redress schemes while the application was still live, the Housing Agency stated that the timeframe for removal of a draft record varies across various unit's service delivery, but that in general, in respect of its Defective Concrete Block Grant Scheme (DCBGS) unit, the process for removal is carried out once an application or project group within which a draft report is contained is competed in full.
The Housing Agency stated that it did not accept the applicant’s contention that each application under the redress schemes is effectively an active case until completion, and in the circumstances no documents, including drafts, should be destroyed until all relevant matters are finalised. It stated that, once it had undertaken its assessment of an application and issued its formal determination to the relevant Local Authority, its statutory role in the process is fully concluded, and at this point it had no further function in relation to the application.
The Housing Agency stated that it is important to note that the only records disposed of were draft documents generated during the internal assessment and deliberative stages. It stated that these drafts were working materials that were no longer required once its statutory functions had been completed and a final determination issued. The Housing Agency reiterated that such disposal of draft documents was carried out in accordance with its Records Management Policy, and that final records or completed assessments were destroyed. Furthermore, it stated that these final records (including relevant reports which contained completed final assessments and grant calculations) had been provided to the Local Authority and the applicant. The Housing Agency noted that, in accordance with Section 16 of the 2022 Act, it was under no legislative requirement to provide these final records, and its decision to do so was taken to clearly demonstrate transparency and accountability in the decision-making process, including the rationale and reasons for decision for each determination. The Housing Agency stated that it was satisfied that all information and analysis underpinning its decisions was comprehensively captured within the final reports.
6. In relation to the applicant’s comments regarding draft versions of reports having been provided to previous FOI requesters, the Housing Agency stated that its response to any previous FOI requests which were dealt with before the introduction of its Records Management policy would have included draft documentation, here same existed. It stated that, subject to the type and form of FOI request applicable to the DCBGS unit section prior to the introduction of the policy in September 2024, if a draft record was deemed to fall under the scope of the FOI request, it would have been included in the schedule of records.
7. With regard to the applicant’s arguments relating to records created and/or held by the relevant contractors, the Housing Agency stated that it had engaged with the contractors as part of the search and retrieval process carried out in response to the applicant’s FOI request, although there it stated that no documentation relating to this engagement exists. It stated that the contractors were informed of its Records Management policy, and that at no point did it provide any advice, direction, instruction or implication that draft records in the possession of the contractors should be destroyed. The Housing Agency further noted that the management of records held by contractors is a matter for each individual contractor.
8. As noted, the Housing Agency has provided copies of the relevant documentation to this Office. It also confirmed that it is not a "Scheduled Body" as defined and in accordance with section 1(2) of the National Archives Act 1986 (as amended), and that it therefore is not subject to that legislation.
I have considered the further arguments of both parties as outlined above, and I find as follows. First of all, I wish to say that I have every sympathy with the applicant’s position, and can well understand his frustration, particularly when at issue is the condition of his property and the appropriate remedial options to be applied in relation to his family home. It hardly needs stating that this is obviously a matter of the utmost importance to the applicant, and I can fully appreciate that he may well be extremely disappointed and dissatisfied with the outcome of his applications under the redress schemes. I can well imagine that it is a particular source of frustration to discover that draft versions of reports have been included in the responses of the Housing Agency to other FOI requests made to it by affected homeowners, but by the Housing Agency’s account were not available in response to his own request.
This being said, it seems to me that certain of the applicant’s arguments in relation to alleged actions of the Housing Agency essentially go to the manner in which it conducts its business generally. As noted above, such matters are not within the remit of this Office. This notwithstanding, in order to assist and inform the applicant to the fullest extent possible, I sought additional information from the Housing Agency on these points and have set out its responses above. To the extent that that applicant might consider that he has been a victim of maladministration or malfeasance, or that he has been treated differently to other applicants under the redress scheme, I must reiterate that this Office has no role in addressing such matters.
Furthermore, based on the information provided by the Housing Agency and my own research, I am satisfied, first of all, that the Housing Agency is not subject to the National Archives Act 1986. Secondly, I am also satisfied that section 52 is not engaged in this case. In this regard, it is relevant to note that, in order for section 52 to be engaged, the destruction of the record must have taken place after an FOI request has been made in respect of that record, and that such destruction must have taken place unlawfully and with intention to deceive. In other words, section 52 does not prohibit the legitimate disposal of records by FOI bodies more generally, for example in line with its relevant policies or procedures. In addition, I must also point out that the FOI Act contains no further details on how the matters addressed in section 52 should be pursued. The question of whether an offence has taken place is a matter for investigation by An Garda Síochána (AGS) and ultimately it is a matter for the Office of the Director of Public Prosecutions as to whether or not to prosecute an alleged breach. This Office has no role in deciding whether an offence has, in fact, occurred. It is open to anyone to make a complaint to AGS in respect of a suspected offence.
In relation to the remainder of the applicant’s arguments, to the extent that they engage section 15(1)(a) of the FOI Act, I would first of all note that the Housing Agency’s Records Management Policy provides as follows in relation to draft records:
“Draft versions of files that have been replaced by final versions of the document should not be maintained and may be disposed of. In some cases, it may be necessary to keep the most recent draft or most substantial changes made in addition to the final version of a document. However, where possible Version History in SharePoint should be used if there is a need to revert to or refer to a previous version”.
I would observe as follows in this regard. It appears to me that the above guidance in the Records Management Policy clearly provides for the disposal of draft records (stating that such records “should not be maintained and may be disposed of”). On the question of the retention of draft records, the policy seems to set out a recommended manner of proceeding (referring to an approach that “should be used”), and furthermore appears to envisage the retention of draft records in certain limited circumstances (referring to such retention where “it may be necessary” or “if there is a need”). This would seem to me to fall some way short of a positive obligation to always (in all circumstances) retain draft versions of all records. In any case, even if this reading is incorrect, to put the matter simply there is no obligation or requirement under the FOI Act for FOI bodies to retain draft records permanently or indefinitely.
It is important to note that the test in section 15(1)(a) is whether searches have been reasonable, and this Office does not take the view that the FOI Act requires absolute certainty as to the location or (as in this case) existence of records. Furthermore, we do not generally expect FOI bodies to carry out extensive or indefinite general searches for records simply because an applicant asserts that more records should or might exist, or rejects an FOI body's explanation of why a record does not exist. There is no evidence available to me to suggest that, for example, relevant service providers to the Housing Agency were advised to dispose of records relevant to the applicant’s FOI request, or that the Housing Agency did not carry out the appropriate engagement with such service providers in the course of its search and retrieval process for records relevant to this FOI request. Similarly, there is no information before me to suggest that deleted drafts of records continue to be held by the Housing Agency, or that it failed to identify and consider for release any other records relevant to the FOI request. Given the requirements of the test in section 15(1)(a), I am satisfied that the Housing Agency has provided a reasonable and logical explanation for the non-existence of the additional records that the applicant asserts ought to exist. My view is that the Housing Agency has provided sufficient information to this Office to account for the non-existence of additional records.
I therefore find that the Housing Agency was justified in refusing this aspect of the applicant’s FOI request under section 15(1)(a) of the FOI Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Housing Agency’s decision. I find that the Housing Agency was justified in withholding from release the information I have identified above in records 18 and 19 that it redacted pursuant to section 32(1)(b) of the FOI Act, and that it was justified under section 37(1) of the FOI Act in withholding the remaining information that it redacted from the records at issue. I further find that the Housing Agency was justified in refusing under section 15(1)(a) of the FOI Act the aspect of the applicant’s FOI request relating to additional records he asserted should exist.
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