Decision
Mr X and Dun Laoghaire-Rathdown County Council
From Office of the Information Commissioner (OIC)
Case number: 130190
Published on
From Office of the Information Commissioner (OIC)
Case number: 130190
Published on
Whether the Council was justified in its decision to refuse access to two records relating to the applicant's housing record on the basis that the records are exempt from release under sections 23 and 26 of the FOI Act
Conducted in accordance with section 34(2) of the FOI Act
12 december 2014
The applicant made a request on 29 August 2012 for access to all records held by the Council relating to his housing record, particularly those relating to the decision to defer his housing application indefinitely. In its original decision of 22 October 2012, the Council released a number of records to the applicant but refused access to three records. The applicant sought an internal review of this decision on 4 February 2013. In its internal review decision of 18 February 2013, the Council released one of the three records while affirming the original decision with regard to the remaining two records. The applicant applied to this Office for a review of this decision on 29 July 2013.
I note that Mr David Logan of this office informed the Council of his preliminary view that the exemptions claimed were not justified and that the records should be released. As the Council remains of the view that its decision to refuse access to the records was justified I consider that this review should now be brought to a conclusion by way of a formal binding decision.
In conducting this review I have had regard to the Council's decisions on the matter and its communications with this Office, to the applicant's communications with this Office and the Council, to the contents of the records concerned, and to the provisions of the FOI Act. In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997 -2003 notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.
The scope of the review relates solely to whether the decision of the Council to refuse access to the two remaining records was justified under the provisions of the FOI Act. In referring to the records at issue, I have adopted the numbering system used by the Council in the schedule of records provided to the applicant.
Section 34(12)(b) of the FOI Act provides that in a review:-
"a decision to refuse to grant a request under section 7 shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified".
This provision places the onus on the Council of satisfying this Office that its decision to refuse access to the two records at issue was justified.
Record 3
In its submission of 14 November 2013, the Council stated that it is responsible for ensuring compliance with the provisions of the Housing (Miscellaneous Provisions) Act 1997, particularly section 14, which provides that the Council may defer or refuse a letting where it considers that the applicant is or has been engaged in anti social behaviour or that a letting to such a person would not be in the interests of good estate management. As part of its investigations the Council seeks information from An Garda Síochána (AGS) on the previous conviction history of applicants for local authority housing. Record 3 comprises a form which the Council uses for that purpose and it contains information provided by AGS relating to the applicant. Specifically, the record contains details relating to the applicant's previous convictions and a previous address history.
While the Council initially refused access to the record under section 23 (relating to law enforcement and public safety) and section 26 (relating to information given in confidence) of the FOI Act, it clarified in its submission of 14 November 2013 that it was no longer relying upon the exemption in section 26 but was refusing access under sections 23(1)(a)(ii) and 23(1)(a)(iii). In arriving at a decision to claim an exemption under section 23, the decision maker must firstly identify the potential harm to functions covered by the exemption that might arise from disclosure, and having identified that harm, consider the reasonableness of any expectation that the harm will occur.
Section 23(1)(a)(ii)
Section 23(1)(a)(ii) provides that a request for access to a record may be refused where its release could reasonably be expected to prejudice or impair the enforcement of, compliance with or administration of any law. The Council stated that there is no compulsory obligation on AGS to provide information relating to a housing applicant's criminal history and that AGS agreed to provide such information on the basis that the records would remain under the strict control of the Council and were not to be copied and given to applicants. The Council also stated that AGS indicated it would not provide further co-operation should such records be released. In support of its argument, the Council provided this Office with a letter from the Chief Superintendent, Eastern Division of AGS. In that letter, the Chief Superintendent stated that the protocols regarding the sharing of information in accordance with section 15 of the Housing (Miscellaneous Provisions) Act 1997 are in operation since 2003. He stated that records are forwarded by AGS on the strict condition that they are not handed over to housing applicants and that if this condition is not adhered to, AGS would not be in a position to assist the Council further with their vetting process.
In essence, it is the Council's argument that its ability to enforce, comply with and administer section 14 of the Housing (Miscellaneous Provisions) Act 1997 would be prejudiced or impaired by the release of the record at issue as to do so would result in AGS refusing to assist the Counccil in its vetting process in the future.
I accept that it is important for the Council to receive information from AGS in order to properly discharge its functions regarding the allocation of local authority housing and I also accept that the refusal by AGS to provide details of the criminal history of potential applicants would prejudice or impair the Council's ability to enforce, comply with, and administer section 14 of the Housing (Miscellaneous Provisions) Act 1997. I find it very difficult to accept, however, that the release of details of an applicant's criminal history to the applicant would result in such a refusal by AGS, notwithstanding the contents of the Chief Superintendent's letter. I note, for example, that in its submission dated 4 September 2013 to this Office, the Council explained that in the interest of fairness to housing applicants, all charges and convictions are read out and clarified with the applicant and any discrepancies are checked and verified. In such circumstances, it is difficult to see why AGS would have concerns about the release of that same information in a record.
Following receipt of the Chief Superintendent's letter, this Office contacted the Office of Assistant Commissioner Nolan of AGS, as the agreed liaison contact for this Office, for its views on the matter. In response, Assistant Commissioner Nolan informed this Office that as the information at issue is the previous convictions of the requester which are a matter of public record and known to the applicant, AGS has no objection to the disclosure of the information. It seems to me that this fatally undermines the Council's argument that the release of record 3 could reasonably be expected to give rise to the harms outlined in section 23(1)(a)(ii). I find, therefore, that section 23(1)(a)(ii) does not apply.
Section 23(1)(a)(iii)
Section 23(1)(a)(iii) provides that a request may be refused if it is considered that access to the record sought could reasonably be expected to prejudice or impair lawful methods, systems, plans or procedures for ensuring the safety of the public and the safety or security of persons and property. This section of the Act is not directly concerned with protecting against the disclosure of information, the release of which could be prejudicial to the safety of the public or the safety or security of persons and property. Rather it is concerned with the protection of lawful methods, systems, plans or procedures for ensuring their safety and security. In this particular case, the Council argued that any withdrawal of cooperation by AGS in the provision of information for vetting purposes would result in a collapse of the system put in place for the purposes of compliance with the Housing (Miscellaneous Provisions) Act 1997. As I have already indicated, I find it very difficult to accept that the release of an applicant's criminal history to the applicant would result in such a withdrawal of cooperation by AGS. Given also that AGS has no concerns about the release of the record at issue in this case, I find that section 23(1)(a)(iii) does not apply.
Record 9
According to the Council, record 9 forms part of the section 14 [of the Housing (Miscellaneous Provisions) Act 1997] administrative system where all relevant information regarding a housing applicant is pooled together and a decision made on whether the applicant is likely to be offered a dwelling or not. It stated that the report is completed by the Senior Inspector who makes a detailed determination on the background history of the applicant such as his anti-social behaviour, involvement in drugs, information from other agencies and specified persons etc. and any other relevant information. The record at issue contains details of the Senior Inspector's interview with the applicant and his assessment of the applicant. In its submission of November 14 2013 to this Office the Council relied on sections 23(1)(aa), 23(1)(a)(iii) and 26(1)(a) to justify its refusal to release this record.
23(1)(aa)
Section 23(1)(aa) provides that a public body may refuse access to a record if it considers that access to the record concerned could reasonably be expected to endanger the life or safety of any person. This exemption is one which should not be applied without careful consideration having been given to whether the expectation set out in the subsection is a reasonable one in all of the circumstances. This Office considers that the test to be met in relation to this exemption is such that it should only be invoked in circumstances of the most serious nature. What is required is an assessment of the expected consequences of releasing particular records having regard to the possibility that the life or safety of any person could be endangered. It is not necessary or indeed possible to establish that such physical harm will occur but that there is reasonable expectation of this.
While I am required by section 43(3) of the FOI Act to take all reasonable precautions to prevent the disclosure of information contained in an exempt record or information that, if it were included in a record, would cause the record to be exempt, I believe it is appropriate for me to outline the Council's general argument for relying on section 23(1)(aa). The Council is concerned that the release of reports such as the one at issue in this case could reasonably be expected to endanger the safety of the officials who are required to complete such reports. It explained that such reports concern applicants who usually have a history of violence and drugs and public order offences.
While the Council is understandably concerned about the safety of its staff, it seems to me that much of the information contained in record 9 has already been provided to the applicant by the official who completed the report. I note, for example, that the official wrote to the applicant on 10 August 2012 setting out the reasons why the Council decided that his application for local authority housing has been deferred indefinitely in accordance with section 14(1)(a) of the Housing (Miscellaneous Provisions) Act 1997 and that he has previously interviewed the applicant and the notes of the interview have been released on foot of the FOI request. In all of the circumstances, having carefully considered the Council's arguments, I find that the Council has not satisfactorily shown that it decision to refuse access to the record under section 23(1)(aa) was justified. I find, therefore, that section 23(1)(aa) does not apply. I should add that a decision that section 23(1)(aa) does not apply in the particular circumstances of this case does not set a precedent for all future cases where similar such reports are at issue. Each case must be considered on its merits and based on the specific facts and circumstances arising.
Section 23(1)(a)(iii)
As outlined above in respect of record 3, section 23(1)(a)(iii) provides that a request may be refused if it is considered that access to the record sought could reasonably be expected to prejudice or impair lawful methods, systems, plans or procedures for ensuring the safety of the public and the safety or security of persons and property. The Council argued that public officials will refuse to sign documents which would identify them for fear of retribution by applicants who receive negative decisions. It also contends that should officials refuse to prepare such reports if they are subject to release under the FOI Act, this would put in jeopardy the system used to assess applicants for Local Authority housing.
In essence, the Council's argument is that all such records should be protected as a class, regardless of content or the circumstances surrounding their creation. Section 23(1)(a)(iii) does not provide for the protection of records as a class. The Council must satisfy this Office that the harm it has identified, i.e. prejudice or impairment to its system for assessing applicants for local authority housing, could reasonably be expected to arise as a result of the release of the specific record at issue. The Council's arguments are very similar to the arguments presented in respect of section 23(1)(aa). As I have explained above in relation to section 23(1)(aa), each case must be considered on its merits and based on the specific facts and circumstances arising. I find it difficult to accept that the release of the record at issue in this case could reasonably be expected to give rise to Council officials refusing to prepare such reports in the future, particularly given that a decision in this case does not set a precedent for the release of all such reports in the future, regardless of their contents or the circumstances surrounding their creation. Accordingly, I find that section 23(1)(a)(iii) does not apply
Section 23(1)(b)
The Council argued that certain of the information contained in section 2 of record 9 was provided to it in confidence and that section 26(1)(a) of the FOI Act applies. In my view, section 23(1)(b) is the more appropriate exemption to consider in this case. Section 23(1)(b) provides that a request for release of a record may be refused if release of the record could reasonably be expected to reveal or lead to the revelation of the identity of a person who has given information to a public body in confidence in relation to the enforcement or administration of the civil law or any other source of such information given in confidence.
Where the section 23(1)(b) exemption is to be applied, and apart from other more general considerations, three specific requirements must be met:
Having examined the information concerned, I accept the Department's argument that the release of the information could reasonably be expected to reveal or lead to the revelation of the identity of the person who gave the information to the Council. Therefore, I find that the first strand of the exemption is met. In relation to the second requirement, I accept that it is necessary for Council officials, in the course of their duties, to be in a position to receive necessary information in confidence from members of the public. I also accept that if people providing information to the Council in such cases were not reassured as to confidentiality, the information gathering process would be compromised by the withholding of such information. Such information is used in considering the suitability of individuals for placement in housing in Council managed estates. Having carefully considered the information at issue in this case and the Council's submissions on the matter, I accept that it was given in confidence. Accordingly, I am satisfied that the second strand of the exemption is met. On the matter of the third strand, I am satisfied that the information provided relates to the Council's responsibilities under the Housing (Miscellaneous Provisions) Act 1997. Accordingly, I am satisfied that the third requirement of section 23(1)(b) has been met. As all thee requirements have been met in this case, I find, therefore, that section 23(1)(b) applies to the information at issue.
Section 23(1)(b) is subject to section 23(3) which provides that consideration must be given to the possibility that the public interest would, on balance, be better served by the release of the information than by refusing to grant the request. It is important to note that the public interest balancing test in section 23(3) differs from the public interest balancing test which exists in other exemptions in that the test in section 23(3) may be considered only where certain circumstances arise. Those circumstances are where the records disclose that an investigation is not authorised by law or contravenes any law or it contains information concerning the performance by a public body of functions relating to law enforcement or contains information concerning the effectiveness or the merits of any programme for prevention, detection or breaches of the law. I am satisfied that no such circumstances arise in this case and that section 23(3) does not apply.
Accordingly, I find that sentences four to nine in section 2 of record 9 are exempt under section 23(1)(b) of the FOI Act.
Having carried out a review under section 34(2) of the FOI Act, I hereby vary the decision of the Council in this case. I direct that record 3 be released in full and that record 9 be released subject to the redaction of sentences four to nine in section 2.
A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date of on which notice of the decision was given to the person bringing the appeal.
Stephen Rafferty,
Senior Investigator