Decision
Mr. X and Dun Laoghaire Rathdown County Council
From Office of the Information Commissioner (OIC)
Case number: OIC-146801-R1T9Q3
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-146801-R1T9Q3
Published on
Whether the Council was justified, under section 15(1)(a) of the FOI Act, in refusing access to further records relating to the sale/purchase of the applicant’s home under the Affordable Housing Scheme, on the basis that no further records exist or can be found
25 October 2024
The applicant purchased an apartment in 2008 under an Affordable Housing Scheme administered by the Council. As I understand it, affordable homes were provided for people who could not afford to buy a home on the open market. They were provided at a discount to the market price on the condition that the person buying the home lived in the property. If the person sells the property within 20 years they are required to pay back a percentage of the sale price to the local authority. This in known as a ‘Clawback’.
In a request dated 17 November 2023, the applicant made a request to the Council for records relating to a contract between him and the Council concerning the apartment he purchased under the Affordable Housing Scheme. The applicant referred to a provisional offer letter that was issued to him by the Council on 15 April 2008, which he contends is evidence that a contract exists between him and the Council. The applicant said he was seeking clarification of correspondence from the Council dated 16 October 2023, in which the Council stated this offer letter did not constitute a contract between the applicant and the Council in relation to the purchase of his home under the Affordable Housing Scheme. Additionally, the applicant requested any records which proved that he was made aware by the Council that (a) he was buying the property directly from the vendor, and (b) that he was made aware that he was required to get a structural survey of the property, and (c) sought clarification in relation to the change in the clawback percentage, which the applicant argued was a change in the terms and conditions of the contract.
On 21 November 2023, the Council issued a decision granting the applicant’s request. The Council released a number of records to the applicant relating to the purchase of his home under the Affordable Housing Scheme. It is worth noting at this stage no contract for sale between the applicant and the Council was released, as the Council’s stated that no such record exists. On 2 January 2024, the applicant made an internal review request, in which he referenced a number of the clauses in the offer letter dated 15 April 2008. His main contention remained that (a) there was a contract between him and the Council, (b) that he was not made aware of a potential change in the clawback price of the property, and (c) that he was not told to get a structural survey of the property. The applicant said that he is seeking a copy of the acceptance offer that he signed that formed a contract between him and the Council on the actual day of sale when contracts were exchanged.
On 23 January 2024, the Council affirmed its original decision. The Council said the purchase of the applicant’s apartment was facilitated through the Affordable Housing Scheme. It said, as a qualifying applicant he was nominated by the Council to acquire the property for a discounted purchase price under the terms of the then operative Affordable Housing Scheme. The Council said that a provisional offer letter (dated 15 April 2008) was sent to the applicant by the Council and he accepted it. The Council also said that the changes in the clawback was calculated on a lower market price, which mean that in the event the applicant sold his property the clawback he would be required to pay would be lower. It said that this had no impact on the price the applicant paid to the developer at the time of purchase. Finally, the Council said the dwelling was acquired directly from the developer under a Contract for Sale and a Building Agreement which the applicant signed with the developer. It said there is no contract for sale with Council.
On 26 February 2024 the applicant made an application for review to this Office, in which the applicant restated his belief that a contract for sale existed between him and the Council. The applicant requested a copy of the contract on the actual day of sale, and requested proof that he was made aware that he was buying the property directly from the developer.
During the course of this review, the Investigating Officer provided the applicant with details of the Council’s submissions wherein it outlined the searches undertaken to locate the records sought and its reasons for concluding that no further records related to his request exist or could be found. The Investigating Officer invited the applicant to make submissions on the matter, which he did on a number of occasions during this review.
I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the correspondence outlined above and to the submissions made by both the Council and the applicant during the course of this review. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether the Council was justified, under section 15(1)(a) of the FOI Act, in refusing access to records of a contract between the applicant and the Council concerning the purchase of his apartment, on the basis that no further records exist or can be found after all reasonable searches have been carried out to locate them.
Before I address the substantive issues arising, I would like to make a number of preliminary comments.
It is evident from his original request to the Council, and from his submissions to this Office, that the applicant believes a contract exists between him and the Council in relation to the purchase of his apartment. In addition to seeking a copy of the contract he believes to exist, the applicant is also looking for answers as to why the Council claim there is no contract. It is important to note that while the purpose of the FOI Act is to enable members of the public to obtain access to information held by FOI bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from an FOI body must make a request for records that contain the information sought. Requests for information, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information can reasonably be inferred to be a request for a record containing the information or answer sought. It is also important to note that the FOI Act does not require the Council to create records in order to answer the applicant’s queries. If no record exists, that it the end of the matter from an FOI perspective.
Furthermore, in his application to this Office, the applicant claims he was misled in relation to the purchase of his dwelling and claims that it was sold to him on the basis of a contract he has with the Council. Essentially, the applicant claims that the provisional offer letter from the Council dated 15 April 2008 demonstrates that a contract exists between him and the Council. As the Investigating Officer explained to the applicant, we cannot provide advice on whether a contractual relationship exists between him and the Council in regard to the purchase of his property. In this case, the only matter to be decided is whether the Council was justified in refusing a copy of any such contract on the basis that no such record exists or can be found. The applicant may wish to seek his own independent legal advice on his claims that he has a contract with the Council. As has previously been explained to the applicant, this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.
Finally, section 13(4) of the FOI Act provides that, subject to the Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. Thus, while certain provisions of the 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.
Section 15(1)(a) of the FOI Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. Our role in a case such as this is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at their decision and also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in “search” cases generally consists of the steps actually taken to search for the records along with miscellaneous and other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.
As noted above, the Council provided this Office with details of the searches that it undertook to locate relevant records and its reason for concluding that no contract exists, details of which were provided to the applicant. While I do not propose to repeat those details in full here, I confirm that I have had regard to them for the purposes of this review.
In its submissions to this Office, the Council outlined its position that no contract exists or has ever existed between the applicant and the Council in relation to the purchase of his property. The Council’s position is that the contract for sale was between the applicant and the vendor of the property. The Council provided background information relating to the administration of the Affordable Housing Scheme. The Council stated in administering the Affordable Housing Scheme that the Council advertised the scheme, invited and processed applications, approved applications, determined the order of priority of allocations and allocated the available affordable housing units to successful applicants as well as negotiating the sale price of the affordable units with the vendor i.e. the developer/builder of the affordable housing unit in question.
The Council said that applicants were required to appoint their own legal representatives. It said when applicants were approved by the Council and sale prices agreed with the vendor, the Council provided details of those successful applicants and their allocated affordable unit to the vendor along with the applicants’ solicitors details. The Council said the sale/purchase of the affordable housing unit was then progressed between the vendor and purchaser via their respective legal representatives.
Section 15(1)(a)
The Council stated its position was that all relevant records that exist have been discovered and released to the applicant. It is the Council’s position that the key record relevant to the applicant’s appeal i.e. a contract with the Council for the sale of his property, does not exist and has never existed.
The Council stated it carried out searches on databases, scheme files and individual files of successful applicants. These included the Affordable Housing Applicants list; Affordable Allocation list (all developments); List of Successful Applicants; Affordable Clawback Register; Scheme file for the named apartment complex, as well as the applicant’s individual file, which the Council said was principally held in hard/paper format. The Council said the applicant’s records were held in his personal file (hard/paper format file). It stated this was manually searched and examined. The Council said correspondence was also scanned and filed electronically in two different computer drives within the Council and searches were conducted of these drives by name (full name/surname) as well as by address. The Council said that during these searches no records were discovered which had not already been released to the applicant, and no contract between the applicant and the Council was discovered.
During the course of the review, the Investigating Officer also queried with the Council whether any relevant individuals were consulted during the course of searches carried out, and if so what the outcome of this was. The Council said a staff member, who at the time of the FOI request administered Affordable Housing matters conducted primary searches. It said this staff member was supported by two additional staff members who also conducted searches to verify results. It said the manual examination of hard/paper files was conducted by two staff members. The Council also stated that as the affordable housing application scheme dates back 15 years to 2008, none of the staff who administered the scheme or processed the applicant’s application in 2008 are currently working in the Affordable Housing Section. The Council stated many have retired. It said of those still in the Council’s employment at the time of the FOI request, the former Senior Staff Officer (now retired), former Staff Officer and former Assistant Staff Officer were consulted. The Council said the results were common, with each staff member consulted unable to recall specific details about an event 15 years previously but who all suggested that all relevant records would have been retained in the individual successful applicants’ hard/paper files and/or the electronic files.
During the course of the review the applicant provided a number of submissions to this Office. He stated that he believed a contract existed between him and the Council in relation to the purchase of his home. As mentioned above, the applicant pointed to a provisional offer letter, which was sent to him by the Council, as proof that a contract existed between him and the Council. The applicant stated that he had signed the provisional offer letter, and as such had entered into an agreement with the Council. In submissions to this Office the applicant said that he believed he had been “misled and mis-sold” the apartment he had purchased. He stated that he believed the apartment had been sold to him on the basis of the contract, terms, he had with the Council. As such, he stated he was requesting a copy of the contract between him and the Council on the day of sale.
The applicant provided several arguments which he believed demonstrated why further records should exist which had not been released to him. The main arguments made centred around the wording of a specific clause in the provisional offer letter, and the operation of the clawback provision, which allows the Council to recoup money from the sale of his home if it is sold within a 20-year timeframe. I will address both arguments below.
Clause 3(g)
In his submissions to this Office, the applicant pointed to a particular clause of the provisional offer letter sent to him by the Council, clause 3(g), as proof that further records should exist relating to a contract between him and the Council. Clause 3(g) stated as follows: “The receipt by the Council of your application to purchase the Property under the Affordable Housing Scheme and the issuing of this letter by the Council does not constitute a contract between you and the Council for the sale of the Property and no contract shall exist until a contract for sale of the property has been executed by both parties and contracts exchanged.”
The applicant said that this clause, and in particular the inclusion of the word “until”, proved that a contract would come into being between him and the Council. He said that this clause meant that once a contract of sale had been executed by both parties, a contract then came into existence between him and the Council. He stated that he wanted a copy of this contract between him and the Council. In light of the points raised by the applicant, the Investigating Officer reverted back to the Council and asked for its response to the above.
In its submissions, the Council stated its position was that the applicant and the Council did not enter into/sign a contract, and therefore no contract existed/exists between the two parties in relation to the property in question. It said this explains why no contract document between the applicant and the Council can be found. The Council said that there was one contract of sale in relation to the applicant’s property, and this was between the applicant and three named individuals, the vendors. It said there was a separate building agreement between the applicant and a named contractor. It stated that the Council was not party to either of these agreements, as is evidenced by the legal documents.
The Council said that the applicant was legally represented by his own appointed solicitor in relation to the contract, and the Council’s position is that it was made clear the contract for sale was between the applicant and the vendors. The Council stated that the applicant’s property was provided under Part V of the Planning and Development Act 2002 – 2002, and was offered to the applicant by way of direct sale from the developers.
The Council said it would be incorrect to read and interpret Clause 3(g) in isolation of the other clauses in the provisional offer letter which refer to a contract between the applicant and the vendors/developers. It also stated that it would be incorrect to read Clause 3(g) in isolation of the contract of sale which exists exclusively between the applicant and the vendors. The Council stated that the provisional offer letter dated 15 April 2008 is marked ‘Subject to Contract/Contract Denied’. In addition to this, the Council pointed to Clause 2(f) which refers to the payment of the booking deposit directly to the developer, and Clause 2(j) that states that contracts will be issued to the buyer’s solicitors and returned to the developer’s solicitors within a specified timeframe.
In summary, the Council stated that its position was that no contract existed between the applicant and the Council in relation to the sale of his property. As outlined above, the Council conducted searches for any such contract, and stated that no records were found. The Council reiterated its position that no records can be found as no contract exists.
Clawback Provision
In correspondence with this Office the applicant also highlighted the fact that the Council are in a position to recoup money from the sale price of his home if he were to sell it within a specified timeframe. The applicant queried how it was possible for the Council to recoup money from the sale of his home if the Council’s position was that no contract or agreement of any kind exists between the applicant and the Council in relation to his property. The applicant argued that the mechanism which allows the Council to recoup money from the sale of his property was proof that a contract or agreement of some kind existed between him and the Council, and as such stated he believed records should exist in relation to this. Consequently, the Investigating Officer reverted to the Council and asked whether any records existed relating to the Council’s ability to recoup funds from the sale of the applicant’s home.
In particular, the Investigating Officer asked the Council (1) under what legislation the clawback provision is provided for, (2) whether this legislation creates any form of contract or agreement between the Council and the applicant as the owner of the home, and (3) if no contract or agreement was created, how it is possible to recoup money from the sale of a home that the Council was not contractually a party to.
In response, the Council stated that the relevant legislation which provides for the clawback provision is Part V of the Planning and Development Act, 2000, as amended, and the Housing (Miscellaneous Provisions) Act, 2002, Section 9, which governs the resale of affordable homes. The Council said that under this legislation local authorities (such as the Council) are responsible for:
1. Setting detailed policies in line with the legislation and guidance from the Department of Housing, Local Government and Heritage that define who is eligible for affordable homes and how eligible applicants are prioritised;
2. Developing processes and administering the delivery of affordable homes to applicants;
3. Procuring the direct delivery of affordable homes and
4. Promoting affordable homes in their area.
The Council said that as part of the delivery process, it negotiates sale prices and, relative to the market values, determines the discount/clawback percentage. The Council said that the recoupment of funds (clawback percentage) does not always occur as the ‘clawback’ amount reduces over time to an eventual point where no clawback is due.
The Council said that a Charging Order (containing the clawback provision) is registered against the title of the applicant’s property. It said that this clawback provision was included in legislation to ensure that no ‘profiteering’ arises from the sale of a reduced-price property by the affordable purchaser. The Council said the Charging Order is a contingent charge- and it is not a contract. It said that the only contract which is in place is between the vendor and the purchaser of the property i.e. in this case, the applicant and the vendors.
In light of this, the Investigating Officer asked the Council if it held any records relating to this Charging Order over the applicant’s property. The Council said that the only record which it holds in relation to the Charging Order is held in its Legal Services Unit and it is a copy of the Folio. The Council said that this folio shows the charge for present and future advances repayable with interest to a named mortgage bank (who is the owner of the charge) and a contingent charge for such amount as may become payable under the terms of the instrument, and Dun Laoghaire Rathdown County Council is the owner of this contingent charge over the applicant’s property. The Council stated that this record is not a contract between the applicant and the Council.
In relation to this record, the Council said it did not believe it fell within the scope of the applicant’s current FOI request. The Council said that its position is that a Charging Order is not a contract/agreement but rather it is a court-authorised lien imposed by a creditor in respect of, in this case, the discount on the market value of the property as provided for under the Housing Acts. In light of this, the Council said that its position is that this record does not represent a contract/agreement between the applicant and the Council, and is therefore not within scope. The Investigating Officer informed the applicant of the Council’s position on the above, and he did not contest the scope of the record. I understand the applicant intends to make a fresh FOI request for the record in question.
Conclusion
To conclude, the Council’s position is that no contract exists between the applicant and the Council in relation to the sale/purchase of his property. As outlined above, the Council have provided its reasons for concluding that no contract exists. As noted to the applicant, this Office has no remit to interrogate or interpret the construction or contractual clauses/terms of provisions in a legal document. This review is solely concerned with whether the Council was justified, under section 15(1)(a) of the FOI Act, in refusing the applicant’s request. In the circumstances, the Council were asked to make submissions detailing the steps taken to search for the relevant records, and if its position was that no further relevant records exist or are held by the Council, it was asked to set out its reasons for this conclusion. Having regard to the search details and submissions provided by the Council during the course of this review, I am satisfied that it has both conducted adequate searches for relevant records and has provided adequate reasons for its conclusion that no further records exist or can be found in relation to the applicant’s request.
It is important to note that it is open to this Office to find that an FOI body has satisfied the requirements of section 15(1)(a), even where records that an applicant believes ought to exist have not been located. We do not generally expect FOI bodies to carry out extensive or indefinite general searches for records simply because an applicant asserts that records should or might exist. I acknowledge there are extenuating circumstances in relation to the applicant’s property, and I understand that these circumstances have been ongoing for some time, and therefore this decision will likely be frustrating for him. However, as stated above, this review is solely concerned with whether the Council was justified, under section 15(1)(a) of the FOI Act, in refusing access to any further records relating to the applicant’s request, on the basis that no further records exist. Therefore, having regard to the information before this Office, and in the absence of any evidence to the contrary, I am satisfied that the Council has adequately explained why no further records exist in relation to the applicant’s request. In the circumstances, I find that the Council was justified in refusing access to further records relating to the applicant’s 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 Council’s decision to refuse access to the contract sought by the applicant under section 15(1)(a) of the FOI Act.
Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.
Richard Crowley
Investigator