Decision
Mr Ken Foxe, Right to Know and Department of Children, Equality, Disability, Integration and Youth
From Office of the Information Commissioner (OIC)
Case number: OIC-147250-P2R5P3
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-147250-P2R5P3
Published on
Whether the Department was justified in refusing, in part, a request for records containing details of complaints about accommodation made by Ukrainian refugees or International Protection applicants for the period 1 April 2023 to the date of the request under sections 15(1)(a), 17(4) and 35(1)(a) of the FOI Act
5 March 2025
In a request dated 27 November 2023, the applicant sought access to:
1. an (anonymised) copy of all complaints made by Ukrainian refugees or IP applicants about accommodation in the period 1 April 2023 to date, and
2. a record/spreadsheet/database of the number of complaints received in total, broken down if possible by month, and by county.
I have numbered the two parts of the request for ease of reference. Two separate decisions were issued by the Department on 6 December 2023, one by the International Protection Accommodation Services (IPAS) Governance and Information Management Unit, and the other by the Ukraine Corporate Unit. In both decision letters, dated 29 November 2023, the Department refused the request under section 35 of the FOI Act, stating that as per the Department’s Customer Complaints procedure, all complaints are collected and dealt with in confidence. The applicant sought an internal review on 13 December 2023. He said that he had asked for the record in an anonymised format and it was up to the Department to determine how they could provide that data while protecting the individual complainants. He said that such information had been released previously and reported on in the media, and that no explanation had been provided for why a change in policy had occurred. He said that it was particularly difficult to see how part 2 of the request, relating to aggregate data, could be considered exempt under section 35. He said that no explanation was given of what harm was envisaged by release of the records, or why publication would discourage the giving of such information in future. He also said that no public interest test had taken place, which was particularly important given how deficiencies in the accommodation system merit scrutiny.
The Department did not issue an internal review decision within the statutory deadline and on 1 February 2024 the applicant applied to this Office for a review of this effective refusal of the request. Following communications with this Office, the Department issued a letter to the applicant on 8 March 2024 setting out its effective position. The Department varied the original decision and said that it was part-granting the request. It affirmed the refusal of part 1 of the request under section 35(1)(a), and said that even by anonymising the complaints, there was a risk that complainants could be identified. In respect of part 2 of the request, it provided a record containing information relating to complaints made by International Protection applicants. However, it refused to release an equivalent record relating to complaints made by Ukrainian refugees under section 15(1)(a) of the FOI Act, on the grounds that a single record, spreadsheet or database does not exist in the format requested.
On 8 March 2024, the applicant confirmed that he wished the review by this Office to proceed. He said that there was a strong public interest in knowing the difficulties faced by residents of accommodation centres and that he believed the information could easily be anonymised such that no there was no risk of identification of the complainant. He said that he did not believe it tenable that publication of such information would make it less likely a person would complain again, and that the suggestion that individuals in such accommodation would be fearful of repercussions if they made a complaint was a chilling proposition. He said that if the Department believed this was the case, it should take action.
During the review, while the Department maintained its position that records containing details of anonymised complaints made by Ukrainian refugees would be exempt under section 35, it also said that it did not actually hold a record containing the information sought and that it could not create one by the taking of reasonable steps. Effectively, this means that this part of the request is being refused under section 15(1)(a). The applicant was informed of this change in position and invited to comment. The applicant, in response, noted the length of time the case had taken to reach this point and the late change in position by the Department. He said that this position was inconsistent with previous information released by the Department, pointing to news articles reporting on specific details of complaints made. He highlighted the public interest factors at play in terms of refugees from a brutal war in Ukraine coming to Ireland and ending up housed in very substandard accommodation. He also requested further details of the Department’s submissions as he said that he wished to discuss the plausibility of the Department’s claims, that it could not create a relevant record, with an expert in the area. Additional details were provided to the applicant. In response he simply said that it was objectively unreasonable for the Department to say that it couldn’t do something that it had already done, as evident from the data provided initially.
Apart from the record that was released to the applicant at internal review stage (containing the breakdown by month/county of the numbers of complaints made by International Protection applicants), for most of the investigation process, the Department did not provide this Office with copies of records. It said, at the time that the application for review was accepted, that uploading the records relating to the complaints would be administratively challenging and would not provide the complete picture to this Office. At a late stage in the review process, however, following another request for clarification from the Investigator on certain matters, the Department provided a record containing details of complaints received from International Protection applicants. This was in the form of a spreadsheet which the Department said was used by the International Protection Accommodation Service’s (IPAS) Centre Management team to manage complaints made by residents in IPAS accommodation. It said that this spreadsheet did not capture all complaints received by the Department from IP applicants, which can also come in to the Department through other channels. It said that the record that was released to the applicant contained information manually extracted from this spreadsheet.
I have now completed my review in accordance with section 22(2) of the FOI Act and have decided to conclude the review by way of a formal, binding decision. In carrying out my review, I have had regard to the submissions made by the Department and by the applicant. I have also had regard to the contents of the record provided.
I have examined the record provided to this Office which contains the names of the complainants as well as the specific accommodation centres, the date the complaint was received, and other information about the status of the complaint and how it was being dealt with. Column H of the spreadsheet is entitled “Nature of Complaint” and it is here that the actual details of the complaint are recorded. The applicant has been completely clear from the outset that he is seeking anonymised details of complaints only. I am satisfied that the information he is seeking is contained within column H of this record, and this is the only part of the record I will consider.
This review is therefore concerned only with whether the Department was justified in refusing:
• Parts 1 and 2 of the request, as they apply to complaints made by Ukrainian refugees, under sections 15(1)(a) and 35 of the FOI Act, and
• Part 1 of the request, as it applies to complaints made by International Protection applicants, under section 35 of the FOI Act (column H of the record provided).
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.
Parts 1 & 2 – Complaints made by Ukrainian refugees
The Department’s position is that it does not hold a record containing details of complaints about accommodation made by Ukrainian refugees for the relevant period, or a breakdown of the number of complaints made. It said that it introduced a new helpdesk/ticketing system in May 2022 to manage the high volume of correspondence being received from and in respect of Ukrainian refugees, which would include complaints about accommodation, but that this system does not allow for the creation of reports containing the records sought. This is effectively a refusal under section 15(1)(a) of the FOI Act.
Section 15(1)(a) of the FOI Act provides that a request for access to records may be refused if the records sought either do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Act does not require FOI bodies to create records if none exist, apart from a specific requirement, under section 17(4), to extract records or existing information held on electronic devices. If the body does not hold a record containing the information sought and cannot search for and extract the electronically held records by taking reasonable steps, then that is the end of the matter.
Section 17(4) of the Act provides that where an FOI request relates to data contained in more than one record held on an electronic device by the FOI body concerned:
a) subject to paragraph (b), the FOI body shall take reasonable steps to search for and extract the records to which the request relates, being steps that involve the use of any facility for electronic search or extraction that existed on the date of the request and was used by the FOI body in the ordinary course, and
b) if the reasonable steps referred to in paragraph (a) result in the creation of a new record, that record shall, for the purposes of considering whether or not such new record should be disclosed in response to the request, be deemed to have been created on the date of receipt of the FOI request.
Submissions from the Department
In describing the system used to manage the relevant correspondence, the Department said that it was acquired at short notice to meet the immediate need and has considerable technical limitations in its functionality and reporting capacity. It said that queries or concerns are sent by email to a dedicated email address and are then logged as a ticket on the system and allocated a ticket reference number. It said that tickets received automatically default to a ‘New’ status which updates to ‘In Progress’ and ‘Closed’ as progressed by a helpdesk technician. It said that the technician will take ownership of a ticket from the unassigned tab and categorise it thematically based on its contents. It noted that the category assigned can be subjective and that many tickets contain multiple issues and categorization can change over time as they are processed and the status progresses. The Department said that tickets and associated attachments are received in English, Ukrainian and Russian and that while the system has a language translation function, translation accuracy is limited and challenging in particular surrounding pdf documents received. It said that there are 63 categories available for technicians to choose from during triaging to assign the appropriate ticket category.
Following further queries from the Investigator about the system including about its reporting functionality and the 63 categories, the Department provided further information including the list of 63 categories, none of which are explicitly complaints or, it seems to me, could reasonably be interpreted as referring to complaints. It said that a report could be run over a particular time period to extract the following data into excel: Ticket ID, Subject, Ticket, Category, From, Logged by, Company, Department, Handled by, Date, Last updated, Start Date, Close Date, Due, Response time, Duration, Time Spent, Status, Priority, Times Reopened, Via, URL. It noted that when the option to export these results into excel is used, the system does not include any attachments which may be included on a ticket nor does provide translation for tickets which are not in English.
The Department said that for the period of 1 April 2023 to 30 November 2023 the Helpdesk received 14,103 tickets. It said that the information contained in the body of each email could be extracted into excel and would then have to be manually reviewed to assess if the contents of the email would be relevant to the FOI request, i.e. whether it relates to a complaint. It said that the system does allow for keyword searches and that this does search the body of tickets. However, it said that this would not allow for the identification of all tickets which might reasonably be considered ‘complaints’. It said that even if the Department were to limit its search to tickets which contained the word ‘complaint’, each identified ticket would have to be reviewed individually and in many cases would not fall into the scope of the FOI request while any ticket which may be substantively a complaint but does not specifically use the word ‘complaint’ would be omitted. It also said that any ticket containing a complaint which was not submitted in English would not be discovered using the keyword search functionality.
Analysis
The question I must consider is not whether the Department holds the information sought, but whether it holds a record or records containing the information sought, or can create such a record by extracting the relevant information from its helpdesk system by using any facility for electronic search or extraction that existed on the date of the request and was ordinarily used by it. Having carefully considered the matter, I am not satisfied that it can.
It seems to me that that the Department’s system used to manage correspondence in respect of accommodation for Ukrainian refugees in Ireland is simply not set up in a way that allows for the creation of a record or records containing anonymised details of complaints relating to accommodation by the taking of reasonable steps as envisaged in section 17(4). It seems to me that even working with an Excel spreadsheet generated from all correspondence received through the system for the relevant time period, there is no obvious or efficient way of filtering such a report using any of the 63 categories, or indeed any of the other column headings, such that it would be narrowed down to correspondence that contained complaints related to accommodation. Rather, it seems to me that in order to produce a record containing the information under part 1 of the request, it would be necessary to go through each individual row on the spreadsheet, manually examining the details of each of the 14,103 emails received during the time period and determining, in respect of each one, whether it could reasonably be considered to be an accommodation related complaint, and then extracting that relevant information. Further analysis would then need to be carried out on this new record, in order to produce a record containing the information sought under part 2. Overall, I am not satisfied that this can be interpreted as the taking of reasonable steps as required by section 17(4)(a).
While I acknowledge the applicant’s public interest arguments about the importance of highlighting issues around substandard accommodation, if the record does not exist, then that is the end of the matter. Furthermore, in relation to his contention that it is unreasonable for the Department to say that it cannot do something that it has already done, as evident from data provided initially, this data was in respect of complaints made by International Protection applicants rather than Ukrainian refugees, which I understand are managed on a separate system and by a separate unit.
For the above reasons, I am satisfied that the Department was justified in refusing, under section 15(1)(a), the records sought on the ground that they do not exist and that it was not required to create them pursuant to section 17(4). In the circumstances, I will not consider its reliance on section 35 in respect of these records.
Part 1 - complaints made by International Protection applicants
It is the Department’s position that the details of complaints made are exempt under section 35(1)(a) of the FOI Act. Section 35(1) of the FOI Act provides that a head shall refuse to grant an FOI request if –
a) the record concerned contains information given to an FOI body, in confidence and on the understanding that it would be treated by it as confidential (including such information as aforesaid that a person was required by law, or could have been required by the body pursuant to law, to give to the body) and, in the opinion of the head, its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and it is of importance to the body that such further similar information as aforesaid should continue to be given to the body, or
b) disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment (other than a provision specified in column (3) in Part 1 or 2 of Schedule 3 of an enactment specified in that Schedule) or otherwise by law.
Section 35(2) provides that subsection (1) shall not apply to a record which is prepared by a head or any other person (being a director, or member of the staff of, an FOI body or a service provider) in the course of the performance of his or her functions unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than an FOI body or head or a director, or member of the staff of, an FOI body or of such a service provider.
As section 35(1) does not apply where the records fall within the terms of section 35(2), I deem it appropriate to consider the applicability of section 35(2) at the outset. The record, as described by the Department, is a spreadsheet used by the IPAS Centre Management team to manage complaints made by IP applicants. Column H contains descriptions of the individual complaints made. I am satisfied, from examining the record, that these are high level descriptions of the complaints, added to the spreadsheet by staff of the Department, rather than being the actual text of the complaints themselves (for example from a complaint sent in by email). I find that the record was therefore prepared by a member or members of staff of an FOI body in the course of the performance of their functions.
Accordingly, for section 35(1) to apply, release of the record must constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than an FOI body or head or a director, or member of the staff of, an FOI body or of such a service provider.
No arguments have been made, either explicitly or implicitly, that the release of the record would constitute a breach of a duty of confidence provided for by a statute and I find that this does not apply. In relation to a breach of confidence provided for by an agreement, while I note the Department’s reference to its Customer Action Plan 2022-2025 which states that “all complaints will be treated promptly, fairly, impartially and in confidence”, it seems to me that while this action plan sets out the standard of service that people can expect from the Department, it cannot reasonably be interpreted as an agreement. I find that this does not apply either. It remains to consider whether there exists a duty of confidence “otherwise by law”, and this is generally accepted to include a duty of confidence arising in equity.
In the Supreme Court decision in the case ofMahon v Post Publications Ltd [2007] 3 I.R. 338, Fennelly J confirmed that the requirements for a successful action based on a breach of an equitable duty of confidence, at least in a commercial setting, are found in the judgment ofMegarry J in Coco v. A. N. Clark (Engineers) Ltd. [1969] R.P.C. 41, at 47:
“[T]hree elements are normally required if, apart from contract, a case of breach of confidence is to succeed. First, the information itself ... must 'have the necessary quality of confidence about it'. Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it."
Fennelly J summarised or restated the requirements of what he called “the contours” of the equitable doctrine of confidence as follows:
1. “the information must in fact be confidential or secret: it must ... ‘have the necessary quality of confidence about it’;
2. it must have been communicated by the possessor of the information in circumstances which impose an obligation of confidence or trust on the person receiving it;
3. it must be wrongfully communicated by the person receiving it or by another person who is aware of the obligation of confidence.”
The Department made no reference to section 35(2) in its submissions. Nevertheless, it seems to me that its arguments in respect of section 35(1)(a) are of relevance to the question of whether section 35(2) applies, specifically the question of whether release of the record would constitute a breach of an equitable duty of confidence.
The Department said that the Customer Action Plan clearly establishes an understanding with customers that complaints are treated by the Department as confidential. It said that by publishing the details of complaints to the world at large (given the Act places no constraints on the uses to which a record released under the Act can be put), it believed that it was at risk of breaching the trust of people who rely on its services.
It said that, even by anonymising the complaints, it was concerned that a particular detail within any given complaint could potentially identify the complainant to other International Protection applicants or accommodation providers. Alternatively, it said that release could identify individuals who may be the subject of a complaint which could undermine the credibility of its complaints procedure. The Department said that it had concerns about the perceived integrity of its customer complaints system if it routinely published such details. It said that such actions could conceivably lead to a reluctance to file complaints that could be published and potentially identify the complainant at a later date. It said that it was imperative that international protection applicants living in state accommodation have confidence in the Department to handle their complaints efficiently, fairly and in confidence.
As set out in the scope section above, the only part of the record under consideration here is column H which contains, in respect of each individual complaint, a high level description of the nature of the complaint. It does not contain the text of the actual complaint itself. Having carefully read through all 387 entries, I am satisfied that the column contains no names, locations or indeed a level of detail about the complaint itself that could lead to a person (either the complainant or a person being complained about) being identified.
I fully accept the Department’s position that complaints are made to the Department in confidence, and on the understanding that they will be treated as confidential. I appreciate that without such assurances, individuals may feel unable to make complaints about IPAS accommodation. However, it seems to me that the assurances of confidentiality are around protecting the identities of the individuals making the complaints, rather than a broad description of the nature of the complaint. I do not accept that the information contained in column H has the necessary quality of confidence about it and nor do I accept that its disclosure could be considered detrimental or prejudicial to the individuals who made the complaints. In the circumstances, I find that release of the information at issue would not constitute a breach of an equitable duty of confidence owed to the complainants.
Accordingly, I find that, pursuant to section 35(2), section 35(1) does not apply to the record at issue and I find that the Department was not justified in refusing to release it under
section 35(1)(a).
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Department’s decision. I find that Department was justified in refusing, under section 15(1)(a), records containing details of complaints made by Ukrainian refugees on the ground that records holding the information sought do not exist and that the Department was not required to create them pursuant to section 17(4). I find, however, that it was not justified in refusing, under section 35(1)(a), details of anonymised complaints made by International Protection applicants, and I direct their release.
Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.
Stephen Rafferty
Senior Investigator