Decision
Ms. X and Housing Agency
From Office of the Information Commissioner (OIC)
Case number: OIC-158443-X0Y1X6
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-158443-X0Y1X6
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
10 December 2025
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 25 October 2024, the applicant sought access to records relating to the Housing Agency’s consideration of, and decision on, her application under the redress schemes, as well as all relevant correspondence between the Housing Agency and Donegal County Council.
In a decision dated 26 November 2024, the Housing Agency part-granted the applicant’s request. It identified 41 records as relevant to the request, of which it fully released 29 and partially withheld 12 pursuant to section 37(1) of the FOI Act. On 6 December 2024, the applicant sought an internal review of the Housing Agency’s initial decision. In its internal review decision of 2 January 2025, the Housing Agency varied its initial decision. It upheld its decision to refuse access in part to the 12 records at issue, but in respect of one record (record 25), it varied the basis on which it did so, now relying on section 32(1)(b) instead of section 37(1) of the FOI Act. On 16 April 2025, the applicant applied to this Office for a review of the Housing Agency’s decision.
In her application to this Office for a review of the Housing Agency’s 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 she confirmed her view that an additional record, namely a draft report, may exist which should have been identified and scheduled by the Housing Agency. I put this to the Housing Agency for comment, and in response it indicated that its position was that the additional record, in the form of the draft report, does 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 her to make any further submissions that she 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 her 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 12 records at issue, and under section 15(1)(a) of the FOI Act in refusing access to the additional record the applicant argued may 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 12 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.
In addition, 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.
Finally, I note that in her request to the Housing Agency for an internal review of its initial decision, the applicant made a number of arguments related to section 29(1) of the FOI Act. For the avoidance of any doubt, I wish to confirm that the Housing Agency has not sought to rely on section 29(1) in this case and consideration of same will not form part of this review.
As noted above, in its decision on the applicant’s FOI request the Housing Agency partly withheld 12 records. It refused access in part under section 37(1) of the FOI Act to records 2, 11, 14, 15, 22, 23, 24, 25, 26, 27, 32 and 39. The Housing Agency relied on section 32(1)(b) of the FOI Act to partly withhold access to record 25.
Bearing in mind the requirements of section 25(3), the records which are the subject of this review can be described as follows.
• Records 2 and 15 are spreadsheets showing a list of properties affected by defective blocks and the current stages of the homeowners’ applications for redress.
• Record 11 is a list of applications under the redress schemes indicating whether a particular threshold in relation to qualifying for assistance under the redress schemes) has been met.
• Record 14 is a map of part of County Donegal showing the sites at which various houses affected by defective blocks are located.
• Records 22 and 23 comprise lists of applications under the redress schemes with engineers’ comments attached in respect of each application.
• Record 24 is a list of applications under the redress schemes indicating a draft remedial option to be applied to each application.
• Record 25 consists of email correspondence between the Housing Agency and a consulting engineer, dated 13 August 2024, in relation to applications under the redress schemes. I note that the list that comprises record 24 is included as part of one of the emails.
• Records 26 and 27 consist of internal Housing Agency email correspondence, dated 29 August 2024, in relation to applications under the redress schemes.
• Record 32 is a list of applications under the redress schemes indicating whether remediation, and which remediation option, has been approved in respect of each property.
• Record 39 is a list of applications under the redress schemes showing the results of various tests carried out at each property.
It should be noted that, in relation to records 2, 11, 14, 15, 22, 23, 24, 32 and 39, 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 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.
In her application to this Office for a review of the Housing Agency’s decision, the applicant outlined her view that the redactions to the records were excessive. She stated that the Housing Agency should have been able to redact only the personal information of third- party individuals from the records, and “…the necessary information should have been released”.
I am unable to accept this argument of the applicant. Having viewed the unredacted records, I consider that it is straightforwardly the case that all of the information redacted from records 2, 11, 14, 15, 22, 23, 24, 32 and 39 is the personal information of individuals other than the applicant. Contrary to the applicant’s arguments, 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, her property and her 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).
Furthermore, in the case of the internal Housing Agency emails that comprise records 26 and 27, while (as noted above) information relating to staff members of FOI bodies in the performance of their official functions is excluded from the definition of personal information, the material that has been redacted from these two records is not that which relates to the Housing Agency staff who sent and received the emails. Rather, it is material which, again, relates to applications submitted under the redress schemes by individuals other than the applicant. I am therefore satisfied that the information redacted from these records also comes 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 her application for a review of the Housing Agency’s decision, the applicant outlined that her wish in making her FOI request was to attempt to understand how the Housing Agency reached its decision on the remediation option to be applied to her property. 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 she 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 – comprising as it does a number of very brief comments and observations, which lack any real amount of detailed analysis – 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 her application to this Office for a review of the Housing Agency’s decision, the applicant was at pains to completely refute any suggestion that she, personally, was responsible for any behaviour of the kind referred to above. For the avoidance of any doubt, at no point has the suggestion been advanced that the applicant herself 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. In relation to record 25, I note that the Housing Agency has redacted material that would tend to identify a contractor involved in the email correspondence contained in the record, as well as the mobile numbers of two Housing Agency staff. 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 that the Housing Agency redacted from record 25 comes within the scope of section 32(1)(b) of the FOI Act.
As noted above, record 25 reproduces the list that comprises record 24, the redactions to which I have found to be justified under section 37(1). For the avoidance of any doubt, my finding in relation to record 24 also applies to the same information that is duplicated in record 25 (in other words, the duplicated material is similarly exempt from release under section 37(1) of the FOI Act).
In relation to the information in record 25 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 information that it redacted from record 25 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.
As noted above, in correspondence with this Office the applicant expressed the view that an additional record, in the form of a draft report on her property, may exist which should have been considered for release in response to her FOI request. I put this to the Housing Agency and it confirmed its position that this record does 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 its submissions on section 15(1)(a), the Housing Agency stated that it was satisfied that all records that exist have been included in the schedule of records provided to the applicant. It stated that this is consistent with its records management policy, which provides for the secure retention of records for a defined period and their lawful disposal thereafter. Accordingly, it stated that the record sought is no longer available, and that section 15(1)(a) applies.
The Housing Agency stated that, under its records management policy, draft documents are considered working papers and are maintained solely for the purpose of developing and finalising official records. It stated that, once a finalised version of a document has been completed and formally approved, any draft versions are scheduled for destruction in accordance with its retention and disposal procedures. The Housing Agency stated that this approach ensures that only final, authoritative records are retained within its filing systems, whether in Microsoft SharePoint, Outlook, or other record storage locations, while also maintaining compliance with relevant recordkeeping standards and regulatory requirements.
The Housing Agency went on to note that, under its records management policy, each business unit is required to develop and maintain an inventory of the class of records contained within the business function, and that the inventory for the unit handling the redress schemes had been completed accordingly. It stated that, under its record management policy, draft versions of records that have been replaced by final versions of the record should not be maintained and may be disposed of.
The Housing Agency also stated that its records management policy was brought to the attention of staff working within its Defective Concrete Blocks Grant Scheme (DCBGS) unit responsible in September 2024, following the introduction of the policy to the wider organisation. It stated that the timeframe for removal of a draft record varies across the unit depending on factors relating to service delivery, but that in general the process for removal is carried out once an application or project group in which a draft report is contained within, is competed in full.
I put the details of the above Housing Agency submissions to the applicant for her views. In response, she expressed her ongoing dissatisfaction with the Housing Agency’s position and made further detailed arguments in support of her view that the additional record, in the form of a draft report, should exist. In particular, she argued as follows.
1. The applicant stated that she finds it unbelievable that drafts no longer exist and are destroyed once a finalised version of the document has been completed and formally approved. In particular, the applicant questioned whether this was a recently-introduced policy. She stated that the reason for this question is that (according to her) other affected property owners who had made similar FOI requests had received draft versions of records in response. The applicant stated that her understanding was that these drafts demonstrated the Housing Agency recommending that certain changes be made to assessments of affected properties. The applicant stated that it is her understanding that all records, including drafts, should be retained for a set number of years. She stated that, if a new policy had been put in place by the Housing Agency in relation to the disposal of draft records, she would like to be informed as to the date on which any such policy was implemented, as (according to her) any such policy would seriously impact affected homeowners going through the remediation process.
2. The applicant described it as “extremely shocking” that the Housing Agency may destroy relevant documents given the highly contentious nature of the Defective Blocks crisis generally. She argued that each application under the relevant redress schemes, including her 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.
3. The applicant queried whether section 52 of the FOI Act becomes 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 her) the destruction/disposal of relevant records (including drafts) would appear to be unlawful.
4. The applicant argued that service providers such as engineers, etc, who carry out work for the Housing Agency in this context should provide any relevant records to the Housing Agency to be considered for release in response to an FOI request, and sought assurances that any such contractors were not advised to destroy draft records that they might hold.
5. The applicant stated that in order to be assured that additional records do not exist, she would like this Office to be provided with copies of the relevant Retention Policy, Record Management Policy, and Record Retention Schedule, and the date from which these were implemented. The applicant also argued that, in relation to the destruction of records, the Housing Agency should advise in respect of any authorisation necessary under the National Archives Act 1986 in respect of same.
6. The applicant argued that there should remain a digital record of any deleted files, which should confirm the time, date, etc of deletion. Furthermore, she argued that, if it is indeed the case that relevant Housing Agency policies provide for/require the deletion of draft documents, there should exist a directive from relevant Housing Agency staff requesting such deletion, and requested that the housing Agency provide evidence of same.
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 date on which the Housing Agency’s Records Management Policy had been introduced, it stated that it had formally adopted and implemented the policy in September 2024. While reiterating that the timeframe for removal of a draft record varies across the DCBGS units, the Housing Agency advised that, in general, the process for removal is carried out once an application or project group containing a draft report is competed in full. The Housing Agency stated that its decision on any FOI requests dealt with before the introduction of the policy would have included consideration of whether to release draft records, where same existed.
2. In relation to the applicant’s contention that the Housing Agency should not have disposed of records relating to applications under the redress schemes, on the basis that such applications remain “active” until all matters—including any appeal—are finalised, the Housing Agency noted that the applicant appeared to argue that no documents, including drafts, should have been destroyed. It stated that it does not accept this position. The Housing Agency stated that, once it has 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. It stated that it has no further function in relation to the application once the determination is issued back to the Local Authority, and that any subsequent appeal is conducted independently and does not represent a continuation of the Housing Agency’s deliberative or decision-making process. Accordingly, it stated that the the existence of an appeals mechanism has no bearing on the Housing Agency’s records-management obligations or retention requirements. The Housing Agency stated that it was important to note that the only records disposed of were draft documents generated during the internal assessment and deliberative stages, and 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 was carried out in accordance with its approved records-management policy, and that no final records or completed assessments were destroyed. Furthermore, the Housing Agency emphasised that these final records (the relevant engineers report), including completed final assessments along with grant calculations, were provided to the Local Authority and the applicant to ensure an open and transparent process. The Housing Agency stated that, in accordance with Section 16 of the 2022 Act, it is under no legislative requirement to provide these final records, and that its decision to do so clearly demonstrates 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 is comprehensively captured within the final reports.
3. In respect of the applicant’s arguments regarding section 52 of the FOI Act, the Housing Agency stated that it acted at all times in strict accordance with its Records Management Policy and the conditions therein. It stated that, for the avoidance of doubt, this policy operates entirely separately and completely independent to any past or present FOI request or any such request that may be made in the future. The Housing Agency stated that, accordingly, it strongly refutes any claim put forward that it had acted in any way that would give rise to the applicability of section 52 of the FOI Act.
4. In relation to the question of retention or disposal of records by service providers to the Housing Agency, it stated that contractors were informed of its policy, and at no point did it provide any advice, direction, instruction or implication that draft records in the possession of service providers should be destroyed. The Housing Agency stated that records management within the offices of a service provider is a matter for each individual consultant. Furthermore, the Housing Agency stated that, in the course of responding to FOI requests, consultants were directly engaged as part of the process of search and retrieval for records relevant to the request, and that searches were conducted across all records that were held by consultants.
5. Regarding the provision of the relevant policies to this Office, I wish to note that the Housing Agency has provided with a copy of is Records Management Policy, and I have examined same. I note that the policy states that it has an effective date of September 2024. The Housing Agency 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 therefore it is no subject to the provisions of same.
6. With respect to the applicant’s arguments that there should remain a digital record of any deleted files, which should confirm the time, date, etc of deletion, as well as a directive from relevant Housing Agency staff requesting such deletion, the Housing Agency stated as follows. It advised that, in respect of a directive from relevant Housing Agency staff requesting such deletion being available, it was not its practice to issue case-specific directives instructing staff to delete particular drafts. Instead, it stated, once its Records Management Policy had been 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 stated that these instructions apply organisation-wide, and not on a per-document basis. It advised 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. The Housing Agency stated that staff follow this policy as part of routine records management, rather than on foot of individual directives. Regarding the applicant’s assertion that a digital record of any deleted files, confirming the time, date, etc of deletion should remain, the Housing Agency stated that its systems maintain audit logs for 90 days. It stated that within this period, it is able to review system activity and identify the user who deleted a file, but cannot do so after the 90 days has expired.
I have considered the further arguments of the 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 her frustration, particularly when at issue is the condition of her property and the appropriate remedial options to be applied in relation to her 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 she may well be extremely disappointed and dissatisfied with the outcome of her 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 her 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 (particularly at point 2). I note that the applicant has stated that she finds the actions of the Housing Agency to have been “extremely shocking”. To the extent that that applicant might consider that she has been a victim of maladministration or malfeasance, or that she 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 draft record 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 this additional record.
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 in record 25 that it redacted pursuant to section 32(1)(b) of the FOI Act, and the information in the remaining records at issue that it redacted under section 37(1) of the FOI Act, and in refusing under section 15(1)(a) of the FOI Act the aspect of the applicant’s FOI request relating to the additional record that she 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