Decision
Mr. A and the Department of Housing, Local Government, and Heritage (the Department)
From Office of the Information Commissioner (OIC)
Case number: OIC-153011-W9T5V6
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-153011-W9T5V6
Published on
Whether the Department was justified in refusing access to correspondence with the Department of the Taoiseach in relation to figures for homelessness under sections 28(1) and 29(1) of the FOI Act
6 August 2025
In a request dated 29 July 2024, the applicant sought access to copies of any correspondence between the Department and the Department of the Taoiseach regarding figures for homelessness for the period 01 April 2024 to 29 July 2024. On 20 August 2024, three weeks after receipt of the request, the Department asked the applicant if he would be prepared to narrow the scope of his request to correspondence from four named units/offices within the Department in order to negate the need to request records from every unit in the Department. On the same day, the applicant agreed to do so, following which the Department informed him that the new date for issuing a decision was 17 September 2024. The applicant asked the Department to explain why two additional weeks had been added to the processing time “for no reason”. In response, the Department said that had it been required to carry out a search for records on the request as originally worded, it would likely have been refused under section 15(1)(c) of the FOI Act, which essentially provides for the refusal of voluminous requests. It said that upon his acceptance of the refinement, the Decision Maker could begin to process the request and thus the clock started again at day one.
The Department part-granted the request on 17 September 2024. Of the 12 records identified as being relevant, records 1, 2, 3, 6, and 7 were released in full, records 4 and 5 were refused under section 15(1)(d) of the FOI Act, record 8 was refused under section 29(1), records 9 and 11 were refused under section 28(1)(a), record 10 was refused under section 28(1)(c), and record 12 was refused under section 28(1)(b). On 24 September 2024, the applicant sought an internal review of the Department’s decision. The Department issued its internal review decision on 14 October 2024 in which affirmed its original decision. On 18 October 2024, the applicant applied to this Office for a review of the Department’s decision.
During the course of the review, the Department argued that record 10 was also exempt under sections 15(d), 28(1)(a), and 29(1) of the FOI Act and that record 12 was also exempt under section 28(1)(c). The applicant was informed of these new material issues and was invited to provide a submission in response. However, the applicant did not take the opportunity to provide additional submissions.
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 between the applicant and the Department as outlined above and to the correspondence between this office and both parties on the matter. 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.
During the course of the review, the applicant agreed to remove records 4 and 5 from scope. Accordingly, this review is solely concerned with whether the Department was justified in refusing access to records 8, 9, 10, 11, 12 under sections 15(1)(d), 29(1), 28(1)(a), 28(1)(b), and/or 28(1)(c) of the FOI Act.
In his application to this Office, the applicant expressed concerns about the manner of the Department’s engagements with him concerning the refinement of his requests, as described above. He asked that we consider whether the Department is dealing in good faith with requesters or misusing the legislation to delay people or to force refinement of requests in circumstances where it is not required.
The applicant’s primary concern appears to relate to the Department’s decision to treat the date on which he agreed to refine his request as the new date of receipt of the request for the purposes of determining the date by which a decision on the request must issue. Section 13(1) of the FOI Act provides that a decision on a request must be made not later than four weeks after receipt of the request. Where a requester agrees to refine a request, it is, of course, also open to the FOI body to seek the requester’s agreement to treat the refined request as a new request and the date of receipt as the date upon which the refinement was agreed. However, in the absence of such agreement, the Act does not allow for an FOI body to arbitrarily change the date the request is deemed to have been made, provided the request originally made was a valid request. Without such agreement, the date of receipt of the original request must be taken as the date the request was received, regardless of any subsequent refinement.
As the Department will be aware, the Central Policy Unit (CPU) of the Department of Public Expenditure, Infrastructure, Public Service Reform and Digitalisation has published an FOI Manual which provides guidance for FOI bodies in processing FOI requests. The Manual explains that a request is valid if it meets the criteria set out in section 12(1) of the FOI Act, including that the request must contain sufficient particulars in relation to the information sought to enable the records to be identified by the taking of reasonable steps. It explains that a request is not valid if it is not possible, by the taking of reasonable steps, to identify the records sought from the information supplied. It explains that in these circumstances, the FOI body is obliged to consult with the requester to assist them in identifying the records sought and that, when the terms of a revised request are agreed between the requester and the FOI body, the date on which such agreement is reached becomes the relevant date for receipt of the request. However, the Manual also goes on to explain that a request is valid if it is possible to identify the records sought, notwithstanding that the request is large in its scope or covers a large number of records, i.e. a voluminous request is a valid request.
In this case, it was not the Department’s position that it could not identify the records sought from the original request made and that the request was therefore invalid. Rather, it asked the applicant to refine the request expressly for the purpose of reducing the extent of the searches that would be required to identify the relevant records sought. It was only when the applicant queried the basis upon which the Department had decided to extend the timeframe for processing the request that it explained that the request as worded was likely to be refused under section 15(1)(c). As I have outlined above, the CPU manual makes it quite clear that a voluminous request is a valid request. As such, it was not open to the Department in this case to change the date upon which it determined the request to have been made without the prior agreement of the applicant.
I would add that the circumstances in which the timeframe for issuing a decision on a valid request can be extended are set out in section 14(1) of the Act. Those circumstances include where the FOI body considers that the request relates to such number of records that compliance with the relevant timeframe is not reasonably possible. Section 14 is of relevance where the FOI body intends to process the request as it stands but the number of records involved is substantial. In this case, it is clear that the Department did not intend to process the request as it stood given that it was considering refusal under section 15(1)(c). As such, section 14(1) was of no relevance in this case.
Having regard to the above, I am satisfied that the Department incorrectly treated the date on which the applicant agreed to refine his request as the new date of receipt of the request for the purposes of determining the date by which a decision on the request must issue. Moreover, it failed to properly inform the applicant that it was considering refusal of the request under section 15(1)(c) when it first sought the refinement of the request. However, I am not persuaded that it acted in bad faith or that it purposely sought to delay the processing of the request or to force refinement of the request. Rather, I believe it mistakenly sought to treat the refined request as a new request due to a misunderstanding of the various statutory provisions. Nevertheless, I would strongly urge the Department to ensure that its decision makers are fully familiar with the contents of the various guidance materials that are available on the CPU website to ensure that no further similar issues arise in the future.
Section 28: Meetings of the Government
The Department relied on section 28(1)(a) to refuse access to records 9 and 11, sections 28(1)(a) and 28(1)(c) to refuse access to record 10, and sections 28(1)(b) and 28(1)(c) to refuse access to record 12.
Section 28(1) of the FOI Act provides for the refusal of a request if the record concerned –
(a) has been, or is proposed to be, submitted to the Government for its consideration by a Minister of the Government or the Attorney General and was created for that purpose,
(b) is a record of the Government other than a record by which a decision of the Government is published to the general public by or on behalf of the Government, or
(c) contains information (including advice) for a member of the Government, the Attorney General, a Minister of State, the Secretary General to the Government for use by him or her solely for the purpose of the transaction of any business of the Government at a meeting of the Government.
Under section 28(6), ‘‘Government’’ is defined as including a committee of the Government, that is to say, a committee appointed by the Government whose membership consists of—
(a) members of the Government, or
(b) one or more members of the Government together with either or both of the following:
(i) one or more Ministers of State;
(ii) the Attorney General.
In its submissions, the Department said record 10 is a briefing note that was created solely for the purpose of briefing the Minister for Housing on homelessness for a Cabinet Committee on Housing (CCH) meeting in July 2024. It said the CCH is made up of An Taoiseach, An Tánaiste and Minister for Foreign Affairs, the Minister for Finance, the Minister for Public Expenditure, NDP Delivery and Reform, the Minister for Housing, Local Government, and Heritage, and the Minister for Enterprise, Trade, and Employment. As such, I am satisfied that the CHH falls within the definition of the Government, as set out under section 28(6), for the purposes of section 28.
The Department said record 10 was used by the Minister for Housing to provide the CCH with an update on homelessness. Record 9 is a covering email wherein record 10 was forwarded to an official in the Department of the Taoiseach which the Department said was for the purpose of providing briefing on material to be discussed at Cabinet. Record 12 comprises the Agenda for the CCH meeting of July 2024, while record 11 is a covering email from the Department of the Taoiseach to the Department for the circulating of record 12.
Section 28(1)(c) is concerned with the contents and use of the record. The category of records covered by this exemption would include departmental briefing notes for individual ministers attending a Government meeting and notes prepared for the Secretary to the Government for the purposes of such a meeting and the agenda of such a meeting. The sole reason for the creation of such records is to assist the Government in the conduct of one or more of its meetings and the record ceases to have a purposeful existence after the conclusion of the meeting. I am satisfied that section 28(1)(c) applies to records 10 and 12. I accept that record 10 contains information for the Minister for use by him solely for the purpose of the transaction of the business of the CCH at its meeting, while record 12 comprises the agenda for that meeting.
As I have outlined above, the Department refused access to records 9 and 11 under section 28(1)(a). That section provides for a class-based exemption of certain records regardless of their contents. It is concerned with the status of a record, i.e. its submission to the Government by a Minister or the Attorney General for consideration and its creation for that purpose. For section 28(1)(a) to apply, a record must fulfil the following three criteria:
• The record has been (or is/was proposed to be) submitted to the Government for its consideration,
• The record has been (or is/was proposed to be) submitted by a Minister of the Government or the Attorney General, and
• The record was created for the purpose of submission to the Government for its consideration.
My finding that section 28(1)(c) applies to records 10 and 12 is not the end of the matter as section 28(3)(a) provides that section 28(1) does not apply to a record if and in so far as it contains factual information relating to a decision of the Government that has been published to the general public. Section 28(6) states that a decision of the Government includes the noting or approving by the Government of a record submitted to them.
In its submissions to this Office, the Department acknowledged that record 10, which is a briefing note intended to update the CCH on homelessness, contains extensive factual information which can be found in the Monthly Homeless Reports available to the general public on its website. It said these reports provide provides insights into the numbers of individuals and families prevented from entering emergency accommodation, the numbers that exited emergency accommodation, and the duration of stay in emergency accommodation. It also noted that some of the factual information in record 10 was contained in records already released to the applicant on foot of his FOI request. It argued, however that the observations, opinions, and trends within record 10 were submitted for discussion by Cabinet and were not published to the general public.
Even though much of the information in record 10 is available to the general public, there is no evidence before me to suggest that the information relates to a decision of the Government that has been published to the general public. I am also satisfied that record 12 contains no factual information relating to a decision of the Government that has been published to the general public. As such, I find that section 28(3) also does not serve to disapply the application of section 28(1) to records 10 or 12.
In conclusion, therefore, I find that section 28(1)(c) applies to records 10 and 12. I find, however that section 28(1)(a) does not apply to records 9 or 11. As no other exemption has been cited in respect of records 9 and 11, I find that they are not exempt from release.
Section 29: Deliberations of FOI Bodies
The Department refused access to record 8 under section 29(1) of the FOI Act. Section 29(1) provides for the refusal of a request if (a) the record concerned contains matter relating to the deliberative process of an FOI body, including opinions, advice, recommendations and the results of consultations considered by the body for the purpose of those processes, and (b) the body considers that the granting of the request would be contrary to the public interest. These are two independent requirements and the fact that the first is met carries no presumption that the second is met. Furthermore, the public interest test at section 29(1)(b) is a strong test. Any arguments against release should be supported by the facts of the case and it should be shown how release of the records would be contrary to the public interest. The exemption does not apply in so far as the records contain any of the information or matter referred to in section 29(2). Thus, where an FOI body is relying on section 29(1) for the refusal of a record, it must go on to consider whether section 29(2) applies.
For section 29(1)(a) to apply, the records must contain matter relating to the “deliberative process” of an FOI body. An FOI body relying on this exemption should identify both the deliberative process concerned and any matter in particular which relates to those processes. A deliberative process may be described as a thinking process which informs decision making in FOI bodies. It involves the gathering of information from a variety of sources and weighing or considering carefully all of the information and facts obtained with a view to making a decision or reflecting upon the reasons for or against a particular choice. Thus, it involves the consideration of various matters with a view to making a decision on a particular matter. It would, for example, include some weighing up or evaluation of competing options or the consideration of proposals or courses of action. The fact that a deliberative process exists and is ongoing does not mean that the exemption automatically applies without consideration of all the provisions of section 29. Equally, the fact that a deliberative process is at an end does not mean that the exemption can no longer apply.
The public interest test at section 29(1)(b) is a strong test, requiring the FOI body to show that the granting of the request would be contrary to the public interest, and is stronger than the public interest test in many other sections of the Act, which generally requires that the public interest would, on balance, be better served by granting than by refusing to grant the request. This Office accepts that the FOI Act clearly envisages that there will be cases in which disclosure of the details of an FOI body’s deliberations – whether before or, in some cases, after a decision based on those deliberations has been made – would be against the public interest. However, that is not to say that such disclosure is always, as a matter of principle, against the public interest. Any arguments against release under section 29 should be substantiated and supported by the facts of the case. An FOI body should show how granting access to the particular record would be contrary to the public interest, e.g. by identifying a specific harm to the public interest flowing from release.
The Department said record 8 contains information relating to an ongoing deliberative process being conducted by the Child Poverty and Welfare Office in the Department of the Taoiseach. It said this involves the gathering information from a variety of sources. It said that in this case, the Department of Housing, Local Government and Heritage fed into the deliberative process by providing material in relation to homelessness. It said the record contains material being considered for use and the various sources that might feed into the deliberations of the Department. It said the record is subject to ongoing and further change and discussion. It said the deliberative process is ongoing and will be the subject of a future decision by the Department.
On the matter of whether the release of the record would be contrary to the public interest, the Department simply said that the release of the record would allow the applicant to become aware of a significant decision that the Department proposes to make and that the subject matter of the record is still under development and will be the subject of a future decision by the Department.
While I am required by section 25(3) of the Act to take all reasonable precautions in the course of a review to prevent the disclosure of exempt material, I do not believe that I am in breach of that section by explaining that the record, which is titled “Understanding the drivers of [increasing] family homelessness”, identifies various factors/matters concerning the causes of, prevention of, and exit from, homelessness and the various sources underpinning those factors/matters. The record also contains various drafting comments in the margins. It is important to note that while the Department has explained that the record is a living document that is subject to ongoing change, the undated version that was made available to this Office for the purposes of the review is the only version that this review is concerned with.
I accept the Department’s statement that the record at issue relates to an ongoing deliberative process and that section 29(1)(a) applies. However, for section 29(1) apply, release must also be contrary to the public interest, as per section 29(1)(b). As I have explained above, for the release of a record to be contrary to the public interest, I would expect the FOI body to identify a specific harm to the public interest flowing from release. I am not satisfied that the Department has done so in this case. It has simply said that the record is still under development and that its release would allow the applicant to become aware of a significant decision that the Department proposes to make. It did not, however, explain why this would be contrary to the public interest. For example, it did not suggest that the release of the record would in some way prejudice or impair or negatively impact the deliberative process.
In sum, the Department has not satisfactorily shown how granting access to the record would be contrary to the public interest, nor is it apparent to me following consideration of the contents of the record. As such, I find that the Department was not justified in refusing access to record 8 under section 29(1) of the FOI Act and I direct its release.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Department’s decision. I find that the Department was justified in refusing access to records 10 and 12 under section 28(1)(c). I find that it was not justified in refusing access to record 8 under section 29(1) of the FOI Act or records 9 and 11 under section 28(1)(a) 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 requester 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