Decision
Ms. X & The Housing Agency
From Office of the Information Commissioner (OIC)
Case number: OIC-156475-V7X6V8
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-156475-V7X6V8
Published on
Whether the Housing Agency was justified under section 15(1)(a) 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 scheme, 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 applications to the Housing Agency under the redress schemes.
In a request received by the Housing Agency on 22 August 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 17 October 2024, the Housing Agency part-granted the applicant’s request, identifying 48 records relevant to the request, of which it released 34 in full and nine in part. The Housing Agency withheld access in full to the remaining five records. The Housing Agency relied on sections 37(1), 29(1) and 30(1)(a) of the FOI Act as grounds for its decision.
On 21 October 2024, the applicant sought an internal review of the Housing Agency’s decision. In its internal review decision, the Housing Agency annulled its original decision in respect of the five records it had originally withheld in full, and released these records to the applicant on 13 November 2024. The Housing Agency did not address the nine withheld records in its internal review decision. However, in subsequent correspondence with the applicant, it indicated that it continued to partly-withhold all nine, although it varied the basis on which it did so, relying on section 32(1)(b) of the FOI Act. On 12 February 2035, the applicant applied to this Office for a review of the Housing Agency’s decision.
In the course of this review the applicant indicated her view that additional records ought to exist and to have been considered for release 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 records sought do 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 additional submissions on this point, and I have considered these in full.
Furthermore, in correspondence with this Office in the course of this review, the Housing Agency indicated that it now sought to rely on section 37(1) of the FOI Act (and not section 32(1)(b)) as the basis to partly-withhold the nine relevant records. As the applicant had not been apprised of this fact, I wrote to her to advise that section 37(1) was the only provision of the FOI Act being relied on by the Housing Agency in respect of the nine partly-withheld records, and invited her to make any further submissions that she wished in relation to the matter. In subsequent correspondence from the applicant, she indicated that she no longer sought access to the information in the nine records that the Housing Agency had withheld under section 37(1) of the FOI Act. Accordingly, this information can be excluded from the scope of this review, which will now instead focus solely on the question of the additional records that the applicant asserts should exist.
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 parties, the correspondence exchanged between the parties in the course of Housing Agency’s processing of the FOI request, and the applicant’s comments in her application for review and subsequent correspondence with this Office. 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 in relying on section 15(1)(a) of the FOI Act to refuse access to the additional records that the applicant argued ought to 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 to satisfy 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.
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 additional records that the applicant asserts should 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.
Finally, it is relevant 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.
Section 15(1)(a)
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.
As noted above, in correspondence with this Office the applicant expressed the view that additional records should exist which should have been considered for release in response to her FOI request. In particular, she stated that she requires access to minutes of a meeting held on 10 April 2024 between named staff members of the Housing Agency and a specified engineering firm regarding her applications under the relevant schemes, as well as records of a phone call between named individuals on 9 April 2024 during which her applications were discussed. The applicant set out her position that this material is captured by the terms of her FOI request and should have been considered by the Housing Agency in its response to her request.
I put this to the Housing Agency and in response it advised that its position was that no additional records relevant to the applicant’s FOI request exist, and confirmed its reliance on section 15(1)(a) of the FOI Act in this regard. The Housing Agency argued that section 15(1)(a) applies in this case on the basis that it had undertaken searches in all locations that records would be stored, and could confirm that no such records exist, and nor did they ever exist. The Housing Agency did not provide any further details in relation to the searches that it had carried out.
I put the Housing Agency’s response to the applicant and invited further submissions from her. In subsequent correspondence from the applicant, she stated that she found it difficult to accept that neither the Housing Agency nor the relevant engineering firm would have retained any record of the relevant interactions. In particular, the applicant stated that she queried whether the Housing Agency had checked its own internal computer systems where case notes and related information are ordinarily maintained, and whether it had contacted the engineering firm in question to ascertain whether it held records of the phone call or meeting at issue. The applicant stated that it was her understanding that a thorough and reasonable search is required before an FOI body can rely on section 15(1)(a), and outlined her concern that the Housing Agency’s search may not have extended to all relevant systems or to communications with their contractor.
In the circumstances, I considered it appropriate to put the applicant’s response to the Housing Agency for further comment, and in particular to request that it provide further details of the efforts it had made to search for and retrieve records relevant to the applicant’s FOI request.
In response, the Housing Agency provided the following further information. Firstly, in relation to the specific additional records that the applicant asserts should exist, the Housing Agency noted that both the phone call and the meeting at issue did occur, as confirmed by record 25 which it had previously part-released to the applicant in its decision on her FOI request (with certain information redacted under section 37(1) of the FOI Act). However, it went on to state that it could categorically confirm that no records were ever created on foot of either the meeting or the phone call, and that no records relating to either had therefore ever existed. The Housing Agency advised that enquiries had been made with the individuals involved in the relevant phone call and meeting, and that these individuals had confirmed that no records, in the form of phone call notes, minutes of meeting, recordings etc, had been created in respect of either phone call or meeting. The Housing Agency further advised that, in the interests of certainty, both it and the relevant engineering contractor had conducted additional searches of relevant locations in December 2025, which had turned up no additional records.
In relation to its broader search and retrieval efforts in the context of this request, the Housing Agency advised as follows. It stated that the precise locations and areas that were searched for records relevant to the applicant’s FOI request were Microsoft SharePoint, Outlook, OneDrive and individual staff hard drives. It confirmed that the relevant engineering contractor also conducted searches of its file storage locations. The Housing Agency stated that searches had been carried out both manually and by using keyword searches across Microsoft SharePoint, Outlook, OneDrive and individual staff hard drives for the applicant’s name, and the reference number of her application. The Housing Agency stated that no other locations exist where the records could have been misfiled or misplaced.
The Housing Agency also noted that all relevant individuals had been consulted on the potential existence of additional records, and reiterated that in light of the specific additional records the applicant asserted should exist, both the Housing Agency and the consulting engineer had carried out further searches in December 2025, which had produced no additional records.
The Housing Agency also addressed the possibility that any relevant records were destroyed, in accordance with a relevant policy or otherwise. It stated that no such possibility existed in this case, as the additional records that the applicant argues ought to exist had never been created. In relation to this point, the Housing Agency further noted that it is not its normal practice or procedure to take minutes of phone calls or minutes of meetings with consultants engaged to provide services under the redress schemes.
The Housing Agency also provided further details regarding its file retention and storage practices more generally. In particular, it noted that records relevant to the applicant’s FOI request would ordinarily be held by its Defective Concrete Blocks Grant Scheme section. It stated that dormant files are processed in accordance with its Records Management policy (a copy of which it provided to this Office), and that responsibility for processing documents in line with the Records Management Policy rests with each individual business unit. The Housing Agency confirmed that no relevant register of files exists, and in relation to destruction of records advised that same takes place in line with its Records Management Policy. However, it emphasised that the question of the disposal of records did not arise in this specific case, as its position is that it had provided all relevant records to the applicant and the additional records that she has asserted ought to exist were in fact never created.
I have considered the arguments of both parties under section 15(1)(a) of the FOI Act, 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 the fact that she may well be extremely disappointed and dissatisfied with the outcome of her applications under the redress schemes.
This being said, based on the information provided by the Housing Agency, I am satisfied that it has provided this Office with a coherent and reasonable explanation that accounts for the non-existence of the additional records that the applicant asserts ought to exist. 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 the Housing Agency did not carry out reasonable searches for relevant records in this case. Indeed, it states that both it and its consulting engineer carried out further searches of relevant file storage location in December 2025, on foot of correspondence from this Office setting out the details of the additional records that the applicant states should exist, and that such searches produced no further documentation. I consider that I have no reason to doubt the account of the Housing Agency in this regard.
Similarly, there is no information before me to support an argument that the Housing Agency did not undertake the appropriate engagement with relevant service providers in the course of its search and retrieval process for records relevant to the FOI request, or that such service providers did not themselves carry out appropriate searches. By the same token, I do not consider that any information has been advanced that would suggest that the Housing Agency failed to identify and consider for release any additional records in general (ie. besides the specific additional records that the applicant argued should exist) that are relevant to the applicant’s 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 additional records 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 these additional records.
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 decision of the Housing Agency. I find that the Housing Agency was justified in relying on section 15(1)(a) of the FOI Act to refuse access to the additional records that the applicant asserts ought to 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