Decision
Mr. A and Fingal County Council
From Office of the Information Commissioner (OIC)
Case number: OIC-147849-C1Y9C0
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-147849-C1Y9C0
Published on
Whether the Council was justified in refusing access to its file on a particular property on the basis of section 37(1) of the FOI Act
12 February 2025
In a request dated 30 January 2024, the applicant referenced an Approved Housing Body (AHB) that received funding from the Council to purchase an apartment at a particular address. He sought access to the Council’s file on the specified property to include the relevant funding application form, any correspondence between the Council and the Department of Housing in relation to the property, and any correspondence between the AHB and the Council in relation to the property. In a decision dated 4 March 2024, the Council refused the request under section 37(1) of the FOI Act. It said that disclosure of the records requested would identify individual premises used for the provision of social housing. It said that it does not disclose such information as “this identifies the residents as social housing tenants, which is a breach of their personal data”. On 6 March 2024, the applicant sought an internal review of the Council’s decision. On 27 March 2024, the Council affirmed its refusal of the request. On 28 March 2024, the applicant applied to this Office for a review of the Council’s decision.
During the course of the review, the relevant AHB was notified of the review and invited to make submissions, which were duly received.
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 applicant, the Council, and the AHB. 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.
The Council identified 15 records as coming within the scope of the applicant’s request. It refused access to all 15 records under section 37(1). This review is concerned solely with whether the Council was justified in its decision to refuse access to the records in question under section 37(1) of the Act. I note that a number of the records contain references to other properties. I am satisfied that any such references are outside the scope of the request and this review and I will not consider that information further.
Before I address the substantive issues arising, I wish to make a number of preliminary comments. First, it is important to note that section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request under section 12 shall be presumed not to have been justified unless the head of the relevant FOI body shows to the Commissioner’s satisfaction that its decision was justified. This means that the onus is on the Council to satisfy this Office that its decision to refuse access to the information at issue was justified.
Second, the Council made references to the General Data Protection Regulation (GDPR) in its submissions to this Office. Data protection legislation does not prohibit public bodies from processing FOI requests where the records sought contain personal information relating to individuals other than the requester or from granting access to such information. The FOI Act is entirely independent of data protection legislation and FOI requests for access to records must be processed in accordance with the provisions of the FOI Act. Any concerns a public body has about the release of personal information relating to individuals other than the requester can and should be addressed by considering the applicability of section 37 to the records at issue.
Section 37(1)
Section 37(1) of the FOI Act provides for the mandatory refusal of a request where access to the record sought would involve the disclosure of personal information relating to an individual other than the requester. For the purposes of the Act, personal information is defined as information about an identifiable individual that either (a) would ordinarily be known only to the individual or members of the family, or friends, of the individual, or (b) is held by the FOI body on the understanding that it would be treated by that body as confidential. It is important to note that personal information is information about an identifiable individual. Where information may not, on the face of it, be about an identifiable individual, it may still be personal information if it allows the individual to be identified. An individual may not be named in a record, yet may still be identifiable.
As noted above, the Council has refused the request under section 37(1), on the ground that granting the request would involve the disclosure of personal information relating to the resident(s) of the property that is the subject of the applicant’s request. It is relevant to note here that the Council did not rely on section 37(6) of the Act to refuse the request. That section provides that where a request relates to a record that would fall to be refused under section 37(1) if it existed and the FOI body considers that the disclosure of the existence or non-existence of a record would involve the disclosure of personal information relating to an individual or individuals other than the requester, it must refuse the request and must refuse to disclose whether or not the record exists. This provision of the Act is intended to protect personal information of a third party in situations where knowledge of the existence, or non-existence, of particular records would effectively disclose that party's personal information.
The essence of the Council’s argument is that the disclosure of the fact that the property in question is used for social housing would also involve the disclosure of the fact that its residents are social housing tenants. By not relying on section 37(6) and instead refusing the request under section 37(1), it seems to me that the Council has essentially acknowledged that the property is as described by the applicant in his request, namely that it was purchased by the AHB in question. As such, it seems to me that the Council’s failure to rely on section 37(6) is fatal to its arguments for exemption under section 37(1). Nevertheless, as the Council’s concerns appear to relate to the fact that release under the FOI Act effectively comprises release to the world at large, I will, for the sake of completeness, proceed to consider the applicability of the section to the records at issue.
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 the records at issue is limited. However, I believe it would be useful to provide a high-level overview of the records at issue. The records include copies of email correspondence between the Council and the AHB as well as attachments comprising various application forms, reports and invoices.
In its submissions, the Council said that identifying individual social housing units via an FOI request would have the effect of identifying a current or future resident as a person accessing or in need of the provision of social housing. It said that the Council would regard this, and has always regarded this, as “personal private data”. It said that under GDPR, even if a single record on its own would not identify a private individual, it is sufficient to regard it as personal data if, combined with another record, it would identify a person. It said that responding to any questions regarding an individual identified social housing unit would be to imply that the unit is used to house social tenants and could lead to a data breach. It said that the fact that the requester is already aware of this particular unit is irrelevant, as releasing the information as part of the FOI request would effectively release the information to the world at large.
In a request for submissions, the Council was asked to explain how the release of records relating to its capital financing of social housing could result in the release of information about an identifiable individual. In response, the Council said that it does not have an issue with releasing such records in general or records relating to public housing developments (including some single units) which form part of an overall social housing provision strategy. It said that where there is a legal requirement to publish such data under housing legislation it must comply regardless of any data protection concerns. It said that the Council publishes audit accounts and annual budgets and statements, so all information regarding its purchasing or selling of housing stock is publically available.
It said that the issue in the current case is that the request relates to one identified single unit of accommodation which it would not be otherwise required to publicise. It said that if the request had been for “a [third-party AHB] unit in the [specified estate]”, this would not have created an issue for the Council. The Council made some further submissions in respect of the particular property in question. It said that this context adds to its concerns regarding identifying tenants or potential tenants of the particular unit. It also made certain submissions in respect of the public interest.
In his application to this Office, the applicant said that he had sought records relating to a property owned by the third-party AHB, the purchase of which was funded by the Council. He said that the transaction is a matter of public record and is recorded in the Land Registry. He provided a folio number. With reference to the Council’s statement that it does not identify individual premises that are used for social housing, the applicant said that this “doesn’t make any sense because the Council does, in fact, identify social housing projects elsewhere”. He provided a link to the Council’s website and a page entitled “Housing Construction Programme”. The page in question lists social housing developments and their status and provides detail in respect of completed schemes. Photographs of certain developments are also included. The applicant said that property ownership in Ireland is already a matter of public record. He said that it would be relatively easy to identify individual social housing units on the Land Registry by simply searching for ‘Fingal County Council’ or a particular AHB in the ‘Registered Owner’ section. He said that the property he referred to in the request was easily locatable. He said that the fact that individual properties are used for social housing is already in the public domain.
The applicant also noted that the Council appears to have applied a class-based exemption to the records. He said that he very much doubts that the requested records contain any reference to specific individuals on the social housing list who may have been prospective tenants for the property in question. He noted that it is difficult to say as the Council did not release a schedule of records, although this is recommended practice. He said that in the highly unlikely event that the records do contain such references, those references could easily be redacted.
As noted above, the AHB was notified of the review and invited to make submissions. Its position is that the records should be refused on the basis of section 37. It said that the records have been refused as their disclosure would identify a specific premises owned by the AHB. It said that disclosure would identify the premises used for the provision of social housing and would also identify the tenants which is not in line with current practice for the processing of data. It said that it has an obligation to obtain, store and disclose information safely and that its current policies and procedures detail its processing operations relating to confidentiality. It said that the property in question is currently occupied and it needs to protect the location and the tenant/s in situ
The first question I must consider is whether the release of the records would involve the disclosure of personal information. I should note that the Council has not referenced any particular records or information therein. Rather, its position is that identifying specific social housing units would have the effect of identifying a current or future resident as a person accessing or in need of social housing.
The records at issue relate to a specified property which was purchased by the AHB. The records do not contain any information about social housing tenants. However, they relate to a specific unit of social housing.
In the circumstances, I am willing to accept that release of the records could result in neighbours and those living in the locality identifying residents of the specific property as individuals in receipt of social housing support. I am satisfied that information concerning a person’s housing status meets the definition of personal information in section 2 of the Act. I accept that it comprises information which would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual. Accordingly, I find that section 37(1) of the Act applies to the information at issue on the ground that its disclosure would involve the disclosure of personal information relating to tenants of the social housing unit in question.
While I have found section 37(1) to apply to information in the records, that is not the end of the matter as section 37(1) is subject to the other provisions of section 37.
Section 37(2)
Section 37(2) of the FOI Act provides that section 37(1) does not apply if:
a) subject to subsection (3), the information concerned relates to the requester concerned,
b) any individual to whom the information relates consents, in writing or such other form as may be determined, to its disclosure to the requester,
c) information of the same kind as that contained in the record in respect of individuals generally, or a class of individuals that is, having regard to all the circumstances, of significant size, is available to the general public,
d) the information was given to the FOI body concerned by the individual to whom it relates and the individual was informed on behalf of the body, before its being so given, that the information belongs to a class of information that would or might be made available to the general public, or
e) disclosure of the information is necessary in order to avoid a serious and imminent danger to the life or health of an individual.
I am satisfied that subsections (a), (b), (d) and (e) do not apply in this case.
In respect of subsection (c), the applicant’s position is that the fact that the specific unit constitutes social housing is already in the public domain. Indeed, it is important to again note that he requested records relating to the specific address and the Council’s engagement with the relevant AHB. As noted above, the Council did not seek to rely on section 37(6) and has effectively acknowledged that the address in question constitutes social housing. The applicant’s position is that the property transaction is a matter of public record and is recorded in a referenced Land Registry folio, the number of which he referenced in his request. He said that the property referred to was “easily locatable”. He said that it is “nonsensical to claim that the release of the records in question would identify the individual premises being used for social housing because this is already in the public domain in the Land Registry record”.
I further note that the Council publishes information about its social housing construction programme and that the level of detail available on its website allows for the identification of individual units. More generally, the location of social housing is well-known across the country, with many sites displaying local authority notices.
In a request for focused submissions, the applicant’s arguments were referenced and the Council was asked to explain why it is refusing access to the records in question in the context of its publication of other such information. It was directed to section 37(2)(c) of the FOI Act which again provides that section 37(1) does not apply if information of the same kind as that contained in the record in respect of individuals generally, or a class of individuals that is, having regard to all the circumstances, of significant size, is available to the general public. The Council did not provide any specific submissions in respect of section 37(2).
The Council did make certain arguments in respect of the precise scheme under which the property was purchased. I am limited in the extent to which I can refer to the submissions made though I confirm that I have given them careful consideration. I note that the third-party AHB also publishes information about its housing projects on its website. This includes identifying information in respect of units, details about the nature of the social housing provided, and photographs.
The Council’s refusal of the records stems entirely from its position that the identification of the property in question would disclose personal information about residents. It seems to me that its failure to rely on section 37(6) has fundamentally undermined this argument, as noted above. While I have accepted that the release of information about the property would disclose personal information, this disclosure occurs by virtue of inferences that may be made about a property owned by an AHB and those residing in it. The applicant is aware that the property in question was purchased by the AHB, as evidenced by the express wording of his request. The Council accepted the premise of that request when it issued its decision and did not rely on section 37(6) of the FOI Act.
In addition, I have carefully considered the arguments advanced by the applicant about the general availability of information pertaining to the ownership of property. Members of the public can use published folios to find out who owns a property. Addresses can be searched on the Land Registry and the public can view a folio after the payment of a statutory fee (€5). Members of the public can also search for a property using the owner’s name once the property is registered. There is again a fee of €5 per name.
While the Council has advanced arguments about the specific scheme under which the property was purchased, it seems to me that the fact that the AHB in question purchased the property discloses information about the basis on which funding was provided. The AHB identifies itself as a specialist provider of housing to people impacted or at risk of homelessness in Ireland. That information is in the public domain and, as such, I do not accept the Council’s arguments in respect of the scheme under which the property was purchased.
In the circumstances, I am satisfied that information of the same kind as that contained in the record in respect of a class of individuals of significant number is available to the general public. Accordingly, I find that section 37(2) permits the disclosure of the information in question. In this regard, I am informed by the judgment of the High Court in the recent case ofIndustrial Development Agency (Ireland) v the Information Commissioner [2024] IEHC 649, in which Phelan J. stated as follows:
“… [E]ven if information was considered to constitute personal information within the meaning of s. 37(1) by disclosing the identity of a natural person as opposed to a company, the fact that the information is publicly available triggers the operation of s. 37(2) to permit disclosure of the information in question. I do not read ss. 2 and 37 of the 2014 Act as precluding the disclosure of information already in the public domain and a matter of public record”.
I find, therefore, that section 37(2)(c) serves to disapply section 37(1) in respect of the identification of the property in question. No further arguments have been advanced in support of the Council’s refusal of the request. Accordingly, I direct the release of the records at issue, subject to the redaction of the names and details of third party staff members contained therein. I am satisfied that such information is personal information for the purposes of the FOI Act and I am not aware of any public interest arguments in favour of its release which would outweigh the privacy rights of the individuals in question.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Council’s decision. I find that it was not justified in refusing access to the records on the basis of section 37(1) of the FOI Act. I direct their release, subject to the redaction of the names and details of third party staff members.
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.
Stephen Rafferty
Senior Investigator