Decision
Ms Z and Department of Housing, Local Government and Heritage
From Office of the Information Commissioner (OIC)
Case number: OIC-144721-B1H6H0
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-144721-B1H6H0
Published on
Whether the Department was justified, under sections 30(1)(a), 35(1), and 37(1) of the FOI Act, in refusing to release a report prepared for the Minister to establish the role, if any, of Dublin City Council in the payment of “protection money” on social housing construction sites
13 August 2024
In a request dated 24 October 2023, the applicant sought access to a copy of the report prepared by Patrick Butler SC, examining the role of Dublin City Council (the Council) and/or its employees in protection payments at building sites, and the processes around managing its building sites, that was submitted to Department officials/the Minister on 18 December 2019. In a decision dated 22 November 2023, the Department refused the request. It said that the record was exempt from release under sections 29(1), 31(2)(b), 35(1)(a) and 37(1) of the FOI Act.
The applicant sought an internal review of that decision on 3 December 2023. She noted that for an FOI body to rely on the exemption at section 31(2)(b), the Act requires that “the performance of the functions of the tribunal, body or individual has not been completed” whereas the report at issue was completed four years previously. She submitted that the last two requirements of section 35(1)(a) were not met. She argued that the Department had not shown that release was contrary to the public interest, as required by section 29(1)(b). In relation to section 37, the applicant said that “personal information does not include information in a case where the individual holds or held a position as a member of staff renumbered from public funds, and carrying out a public function. This report concerns Dublin City Council staff, which does not come under personal information.” She said that any personal information relating to members of the public could be redacted from the record. Overall, the applicant argued that the public interest favoured release of the record. On 14 December 2023, the Department varied its decision. While it maintained its position in refusing access to the record, it said that it was no longer relying on section 31(2)(b) as a basis for refusal. Its position on the other exemptions remained unchanged. On 15 December 2023, the applicant applied to this Office for a review of the Department’s decision.
During the course of the review, the Department stated that it was no longer relying on section 29(1). However, it made submissions on section 30(1)(a). The applicant was informed of this altered position and invited to make submissions or comment, however she did not do so.
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 Department and to the comments made by the applicant in the application for review, as well as to the correspondence set out above. I have also examined the record at issue. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned only with whether the Department was justified in refusing access to the report in question under sections 30, 35 and/or 37 of the FOI Act.
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.
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.
In proceedings in the High Court in 2019, evidence was presented by An Garda Siochána that so-called “protection money” was paid to two individuals to stop anti-social behaviour at specified Dublin City Council social housing construction sites. In November 2019, the-then Minister for Housing, Planning and Local Government, Mr Eoghan Murphy TD, announced that he had appointed Mr Patrick Butler S.C. as an authorised person under section 224 of the Local Government Act 2001, to carry out a review and to prepare a report to the Minister to establish the role, if any, of the Council in these events.
The report has since been completed and submitted to the Department. According to the Department, it is not intended to publish the report at this time. Neither has a copy of it been provided to the Council. In May of this year, the Department provided a summary of the findings and recommendations of the report to the Council and to the relevant Approved Housing Body (AHB). This summary has been reported in the media. The Department stated that in November 2023 it was informed by An Garda Síochána that a criminal investigation into the matter had concluded and that the DPP had directed no prosecution.
Having examined the record, it seems to me that section 37 is the most relevant exemption and I will begin by considering it first.
Section 37(1)
Section 37(1) of the FOI Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information.
Section 2 of the FOI Act defines personal information as information about an identifiable individual that, either (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or (b) is held by an FOI body on the understanding that it would be treated by that body as confidential. Section 2 goes on to specify 14 categories of information which, without prejudice to the generality of the above definition, constitute personal information. This includes: (iii) information relating to the employment or employment history of the individual, (vi) information relating to any criminal history of, or the commission or alleged commission of any offence by, the individual, (vii) information relating to any proceedings for an offence committed, or alleged to have been committed, by the individual, the disposal of such proceedings or the sentence imposed by any court in such proceedings, and (xiv) the views or opinions of another person about the individual.
Certain information is excluded from the definition of personal information. Where an individual is a director/ staff member/ office holder of an FOI body, paragraph (I) of section 2(1) of the Act provides that personal information does not include:
Paragraph (II) provides that in a case where the individual is or was a service provider, personal information does not include:
The Department said that the record contained information about the employment or employment history of identifiable individuals, as well as the views or opinions of another person about the individuals. It said that in the context of an investigation into alleged criminality, such information is particularly sensitive and could potentially be claimed to be defamatory.
As I have noted above, I am constrained by the provisions of section 25(3) in terms of the level of detail I can give when describing the content of record at issue. However, I do not believe that I am in breach of section 25(3) by stating the following. The report contains a detailed account of Mr Butler’s investigation into the alleged role, if any, of the Council regarding payments made to certain individuals for the purposes of facilitating the protection of social housing developments Dublin against antisocial behaviour, intimidation of workers and criminal damage. It sets out who Mr Butler did, and did not, interview, and what he learned from these interviews. It also includes his analysis of the various documents that were provided to him by different parties, and then sets out his conclusions and recommendations. A significant number of individuals are named in the report, including those named in the High Court proceedings which triggered the investigation, members of staff of the Council, members of An Garda Síochána (AGS), and members of staff of third party companies. Having regard to the definition at section 2 of the FOI Act, as described above, I am satisfied that the record contains a considerable amount of information that falls within the categories of personal information at section 2.
The applicant, in her application for review by this Office, effectively referenced the exclusions from the definition of personal information at paragraphs (I) and (II) and argued that, as the report concerns Council staff, or those contracted to carry out work for the Council, such information does not come under the definition of personal information.
As previously described, paragraphs (I) and (II) in the section 2 definition of personal information, remove certain information relating to staff of FOI bodies, and to service provider, from the definition of personal information. The exclusions at paragraphs (I) and (II) do not provide for the exclusion of all information relating to such staff, or to service providers. This Office considers that the exclusion is intended to ensure that section 37 will not be used to exempt the identity of a staff member in an FOI body in the context of the particular position held or any records created by the staff member while carrying out his or her official functions; or to exempt the identity of a service provider in the context of the service being provided, or the terms of the contract for such a service. The exclusion does not deprive such individuals of the right to privacy generally.
I accept the applicant’s position that some of the personal information contained in the record relates to staff members of an FOI body (i.e. the Council) and some of it relates to employees of third party companies contracted to provide services for the Council. The question that needs to be answered, therefore, is whether such information is excluded from the definition of personal information by virtue of paragraphs (I) or (II). Having carefully examined the information, I believe that it does not. I find that the information relating to staff members of the Council does not relate solely to the positions held or their functions, or the terms of their employment, or anything written or recorded in the course of or for the purposes of the performance of their functions. Some of the information in the record does fall into this category and I will later consider whether, with reference to section 18 of the Act, part of the record could be released. However, given the subject matter of the report, the record also contains information relating to Council staff that I am satisfied goes beyond the exclusion to the definition of personal information at section 2. Section 25(3) prevents me from providing further detail here.
Similarly, in relation to third party service providers, this Office has previously held that where a third party company is a service provider to an FOI body, the names of individual employees of such a company do not fall within the exclusion at (II). Furthermore, having regard to the nature of the information contained within the record that relates to these individuals, I find that it goes beyond information relating to the service or the contract and that it relates to an investigation into serious matters. I find that the exclusion at (II) does not apply.
I find therefore that section 37(1) applies to the report. However, 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) provides that section 37(1) does not apply if:
a. the information concerned relates to the requester concerned;
b. the 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.
No arguments have been made in respect of these subsections and I am satisfied that they do not apply in this case.
Section 37(5)
Section 37(5) provides that a request that would fall to be refused under subsection (1) may still be granted where, on balance, (a) the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld, or (b) the grant of the request would benefit the person to whom the information relates. In the particular circumstances of this case, I am satisfied that section 37(5)(b) does not apply.
In considering where the balance of the public interest lies in this case, I have had regard to section 11(3) of the Act which provides that in performing any functions under the 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 Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (“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.
On the other hand, 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 Act (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 in granting the request exists, there is a discretionary element to the application of section 37(5)(a).
In its submissions, the Department said that the public interest factors in favour of release that it took into consideration were the public knowing how a public body performs its functions and the public interest in members of the public exercising their rights under the FOI Acts. It concluded that these public interest factors were outweighed by the public interest in preserving the privacy rights of the individuals identified in the record.
The applicant made more specific arguments as to why she believed that the public interest in favour of release outweighed privacy considerations. She said that the report, which she said was sent to the Government four years ago, was of significant public interest. She said that the fact that the Government made the decision to appoint someone to carry out an independent review demonstrated the importance of the issue. She said that the issues looked at in the report included how public bodies carry out their functions and the use of public funds, and that there were concerns around transparency and good governance, as well as trust in government institutions and public services, all of which are public interest factors which, she submitted, favour release.
It seems to me that the applicant has made strong and valid arguments as to why release of this report is in the public interest. I do not dispute that the issues under examination in the report are of very serious concern. At the time that she made the FOI request, several years had passed since the report was commissioned with, it seems, no update provided to the public as to the status of the report, what it found, and what its recommendations were. If the report did reveal specific wrongdoing or misuse of public funds and if this had been kept from the public, it seems to me that this might have been one of the rare instances where a “sufficiently specific, cogent and fact-based reason” outweighed the right to privacy of those named in the report and tipped the balance in favour of disclosure.
However, as noted previously, reviews by this Office are de novo and, as a number of developments have occurred since the FOI request was made in October last, I must take these circumstances into account. First of all, it has been confirmed that the criminal investigation into the matter has concluded and that the DPP has directed no prosecution. Second of all, the Department wrote to the Council and to the AHB providing a summary of the report and its recommendations, which have since been widely reported in the media. It has been reported that there was clear evidence that the building contractors had indeed paid protection money to the individuals at the centre of the CAB case, but that there was no evidence that the Council had reimbursed the contractors for these payments, or that senior management of the Council or the AHB were aware of them. It has also been reported that while Mr Butler concluded that the intimidation of contractors into paying protection money "is a question of law and order", and not a question of contracts and their administration, he criticised the fact that even after some of their staff members were interviewed by AGS about criminal activity on the building sites, management of the Council or the AHB did not take steps to find out what was going on.
In light of what is now in the public domain about the report and its conclusions, the question for me is to what extent the release under FOI of the full report will add to the transparency around the matters under examination, and whether that additional transparency is sufficient to outweigh the privacy rights of the individuals involved. There is no doubt that releasing the full report would disclose in far more detail the evidence considered by Mr Butler, the process of investigation that he undertook, and why he reached the conclusions that he did. However, it would also disclose sensitive personal information about a number of individuals, individuals who themselves have not had sight of the full report. On balance, I am not satisfied that the public interest in releasing the record, in light of its high level findings which have already been made public, outweighs the right to privacy of the individuals concerned. I find that section 37(5)(a) does not apply.
As I have found the record to be exempt under section 37, there is no need to consider sections 30 or 35.
For completeness, I have also considered section 18 of the FOI Act and whether a redacted version of the record could be released such that personal information would not be disclosed.
Section 18(1) provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the public body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers).
Having carefully examined the report, simply redacting individual names would not, in the most part, render the individuals unidentifiable such that the redacted record would not disclose personal information. Instead, it seems to me, large swathes of the report would need to be redacted in order to remove personal information which would result in a copy that, I believe, would be confusing and misleading. On balance, I do not consider that this is a case in which it would be appropriate to consider directing partial release of the record.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department’s decision. I find that it was justified, under section 37(1), in refusing access to the report on the basis that it would disclose personal information and that the public interest in release does not outweigh the right to privacy of the individuals involved.
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.
Emer Butler
Investigator