Decision
Mr A and Dublin City Council
From Office of the Information Commissioner (OIC)
Case number: OIC-145137-J3W1N7
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-145137-J3W1N7
Published on
Whether the Council was justified in refusing access, under section 37(1) of the FOI Act, to details of certain accommodation providers who provided homeless accommodation services from 2010 to 2016, on the ground that the release of their identities would involve the disclosure of personal information relating to the residents of the properties in question
29 August 2024
This review is concerned with the same FOI request that was the subject of a previous decision issued by the Commissioner (case number 160313 refers). The decision in the earlier review was appealed by the Council to the High Court in May 2017. The matter was remitted, on the consent of the parties, to the Commissioner for a fresh-decision.
By way of background, on 9 June 2016, the applicant sought access to records containing “an annual breakdown from 2010 to 2016 of the amounts paid to accommodation companies, hotels, hostels or B&Bs to house homeless people and families”. He specified that he was not seeking the names of the payees where the amount paid was less than €30,000 in any given year. He also sought the total cost of such accommodation in each given year. The Council part granted his request by releasing a table containing annual figures for payments made to a) hotels and b) private emergency accommodation (PEA) for 2010-2015. It relied on section 36 of the FOI Act (commercially sensitive information) to withhold certain information.
On 30 June 2016, the applicant sought an internal review of the Council’s decision. On 19 July 2016, the Council affirmed its original decision, citing sections 36(1)(b) and 36(1)(c) of the FOI Act.
Original review
The applicant applied to this Office for a review of the Council’s decision. The Commissioner issued his decision on 18 April 2017. He annulled the decision of the Council and directed the release of the records to the applicant, with certain limited exceptions. The Commissioner had regard to arguments advanced by affected third parties that there was a possibility that other accommodation providers who were not named in the records at issue could leverage this information in order to gain a competitive advantage. He was satisfied that section 36(1)(b) therefore applied to the records at issue. However, on balance, he considered that the public interest in refusing the request was outweighed by the public interest in the information in the records being disclosed due to the substantial public monies paid out.
The Council appealed the Commissioner’s decision to the High Court. The matter was heard in June 2018. The delivery of the judgment was adjourned generally pending two judgments of the Supreme Court in The Minister for Communications, Energy and Natural Resources v. The Information Commissioner [2020] IESC 5 and University College Cork v. The Information Commissioner [2020] IESC 58. In August 2023, the matter was remitted, on the consent of the parties, to this Office to be determined on a de novo basis.
Remitted review
Given the considerable time period which has passed since the original request, the Investigator engaged afresh with the applicant upon remittance from the High Court. The applicant confirmed that he wished the review to proceed. He noted the now-historical nature of the records at issue and said that he cannot see how any claim of commercial sensitivity could stand. He said that he did not want to make submissions at that stage and directed this Office to the submissions made in the earlier review.
The Investigator also engaged with the Council. Again noting the considerable time which has passed since the FOI body’s decisions on the FOI request issued, she asked the Council to confirm its current position in respect of the relevant records. In response, the Council said that it was now of the view that the commercial sensitivity of the matter is no longer a concern. It said that it was open to the release of the records subject to certain redactions. It said that its primary concern is to protect the privacy of “the vulnerable adults and children who are accessing homeless services”. It said that it would seek to withhold information from the records which identifies specific properties as being used for homeless accommodation. The Council indicated that it would be amenable to the release of the payments and recipients with identifying locations redacted.
Following subsequent communications between the Investigator, the Council and the applicant, the Council released redacted copies of the records at issue. Copies of the part-granted records were provided to this Office. Following his consideration of the redacted records, the applicant confirmed that he wished the review to proceed in respect of the withheld information.
The Council’s revised position is that the information withheld from the records is exempt on the basis of section 37 of the FOI Act. In sum, its position is that it would not be appropriate to release information into the public domain which identifies certain properties as being used for homeless accommodation “thereby identifying the individuals residing there as homeless”. It said that redactions were made only where the name of the payee identifies the accommodation or property concerned. In essence, its position is that release of the information would involve the disclosure of personal information about individuals experiencing homelessness and residing in the accommodation detailed in the records.
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 Council. 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 has withheld from the records at issue certain details of properties that would allow for their identification, under section 37(1) of the FOI Act. Accordingly, this review is concerned solely with whether the Council was justified in its decision to withhold that information under section 37 of the FOI Act.
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 records sought, either in whole or in part, was justified.
Second, 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. Accordingly, in light of the “de novo” nature of our reviews, I consider it appropriate to consider the applicability of section 37, a mandatory exemption, notwithstanding the fact that the provision was not relied upon as a ground for refusing access to the records in the Council’s initial decisions on the request.
Finally, throughout its submissions the Council referenced the perspective of the “DRHE”. Indeed, the Council’s decision-making records were signed by staff of that body. The Dublin Region Homeless Executive (DRHE) is provided by the Council as the lead statutory local authority in the response to homelessness in Dublin. It adopts a shared service approach across South Dublin County Council, Fingal County Council and Dún Laoghaire-Rathdown County Council. References to the Council in this decision will include references to the DRHE where relevant.
Section 22(6) of the FOI Act requires the Commissioner to notify the following parties of his proposal to review a decision of an FOI body: the head of the FOI body, the applicant, in the case of a decision in respect of a request to which section 38 relates, the original requester, and, any other person who, in his opinion, should be notified.
Section 24 of the FOI Act provides that a party to a review or any other person affected by a decision of the Commissioner may appeal against that decision to the High Court on a point of law. Section 22(10) requires the Commissioner to notify his decision to any person to whom, in his opinion, it should be notified. Any person who would be affected by his decision should be notified, thus giving the person an opportunity to exercise his/her rights under section 24. Thus, a guideline for deciding whether or not to notify a third party under section 22(6) is whether that person is likely to be affected by the decision of the Commissioner. I have carefully considered whether any other parties should be notified of the review and provided with an opportunity to make submissions.
In the earlier review, third parties listed in the records (namely payees in receipt of Council funding) were notified of the review and invited to make submissions. However, the Council has revised its position substantially and information relating to payees has now been released. It said that there has been a change in the landscape as to how such accommodation for homeless individuals is sourced and, as a result, commercial sensitivity is no longer a concern. It said that, where possible, redactions were limited only to entries in the records where the name of the recipient identifies the specific property being used to accommodate those experiencing homelessness. It said that in some cases, full redaction was necessary due to the fact that the trading name of the recipient identifies the property concerned.
I have considered whether any of the remaining payees whose identities have been redacted should be consulted as part of this review. It seems to me that the only argument for consulting such parties centres on the question of whether release of the information at issue could impact their commercial interests such that section 36 would apply. Having carefully considered the matter, I am not satisfied that the relevant parties are likely to be affected by the decision of the Commissioner. The records effectively disclose the amounts paid to suppliers of emergency accommodation by the Council. They do not reveal any detail about the nature of such accommodation, nor do they reveal any further information about the financial circumstances of the payee. The payments in question are historic in nature and the names of other payees have been released by the Council. I do not accept that release of the records would disclose any information about the current commercial situation of the withheld payees. Nor do I accept that the release of such historic information, which relates to a social issue which was widely reported, could reasonably be expected to result in any commercial harms. For the above reasons, I do not believe that it is necessary to consult with any remaining payees referenced in the withheld information.
Separately, I note that the Council’s submissions in the current review centre on the privacy rights of those accessing emergency accommodation. I therefore also considered whether any such individuals should be consulted as part of this review. It is important to note that the records at issue do not directly contain information about any identifiable individuals; no individuals experiencing homelessness are named or referenced. However, 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. I will consider this further in my analysis in respect of section 37 below. In respect of consultation, however, the fact that no individuals are directly referenced in the records makes it difficult, if not impossible, to determine who should be notified. Given that homelessness is often a temporary state with people accessing accommodation services for differing lengths of time, it is not clear to me how potentially affected individuals could be identified for the purpose of consulting with them. Even if it was possible to determine which individuals had accessed relevant accommodation during the relevant time periods, which cover a number of years, I do not believe that it would be feasible for this Office to engage in consultation at that scale. I considered whether any representative organisations exist which could be consulted to provide input on behalf of individuals and households experiencing homelessness. However, those experiencing homelessness are not a homogenous group and I am not confident that an organisation could be identified that would be able to speak on behalf of the individuals the Council claims will be affected by release.
Having given careful consideration to the above, and having regard to my analysis as set out below, I am satisfied that it is not necessary to consult with any payees and that it is neither feasible nor necessary to consult with individuals or households experiencing homelessness. I will proceed to consider the Council’s submissions in respect of the application of section 37 of the FOI Act.
While I am limited in the extent to which I can describe their contents, I believe it would be useful to provide a high-level overview of the records at issue. In its submissions, the Council said that the records comprise three financial reports for the time period concerned (2010-2016). It said that record 1 is a record of accounts payable suppliers and relates to any hotels/B&Bs etc. which were paid via electronic fund transfer for the provision of self-accommodation. It said that redactions made to the record were limited to entries where the name of the recipient identifies the property being used to accommodate those experiencing homelessness. It said that full redaction was necessary in respect of certain entries as the trading name of the recipient identifies the property.
The Council said that record 2 is a record of payments made to providers of private emergency accommodation. It said that redactions made to the record were limited to entries where the name of the recipient identifies the property being used to accommodate those experiencing homelessness.
Finally, the Council said that record 3 is a record of payments relating to any hotels/B&Bs paid by low value purchase card for the provision of self-accommodation. It said that the use of low value purchase cards commenced in 2015 due to the unprecedented demand for, and difficulties obtaining, homeless accommodation. It said that families and individuals sourced the accommodation directly and this was then paid for by the Council using a low value purchase card. It said that owing to the nature of the payments, the majority of the entries in the record identify the property concerned.
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 an FOI body on the understanding that it would be treated by that body as confidential. Section 2 of the Act details fourteen specific categories of information that is personal without prejudice to the generality of the foregoing definition.
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.
Submissions
In its submissions, the Council said that it is of the view that the information it has withheld from the records is personal information relating to third parties which is therefore subject to section 37(1) of the FOI Act. It referenced the definition of personal information at section 2 of the Act. It outlined its opinion that the Council has a duty to treat the withheld information in confidence. It said that the families and individuals accessing homeless accommodation are some of the most vulnerable in our society. In said that “in a lot of cases these clients have not disclosed their living situation to those around them”. It said that, by releasing the information, in effect to the world at large, the individuals residing at the properties would be identified as homeless. It said that this would leave them open to the stigma still associated with accessing such services. It stated that this is of particular concern when considering the welfare of children accessing accommodation and the potential consequences to their wellbeing should their status as homeless be disclosed.
Notwithstanding the fact that the Investigator drew the Council’s attention to specific sample questions in respect of section 37 of the FOI Act, no substantive submissions were received in respect of how the release of the type of information at issue could result in the disclosure of personal information about an identifiable individual. Nor did the Council make any substantive submissions in respect of the historical nature of the information. In light of the limited submissions received, the Investigator sought further detail from the Council. The Investigator asked the Council to explain precisely how the release of the locations of accommodation used between 2010 and 2016 could result in the disclosure of personal information about an identifiable individual. She noted the historical nature of the information and queried how the disclosure that a particular hotel provided homeless accommodation in 2015 could reasonably result in the disclosure of personal information about an identifiable individual today.
In response, the Council said that a percentage of the properties listed in the records are still in use today as accommodation for households experiencing homelessness. It acknowledged that the records are historical but said that a “significant portion of the information included in them relates to services that are currently in use”. It reiterated its position that it is not appropriate to release information into the public domain which identifies certain properties as being used for homeless accommodation, thereby identifying the individuals residing there as homeless.
The Investigator also queried how the release of the locations of commercial properties like hotels or B&Bs could disclose that individuals residing there were experiencing homelessness when the properties were likely hosting paying guests as well. In response, the Council said that in some cases, entire hotels/B&Bs are or were being used solely as accommodation for households experiencing homelessness. It said that others are or were still hosting guests while providing accommodation for households experiencing homelessness. It made submissions in respect of the length of time households spend in homeless accommodation compared to the length of stay for domestic travel by Irish residents. It said that, based on the length of stay, it is reasonable to expect that if a commercial property is named as providing homeless accommodation and a household is known to be associated with that address on a long-term basis (for example through the use of that address for employment or educational purposes), it could be deduced that a household staying there is experiencing homelessness as opposed to being a paying guest.
In its further submissions, the Council recognised that some of the properties listed in the records are already identified in the public domain as being used to provide homeless accommodation. It said that while this information may already be in the public domain, the Council does not “actively release these records on a bulk scale”. The Investigator drew the Council’s attention to particular reports published on its website which include the details and locations of certain emergency accommodation. The Council provided responses in respect of the specific reports referenced, noting that one was a report to councillors and that it is practice that any such documents are uploaded to its website as part of the council meeting appendix. In respect of the second report, it said that this was a report compiled and published annually by the Department of Housing, Local Government and Heritage and is not generated by the Council. It said that its inclusion on the DRHE website appears to be an anomaly.
Analysis
The first substantive issue which I must consider is whether the release of the withheld information would involve the disclosure of personal information. As noted above, personal information for the purposes of the FOI Act means information about an identifiable individual (my emphasis) that either would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or is held by an FOI body on the understanding that it would be treated by that body as confidential. Where it is not apparent, I would expect an FOI body to be in a position to show clearly how the disclosure of the information would allow an individual to be identified.
As I have outlined above, the information at issue comprises identifying details of properties that were being used for homeless accommodation between 2010 and 2016. Given the historic nature of the information and the significant passage of time, I am satisfied that the release of the information would not involve the disclosure of details of identifiable individuals who may have resided in any of those properties during the relevant period. However, this does not appear to be the Council’s primary concern. In essence, its argument is that some of the properties listed in the records continue to provide homeless accommodation and that release of those details would allow for the identification of the residents as homeless. If I was to accept that argument, I would have to be satisfied that the release of the records would allow for the identification of the specific properties that currently continue in use as homeless accommodation providers. The records contain no such details.
I fully accept that it is widely known that some of the properties listed continue to provide homeless accommodation. In such cases, where the property does not provide exclusively homeless accommodation, the wider public is already in a position to draw inferences, rightly or wrongly, as to the housing status of the residents of the property. I also fully accept that it is also widely known that some of the properties currently provide exclusively homeless accommodation services and that in those cases, the wider public will be in a position to accurately determine the housing status of their residents. However, it is this widely known information that allows the wider public to draw such inferences and make such determinations, and not the publication of a list of properties that were used for homeless accommodation eight or more years ago. Similarly, taking the Council’s example of a household becoming known to be associated with the address of a commercial property on a long-term basis, it is the widely known information about the property that allows the wider public to make determinations as to the housing status of its residents as opposed to the publication of a historic list on which the property is included.
In sum, I do not accept that the release of the information at issue involves the disclosure of personal information. I find, therefore, that section 37(1) does not apply.
For the avoidance of doubt, and in case I am mistaken in respect of the above analysis, I believe that it would be beneficial to go on to consider the public interest test at section 37(5) of the FOI Act.
Section 37(5)
Section 37(5) of the FOI Act provides that a request that would fall to be granted 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 information would be to the benefit of the person to whom the information relates. I am satisfied that the relevant individuals whose privacy rights the Council is seeking to protect would not benefit from the release of the information at issue and I find that section 37(5)(b) does not apply.
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.
The Council made submissions in respect of the public interest balancing test. It noted that the FOI Act recognises a very strong public interest in protecting the right to privacy. It outlined the factors which it took into account in refusing access to the information at issue. In favour of release, it noted a public interest in ensuring openness and transparency in respect of organisational functions and a public interest in members of the public exercising their rights under FOI. It also noted that there is more than a transitory interest by the public in the information at issue. In favour of withholding the information, it referenced a public interest in allowing a public body to hold personal information without undue access by members of the public. It said that there is a public interest in organisations being able to conduct their business in a confidential manner. It also said that there is a reasonable and implied expectation that personal information pertaining to vulnerable clients and held by the Council will remain confidential. It said that there is no overriding public interest that outweighs the individual’s right to privacy.
The Council said that it believes the provision of partial records satisfies the public interest in the matter. It said that it believes it is justified in not releasing information pertaining to particular addresses used to accommodate families and individuals experiencing homelessness in order to protect the right to privacy of those individuals.
The applicant’s position is that the information should be released as there is a public interest in there being transparency in respect of the expenditure at issue. He said that the redactions prevent him from being able to calculate who got what over the period of the FOI request and prevents there being full transparency in respect of the expenditure. In his application to this Office, he said that there is a public interest in showing how vast sums of money are being spent. He said that details of the suppliers of accommodation for asylum seekers are made public and such individuals are as vulnerable as those experiencing homelessness. In his request for an internal review, the applicant said that the amount spent on hotel accommodation and private emergency accommodation ballooned in recent years with no transparency in respect of how the money is spent. He said there is a basic need for transparency in how public funds are used.
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.
Both the language of section 37 and the Long Title to the FOI Act recognise that there is a strong public interest in protecting the right to privacy. The right to privacy also 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).
It is worth noting, however, that the protection afforded to privacy rights is a spectrum and can vary depending on, for example, the sensitivity of the information at issue and the extent of the privacy breach. In the current case, I have found that the release of the identifying details of properties that were being used for homeless accommodation between 2010 and 2016 would not involve the disclosure of personal information, such information comprising details of the housing status of the individuals currently residing at properties mentioned in the records that continue to provide homeless accommodation services. Even if it did, it seems to me that the current housing crisis is so widespread and so severe that any stigma that might have (wrongly) attached to individuals regarded as homeless in the past has long since significantly diminished. Individuals from all walks of life and from a broad range of socio-economic backgrounds now regularly find themselves in need of accommodation, through no fault of their own. As such, while I accept that the release of information that would allow for the identification of individuals as availing of homeless accommodation services would, indeed, involve the disclosure of personal information, it seems to me that any resultant breach of privacy rights, in the current economic climate, would be less severe that it might otherwise have been in the past.
On the other hand, as the applicant rightly suggests, the provision of homeless accommodation through the private sector has given rise to significant, unprecedented, levels of public expenditure. Such expenditure should not be without significant oversight, in my view. There is a strong public interest in the proper administration of public payments and in ensuring that value for money is obtained. I accept that the Council has ensured a certain level of openness and transparency by disclosing overall details of payments made for such services. However, I do not accept that the existence of current safeguards in relation to public expenditure means that there is no public interest in creating further safeguards. The very existence of secrecy carries with it the scope for abuse. In contrast, openness in relation to public expenditure is an important additional safeguard against abuses of all kind. I consider that the public interest in openness about public expenditure, particularly of the nature and amount at issue in this case, is of very great significance.
I also note that the Council has released details of supplier names and the amounts of money received where such details do not disclose the identities of the specific properties, e.g. a hotel chain as opposed to a specific hotel. It seems to me that the withholding of details of certain recipients of public funds in circumstances where details of others have been released results in an inherent unfairness in the way the recipients are treated.
I would add that the Council’s arguments that the release of the information at issue would breach privacy rights are largely based on a concern about inferences that might be drawn about the individuals availing of homeless accommodation services, as opposed to any concrete or certain disclosure of personal information. Accordingly, I am satisfied that the weight accorded to the right of privacy of such individuals would not be as strong as that accorded to, say, details of any identifiable service users should such information have been included in the records.
Having carefully considered the matter, I consider that the public interest in releasing the information at issue outweighs, on balance, any relevant privacy rights referenced by the Council. Accordingly, I am satisfied that even if section 37(1) served to exempt the information at issue, the public interest that the request should be granted would outweigh the right to privacy of any individuals to whom the information could be considered to relate.
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 information withheld from the records on the basis of section 37(1) and I direct its 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 not later than four weeks after notice of the decision was given to the person bringing the appeal.
Stephen Rafferty
Senior Investigator