Decision
Ms R and Residential Tenancies Board
From Office of the Information Commissioner (OIC)
Case number: OIC-111632-J0F8D4
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-111632-J0F8D4
Published on
Whether the RTB was justified in refusing access, under section 37(1) of the FOI Act, to correspondence between a landlord and the RTB relating to the appeal of an RTB adjudicator’s decision
OIC-111632-J0F8D4
The applicant was living in private rented accommodation. In a dispute with her landlord, an RTB adjudicator determined the case in the applicant’s favour. Her landlord then appealed this decision to the RTB’s Tenancy Tribunal. In an FOI request dated 25 June 2021, the applicant sought access to all communication, correspondence and emails related to the appeal of the adjudicator’s decision.
In a decision dated 22 July 2021, the RTB part-granted the request. In the Schedule of Records, it listed 27 records relevant to the request. It refused access to 11 records and redacted certain information from seven further records, under section 37(1) of the FOI Act. The remaining records were released in full. The applicant sought an internal review of that decision on 5 August 2021, following which the RTB affirmed its decision. On 13 August 2021, the applicant sought a review by this Office of the RTB’s decision.
I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the correspondence between the RTB and the applicant as outlined above and to the correspondence between this Office and both parties on the matter. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision. In referring to the records at issue, I have adopted the numbering system used in the Schedule of Records provided to the applicant by the RTB.
The applicant confirmed to this Office that she was concerned only with the records that were refused in their entirety and that the redactions in the partially released records could be excluded from the scope of the review.
In the course of the investigation, it became apparent that the RTB had omitted, in error, to include references to attachments to two emails in its Schedule of Records. It amended the Schedule of Records to reflect that Record 1 contained 26 pages, rather than 1 page, and Record 8 contained 8 pages, rather than 1 page. The updated Schedule was sent to the applicant. However, as all of the attached documents (with names and addresses etc. redacted) were already released to the applicant as part of the case file for the appeal before the RTB tribunal, I have excluded them from the scope of this review.
I also note that the final four pages of record 22 comprise a document entitled “Tribunal Procedures” that was released to the applicant as part of record 24. As such, I have also excluded those four pages from the scope of this review.
Therefore, this review is concerned solely with whether the RTB was justified, under section 37(1) of the Act, in refusing access to records 1 (email only – not the attachments), 4, 5, 7, 8 (email only – not the attachments), 10, 11, 13, 17, 21, and 22 (first page only).
Before I address the substantive issues arising in this case, I would like to make a number of preliminary comments. Firstly, it is important to note that while I am required to give reasons for my decision under section 22(10) of the FOI Act, I am also required to take reasonable precautions to prevent disclosure of information in an exempt record, under section 25. This means that the extent to which I can describe the records at issue is limited.
Secondly, subject to the other provisions of the FOI Act, section 13(4) of the FOI Act requires FOI bodies and this Office to disregard an applicant's reasons for an FOI request. This means that I cannot have regard to the applicant's motives for seeking access to the information in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the FOI Act requires a consideration of the public interest.
Finally, section 18(1) of the Act 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 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). I take the view that neither the definition of a record under section 2 of the Act nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, I am not in favour of the cutting or "dissecting" of records to such an extent.
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 relating to an individual or individuals other than the requester.
Section 2 of the FOI Act defines the term “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 the body as confidential. Without prejudice to the generality of the foregoing definition, section 2 also lists 14 non-exhaustive examples of what must be considered to be personal information, including (xiii) information relating to property of the individual (including the nature of the individual’s title to any property).
In its submissions to this Office, the RTB explained that the records at issue consist of correspondence between a named landlord and the RTB in relation to his application for appeal of an RTB decision, and contain his name, contact details, work address and occupational information. Having carefully examined records 1 (email only), 4, 5, 7, 8 (email only), 10, 11, 13, 17, 21, and 22 (first page only), I am satisfied that they comprise personal information pursuant to category (xiii) of the definition of personal information, information relating to property of the individual. As such, the release of the records would involve the disclosure of personal information relating to an identifiable individual.
The applicant disputed that the withheld records in their entirety constitute personal information and argued that the RTB could release parts of the records to her after removing any identifying personal information, referring to section 18 of the FOI Act in support of her argument. I note that certain records (including the attachments to records 1 and 8) relating to the landlord’s appeal were already released to the applicant with some of the identifying personal information redacted. However, this was given to the applicant as part of the RTB’s procedures for the exchange of documents between the relevant parties in advance of a Tribunal hearing, and not as a result of an FOI request.
I do not accept the applicant’s argument that the records could be released in part. As noted above, while section 18 of the FOI Act provides that if it is practicable, records may be granted in part, by excluding the exempt material, I take the view that it does not envisage “dissecting” records for the purposes of granting access to particular sentences or occasional paragraphs. In any event, I find that the identifying information (name, contact details etc) forms only part of the personal information contained in the records and that the substance of the correspondence between the landlord and the RTB in relation to the appeal is in itself personal information relating to an identifiable individual. I find that section 37(1) applies to the withheld records in their entirety.
That is not the end of the matter, however, as section 37(1) is subject to the other provisions of the section. Section 37(2) sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances provided for in section 37(2) arise in this case and section 37(2) does not apply to the records sought.
Section 37(5) provides that a request that would fall to be refused 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 cannot see how granting the request would be to the benefit of the landlord in this case and I find that section 37(5)(b) does not apply.
On the matter of whether section 37(5)(a) applies, the question I must consider is whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the person to whom the information relates. In considering the type of public interest factors that might be considered in support of the release of the information at issue in this case, I have had regard to the findings of the Supreme Court inThe Minister for Communications, Energy and Natural Resources v The Information Commissioner & Ors [2020] IESC 5.
In her judgment, Baker J. indicated that the public interest in favour of disclosure cannot be the same public interest as that broadly stated in the Act. She said the public interest in disclosure must be something more than the general public interest in disclosure and the reason must be found from the scrutiny of the contents of the record. She said there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure. While these comments of the Supreme Court were made in relation to provisions of the FOI Act other than section 37, I consider them to be relevant to the consideration of public interest tests generally.
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. Moreover, unlike other public interest tests provided for in the FOI Act, there is a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. 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. It is also relevant to note that the release of records under FOI is, in effect, regarded as release to the world at large, given that the Act places no constraints on the uses to which the information contained in those records may be put.
In its submissions to this Office, the RTB stated that while it took into consideration the public interest in disclosing appeal-related information into the public domain for the purposes of transparency and regulation of the rental sector, it also had to take into account the privacy of the landlord concerned and the expectation that correspondence relating to an appeal application would be retained in confidence by the RTB and not disclosed to the world at large. It also stated that there was a public interest in safeguarding the flow of information to the RTB in order for it to carry out its function in relation to the rental sector. The applicant did not make any specific arguments in the public interest. She stated that she required the records for upcoming legal proceedings, however this would constitute a private, rather than a public, interest.
Having had regard to the arguments put forward and having carefully examined the records at issue, I find no relevant public interest in granting access to them that, on balance, outweighs the public interest in upholding the right to privacy of the landlord concerned. I find that section 37(5)(a) does not apply in this case.
In conclusion, therefore, I find that the RTB was justified in refusing access to the records at issue under section 37(1) of the FOI Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the RTB to refuse access, under section 37(1) of the FOI Act, to records comprising correspondence between a landlord and the RTB in relation to an appeal of an RTB decision.
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 has been given to the person bringing the appeal.
Stephen Rafferty
Senior Investigator