Decision
Ms H and Laois County Council (the Council)
From Office of the Information Commissioner (OIC)
Case number: 180478
Published on
From Office of the Information Commissioner (OIC)
Case number: 180478
Published on
Whether the Council was justified in its decision to refuse access to housing records under sections 15(1)(a) and 37(1) of the FOI Act
29 March 2019
In 2009, the applicant and her family took over the tenancy of a local authority property. In 2011, the applicant wrote to the Council and requested that the property be extended. The Council was unable to provide an extension at that time. In 2016, the Council inspected the property and estimated the cost of the extension. The Council informed the applicant of its view that a transfer to another property would be a better proposition from a value for money perspective and it would work to secure a larger property for the applicant. The applicant informed the Council that her preference was to have the property extended. In July 2017, the applicant made a complaint to the Office of the Ombudsman in relation to the matter. In September 2017, the Office of the Ombudsman closed the complaint on the basis that the applicant had not been treated unfairly. In November 2017, the Council offered the applicant the tenancy of a larger house and stated that it was willing to examine the construction of an additional bedroom if required. The applicant refused the property as being unsuitable for the needs of her family.
On 20 March 2018, the applicant made an FOI request to the Council which contains 28 separate parts. In general terms, the requested records fall into the following six categories:
1. Records which relate to the Council’s assessment of the applicant’s housing needs;
2. Records which relate to the property which the applicant currently rents from the Council;
3. Records which relate to the applicant’s complaint to the Ombudsman;
4. Records which relate to the larger property and all other properties which the Council considered to meet the applicant’s housing needs;
5. Records which relate to transfer applications, refusal of tenancies and anti-social behaviour in the areas selected as suitable for the applicant’s housing needs;
6. Records which relate to the role of Council staff who are responsible for processing housing applications and the Council’s methodology for keeping classes of records compliant with the FOI Act 2014.
In March and April 2018, the Council wrote to the applicant and requested certain clarifications to enable the identification of all of the requested records. In May 2018, the Council accepted the applicant’s FOI request. On 13 June 2018, the Council granted the applicant’s request in part. The Council identified 30 records that fall within the scope of the request; it refused access to parts of records 1, 5, 15 and 30 under section 37(1) of the FOI Act on the basis that they contain personal information of individuals other than the applicant and it granted access to the remaining 26 records in full. The applicant requested an internal review of the Council’s decision. She argued that the Council ought to hold further relevant records and she requested that record 30 be removed from the schedule of records.
In its internal decision of 27 July 2018, the Council removed record 30 from the schedule of records; it affirmed its original decision to refuse access to parts of records 1, 5 and 15 and it stated that it had located two additional records (additional records 1 and 2) which it was releasing to the applicant. The Council also stated that copies of certain documents that were provided to the Office of the Ombudsman were not retained on file and it would request these documents from the Office of the Ombudsman and forward them to the applicant. Finally, the Council stated that, aside from the above mentioned records, no further records exist or can be found after all reasonable steps to locate them have been taken and section 15(1)(a) applies to the applicant’s request. On 7 August 2018, the Council forwarded a further two additional records to the applicant which it had received from the Office of the Ombudsman (additional records 3 and 4). The Council withheld a small amount of personal information from additional record 4 under section 37(1) of the FOI Act. On 10 November 2018, the applicant applied to this Office for a review of the Council’s decision.
Both the applicant and the Council made submissions in the course of this review. I have decided to conclude this review by way of a formal binding decision. In conducting this review, I have had regard to correspondence between the applicant and the Council, to correspondence between the applicant and this Office, to correspondence between the Council and this Office, to the contents of the records at issue and to the provisions of the FOI Act.
The scope of this review is confined to the following issues:
Section 13(4) of the FOI Act provides that the actual or perceived reasons for a request must generally be disregarded by the decision maker, including the Information Commissioner, (except insofar as such reasons are relevant to consideration of the public interest or other provisions of the Act).
Although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the records at issue and the material that I can refer to in the analysis is limited. The release of a record under the FOI Act is considered, effectively, as release to the world at large.
As the applicant argues that further relevant records ought to exist, section 15(1)(a) of the Act is relevant in this case. Section 15(1)(a) provides that a request for access to a record may be refused if the record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. In such cases, the Commissioner's role is to review the decision of the public body and to decide whether the decision than no further records exist is justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision. The evidence in "search" cases consists of the steps actually taken to search for records along with miscellaneous other evidence about the record management practices of the public body on the basis of which the public body concluded that the steps taken to search for records was reasonable. The Commissioner's understanding of his role in such cases was approved by Quirke J. in the High Court case of Matthew Ryan and Kathleen Ryan v. the Information Commissioner [2002 No. 18 M.C.A.] (available on this Office’s website at www.oic.ie).
The applicant argues that the Council should have further records which outline the factors considered in assessing her family’s housing needs and show whether medical reports she submitted were considered. She states that the Council has not explained why the cost of the extension was deemed to be ‘substantial and excessive’ and whether more than one proposal for an extension was considered. She states that the Council has not released records showing the cost of bringing her property up to a lettable standard nor the records which were attached to its report to the Ombudsman.
The applicant also states that the Council has not provided her with all of the records in relation to properties which it considered to meet her needs nor records which show the cost of extending the larger property. She states that the Council has not released records in relation to transfer applications, refusals of tenancies and anti-social behaviour in the selected areas, including reports regularly made by the Council to the joint policing committee. Finally, the applicant states that the Council has not provided her with records outlining the roles of staff who are responsible for processing housing applications or records of the Council’s methodology used to keep classes of records compliant with the FOI Act.
Following the applicant’s submissions, this Office wrote to the Council and requested that it provide replies to detailed queries in relation to searches undertaken to locate the records mentioned by the applicant in her submissions. The Council states that all records relating to the request for an extension, including any medical reports submitted, were released. The Council states that record one outlines that the drawings and costings for the extension were assessed and given the house design, the complexity of the site and the estimated cost of works, it was decided that a transfer to another property would be a more appropriate solution. The Council states that the figure cited by the applicant to bring the applicant’s property up to a lettable standard was an estimate only; as the property was never re-let there was no record of the actual costs. The Council states that it requested the Ombudsman’s Office to return documentation which was not retained on file, it released this documentation to the applicant and it does not hold further records which are relevant to its report to the Ombudsman.
The Council states that it used property websites and local auctioneers to source properties for the applicant. It states that only one of these properties proceeded beyond an initial review and it provided records in relation to that property to the applicant. The Council states that the figure cited to extend that property was an estimate; as the applicant did not accept the property there are no records setting out the cost of an extension. The Council says that it does not have records of anti-social behaviour which fall within the scope of the request. It maintains that all minutes for Joint Policing Committee (JPC) meetings within the time frame specified in the FOI request were examined and there were no records relating to any of the areas specified. Finally, the Council says that records 17-29 contain delegation orders for the Council staff who are responsible for processing housing applications and it does not hold further records in relation to staff which fall within the scope of the request.
This Office also requested the Council to address detailed queries in relation to its record management practices in general and the steps taken to find the specific records mentioned by the applicant in her FOI request. The Council states that its practice is to store all current tenancies in hard copy within the filing system in the Council’s Offices. It states that as this is a current tenancy, no archiving or destruction of documents has been carried out. The Council states that searches for records were carried out manually by searching physical files and electronically (on network, outlook and mailmeter), by using key word searches including the applicant’s name, her address, the address of the property selected for the applicant and variances of these key words. The Council states that all correspondence between the Council and tenants relating to a particular property are held on files within the Housing Office. The Council states that it released the applicant’s housing file and it also released a report on all repairs carried out on the property which was held on its iHouse system.
I note that in her submissions to this Office, the applicant complains that the records provided to her were not cross referenced to each part of her request and this creates uncertainty as to which records relate to which part of her request. The Council provided the applicant with a lengthy schedule of records and I am satisfied that it is clear, from the Council’s original and internal review decisions, which records relate to which parts of the applicant’s request. The applicant also states that on 6 January 2011, she made a housing application to the Council to have an extension provided and she argues that the Council’s reference to ‘no formal housing application on file’ should be removed from its decision. The Council argues that the applicant’s letter of 6 January 2011, does not constitute a housing application as it was a request from an existing tenant for an extension to be built onto the local authority property in which she was residing. This Office has no remit to examine whether or not there was a valid housing application or whether or not the Council treated the applicant fairly in relation to her housing needs. It is outside the powers of the Information Commissioner to adjudicate on how public bodies perform their functions generally.
The Council has located many of the records mentioned by the applicant in her request. It is clear that the applicant expected that certain records would contain further information; in particular, records which concern the Council’s assessment of her housing needs. Parts of the applicant’s request and her application to this Office appear to be requests for clarifications of further information in relation to records. However, the FOI Act does not generally provide a mechanism for answering questions, except to the extent that a question can reasonably be inferred to be a request for a record containing the answer to the question asked or the information sought. The FOI Acts do not provide for a right of access to records which ought to exist or require FOI bodies to create records where such records do not exist or are not held by it. On the basis of the information provided by the Council, I am satisfied that it has taken reasonable steps to locate all records relevant to the applicant’s request. I find, therefore, that section 15(1)(a) of the Act applies to the applicant’s request insofar as it relates to any further records which in the applicant’s view the Council ought to hold.
Section 37(1) of the FOI Act provides that, subject to the other provisions of the section, an FOI body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information relating to an individual other than the requester (including personal information relating to a deceased individual). Section 2 of the 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 list fourteen categories of personal information including (i) information relating to the educational, medical, psychiatric and or psychological history of the individual; (ii) information relating to the financial affairs of the individual; (xiii) information relating to property of the individual (including the nature of the individual's title to any property).
The Council has refused access to information in records one, five, fifteen and additional record four on the basis that the withheld information is exempt under sections 37(1) of the Act. I have examined the withheld information carefully and I am satisfied that it concerns (i) third parties; (ii) staff members of the Council, (iii) the applicant's children and (iv) a deceased individual.
The Council withheld information which relates to third parties i.e. individuals other than the applicant who have not consented to the release of their information. This includes correspondence from third parties to the Council and information which relates to tenancies and repairs to properties held by third parties. The withheld information is contained in record one (document 106) and record fifteen (documents 2 and 46). Having regard to the definition of personal information contained in section 2 of the Act, I find that this information is exempt under section 37(1) of the Act.
The Council withheld a small amount of information relating to staff members from record one (documents 18, 19, 38 and 54) and record fifteen (document 26). Section 2 part (I) of the Act provides that the definition of personal information does not include the following information relating to staff members of an FOI body: the name of the individual, information relating to the position or its functions, the terms upon which the individual holds that position, or anything written or recorded in any form by the individual in the course of or for the purpose of the performance of the functions of the position. The exclusion to the definition of personal information at section 2 part (I) does not deprive staff members in FOI bodies of the right to privacy generally. I am satisfied that the information withheld from the above records does not fall within the exceptions to the definition of personal information contained in section 2 part (I) of the Act and I find that the information is exempt under section 37(1) of the Act.
The Council withheld information which relates to the applicant’s children from record one (documents 3, 13, 14, 16, 17, 22, 23, 24, 37, 39, 46, 78, 79, 80, 81, 98, 114, 115) record five, record fifteen (documents 16, 17, 34, 35, 36, 37, 38, 39, 42, 43, 44, 45, 46, 47, 49, 50, 51, 52, 53, 54, 55, 56, 58, 59, 60, 61, 63, 64, 65, 66, 67, 68) and from additional record four.
Section 37(8) provides that the Minister for Public Expenditure and Reform (“the Minister”) may make regulations for the grant of an FOI request in certain circumstances where the requester is the parent or guardian of the individual to whom the record relates or where the individual to whom the information relates is dead. The Minister made regulations under section 37(8) - the Freedom of Information Act (Section 37(8)) Regulations 2016 (S.1. 218 of 2016). The 2016 Regulations provide that a request for access to records shall be granted where the requester is the minor’s parent or guardian and where, having regard to all the circumstances, access to the records would be in the individual’s best interests.
The Commissioner has regard to the Supreme Court decision in the case of McK v The Information Commissioner [2006] IESC 2 when considering requests made by a parent for access to records relating to his/her child. In McK the Supreme Court held:
“The [FOI] Act of 1997 and the Regulations fall to be interpreted in accordance with the Constitution. A parent … has rights and duties in relation to a child. It is presumed that his or her actions are in accordance with the best interests of the child. This presumption while not absolute is fundamental… …A parent's rights and duties include the care of a child who is ill. As a consequence a parent is entitled to information about the medical care a child is receiving so that he or she may make appropriate decisions for the child, as his or her guardian. …The presumption is that the release of such medical information would best serve the interests of the minor. However, evidence may be produced that it would not serve her interests, and, in considering the circumstances, her welfare is paramount."
A parent is entitled to a rebuttable presumption that access to his/her child’s medical information is in the best interests of the child. However, that presumption may be overcome if sufficient evidence is presented to show that the release of such medical information would not be in the child’s best interests. In this case much of the information concerns medical information and reports submitted by the applicant to the Council in support of her request to have her property extended. The Council has not provided sufficient evidence to overcome the presumption that access to the information would not be in the best interests of the children. I find that the withheld information concerning the applicant’s children is not exempt under section 37(1) of the Act.
The Council withheld information which relates to a deceased individual from record one (documents 122, 127, 129, 133, 134, 136, 137, 138, 139, 140, 141, 142, 143, 146).
The 2016 Regulations provide that a request for access to a record which would involve the disclosure of personal information relating to a deceased individual shall be granted if the requester is a personal representative of the individual acting in due course of the administration of the individual’s estate, or if the requester is the spouse or next of kin of the individual and having regard to all the circumstances, the public interest would, on balance, be better served by granting than by refusing to grant the request. It has not been shown that the applicant is a personal representative of the deceased individual who requires the records for the administration of the deceased’s estate. Neither is the applicant the spouse or next of kin of the deceased individual. I find, therefore, that the withheld information concerning the deceased individual is exempt under section 37(1) of the Act.
As I am satisfied that the information withheld from the records which concerns third parties, staff members and a deceased individual is exempt under section 37(1) of the Act, it is necessary to consider whether the exceptions to section 37(1) contained in sections 37(2) or section 37(5) apply to this information.
Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. I am satisfied that none of the circumstances set out in subsection (2) arise in this case.
Section 37(5) of the FOI Act 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 do not consider that the release of the information at issue would benefit the third parties to whom it relates, as envisaged by section 37(5)(b) of the Act.
The FOI Act itself recognises the public interest in ensuring the transparency and accountability of public bodies in the performance of their functions. On the other hand, however, the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy, which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution. Accordingly, privacy rights will be set aside only where the public interest served by granting the request is sufficiently strong to outweigh the public interest in protecting privacy.
I consider that the public interest in enhancing the accountability and transparency of the Council has, at least partially, been satisfied by release of a large volume of records concerning the Council's handling of the applicant's housing issues. The question I must consider is whether the public interest in further enhancing the transparency and accountability of the Council is sufficient to outweigh, on balance, the privacy rights of the third parties concerned. In my view, it is not. I fail to see how the disclosure of the particular information at issue would serve to enhance the transparency and accountability of the Council in relation to the housing services it provides. I find, therefore, that section 37(1) applies to that information.
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I vary the Council’s decision. I find that the Council was justified in refusing access to additional records under section 15(1)(a) of the Act on the basis that additional records either do not exist or cannot be found after reasonable searches have been carried out. I find that section 37(1) applies to the information withheld from the records with the exception of the information concerning the applicant's children contained in the records listed below which I direct the Council to release to the applicant:
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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.
Elizabeth Dolan
Senior Investigator