Cinneadh
Mr Y and Dublin City Council
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-147949-X4N1Z5
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-147949-X4N1Z5
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
15 January 2025
In a request dated 11 December 2023, the applicant sought access to records containing details of monies paid to certain landlords by the Council under the Rental Accommodation Scheme (RAS) and the Social Housing Current Expenditure Programme (SHCEP), as well as payments made through the Dublin Region Homeless Executive (DRHE). In relation to legal entity landlords, he sought the name of the landlord and the amount paid in 2022. In relation to individual landlords, he sought the names and amount paid to them, only in respect of those individuals who were paid over €50,000 in 2022. In making the request, the applicant referred to a previous review by this Office on a similar request (Case OIC-130488 refers). On 11 January 2024, the Department wrote to the applicant and said that under section 14 of the FOI Act, it was extending the period for making a decision on the request by up to four weeks. It then issued its decision in two parts. On 12 February 2024, the request for the DRHE records was refused under sections 30(1)(b), 30(1)(c), 32(1)(a)(ix) and 36(1)(c). On 14 February 2024, the Council released records to the applicant, containing the information relating to the RAS and SHCEP schemes. On 11 March 2024, the applicant sought an internal review of the Council’s decision. He said that the Council had not provided any explanation for why it released the RAS and SHCEP records but refused the DRHE records. He referred to previous decisions issued in reviews by this Office, OIC-130488 referenced above and an older case OIC-160313, and submitted that the Council’s approach was inconsistent with these decisions. In respect of section 32(1)(a)(ix) which refers to the security of a building, the applicant said that he had not sought the address of any premises and disputed the Council’s claim that identifying premises used for accommodating people experiencing homelessness could put them at risk of attack, including arson. On 3 April 2024, the Council affirmed its decision in relation to the DRHE records. In respect of case OIC-160313, it noted that this had been appealed to the High Court and was as yet unresolved.
On 4 April 2024, the applicant applied to this Office for a review of the Council’s decision. On 19 April 2024, the Council wrote to this Office and requested that the review be suspended pending the outcome of a review in case OIC-145137, which was the new case number for OIC-160313 which had been remitted to the Commissioner, on consent of the parties. This Office declined to suspend the case. However, due to a backlog of cases, by the time it was assigned to an Investigator in September 2024, a decision had issued on case OIC-145137 and the records at issue were directed for release. The Investigator contacted the Council to see whether this decision would have an impact on its position on the current case. Ultimately, the Council said that it was not willing to alter its position in respect of the DRHE records and the Investigator proceeded to seek submissions.
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 and by the applicant. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether the Council was justified in refusing access, under sections 30(1)(b), 30(1)(c), 32(1)(a)(ix) or 36(1)(c) of the FOI Act, to three records containing details of payments made by DRHE in 2022.
Before I address the substantive issues arising, I wish to make a number of preliminary comments. First, it is important to note that section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request under section 12 shall be presumed not to have been justified unless the head of the relevant FOI body shows to the Commissioner’s satisfaction that its decision was justified. This means that the onus is on the Council to satisfy this Office that its decision to refuse access to the information at issue was justified.
Secondly, the decisions at issue and submissions in this case were prepared by the Dublin Region Homeless Executive (DRHE). The 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 include references to the DRHE where relevant.
Thirdly, as the Council is aware, in the past eighteen months or so this Office has annulled a number of decisions made by the Council on decisions made on FOI requests for various records relating to accommodation for people experiencing homelessness, and directed release of the relevant records. While each request and review was slightly different and had its own nuances, I would urge the Council to have regard to the findings and commentary contained in these decisions when making decisions on any similar new FOI requests that it may receive.
Finally, section 22(6) of the FOI Act requires the Commissioner to notify certain specified parties of his proposal to review a decision of an FOI body, including “any other person who, in his opinion, should be notified.” Section 24 of the 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. Therefore, the approach generally taken by this Office in 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. The records in this case name a large number of third party vendors and in the circumstances I have carefully considered whether these parties should be notified of the review and be provided with an opportunity to make submissions. On balance, I have decided not to do so.
In the previous case OIC-130488, which dealt with virtually identical records albeit the payments were made by the Council through a different scheme, the Investigator contacted around 100 third parties informing them of the review and inviting them to make submissions. Written responses were received from a small proportion of the third parties, and of the responses received, approximately the same number had no objection to the records being released as those who objected to release. It seems to me that the arguments made in that case against release, which were ultimately not accepted, are likely to be similar in this case and it seems to me that there is little value in rehashing the same arguments when ultimately they were not accepted. Furthermore, exemptions claimed by the Council in this case are, for the most part, focused on harms to the Council rather than to the third parties. Overall, it seems to me that carrying out a full consultation, which is time consuming and resource intensive, would essentially be a speculative exercise carried out on the off chance that a third party raised a fresh argument that had not been put forward previously either by the Council or by another third party providing accommodation services to the Council. Given the previous consultation, and indeed the number of cases involving similar type records over the past 18 months, this seems to me to be unlikely and not a good use of resources. For these reasons, and taking into account that section 45(6) provides that the procedure for conducting a review under section 22 shall be such as the Commissioner considers appropriate in all the circumstances, I am satisfied that this review can be concluded without a consultation process.
The records at issue
The Council identified three relevant records – record 1a contains details of payments made to Private Emergency Accommodation (PEA) facilities in respect of families; record 1b contains details of payments made to PEA facilities in respect of single people; and record 1c contains details of payments made in respect of self-accommodation (also referred to as non-contract accommodation). Each of the records contain a table with just two columns; the first contains the vendor name, and the second contains the sum of the amount paid to that vendor in 2022. The vendor names include a mix of companies, hotels/guesthouses, and a small number of individuals.
Section 30: Functions and negotiations of FOI bodies
Section 30(1) of the FOI Act protects certain records relating to the functions of FOI bodies. The Council has relied on subsections (b) and (c) in support of its refusal to release the records at issue. The exemption is subject to a ‘public interest override’ i.e. even where the requirements of subsection (1) have been met, the exemption does not apply where the public interest would, on balance, be better served by granting access than by refusing to grant the request.
Section 30(1)(b) of the Act provides for the refusal of a request where the FOI body considers that access to the record concerned could reasonably be expected to have a significant, adverse effect on the performance by an FOI body of any of its functions relating to management (including industrial relations and management of its staff). Where an FOI body relies on section 30(1)(b), it should identify the function relating to management concerned and it should identify the significant adverse effect on the performance of that function which is envisaged. The FOI body must then make an assessment of the degree of significance attaching to the adverse effects claimed. Establishing “significant adverse effect” requires stronger evidence of damage than the “prejudice” standard in section 30(1)(a) and other sections of the Act. Having identified the significant adverse effect envisaged, the FOI body should then explain how release of the particular information in the records could cause the harm and consider the reasonableness of its expectation that the harm will occur.
A claim for exemption under section 30(1)(b) must be made on its merits and in light of the contents of the particular record concerned and the relevant facts and circumstances of the case. In examining the merits of an FOI body's view that the harm identified could reasonably be expected by the release of records, the Information Commissioner does not have to be satisfied that such an outcome will definitely occur. The test is not concerned with the question of probabilities or possibilities. It is concerned with whether or not the decision maker's expectation is reasonable. It is sufficient for the FOI body to show that it expects an outcome and that its expectations are justifiable in the sense that there are adequate grounds for the expectations.
Section 30(1)(c) provides for the refusal of a request where the FOI body considers that access to the record concerned could reasonably be expected to disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations carried on or being, or to be, carried on by or on behalf of the Government or an FOI body. It is important to note that this exemption does not contain a harm test (unlike section 30(1)(b)) and it is sufficient that access to the record concerned could reasonably be expected to disclose such negotiation positions, plans etc.
This Office takes the view that an FOI body seeking to refuse access to information under section 30(1)(c) should identify the relevant negotiations at issue. Relevant factors in considering whether there is or was a negotiation include whether the FOI body was trying to reach some compromise or some mutual agreement. The Commissioner also accepts that, generally speaking, proposal-type information relating to a public body's negotiations would also be exempt under section 30(1)(c).
In its submissions, the Council said in respect of section 30(1)(b) that the disclosure of the amount spent on emergency accommodation and the names of individual service providers would have a significant adverse effect on the management functions of the DRHE, specifically its ability to effectively and efficiently source and provide emergency accommodation to households experiencing homelessness in the Dublin region. It said that the disclosure of a breakdown of spending by entity would reveal the DRHE’s position and its arrangements with providers, breaching their confidentiality and may make the supply of services to the DRHE an undesirable option for providers. In respect of section 30(1)(c), it said that it was satisfied that the disclosure of the specific information requested would reduce the effectiveness of the DRHE’s negotiation process, in turn impacting the its ability to negotiate good value for public funding while continuing the provision of essential services to households experiencing homelessness.
The wording of section 30(1)(b) makes it clear that the words "industrial relations and management of its staff" are, in the context of that section, a subset of "functions relating to management". Other than the specific references to industrial relations and the management of staff, section 30(1)(b) does not indicate what other management functions are embraced by the term "functions relating to management". The Commissioner has found that management is a word of wide import and that it is apt to cover a variety of activities of an FOI body apart from management of staff and industrial relations, including but not limited to: strategic planning, management of financial resources, management of operations, and investigating complaints about itself and its staff. In a previous review by this Office (Case 010459), the Commissioner did not accept the Council’s position that the provision of homeless accommodation fell within the meaning of “functions relating to management” in section 21(1)(b) of the FOI Act 1997, the equivalent provision to section 30(1)(b) in the 2014 Act. While each review is based on the merits of the specific case, I am not convinced that the Council’s role in sourcing and providing emergency accommodation to households experiencing homelessness in the Dublin region can be feasibly classed as a function relating to management.
Notwithstanding that, neither has the Council explained how the release of the specific information in the records could have a significant adverse impact on this particular function. It said that the disclosure of a breakdown of spending by entity would reveal the DRHE’s position and its arrangements with providers, breaching their confidentiality and may make the supply of services to the DRHE an undesirable option for providers but has not explained how it envisages such a harm occurring or linked it to the actual contents of the records. As noted earlier, the records contain only the name of the vendor and the total amount paid to them in 2022. There is no breakdown as to what this amount was for e.g. what sort of accommodation, how many people, duration, price per night etc. and I do not accept that the records reveal the DRHE’s position or its arrangements with providers. In relation to the argument that disclosure would breach the confidentiality of vendors and make the supply of services an undesirable option for them, I would firstly note that section 35(1)(b) provides for the refusal of a request when disclosure of the information concerned would constitute a breach of a duty of confidence in certain circumstances. This exemption has not been claimed and neither is it apparent to me that the records could be exempt under this provision. It seems to me that for anyone doing business with a public body that is subject to the FOI Act, and where there are established rules around procurement and value for money, there should be no expectation that such business would be conducted in complete secrecy. The Council has not explained how or why it could be reasonably expected that release of these records would make the supply of services an unattractive option and nor is it evident to me. As the Council is aware, the onus lies with it to justify its decision and mere assertions or blanket claims for exemption without supporting evidence or a substantive explanation are generally not sufficient. I am not satisfied that section 30(1)(b) applies.
In relation to section 30(1)(c), I accept that in the context of providing services for households experiencing homelessness, including securing emergency accommodation, the Council must continue to negotiate, on an ongoing basis, to secure these services for the best possible rates. However, as noted above, based on the content of the actual records (i.e. the vendors and the total amounts paid to them in 2022), it is simply not apparent to me that releasing this information would disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used, for such negotiations by the Council. I am not satisfied that section 30(1)(c) applies.
As I have found section 30(1) not to apply, there is no need to go on to consider the public interest test at section 30(2).
Section 32: Law enforcement and public safety
Section 32 is a harm based exemption which allows a body to refuse a request if it considers that access to the record sought could reasonably be expected to give rise to any of the harms set out in subsection (1). Where an FOI body relies on section 32(1), it should identify the potential harm to the matters specified in the relevant sub-paragraph or sub-section that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur. The contents of the record(s) at issue are important and consideration should be given to what they reveal. Section 32(1)(a)(ix) is concerned with prejudice or impairment to the security of a building or other structure.
In its submissions, the Council said that the disclosure of records containing names of landlords and addresses of premises could potentially impact negatively on the people accommodated and/or working in the premises and on the physical premises itself. It said that given the recent high-profile instances of arson against premises identified as about to become accommodation for either people seeking asylum or people experiencing homelessness, it had concluded that releasing such details could lead to similar attacks on identified premises.
The applicant emphasised that he had not sought addresses of properties and in any event there was no evidence of properties being targeted by criminal activity because of their use or intended use by DRHE.
In relying on section 32 as a basis for refusing to release records, the FOI body must show how release of the particular record could reasonably be expected to result in the relevant harm. As stated earlier, the only information contained in the records is the name of the vendor and the amount paid to them by DRHE in 2022. While the records do not contain addresses, it seems to me that the locations of some properties could be deduced from the names of some of the vendors e.g. the name of a specific hotel or B&B. This is most evident in record 1c. Notwithstanding that, the Council has not shown how release of this information could reasonably be expected to prejudice or impair the security of such premises. It referred to ‘high-profile’ instances of arson against certain premises and while I accept that there have been widely reported cases of attacks on premises on the basis that they had been identified as accommodation, or potential accommodation, or even suspected accommodation of international protection applicants, I am not aware of equivalent attacks on premises identified as accommodating individuals or families experiencing homelessness, and nor has the Council drawn my attention to any. On balance, I am not satisfied that it has been established that release of these records could reasonably be expected to prejudice or impair the security of a building.
Section 36: Commercially sensitive information
Section 36(1) provides a mandatory exemption for what is generally described as “commercially sensitive” information. It is subject to a public interest test, as set out in section 36(3).
The Council refused to release the records under section 36(1)(c) which provides for the refusal of a request if the record sought contains information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates. The standard of proof required to meet this exemption is relatively low in the sense that the test is not whether prejudice or harm is certain to materialise but whether it might do so. Having said that, the Commissioner expects that a person seeking to rely on section 36(1)(c) would be able to show that contractual or other negotiations were in train or were reasonably foreseen which might be affected by the disclosure and explain exactly how the disclosure could prejudice the conduct or the outcome of such negotiations.
As a general principle, the Commissioner takes the view that section 36 is primarily aimed at protecting the commercial interests of parties engaged in commercial activity. He has found that there is some uncertainty as to the position of FOI bodies under section 36. However, depending on the circumstances of the case, the Commissioner has accepted that the FOI Act does not prohibit an FOI body, either as a decision making body or as a third party applicant to his Office, from relying on the provisions of section 36.
In its submissions, the Council said that it was satisfied that disclosure of the information would prejudice negotiations or the outcome of negotiations with the vendors named in the records and with other service providers. It reiterated that the DRHE is responsible for sourcing emergency accommodation for households experiencing homelessness throughout the Dublin Region and that the disclosure of a breakdown of spending by entity would prejudice negotiations by revealing the DRHE’s position. It said that this could cause difficulty for the DRHE in sourcing essential emergency accommodation for households experiencing homelessness in the region, or could impact the cost of said accommodation to the DRHE and in turn, to the exchequer.
In this case, the Council has sought to rely on section 36(1)(c) for the purposes of protecting its own commercial interests, rather than the commercial interests of the third party vendors named in the records. I accept that it is entitled to do this, notwithstanding that it must show how disclosure could prejudice the conduct or outcome of relevant negotiations. It seems to me that the issues for consideration here are similar to those considered under section 30(1)(c) and again the Council has simply not shown the link between the records under consideration and the harm envisaged. While the standard of proof for section 36(1)(c) is relatively low, having regard to the information contained in the records which has been described previously, it is simply not apparent to me how its disclosure could prejudice the conduct or outcome of contractual or other negotiations by the Council.
Again, I note the records contain only the name of the vendor and the total amount paid to them in 2022 and do not contain a breakdown as to what this amount was for. I find that section 36(1)(c) does not apply.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Council’s decision. I find that it has not justified, under sections 30, 32 or 36 of the FOI Act, its refusal of the records at issue and I direct their 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