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Case 010459. Request for list of all properties owned, used or rented or in any way utilised by Dublin City Council on the North Circular Road, Dublin 7 - whether release could reasonably be expected to have a significant adverse impact on the performance of its functions relating to management - section 21(1)(b) - whether release could reasonably be expected to facilitate the commission of an offence - section 23(1)(c).

Case Summary

Facts

The requester sought a list of all properties owned, used or rented or in any way utilised by the precursor of Dublin City Council (the Council), particularly its Homeless Policy Unit, "on the whole length of the North Circular Road, Dublin 7". The Council refused the request on the grounds that release could reasonably be expected to have a significant adverse effect on its ability to carry outs its functions in relation to the provision of accommodation for the homeless. It said that it was totally reliant on the private rented sector for this accommodation because it does not have any accommodation suitable for this purpose in its own housing stock.

The Council said that the requirement that owners/landlords must directly manage the properties on behalf of the Council and engage a live in house manager in itself deters may owners/landlords from making their properties available to the Council. It argued that if release of the addresses were to result in a local campaign against the use of a property, significant additional difficulty could follow for the owner/landlord, which might result in a decision to terminate the agreement with the Council.

Thus, it contended that if private sector owners/landlords were unwilling to make their properties available, the Council would have great difficulty in complying with its statutory function under section 10 of the Housing Act, 1988, which concerns the provision of emergency accommodation for the homeless.

Decision

Section 21(1)(b) concerns the performance by a public body of its "functions relating to management".

The Commissioner commented that the application of section 21(1)(b) is intended to be confined to operations which are internal to the public body rather than including operations involving the use of third party contractors, as is the case where management of its housing function involves dealing with landlords/owners. She did not accept that that the engagement by the Council in relationships with third parties, and the management of those relationships, may be described as "internal management functions". The Commissioner also found that the Council had not shown that it had a reasonable expectation that any adverse reaction to the identification of the properties concerned would result in a "significant adverse effect" on its performance of any of its functions relating to management. She did not accept that section 21(1)(b) applied.

The Commissioner was not satisfied that there could be a reasonable expectation that release of the information would facilitate the commission of an offence and that section 23(1)(c) could not apply accordingly.

The Commissioner directed the release of the information. She commented that, had she been required to consider the public interest, she would have found that it weighed in favour of the release of the information.

Date of Decision: 08.09.2005

Our Reference: 010459

08.09.2005

Mr. X

Dear Mr. X

I refer to your application to this Office under the Freedom of Information Act, 1997 (the FOI Act) for a review of the decision of the former Dublin Corporation (now Dublin City Council) on your FOI request of 25 September 2001. Please accept my apologies for the long delay that has arisen since you made your application to this Office. Because of the large number of applications received in the early years of FOI, and because of staff shortages in that same period, significant work arrears built up. I appreciate that this delay has been quite frustrating for you.

Background

In your request of 25 September 2001, addressed to the Homeless Policy Unit (the Unit) of Dublin City Council (the Council), you sought access to a list of "all properties owned, used or rented or in any way utilised by Dublin Corporation, and in particular [the] Unit, on the whole length of North Circular Road, Dublin 7". You also asked for a list of similar properties held by the Unit in respect of Leinster Road, Rathmines, Dublin 6 and South Circular Road, Dublin 8.

On 15 October 2001, the Council gave you details of particular accommodation used by it on the North and South Circular Roads and told you that it was refusing you access to details of 12 properties utilised by the Unit on the North Circular Road, and of two properties on the South Circular Road, on the grounds that section 21(1)(b) and section 28(1) of the FOI Act applied. It told you that there were no properties utilised by the Unit on Leinster Road, Rathmines. On 22 October 2001, you sought an internal review of the Council's decision. On 21 November 2001, the Council told you it was upholding its earlier decision to refuse you full access to the details sought.

On 27 November 2001, you made your application to this Office. You told Ms Byrne of this Office, on 6 August 2004, that the scope of my review may be confined to the details concerning properties utilised by the Council on the North Circular Road. You also said that you did not want to know who lived in the properties, nor did you want to know the names of the landlords.

In conducting this review, I have had regard to correspondence between Ms Moran of this Office and yourself, as well as to correspondence between Ms Moran and the Council. I have conducted this review in accordance with the provisions of the Freedom of Information (FOI) Act, 1997, as amended by the Freedom of Information (Amendment) Act, 2003. All references in this letter to particular sections of the FOI Act refer to the FOI Act, 1997 as amended.

Scope of Review

My review is confined to the sole issue of whether the Council's decision to refuse to release to you the withheld details - that is, the properties that were owned, used, rented or in anyway utilised by the Unit on the North Circular Road as at 25 September 2001 - is in accordance with the FOI Act.

Findings

As a preliminary matter it is relevant to point out that, in the context of my reviewing a decision by a public body to refuse access to records, that decision (to refuse access) "shall be presumed not to have been justified" unless the public body concerned "shows to the satisfaction of the Commissioner that the decision was justified." This is provided for at section 34(12)(b) of the FOI Act.

The Council's most recent correspondence with this Office says that it is relying on sections 21(1)(b) and 23(1)(c) of the FOI Act in refusing you access to the details sought. Accordingly, the matter to be addressed below is whether the Council's decision is justified on the basis of these particular provisions.

Section 21(1)(b)

This provides that a request for access to a record may be refused "if access to the record concerned could, in the opinion of the head, reasonably be expected to -

(b) have a significant, adverse effect on the performance by a public body of any of its functions relating to management (including industrial relations and management of its staff), ... "

The Council's arguments

The Council argues that the release of the requested information would have a significant adverse effect on its ability to carry out its functions in relation to the provision of accommodation for the homeless. It says that the terms and conditions pertaining to the agreements between it and the property owners/landlords allow either party to terminate an agreement at one month's advance notice. The Council says that the role of the owners/landlords extends beyond making the properties available to the Council and that the owners/landlords are required to directly manage the properties on behalf of the Council, including the engagement of a live-in house manager. It submits that this requirement in itself deters many owners/landlords from making their properties available "due to the challenging nature of the clientele who would reside in the properties". The Council says that owners/landlords regularly comment on the difficulty in finding persons prepared to work as house managers. It considers that, if the release of the addressees were to result in a local campaign against the use of a property, significant additional difficulty could follow for the owner/landlord, which might result in a decision to terminate the agreement with the Council.

The Council contends that such an outcome would have a definite adverse affect on its performance of its functions under section 10 of the Housing Act, 1988 which concerns the provision of emergency accommodation for the homeless. The Council says that it is totally reliant on the private rented sector for this accommodation because it does not have any accommodation suitable for this purpose in its own housing stock. Thus, it contends that if private sector owners/landlords are unwilling to make their properties available to it, the Council will have great difficulty in complying with its statutory function under the Housing Act, 1988.

Section 21(1)(b): Functions relating to management

Section 21(1)(b) concerns the performance by a public body of its "functions relating to management". In appears, in the present case, that the Council is equating the performance of its functions under section 10 of the Housing Act, 1988 with the performance of "functions relating to management". I do not accept that this is a correct approach on the part of the Council. It seems to me that the performance of "functions relating to management" is a narrower category than that of the performance of statutory functions more generally. Thus, I am of the view that the application of section 21(1)(b) is intended to be confined to operations which are internal to the public body rather than including operations involving the use of third party contractors, as is the case where management of its housing function requires dealing with landlords/owners.

I note in this regard the comment of Maeve McDonagh in her book "Freedom of Information Law in Ireland" (1998) that section 21(1)(b) is "arguably, confined to the internal management functions of public bodies and as such could not be held to extend to records relating to the relationship between the public body and third parties. It could, for example, be applied to records concerning the management by a public body of its financial resources." (Page 161)

It might be argued that the management of relationships between the Council and the landlords/owners, in a particularly sensitive situation where the Council does not have sufficient housing stock of its own, could be described as being the management by the Council of its housing resources. However, it seems to me that such an argument is dependent on an acceptance that the engagement by the Council in relationships with third parties, and the management of those relationships, may be described as "internal management functions". I do not accept that this is the case.

Significant adverse effect

The Council may have an expectation, whether based on its own previous experience or on the experience of other bodies in related circumstances, that release of details of the addresses of the properties concerned could result in some demonstrations outside these properties. However, people have the right of assembly and it seems to me that it must be assumed that any such assembly or demonstration will be within the law and, if not, it must also be assumed that An Garda Síochána will take the necessary action.

Furthermore, while the Council has speculated as to the possible effect on the relationship it currently has with the landlords/owners, and while it may have an expectation of demonstrations arising from the release of the information, I am not satisfied that the Council has shown that there are grounds for a reasonable expectation that release of the information will result in a significant adverse effect on the willingness of the landlords/owners to continue their relationships with the Council, or to enter into such arrangements in future with the Council. More specifically, I find that the Council has not shown that it has a reasonable expectation that any adverse reaction to the identification of the properties concerned would result in a "significant adverse effect" on its performance of any of its functions relating to management. Thus, I find that section 21(1)(b) does not apply to the information at issue.

Even if I had found that section 21(1)(b) applied, I would have been required to consider the public interest. It seems to me that, while there is a public interest in the Council being able to source accommodation for the homeless, and in those who are homeless or who have fled a difficult home situation being allowed to live in peace, those factors are outweighed by the public interest in release of the information. The factors in favour of release include openness and transparency in relation to the expenditure of public money (in that the public would be aware of the precise houses in a particular area in relation to which the Council has engaged in private contractual relationships) and in openness by a public body in terms of its housing policy in respect of particular areas.

Section 23(1)(c)

Section 23(1)(c) provides that a request for access to a record may be refused if release of the information could reasonably be expected to facilitate the commission of an offence.

The Council has relied on section 23(1)(c) in relation to the withheld information. It says that it has a responsibility to the residents of emergency accommodation, many of whom are vulnerable due to their backgrounds, and it would be a grave neglect of that responsibility to place residents in a position where they would have to pass a demonstration against them to gain access to and from their accommodation.

However, I am not satisfied that there can be a reasonable expectation that the release of the information would facilitate the commission of an offence. Even if the release of the information could reasonably be expected to lead to protests, people generally have the right of assembly. As matters stand, I have no reason to assume that those protests might be anything other than peaceful and within the law.

It may also be suggested that the residents of the houses, who may have fled violence in some form or another already, may feel so threatened by any protests that they might endanger the safety of the persons who are protesting. However, even if one accepts that danger to safety might emanate from within or outside the houses concerned, one must also assume that An Garda Síochána would take the requisite action to prevent the "commission of an offence" .

Accordingly, I am not satisfied that the Council has justified its reliance on section 23(1)(c) and I find that this provision does not apply to the withheld details.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act, 1997 (as amended) I hereby annul the decision of the Council in this case. I direct that the withheld details concerning properties utilised by the Homeless Policy Unit on the North Circular Road, as at the date of the request 25 September 2001, be released to you.

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date of this letter.

Yours sincerely

Emily O'Reilly
Information Commissioner