Whether the Council was justified in refusing, under sections 15(1)(a), 15(1)(c), 36, and 37 of the Act, the applicant's request for records of specific data on payments to HAP landlords filed in the third party return to the Revenue Commissioners for the 2019 and 2020 financial years

5 May 2022

Background

The Housing Assistance Payment (HAP) is a form of social housing support provided by all local authorities. Under HAP, local authorities make a monthly payment to a landlord on a HAP tenant's behalf. A HAP tenant pays a weekly contribution towards the rent to the local authority. All local authorities use the services of the HAP Shared Services Centre (SSC), which is based in Limerick, to make HAP rental payments to landlords. Limerick City and County Council (the Council) processes FOI requests on behalf of the SSC. Every April, the SSC provides third party returns, called the S888 file, to the Revenue Commissioners regarding payments to HAP landlords.

In a request dated 7 May 2021, the applicant requested data on payments made to HAP landlords filed in the third party return to the Revenue Commissioners for financial years 2019 and 2020. He said he was specifically seeking access to the portions of the records which show

(i) Where the landlord is a body corporate: the name and address of the body corporate, number of properties, county of location of the properties and amount paid to the body corporate under HAP;

(ii) Where the landlord is an individual with 10 or more properties eligible to HAP: the name and address of the landlord, number of properties, county of location of the properties and amount paid to the landlord under HAP.

He acknowledged that some information may be redacted under section 37 of the Act to protect personal information. He said he was not seeking any information that could identify HAP tenants such as the address of any rented property nor any information regarding the identity of any individual landlord with fewer than 10 properties eligible to HAP.

On 31 May 2021, the Council issued its decision wherein it said it was granting the request. It provided details of the overall number of landlords that fell within the categories of "body corporate" and "landlord with 10 or more properties", the overall number of properties in each category broken down by county, and the overall amount paid in each category for both years. It provided a further breakdown of the location of the properties in each category by local authority.

I understand that the applicant then wrote to the Council to explain that some of the information sought was missing. On 2 June 2021, the Council issued a revised decision. It said the information released on 31 May 2021 comprised information extracted from HAP Shared Services Sugar CRM system. It said the SSC was not obliged to create a record to respond to the request but did so in this instance so as to provide the applicant with some information related to his request. It said the SSC clarified that the return to the Revenue Commissioners to which access was sought is not an actual physical return. It said the SSC uploads information to the Revenue Commissioner's Portal and there is no one record showing the information sought. It said that to provide the information sought would involve SSC staff extracting information from its system and would be "very time consuming". It also said that details such as the names of

landlords and addresses of properties is not information that it would release without consent as "this would breach GDPR law and would also be considered to be personal information". It said that the request was therefore part-granted. It refused access to the return sought under section 15(1)(a) of the Act on the ground that the record sought does not exist and it said that personal information was being refused under section 37(1) of the FOI Act.

On 18 June 2021, the applicant sought an internal review of the Council's decision. He argued that there was no need for a physical return to exist and that electronic records exist and are accessible under the Act. He added that he was willing to engage with the Council to discuss ways of adjusting his request to the least time-consuming format and for the Council to quote any reasonable search and retrieval fees if required. He argued that the information relating to body corporates does not fall within the definition of personal information and presented arguments as to why the requested information regarding individual landlords with 10 or more properties should be released in the public interest.

On 12 July 2021, the Council issued its internal review decision wherein it said it had decided to affirm the revised decision of 2 June 2021. It said it was refusing access to the record sought under section 15(1)(a) on the ground that it does not exist. It also said it was refusing the request under section 15(1)(c), which provides for the refusal of requests whose processing would cause an unreasonable interference with, or disruption of, the work of the body, and section 37(1), which is concerned with the protection of third party personal information. On 15 July 2021, the applicant sought a review by this Office of the Council'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 Council and the applicant as set out above and to the correspondence between this Office and both parties on the matter. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with whether the Council was justified in its decision to refuse, under sections 15(1)(a), 15(1)(c) and 37(1) of the Act, the applicant's request for certain data on payments made to HAP landlords filed in the third party return to the Revenue Commissioners for financial years 2019 and 2020.

Analysis and Findings

S888 File

The Council said that each April the SSC extracts a file from its financial system (Agresso) detailing all payments to landlords and agents for the previous financial year. The S888 file is a text file with over 66,500 (in 2020) line entries. This information is not consolidated in the categories requested by the applicant. Each property has its own line entry with the respective

supplier information. A supplier is the person to whom the payment is made and may be either an individual landlord, corporation or agent representing the property owner.

The Council provided this Office with a table describing the categories under which the information in S888 file is sorted. The information is sorted under headings including "County Council, Name of filer, Phone number, landlord name, identified field- i.e. L for Landlord or A for Agent, Landlord Tax Reference, Landlord Address, Local Property Tax, Landlord Contact details, Rental Property Address, Total amount of payment made". It noted that as the S888 return is concerned with the landlord details, consequently the location of the rental property and other information is not always complete.

Section 15(1)(a)

Section 15(1)(a) of the FOI Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. In such cases, the role of this Office is to review the decision of the FOI body and to decide whether that decision was 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 and I must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.

It is important to note that while the purpose of the FOI Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from a public body must make a request for records that contain the information sought. Requests for information, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information can reasonably be inferred to be a request for a record containing the information or answer sought.

It is also important to note that, with one exception, the Act does not require FOI bodies to create records to provide information sought. The exception is set out in section 17(4) of the Act. Under section 17(4), where a request relates to data contained in more than one record held on an electronic device by the FOI body concerned, the body must take reasonable steps to search for and extract the records to which the request relates. These steps are those that would involve the use of any facility for electronic search or extraction that existed on the date of the request and was used by the FOI body in the ordinary course. Where these reasonable steps result in the creation of a new record, that record is, for the purposes of considering whether or not such a new record should be disclosed in response to the request, deemed to have been created on the date of receipt of the request.

During the course of the review, the investigating officer from this Office had extensive engagements with the Council in relation to the nature and format of the information it holds that may be of relevance to the request. Following those engagements, the Council accepted that the third party returns exist and contain some of the information requested at parts (i) and (ii) of the request albeit it not in a format reflected in the request.

The essence of the Council's arguments in support of its reliance on section 15(1)(a) is that the information it holds does not accurately reflect the information sought by the applicant as the returns are not limited to details of individual landlords and corporate landlords but also include agent details. It explained that a significant number of individual landlords and corporate landlords are represented by agents. It said of the 66,500 lines for 2020 in the file there are roughly 18,500 properties where the supplier is listed as an agent rather than the property owner and that there are roughly 2,600 agents. It argued that to comply with the request, it would have to take a number of steps to identify the actual property owner before inserting the correct information.

It seems to me that the Council's reliance on section 15(1)(a) is based on its view that as it cannot provide accurate details of the individual and corporate landlords (due to the fact that many of the suppliers are recorded as agents), then the record sought does not exist. In essence, it is arguing that the record does not exist as the information it holds is incomplete and therefore inaccurate and misleading.

The FOI Act provides for a right of access to records held by public bodies unless they are otherwise exempt from release. There is nothing in the Act which allows an FOI body to refuse to grant access to a record based solely on the fact that the information in the record is incomplete, inaccurate or potentially misleading. As this Office has found on many occasions, the possibility of information being misunderstood could rarely, if ever, be a good cause for refusing access to the records. Such an argument suggests that the FOI body may be incapable of explaining its records to the public and may be unable to present information to the public in a way which will allow any objective observer to draw accurate and balanced conclusions.

As I have outlined above, the Council now accepts that it does, indeed, hold certain information falling within the scope of the applicant's request. I should add that during the course of the review, the Investigating Officer informed the applicant of the fact that many of the suppliers in the record at issue are recorded as agents and of the Council's explanation of the steps it would have to take to identify the individual or corporate landlords those agents represent. In response, the applicant agreed that those landlords represented by agents could be removed from the scope of the review. Accordingly, I am simply not in a position to find that the Council was justified in refusing the applicant's request under section 15(1)(a) of the Act.

Section 15(1)(c)

The Council also relied on section 15(1)(c) as a ground for refusing the request. That section provides that an FOI body may refuse to grant a request if it considers that granting the request would, by reason of the number or nature of the records concerned or the nature of the information concerned, require the retrieval and examination of such number of records or an examination of such kind of records concerned as to cause a substantial and unreasonable interference with, or disruption of, work (including disruption of work in a particular functional area) of the body.

It is clear from the Council's submissions that its primary concern in relation to the time and resources that it would take to process the request arise from its view that it would have to take steps to identify the various landlords represented by agents and to cross reference and input the correct data. In circumstances where the applicant has accepted that this information is not required, it seems to me that the Council's concerns no longer arise. Regardless, it is important to note, in any event, that before an FOI body can refuse a request under section 15(1)(c) to refuse a request, it must first have complied with the provisions of section 15(4).

That section provides that an FOI body shall not refuse a request under section 15(1)(c) unless it has assisted, or offered to assist, the requester concerned in an endeavour so as to amend the request for re-submission such that it no longer falls to be refused under that section. No such assistance or offer of assistance was made in this case before the Council refused the request. Accordingly, I find that the Council was not justified in refusing the request under section 15(1)(c).

Section 37(1)

Section 37(1) provides for the mandatory refusal of a request if granting access to the record sought would involve the disclosure of personal information relating to a third party. Section 2 of the FOI Act defines the term "personal information" as information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or his/her family or friends, or information about the individual that is held by a public body on the understanding that it would be treated as confidential.

Section 2 of the FOI Act defines personal information as information about an identifiable individual that either (a) would ordinarily be known only to the individual or to members of his/her family or to his/her friends, or (b) is held by an FOI body on the understanding that it would be treated by the FOI body as confidential. Furthermore, the Act details fourteen specific categories of information that is personal without prejudice to the generality of the foregoing definition, including (ii) Information relating to the financial affairs of the individual, and

(xiii) information relating to property of the individual (including the nature of the individual's title to any property).

In its submissions, the Council argued that the names and addresses of the landlords comprises personal information and that it is exempt from release under section 37(1). I accept that the release of the names and addresses of the individual landlords with 10 or more properties would involve the disclosure of personal information relating to those landlords and that section 37(1) applies. However, while I have not examined all of the information at issue, I am not satisfied that the release of the names and address of the corporate landlords would generally involve the disclosure of personal information. I find that the Council was not justified in refusing the information sought relating to corporate landlords as a class under section 37(1).

While I have found section 37(1) to apply to the names and addresses of the individual landlords with 10 or more properties, that is not the end of the matter as section 37(1) is subject to the other provisions of the section.

Section 37(2) provides that section 37(1) does not apply in certain circumstances. I am satisfied that no such circumstances arise in this case. 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 am satisfied that the release of the information at issue in this case would not be to the benefit of the individuals to whom the information relates and that section 37(5)(b) does not apply

On the matter of whether section 37(5)(a) applies, I would note that in carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. Section 11(3) provides that an FOI body must have regard to 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. Nevertheless, it is important to note that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 ("the Enet 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.

In relation to the issue of the public interest, it is also important to have regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner [2011] IESC 26 ("the Rotunda case"). It is noted that a public interest ("a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest.

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.

The applicant argued that as body corporates and individual landlords with 10 or more properties eligible to HAP collected over €180 million of the €578 million in exchequer funds spent on the scheme in 2020, there is a clear case of public interest over transparency in the use of public funds exists to override any other questions that may arise as provided for in the Act.

In essence, the applicant's argument is that the public interest in the release of the information at issue outweighs the right to privacy of the individuals to whom the information relates based on the overriding need for transparency arising from the significant expenditure of public funds. However, as I have explained above, the Supreme Court found in the Enet case that a general principle of openness does not suffice to direct release of records in the public interest. In the case in question, the record at issue was a concession agreement between the Department of Communications, Energy and Natural Resources and eNet in relation to the provision of broadband services. The Information Commissioner had directed the release of the record. The Supreme Court found as follows:

"The Commissioner, in the present case, took the view that the size of the contract for the support of an important State-owned asset could, of itself, justify disclosure. This may reflect a view that it is desirable in the public interest to require disclosure of information regarding large public expenditure in strategically important State assets and infrastructure. If that is the basis of the decision, it seems to me to improperly rely on the general principle of openness as the decision to order release must be one that emerges from a consideration of the particular records and not from a general policy. The size of a contract was not identified in the Act as a basis for disclosure. There must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure."

Having regard to the findings of the Supreme Court in the eNet case, I find that the applicant's argument concerning the overriding for transparency arising from the significant expenditure of public funds does not provide a basis for finding that the public interest in releasing the information at issue outweighs the right to privacy of the individuals to whom the information relates.

It is relevant to note that while HAP payments are made to landlords, qualification for HAP payments is based primarily on the circumstances of the relevant tenants and not those of the landlords. I am aware of no "sufficiently specific, cogent and fact-based reason" to find that the public interest in the release of the names and addresses of the individual landlords outweighs, on balance, the privacy rights of those landlords. I find, therefore, that section 37(5)(a) does not apply, and that the Council was justified in refusing to grant access to the names and addresses of individual landlords with 10 or more properties under section 37(1) of the Act.

Section 36

While the Council said, during the course of the review, that it considered section 36 of the Act to be of relevance to the information sought relating to corporate landlords, it offered no substantive arguments as to why it considered that section might apply in this case. Section 22(12)(b) of the Act provides that a decision to refuse to grant a request is presumed not to have been justified unless the FOI body can satisfy the Information Commissioner that the refusal was justified. Accordingly, I find that the Council has not justified its refusal of the information at issue under section 36.

Conclusion

In conclusion, I find that the Council was not justified in refusing the request under sections 15(1)(a) or 15(1)(c) for the reasons outlined above. While I find that it was justified in refusing access, under section 37(1) of the Act, to the names and addresses of the individual landlords with 10 or more properties, it was not justified in refusing access to the names and addresses of the corporate landlords under sections 36 or 37. However, I do not consider it appropriate to simply direct the release of that information for a number of reasons. Firstly, my finding that section 15(1)(c) did not apply was essentially based on a technical finding that the Council misapplied the section.

Secondly, I am cognisant of the fact that if I was to consider issuing a decision directing the release of the information, I believe that this Office would be required to notify all of the relevant third parties before doing so, pursuant to section 22(6) of the Act. The role of this Office is to review decisions taken by public bodies on request, not to effectively act as a first instance decision maker.

In the circumstances, I consider that the most appropriate action to take at this stage is to annul the decision of the Council in relation to the part of the request for information relating to corporate landlords and to remit the matter back to the Council for consideration afresh.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of the Council to refuse the request in this case. While I find that it was justified in refusing access, under section 37(1) of the Act, to the names and addresses of the individual landlords with 10 or more properties, I annul its decision in respect of that part of the request relating to corporate landlords and direct the Council to conduct a fresh decision making process on that part.

Right of Appeal

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