Whether the Department was justified in refusing access, under section 15(1)(a) of the FOI Act, to further records relating to a review of the Help to Buy scheme on the basis that no further relevant records exist or can be found and whether the Department was justified in refusing access under, section 37(1) of the Act, to information it redacted from the records it released to the applicant

20 November 2023

Background

This case has it's background in a review of the Help to Buy Scheme (which aims to help first time buyers to purchase a home) that was carried out by Mazars consultants on behalf of the Department of Finance.

On 22 November 2022, the applicant made a request to the Department for copies of any records relating to the recent Review of the Help to Buy Scheme (the Review) between the Department of Housing, Local Government and Heritage (DHLGH) and the Department of Finance at the level of Principal Officer or higher. The applicant also requested copies of any records between the Department of Housing, Local Government and Heritage and Mazars relating to the Review and any records submitted as part of the consultation process to the Review. On 19 December 2022, the Department issued a decision part granting the request. It released three records to the applicant, redacting a small amount of information from two of the records under section 37 of the FOI Act. On 19 January 2023, the applicant requested an internal review of the Department's decision. On 7 February 2023, the Department affirmed its original decision. On 30 May 2023, the applicant applied to this Office for review of the Department's decision and said that he did not understand why so little information has been made available.

During the course of this review, the Department provided submissions to this Office in support of its decision to refuse the applicant's request. The Investigating Officer provided the applicant with details of the Department's submissions wherein it outlined its reasons for concluding that additional records relating to his request do not exist. The applicant was invited to make further submissions, which to date he has not done so.  

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 referred to above, including the submissions made by the Department in support of its decision and to the applicant's comments in his application for review. I have also had regard to the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

While the Department's position is that no further records relevant to the applicant's request exist or can be found, the applicant considers further records ought to exist. Accordingly, the scope of this review is concerned with whether the Department was justified in refusing access, under section 15(1)(a) of the Act, to further relevant records on the basis that no such records exist or can be found after all reasonable searches have been undertaken.

This review is also concerned with whether the Department was justified in refusing to release the information it redacted under section 37(1) of the Act.

Analysis and Findings

Section 15(1)(a)

Section 15(1)(a) of the FOI Act provides for the refusal of a request where records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. Our role in a case such as this is to review the decision of the FOI body and to decide whether the 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 also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in "search"� cases generally consists of the steps actually taken to search for records along with miscellaneous and other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.

As I have outlined above, the Department provided this Office with details of the searches it undertook in an effort to locate the records relevant to the applicant's request and of its reasons for concluding that no further relevant records exist or can be found. The Investigating Officer provided the applicant with details of the Department's submissions in this regard. While I do not propose to repeat those details in full here, I confirm that I have had regard to them for the purposes of this review.

The Department stated that by way of background, the Help to Buy Scheme is a tax-based measure, and its operation is solely a matter for the Officer of the Revenue Commissioners. It stated that the role of the Minister for Finance lies in the formulation of the policies behind the scheme and their implementation in the relevant tax legislation. The Department said that the Department of Housing and Local Government and Heritage does not have a direct role in relation to the origination, operation of, or reporting on, Help to Buy. It stated that Mazars consultants were commissioned by the Minister for Finance to conduct an independent review.

The Department stated that all reasonable steps were taken to identify and interrogate the persons at the level of Principal Officer and above within the Department who might reasonably have created or held records within the scope of the applicant's request. Additionally, the Department stated that the Units consulted within the Department for records included the Tax Division, the Economic Division, the Office of the Secretary General and the Office of the Minister for Finance. It stated that as the Review was still a recent event at the time when the searches were carried out, it was possible to identify relevant individuals and file locations. It stated that this was the primary search method used by the Department. The Department stated that keyword searches were also conducted using the terms such as HTB, Help to Buy, Housing, DHLGH, Mazars.

Additionally, the Department stated that documents of public consultation returns or departmental/agency inputs were solicited directly Mazars and did not, as a matter of course, pass through the Department. The Department stated that it cannot speak to the communications between DHLGH and Mazars unless it had been copied on this correspondence.

During the course of this review the Investigating Officer asked the Department whether it had considered if Mazars held any relevant records. The Department stated that it had not.  

Section 11(9)

Section 11(9) of the Act provides that a record in the possession of a service provider shall, if and in so far as it relates to the service, be deemed for the purposes of this Act to be held by the FOI body, and there shall be deemed to be included in the contract for the service a provision that the service provider shall, if so requested by the FOI body for the purposes of this Act, give the record to the FOI body for retention by it for such a period as is reasonable in the particular circumstances.

Section 2 defines "Service Provider"� as "a person who, at the time the request was made as not an FOI body but was providing a service for an FOI body under a contract for services and a contract for services in this definition includes an administrative arrangement between an FOI body and another person."�

The effect of section 11(9) is that any records held by a service provider that relate to the service provided for the FOI body are deemed to be held by the FOI body for the purposes of the FOI Act and a right of access to such records exists unless they are otherwise exempt. This does not mean that all records held by the service provider are subject to the Act. The records must relate to the service provided for the FOI body.

Given Mazars role in carrying out the Review, it seems to me that it is at least possible that it may hold records relevant to the applicant's request. I note for example that as part of his request the applicant sought "any records submitted as part of the consultation process to the Review"�. In the absence of establishing if in fact Mazars hold such records, it cannot be said that all reasonable steps to ascertain their whereabouts have been taken. As noted above, the Department did not consider whether any relevant records may be held by Mazars when deciding upon the applicant's request. Following enquiries by this Office, I understand the Department contacted Mazars about the applicant's request. However, it does not appear to have established whether relevant records exist that might be captured by section 11(9). It is evident, in my view, from the Department's responses to this Office that the Department accepts that further relevant records in this case may be held by Mazars.

As the Department has been unable to confirm what, if any, records are held by Mazars that come within the scope of the applicant's request, I cannot find that the Department has taken all reasonable steps to ascertain the whereabouts of the records requested by the applicant. Accordingly, I find that the Department was not justified in refusing access, under section 15(1)(a) of the FOI Act, to the applicant's request on the ground that no further records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken. I am satisfied that the most appropriate course of action to take is to annul the decision of the Department to refuse the applicant's request under section 15(1)(a) of the FOI Act, the effect of which is that it must consider the applicant's request afresh and make a new, first instance, decision in accordance with the provisions of the FOI Act. The applicant will have a right to an internal review and a review by this Office, if he is unhappy with the Department's new decision.

Section 37(1)

The Department redacted a small amount of information from emails it released to the applicant under section 37 of the Act on the basis that it is the personal information of other parties. Record 1 is an email dated 14 June 2022 from a member of staff in DHLGH to an employee of Mazars. Record 2 is an email string from a member of staff in DHLGH to the Department of Finance which includes the email at Record 1. The Department redacted the name and email address of the Mazars employee from these records. It also redacted the direct landline telephone numbers and mobile telephone numbers of staff from DHLGH and the Department of Finance.

Section 37(1)

Section 37(1) 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 third parties. The effect of section 37 is that, generally speaking, access to a record shall be refused if it would involve the disclosure of personal information relating to individual(s) other than the requester, unless one of the other relevant provisions of section 37 applies.

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 14 specific categories of information that is personal information without prejudice to the generality of the foregoing definition including, at point (iii), information relating to the employment or employment history of the individual.

In addition, Paragraph (I) of section 2 of the FOI Act excludes certain information from the definition of personal information, including "... in a case where the individual holds or held office as a director, or occupies or occupied a position as a member of the staff, of a public body, the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or occupies or occupied that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of the functions aforesaid ...". Similar information is excluded in the case of service providers under Paragraph (II) of section 2. However, the exclusions to the definition do not exclude all information relating to staff members of FOI bodies or service providers. Individual staff members are still entitled to the right to privacy generally.

The Department redacted, under section 37(1) of the Act, the name and email address of a staff member of Mazars, a company engaged by the Department to conduct the Review. I consider that the exclusion to the definition of personal information relating to service providers applies to the name of the service provider but not to the names of its individual employees. I therefore find that the exclusion does not apply and that the name and email address of the Mazars employee are personal information within the meaning of the Act.

As noted above, the Department also redacted the direct landline telephone numbers and mobile telephone numbers of staff of the Department and DHLGH. In its submissions to this Office, the Department said that the redaction of such contact details is a Department policy. Having regard to the exclusions at Paragraph I of the definition of personal information in section 2 of the Act, I do not accept that the direct landline telephone numbers of these staff comprise personal information. I am of the view that where contact information for a staff member, for example an email address or the direct phone line of a staff member, is provided to the staff member by virtue of the position that staff member holds within the Department it cannot generally be considered personal information of the individual. As such, on the basis of the exclusion from the definition of personal information provided for in Paragraph (I) of section 2 of the Act, I find that the direct line phone numbers of staff in this case are not personal information and as such, section 37(1) does not apply. I accept, however, that mobile phone numbers of those staff members can be considered personal information in a way that a fixed direct line phone number at a place of employment cannot. While mobile phone may be used in the course of carrying out their staff functions, they may also be used outside of working hours and as such their use may not be confined solely to matters related to the position they hold as a member of staff. Accordingly, I find that section 37(1) applies to the mobile phone numbers at issue in this case.

However, that is not the end of the matter as section 37(1) is subject to the other provisions of section 37. 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 and that section 37(2) does not, therefore, apply. 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 request would benefit the person to whom the information relates. I am satisfied that section 37(5)(b) of the Act does not apply.

In relation to the applicability of section 37(5)(a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the individual or individuals to whom the information relates. 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, which 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. It is important to note that inThe 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.

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.

In its submissions to this Office the Department argued that the release of the direct contact details of the individuals would not enhance the transparency of the FOI process and, accordingly the public interest does not support release. Other than indicting that he wants this Office to review the redactions applied by the Department, the applicant has made no substantive arguments concerning the release of the personal information at issue. It appears from his application to this Office, that the applicant's primary concern is seeking a better understanding and clarity about the Review of the Help to Buy scheme.

As noted above, the applicant is seeking information about the review of the Help to Buy Scheme that was carried out by Mazars on behalf of the Department. As the Department noted in its decision, there is public interest in the public knowing how a body performs its functions. It is worth noting that the Review report is publicly available.

Notwithstanding my findings above directing the Department to reconsider the applicant's request in regards to the potential existence of further records, the Department said it has released the records it located to the applicant with a small amount of information redacted, as outlined above. The question I must consider is whether the release of personal information at issue here in the public interest outweighs the public interest in protecting privacy rights of the individuals concerned.

Given that the content of the emails, including the names of the authors of those emails, was released to the applicant, I can find no public interest, in releasing the name and contact details of the Mazars employee who was sent the email or in releasing the mobile phone numbers of the staff who composed the emails, that would enhance the transparency of the Review to such an extent that it outweighs the privacy rights of those individuals.

Having considered the matter carefully, I find that, on balance, the public interest in granting access to the personal information at issue in this case does not outweigh the right to privacy of the individuals concerned. I find, therefore, that section 37(5)(a) does not apply.

Accordingly, I find that the Department was justified in refusing access, under section 37(1) of the Act, to the personal information of the Mazars staff member and to the mobile phone numbers of the Department and DHLGH staff contained within the records.  

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Department's decision. I find that the Department was not justified, under section 15(1)(a) of the Act, in refusing access to further relevant records coming within the scope of the applicant's request and I direct it to make a fresh decision on his request.

I find that the Department was justified in refusing access to the personal information identified above under section 37(1) of the Act. Furthermore, I find that the Department was not justified in refusing access to the direct landline phone numbers of the staff in question under section 37(1) of the Act and I direct it to release that information.

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 by the requester 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.

Richard Crowley
Investigator