Ms. X and Louth County Council [2024] IEIC 143722 (03 July 2024)

Background
Scope of Review
Analysis and Findings
Decision
Right of Appeal

Whether the Council was justified in refusing access to various records largely relating to housing matters

3 July 2024

Background

The applicant's 21-part FOI request, dated 3 June 2023, was received by the Council on 26 June 2023. I do not intend to list each part of the request because the applicant modified most of them and, as explained further below, only some are covered by my review. The request resulted in various correspondence between the Council and the applicant regarding the scope and type of different records sought.

On 29 August 2023, the Council part-granted the modified request. In summary, it provided information and records relevant to some parts of the request. It said that some of the requested records were available on its website, and provided relevant links. It refused other records under sections 15(1)(a) (record does not exist/reasonable searches) and 37(1) (personal information) of the FOI Act.

On 11 September 2023, the applicant sought an internal review of the Council's decision on parts 1, 2, 3, 4, 9, 10, 12, 17, 18 and 19 of her modified request. The Council's internal review decision of 4 October 2023 affirmed its decision on these, other than to provide certain details relevant to part 3. It said that it was providing these details on foot of clarification in the internal review application.

On 8 November 2023, this Office received a letter from the applicant, enclosing her correspondence with the Council. On 17 November 2023, we asked the applicant what she was asking us to review. She replied that she would appreciate any documents not received, particularly that at part 4. She later confirmed that she is not satisfied with the records provided by the Council in relation to part 3 of her modified request.

During the review, I understand that the Council provided the applicant with certain figures relevant to part 12 and an Irish version of its complaint form (part 18). On 21 May 2024, I wrote to the applicant to inform her about the scope of my review and about the issues that I considered relevant to it. She sought (and was given) further time to reply to my letter. She replied on 28 June 2024.

I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges, to correspondence between this Office, the Council and the applicant, to copies of records provided by the Council to this Office, and to the provisions of the FOI Act.

Scope of Review

My letter of 21 May 2024 told the applicant that we can only carry out a review where an internal review has been sought of a particular decision. In line with that letter, and the applicant's reply, the scope of my review is confined to whether the Council's decision on parts 1, 2, 3, 4, 9, 10, 12, 17, 18 and 19 of the modified request was justified under the provisions of the FOI Act. I have no role in examining, or making findings on, the Council's performance of its functions.

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Analysis and Findings

It is important to note at the outset that section 13(4) of the FOI Act requires me to disregard any reasons that the requester has, or may have, for making her request. Furthermore, it is not the case that the provisions of the FOI Act are superseded by current disability legislation, which the applicant appears to argue.

Parts 1, 2 and 18 - section 15(1)(d) (publicly available information)

Section 15(1)(d) provides that an FOI body may refuse access to a record containing information that is already in the public domain.

Parts 1, 2 and 18 of the modified request seek access, respectively, to the Council's mission statement, customer charter, and complaints forms, in all translated formats available. The Council gave the applicant links to various material on its website. Essentially, this amounts to a reliance on section 15(1)(d) of the FOI Act.

Having examined the links provided by the Council, I note that they lead to the following:

● the Council's 2019-2024 Corporate Plan, in Irish and English. The Council told the applicant that the Corporate Plan contains its mission statement. I note that the Council's mission statement is on page 1 of both versions;

● Irish and English versions of the Council's Customer Charter; and

● a complaints page, which is in English. This page contains a link to a "complaints or comments" form. As at 21 May 2024, this form was in English only. However, I note that it is now in both Irish and English.

My letter to the applicant of 21 May 2024 outlined the provisions of section 15(1)(d). I told her that section 15(1)(d) appeared to apply to the publicly available documents.

The applicant replies that she did not receive the records she had requested. In summary, she says that the records are not clearly tabbed on the Council's website. She says that the links provided by the Council are not secure. She says that the records are not available in any language format, and that the Council is supposed to publish the records in other EU language formats.

Analysis

As noted in the Background section above, I understand that the Council has provided the applicant with an Irish version of the complaints form. I accept that, otherwise, it did not provide the applicant with copies of the records listed at the bullet points above. However, section 15(1)(d) enables FOI bodies to refuse to provide copies of records in response to an FOI request where those records are in the public domain. Furthermore, the FOI Act does not require that records must be placed in the public domain via secure links, or that they must be named, described, or highlighted in a particular way on a website.

I am satisfied that the Council has given the applicant links to those parts of its website where she may obtain Irish and English versions of the records sought at parts 1, 2 and 18 of her request. I am satisfied that such records are in the public domain and I find that section 15(1)(d) applies to them.

I will deal separately with the applicant's contention that the Council should hold further language versions of the records sought at parts 1, 2 and 18.

Section 15(1)(a) (reasonable searches/records do not exist)

Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused where the record does not exist or where it cannot be found after all reasonable steps to ascertain its whereabouts have been taken.

As set out in my letter to the applicant of 21 May 2024, the Council relies on section 15(1)(a) of the FOI Act in relation to parts 4, 10, 12, 17, and 19. My letter also explained why I consider section 15(1)(a) to be relevant to further translations of the records sought at parts 1, 2 and 18, and to parts 3 and 9.

A review of an FOI body's refusal of records under section 15(1)(a) assesses whether or not the FOI body is justified in claiming that it has taken all reasonable steps to locate records of relevance to a request or that the requested records do not exist. It is not normally the function of this Office to look for records. Furthermore, with the exception of where information can be extracted from a database by using existing search facilities (section 17(4) of the FOI Act refers), FOI bodies are not obliged to create a record in order to fulfil an FOI request.

As the applicant is aware, this Office has no role in examining whether the Council should hold or use any of the requested records. It is open to this Office to find that an FOI body has satisfied the requirements of section 15(1)(a) where records that an applicant believes ought to exist have not been located or created.

Parts 1, 2 and 18

To recap, parts 1, 2 and 18 of the modified request seek access to the Council's mission statement, customer charter and complaints forms, in all translated formats available. I have already found that section 15(1)(d) applies to those Irish and English versions of these documents that are in the public domain. However, the applicant contends that the Council is supposed to hold and/or publish the records concerned in other EU languages.

The Council says that it does not hold other translated versions of the relevant documents. It says that it is not required to do so, although it may translate them as necessary in the future.

Analysis

I note the applicant's contention that the Council is supposed to publish the documents in other EU languages. However, she has not referred me to these requirements. In any event, even if there are such requirements, the FOI Act does not give me any power to direct the Council to comply with them and to further translate the relevant documents.

In the circumstances, I see no reason to doubt the Council's position that, at this point in time, it does not hold any further translated versions of the records sought at parts 1, 2 and 18 of the modified request. I accept that such records do not exist. I find that section 15(1)(a) of the FOI Act applies to them.

Part 3

As modified by the applicant, part 3 seeks access to blank samples of all dated versions of the Council's social and affordable housing contracts from 2015 onwards. The Council has released its current template tenancy agreement, which I understand it has been using since 2016. It says that it destroyed all previous templates in 2016, to avoid out of date documents being inadvertently used.

The applicant says that she has not received the requested records. She says that the Council can procure the pre-2016 templates from other Irish local authorities. She asks me to refer the Council's destruction of such templates to the Data Protection Commission.

Analysis

The FOI Act does not require an FOI body to fulfil a request by externally sourcing records in the manner suggested by the applicant. Furthermore, it gives me no basis to direct the Council to do so, or for me to make referrals to the Data Protection Commission or elsewhere.

In the circumstances, I see no reason to dispute the Council's position that it no longer holds any 2015 to 2016 housing contract templates. I accept that such records do not exist. I find that section 15(1)(a) applies to them.

Part 4

I told the applicant that I understand part 4 to seek access to a blank sample of the Council's "disability housing tenancy agreement". The Council says that there are no such agreements. As noted earlier, the applicant particularly wants access to this record.

The Council says that it does not use disability housing tenancy agreements. It says that it uses the same tenancy agreement for all allocations. It says that each applicant with disabilities is dealt with on a case by case basis. It says that it allocates housing units to these applicants based on the unit's suitability for the person's needs.

The applicant refers to various published documents in support of her view that the Council must hold specifically drafted tenancy agreements to reflect the needs of applicants with disabilities. She contends that such agreements exist and that the Council should use and therefore hold such records. She says that the Council should get copies of these agreements from other local authorities and that it has had sufficient time to do so. She maintains that the provisions of section 15(1)(a) are superseded by current disability legislation.

Analysis

It is the Council's position is that it does not use the type of tenancy agreement covered by part 4. As noted already, the FOI Act gives me no powers to examine whether the Council should have, or should use, such agreements. Again, the FOI Act does not require the Council to seek to obtain the requested record from other local authorities, and it gives me no basis to direct the Council to do so. Furthermore, I do not accept the applicant's view that current disability legislation effectively requires such steps to be taken under the FOI Act.

I see no reason to dispute the Council's position that it does not hold the record sought at part 4. I accept that such a record does not exist. I find that section 15(1)(a) applies to part 4.

Part 9

I explained to the applicant that I understand part 9 to seek the total number of social welfare applicants housed by the Council from "ca. 2004", with the yearly breakdown.

The Council's decisions refused part 9 under section 37 of the FOI Act, on the basis that granting it would result in the disclosure of personal information of housing applicants. When inviting the Council's submission on the matter, I noted that it had not provided this Office with a copy of the refused record. I asked it to clarify whether the record existed in the first place, and also whether it could generate a record containing the requested information from its electronic records.

In response, the Council has supplied an Excel spreadsheet, which it says is the "complete record of [its] housing unit allocations from 2004-2023". It says that this is the record that it withheld under section 37.

In particular, I note the Council's position that the spreadsheet does not specify if persons are in receipt of social welfare. It explains that applicants for housing are not required to be in receipt of social welfare assistance to qualify. It says that, to qualify for housing, applicants must be within particular income limits (as laid down in the Social Housing Regulations Amendment Act). It says that applicants may therefore be in receipt of social welfare, or pensions, or be in paid employment, etc.

I have examined the contents of the spreadsheet. I note that one column classifies housing applicants, essentially in terms of their income. By way of one example, one such classification is "pensioner/retired". However, the Council confirms that this classification does not mean that all such pensioners or retired persons receive social welfare payments, and that it includes such persons who are fully or partially in receipt of a private pension. As a result, it is the Council's position that it is unable to collate details from the spreadsheet that would provide the narrow category of information sought at part 9. It says also that it does not hold any other electronic record of persons housed for the period in question, or for any other period. It says that it would therefore have to examine hard copy files to gather numbers for applicants who are in receipt of social welfare.

I informed the applicant of the above and I told her that section 15(1)(a) seems to apply to part 9. She responds that she did not ask for personal information but rather the numbers that are readily available to the Council. She says that the application forms "clearly state Social Welfare or classified as other. Include pensioner/retired in request the numbers are readily available".

Analysis

The applicant's position seems to be that the Council may include numbers for all pensioner/retiree applicants, regardless of whether they are in receipt of social welfare payments. She may also argue that the Council should include numbers for any other housing applicants who do not receive social welfare payments. However, this would have the effect of broadening the scope of part 9, which is not permissible.

I note the applicant's comments about the Council's Social Housing Support application form. I see that it asks applicants to supply details of their income from not only social welfare, but also from employment, self-employment, maintenance, and any other sources. Accordingly, I accept the Council's position that applicants for housing are not required to be in receipt of social welfare assistance to qualify.

Having considered the contents of the electronic spreadsheet and the Council's comments, I am satisfied that it is not possible to distinguish references to applicants who receive social welfare payments from references to persons who do not. It follows that I accept that the record contains more information than what part 9 seeks. In all of the circumstances, I also accept that the Council is unable to extract and collate relevant details from this electronic record that would provide the specific information sought at part 9. I have no reason to dispute the Council's position that it does not hold any other electronic record of persons housed for the relevant timeframe.

I also accept the Council's position that, in order to compile the specific numbers sought, it would have to examine hard copy files relating to individual applications. However, I do not intend to direct it to take such a step. Even if the requested details may be evident from an examination of such hard copy files, the FOI Act does not require FOI bodies to examine individual files or records in order to extract or compile information sought in an FOI request.

In all of the circumstances, I am satisfied that the Council does not hold a record containing the specific information sought at part 9. I find that section 15(1)(a) applies to part 9.

Part 10

I explained to the applicant that I understand part 10 to seek a table of the total number of people "not initially resident" in County Louth, as housed by the Council from "ca. 2004" to date with the yearly breakdown attached.

The Council's decisions rely on section 15(1)(a) on the basis that those it houses are resident in, or have a local connection to, the county. However, the applicant appears to argue that those with a "local connection" cannot or may not be initially resident in the county, and that she should be given the numbers of such persons.

The Council confirms that it does not record such details electronically, because they are not relevant to its consideration of housing applications. It refers to the spreadsheet of housing unit allocations. It says that this record does not specify whether applicants were "not initially resident" or otherwise. It says that to gather the requested information would require an examination of records concerning every single allocation.

I informed the applicant of the above and I told her that section 15(1)(a) seems to apply to part 9. I understand from her reply that persons "not initially resident" are persons who were not "born and bred in County Louth". She says that such persons are being housed ahead of "local" residents and contends that the requested details are relevant to the Council's consideration of housing applications. She says that she did not request "details of applicants" but rather the numbers of relevant applicants.

Analysis

While I note the applicant's position on the matter, I have no reason to dispute the Council's position that its consideration of housing applications does not take into account whether an applicant for housing was "not initially resident" in the county. I have examined the spreadsheet of housing allocations. I note that it does not categorise applicants as "not initially resident" or otherwise.

Having regard to the contents of the spreadsheet and the Council's comments, I accept the Council's position that it does not have an electronic record of the requested details. In turn, I accept that the Council cannot search its electronic records in order to generate a record containing the requested details. Again, while it may be that an analysis of individual hard copy housing application files may yield the requested information, the FOI Act does not require FOI bodies to take such a step.

In all of the circumstances, I accept that the Council does not hold a record containing the information sought at part 10. I find that section 15(1)(a) applies to part 10.

Part 12

The applicant seeks the "Tenant in Situ Scheme" application forms from 2004 to date with the yearly breakdown attached. The Council's decisions say only that this scheme came into effect in 2023 and that there are no application forms. As the applicant knows, the Council clarifies that it is refusing part 12 under section 15(1)(a).

The Council's submission clarifies that the Scheme came into effect on 1 April 2023. It says that when a private tenant is served with a termination notice, they submit a copy of the notice to the Council's Homeless Section, which then confirms the validity of the notice.

The Council says that the tenant must be a qualified social housing applicant and, if the dwelling meets their housing needs and is of a satisfactory standard, it will be purchased. It says that it refers the matter to the Housing Agency if an applicant is not on the housing list because their income has been assessed as over the required threshold.

I understand that the Council has now provided the applicant with figures for the number of properties it has purchased since the introduction of the scheme, and the number of applications it has referred to the Housing Agency.

I informed the applicant of the above and I told her that section 15(1)(a) seems to apply to the relevant application forms. In reply, the applicant notes the figures provided. She does not comment further on part 12.

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Analysis

In all of the circumstances, it seems to me that the Council has granted that aspect of part 12 seeking a breakdown of figures relevant to the Tenant in Situ Scheme. Furthermore, I have no reason to dispute the Council's explanations as to why no relevant application forms exist. I accept that the Council does not hold the requested application forms. I find that section 15(1)(a) applies to such records.

Part 17

The applicant seeks a table of the total number of people not initially resident in County Louth, accommodated by the Council in B&Bs, hotels, etc. for a period of one year or more from "circa 2004" to date, and a yearly breakdown. Her internal review application says that the Council holds "transfer records". She does not explain why such records may be of relevance to what she is seeking at part 17.

The Council's decisions say that the requested record does not exist and that section 15(1)(a) applies. It says that it does not hold figures for whether persons accommodated in hotels, etc. were or were not initially resident in the county, and that these details are not relevant to the allocation of emergency accommodation. It says that to determine whether or not any person seeking emergency accommodation was "not initially resident", it would have to examine all records relating to all homeless placements in emergency accommodation.

The Council says also that where a person wishes to transfer their tenancy to another council property, their initial residence is not of relevance. It says that to determine the initial residence of any persons seeking transfers would again require an examination of all records relating to all such transfer requests.

I informed the applicant of the above and I told her that section 15(1)(a) seems to apply to part 17. She replies that the requested record was not received. She reiterates that the Council holds transfer records. Otherwise, the applicant makes the same comments as she did regarding part 10. To recap, she says that persons "not initially resident" are persons who were not "born and bred in County Louth". She says that such persons are being housed ahead of "local" residents. She says that the requested details are relevant to the Council's consideration of housing applications. She says that she did not request "details of applicants" but rather the numbers of relevant applicants.

Analysis

While I note the applicant's position on the matter, I have no reason to dispute the Council's position that its consideration of the provision of emergency accommodation (and, if relevant to part 17, its consideration of transfer requests) does not have regard to whether a person was "not initially resident" in the county.

I have no reason to dispute the Council's position that it does not have an electronic record of the requested details. In turn, I accept that the Council cannot search its electronic records in order to generate a record containing the requested details. Again, while it may be that an analysis of relevant individual hard copy files may produce the requested information, the FOI Act does not require FOI bodies to take such a step.

In all of the circumstances, I accept that the Council does not hold a record containing the information sought at part 17. I find that section 15(1)(a) applies to part 17.

Part 19

The applicant seeks the Council's housing plan to facilitate what she says is the one in two citizens dying of cancer. The Council's decisions refused part 19 under section 15(1)(a) on the basis that such a record does not exist.

The Council confirms that its housing plan does not have regard to actual or potential cancer rates in the county or the country generally. It says also that while it is currently finalising a County Housing Strategy for persons with a disability, in conjunction with the HSE and others, this plan does not contain any detail regarding actual or potential cancer rates. It says that this plan is predicated on the four pillars of disability (intellectual, physical, mental health and sensory disability).

I informed the applicant of the above and I told her that section 15(1)(a) seems to apply to part 19. She notes that the Council is currently finalising its housing strategy for persons with a disability, which she says should already be in place. She asks for a copy of this strategy to be provided to her. She does not comment otherwise on part 19.

Analysis

I note the applicant's request for a copy of the Housing Strategy for persons with a disability. However, this is a different record to what was sought at part 19 and is not covered by my review.

In all of the circumstances, I have no reason to dispute the Council's explanation as to why the very specific type of housing plan sought at part 19 does not exist. I accept that the Council does not hold such a record. I find that section 15(1)(a) applies to part 19.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Council's decision on parts 1, 2, 3, 4, 9, 10, 12, 17, 18 and 19 of the applicant's modified request on the basis that sections 15(1)(a) and (d) of the FOI Act apply.

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.

Anne Lyons

Investigator

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	Irish Information Commissioner's Decisions
You are here: BAILII >> Databases >> Irish Information Commissioner's Decisions >> Ms. X and Louth County Council [2024] IEIC 143722 (03 July 2024) URL: http://www.bailii.org/ie/cases/IEIC/2024/143722.html Cite as: [2024] IEIC 143722

Irish Information Commissioner's Decisions

Ms. X and Louth County Council

Background

Scope of Review

Analysis and Findings

Parts 1, 2 and 18 - section 15(1)(d) (publicly available information)

Section 15(1)(a) (reasonable searches/records do not exist)

Parts 1, 2 and 18

Part 3

Part 4

Part 9

Part 10

Part 12

Part 17

Part 19

Decision

Right of Appeal