Mr. A and Dublin City Council [2024] IEIC 104231 (03 October 2024)

Background
Scope of Review
Preliminary Matters
Analysis and Findings
Decision
Right of Appeal

Whether the Council was justified in refusing access, on the basis of section 37(1) of the FOI Act, to information relating to the locations of homeless accommodation services in 2018 and 2019 on the ground that release of the information would involve the disclosure of personal information relating to the residents of the accommodation in question

3 October 2024

Background

In a request dated 3 November 2020, the applicant sought access to the names of sites used as Private Emergency Accommodation (PEA) in 2018 and 2019 and the amounts paid in respect of each. He specified that the information should include the names of those contracted to provide the accommodation. In its decision dated 30 November 2020, the Council refused the request under sections 30(1)(b), 30(1)(c), 36(1)(b) and 36(1)(c) of the FOI Act. On 8 December 2020, the applicant sought an internal review of the Council's decision. On 12 January 2021, the Council affirmed its original decision. On 24 February 2021, the applicant applied to this Office for a review of the Council's decision.

Our review by this Office was subsequently suspended pending the outcome of a High Court case which concerned a similar request to the Council. Judgment in that High Court case was adjourned generally pending two Supreme Court judgments. By consent, the case which had been before the High Court was remitted to this Office for fresh consideration, following which our review in this case recommenced.

During the course of the review, the Council informed the Investigator that it had revised its position and was willing to part-grant the request, withholding only the locations of the homeless accommodation listed therein. The Council released a redacted copy of the record at issue on 5 June 2024. Having considered the redacted record released, the applicant confirmed that he wished the review to proceed in respect of the withheld information.

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 the applicant. I have also examined the record at issue. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

The Council identified one record as coming within the scope of the applicant's request. It redacted, under section 37(1) of the FOI Act, certain details of emergency accommodation that would allow for the identification of the accommodation. Accordingly, this review is concerned solely with whether the Council was justified in its decision to withhold that information under section 37 of the FOI Act.

Preliminary Matters

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.

Second, it is important to note that a review by this Office is considered to be "de novo", which means that in this case, it is based on the circumstances and law as they pertain at the time of the decision and is not confined to the basis upon which the FOI body reached its decision. Accordingly, in light of the "de novo" nature of our reviews, I consider it appropriate to consider the applicability of section 37, a mandatory exemption, notwithstanding the fact that the provision was not relied upon as a ground for refusing access to the records in the Council's initial decisions on the request.

Finally, throughout its submissions the Council referenced the perspective of the "DRHE". The applicant's request also referenced 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.

Consultation Considerations

Section 22(6) of the FOI Act requires the Commissioner to notify the following parties of his proposal to review a decision of an FOI body: the head of the FOI body; the applicant, in the case of a decision in respect of a request to which section 38 relates; the original requester; and any other person who, in his opinion, should be notified.

Section 24 of the FOI 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. Thus, a guideline for 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. I have carefully considered whether any other parties should be notified of the review and be provided with an opportunity to make submissions.

As noted above, the Council revised its position during the course of the review. It has now part-granted the record at issue, releasing the billing entities and the amounts they were paid in 2018 and 2019. As such, I am satisfied that there is no need to notify the third party payees of the review as information pertaining to them has already been released by the Council and I do not consider that they are likely to be affected by this decision.

Separately, I note that the Council's submissions in the current review centre on the privacy rights of those accessing emergency accommodation. I have also considered whether any such individuals should be consulted as part of this review. It is important to note that the records at issue do not directly contain information about any identifiable individuals; no individuals experiencing homelessness are named or referenced. However, where information may not, on the face of it, be about an identifiable individual, it may still be personal information if it allows the individual to be identified. I will consider this further in my analysis in respect of section 37 below. In respect of consultation, however, the fact that no individuals are directly referenced in the records makes if difficult, if not impossible, to determine who should be notified. Given that homelessness is often a temporary state with people accessing emergency accommodation services for differing lengths of time, it is not clear to me how potentially affected individuals could be identified for the purpose of consulting with them. Even if it was possible to determine which individuals had accessed the relevant accommodation, I do not believe that it would be feasible for this Office to engage in consultation at that scale. I considered whether any representative organisations exist which could be consulted to provide input on behalf of individuals and households experiencing homelessness. However, those experiencing homelessness are not a homogenous group and I am not confident that an organisation could be identified that would be able to speak on behalf of the individuals the Council claims will be affected by release.

Having given careful consideration to the above, and having regard to my analysis as set out below, I am satisfied that it is not necessary to consult with any payees and that it is neither feasible nor necessary to consult with individuals or households experiencing homelessness. I will proceed to consider the Council's submissions in respect of the application of section 37 of the FOI Act.

Analysis and Findings

Information at issue

While I am limited in the extent to which I can describe the contents, I believe it would be useful to provide a high-level overview of the record at issue. The record comprises an Excel spreadsheet with the following column headings: Cost Centre, PEA Name, Address, Billing Entity, 2018 and 2019. The information is the columns entitled 2018 and 2019 comprises payment amounts. The Council has withheld the information in the columns entitled PEA Name and Address as well as the name of one property referenced in the Billing Entity column. It has released the remaining information in the record.

In its submissions, the Council said that PEA comprises premises owned and run by private operators who are contracted by the Council to provide emergency accommodation to households experiencing homelessness. It said that the record contains a list of all such accommodation in respect of 2018 and 2019. It said that self-accommodation is not included under the PEA heading. It said that self-accommodation refers to a situation where a household experiencing homelessness sourced their own room in a hotel/B&B/hostel which the Council then paid for. It said this occurred when no other accommodation option was available for that family size.

Section 37 - personal information

Section 37(1) of the FOI Act provides for the mandatory refusal of a request where access to the record sought would involve the disclosure of personal information relating to an individual other than the requester. For the purposes of the Act, personal information is defined as information about an identifiable individual that either (a) would ordinarily be known only to the individual or members of the family, or friends, of the individual, or (b) is held by an FOI body on the understanding that it would be treated by that body as confidential. Section 2 of the Act details fourteen specific categories of information that is personal without prejudice to the generality of the foregoing definition.

It is important to note that personal information is information about an identifiable individual. Where information may not, on the face of it, be about an identifiable individual, it may still be personal information if it allows the individual to be identified. An individual may not be named in a record, yet may still be identifiable.

In its submissions, the Council said that its view is that the information withheld is personal data relating to third parties and is therefore subject to section 37(1) of the FOI Act. It said that the DRHE has a duty of care to vulnerable children, families and individuals accessing its services. It said that it does not consider it appropriate to release information into the public domain which identifies certain properties as being used for homeless accommodation, thereby identifying the individuals residing there as homeless. It referenced the definition of personal information outlined above.

The Council said that it has a duty to treat the withheld information in confidence. It said that the families and individuals accessing homeless accommodation are some of the most vulnerable in our society. It said that in a lot of cases, the clients have not disclosed their living situation to those around them. It said that by releasing the information, in effect to the world at large, the individuals residing at the premises would be identified as homeless leaving them open to the stigma still associated with accessing such services. It said that this is of particular concern when considering the welfare of the children accessing accommodation and the potential consequences to their wellbeing should their status as homeless be disclosed.

In a request for focused submissions, the Investigator asked the Council to explain precisely how the release of information about accommodation used in 2018 and 2019 could result in the disclosure of personal information. She noted that it was not clear to her how disclosing that a particular premises was used to provide homeless accommodation five to six years ago could reasonably result in the disclosure of personal information about an identifiable individual today. I note that the Council provided limited submissions in response. It said that a number of the premises listed are still in operation for the purpose of providing emergency accommodation to households experiencing homelessness. It again said that it does not believe it is appropriate to release information into the public domain which identifies certain properties as being used for homeless accommodation thereby identifying the individuals residing there as homeless.

In its submissions, the Council acknowledged that some of the properties listed in the record may have already been identified in the public domain as being used to provide homeless accommodation but it said that this would predominantly be through media reports as opposed to full lists like the record at issue in this case.

The substantive issue which I must consider is whether the release of the withheld information would involve the disclosure of personal information. As noted above, personal information for the purposes of the FOI Act means information about an identifiable individual (my emphasis) that either would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or is held by an FOI body on the understanding that it would be treated by that body as confidential. Where it is not apparent, I would expect an FOI body to be in a position to show clearly how the disclosure of the information would allow an individual to be identified.

As outlined above, the information at issue comprises identifying details of properties that were used to provide PEA in 2018 and 2019. Given the historic nature of the information, the temporary nature of emergency accommodation, and the content of the record, I am satisfied that the release of the information would not involve the disclosure of details of identifiable individuals who may have resided in any of the properties during the relevant time period. However, this does not appear to be the Council's primary concern. In essence, its argument appears to be that some of the properties listed in the records continue to provide homeless accommodation and that release of those details would allow for the identification of the residents as homeless. If I was to accept that argument, I would first have to be satisfied that the release of the record would allow for the identification of the specific properties that currently continue in use as PEA. The record contains no such details.

The Council has confirmed that all of the accommodation listed on the record is private accommodation. It said that no commercial premises, such as hotels or B&Bs are included, although some premises would have been commercial premises prior to being contracted to solely provide emergency accommodation. It said that none of the premises listed on the record would have been accepting paying guests while the premises were also being used to provide homeless accommodation. I accept that it may be publically known that some of the properties listed continue to provide homeless accommodation. In those cases, even if the wider public was in a position to determine the housing status of residents, it is the publically known information that allows the drawing of interferences and the making of determinations, not the publication of a list of properties that were used to provide homeless accommodation five or six years ago.

In sum, I do not accept that the release of the information at issue involves the disclosure of personal information. I find, therefore, that section 37(1) does not apply. Accordingly, there is no need for me to consider the public interest balancing test contained in section 37(5).

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Council's decision. I find that it was not justified in refusing access to the information withheld from the record on the basis of section 37(1) and I direct its release.

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

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You are here: BAILII >> Databases >> Irish Information Commissioner's Decisions >> Mr. A and Dublin City Council [2024] IEIC 104231 (03 October 2024) URL: http://www.bailii.org/ie/cases/IEIC/2024/104231.html Cite as: [2024] IEIC 104231

Irish Information Commissioner's Decisions

Mr. A and Dublin City Council