Case number: 180291

The Housing Agency appealed this decision to the High Court on 16 July 2019

 

Whether the Agency was justified in refusing to grant the applicant's request for regulatory assessment reports concerning seven Approved Housing Bodies (AHBs) for 2014 and 2015

19 June 2019

Background

The applicant's FOI request to the Agency of 29 November 2017, as narrowed on 13 December 2017, sought access to copies of all 232 regulatory assessment reports (the reports) on AHBs issued since 1 January 2016.

The Agency's decision of 3 January 2018 refused access to the reports under sections 35(1)(a) (confidential information), 36(1)(b) (commercially sensitive information) and 36(1)(c) (information prejudicial to negotiations) of the FOI Act.

The applicant sought an internal review of the Agency's decision on 4 January 2018. The Agency's internal review decision of 25 January 2018 affirmed its refusal to grant the request. On 24 July 2018, the applicant sought a review by this Office of the Agency's decision.

The applicant later narrowed the scope of the review to reports concerning seven AHBs (i.e. Clúid, Tuath Housing, St John of God Housing Association, Oaklee Housing, Camphill Communities of Ireland, Respond! and Circle Voluntary Housing Association). She also agreed to exclude any references to third parties other than the AHBs that are in the reports, and details of the AHBs' commercial plans (given that the reports refer to such plans beyond the years of the reports concerned). The excluded details are set out in the attached Appendix. Although the applicant thus helpfully reduced the scope of the review, I note that the identification of the excluded parts involved significant resources in this Office owing to the nature and number of references to be considered and the judgment to be made on them having regard to the context of the reports as a whole. I have also taken it that the applicant is not seeking access to a paragraph of personal information about identifiable individuals that is contained in one of the reports, which I have excluded from my review accordingly.

The Agency is relying on the exemptions mentioned above, as well as sections 30(1)(a) (functions and negotiations of an FOI body), 35(1)(b) (duty of confidence) and 40(1)(d) (unwarranted benefit or loss to a person or class of persons).

I have now decided to conclude my review by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges and to correspondence between this Office, the Agency, the seven AHBs (which were consulted with by this Office as third parties whose interests may be affected by my decision) and the applicant. Camphill Communities of Ireland and Circle Voluntary Housing Association did not make any submissions. I have had regard also to the relevant reports and to the provisions of the FOI Act.

Scope of Review

This review is confined to whether the Agency has justified its refusal to grant access to the remainder of the reports. The reports were issued by the Agency in 2016 and 2017 and concern its assessments for 2014 and 2015. The request does not extend to financial assessment reports and they will not be considered in this review.

Preliminary Matters

It is relevant to note a number of preliminary matters.

Section 18(1) provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the public body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers).

Although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. Accordingly, the extent to which I can describe the records in my analysis and reasoning is limited.

A review by this Office under section 22 of the FOI Act is de novo in that it is based on the circumstances and the law as they apply on the date of the decision.

The Agency, AHBs and the regulation process

It is useful to set out some background information to put my decision in the proper context. "The Minister" refers to the Minister of State with responsibility for Housing and Planning or the Minister for Housing, Planning and Local Government, as appropriate. Except where otherwise stated, "the Department" refers to the Department of Housing and Planning or the Department for Housing, Planning and Local Government, as appropriate.

The Agency

The Agency's function is to work with AHBs and others in the delivery of housing, planning and related services.

AHBs

According to the submissions made to this Office by the Agency (dated 26 September 2018) and the AHBs, AHBs are private, not-for-profit legal entities formed for the purpose of relieving housing need. They independently source housing on the open market and compete with other AHBs, Real Estate Investment Trusts (REITs), private developers and/or landlords in purchasing houses and land and acquiring units through leasing and management arrangements. They make competitive bids to the Housing Agency and local authorities where these have set up competitive processes for the development of housing and invited AHBs to make bids. They compete with other AHBs and property management companies to enter into service level agreements with local authorities for the management of units. One AHB says that there is strong competition between, in particular, Tier 3 AHBs (i.e. generally speaking, the largest bodies with sizable development plans) to grow businesses and expand successfully.

The regulation process

In July 2013, the Minister launched "Building for the Future - a Voluntary Regulation Code for Approved Housing Bodies in Ireland" (the Code). The Code says that Government housing policy places AHBs at the heart of social housing provision in the coming years. It plans for regulation of the sector, to build capacity within it and to enable it as a whole to leverage State investment to attract additional private funding. It says that given reductions in social housing budgets, resources must be focussed on organisations that are committed to best practice and that have a long term commitment to maintaining and growing social housing supply.

The Code classifies AHBs as Tier 1, 2 or 3 depending on levels of risk. Recognising that individual AHBs may differ in the extent to which they are ready for regulation, the Code describes itself as a stepping stone to a legally binding statutory regulatory framework, which at that time it anticipated being in place by 2016. It says that it provides a context in which AHBs can sign up to voluntary regulation and oversight, by setting out key governance, management, measurement and financial requirements applicable to all AHBs to some extent. It also says that when the Department is considering decisions regarding any available Exchequer funding support to the sector, priority will be given to those AHBs that engage fully with the Code.

On 15 April 2016, the Department of Environment, Community and Local Government issued Circular 15/26, which provides that:

  • only those AHBs who have signed up to the Code by 1 June 2016 will be eligible for funding under various schemes for assistance in 2016.
  • from 1 January 2017, only those AHBs that have signed up to the Code and undergone a satisfactory assessment will be considered eligible for funding under the schemes.

The Agency says that once AHBs decide to sign up to the Code, they are required to comply with the Code's requirements or describe the alternative arrangements in place (for which it says there may be good reasons, such as local context and individual circumstances). It says that its key powers under the Code are to award or not award a positive regulatory assessment report to an AHB and to list it or de-list it as compliant with the Code. Finally, it says that while 253 AHBs (responsible for 95% of AHB stock) have signed up to the Code, it is encouraging more than 200 AHBs that have not yet signed up to also do so. It also says that legislation placing regulation on a statutory footing has yet to be enacted.

The Agency's website classifies the seven AHBs whose reports are under review in this case as Tier 3 except for Camphill Communities of Ireland (Tier 2) and says that they signed up to the Code in 2013 or 2014.

Eurostat reclassification

In February 2018, the Central Statistics Office and Eurostat reclassified 14 Tier 3 AHBs to the Local Government sector. In general terms, this means that their debts could be moved onto the State's balance sheet. Eurostat considered that the AHBs concerned are controlled by government having regard to such matters as the low level of private sector funding and the exposure of government to certain financial risks, as well the non-market nature of AHBs. The latter covers such matters as their aims of relieving housing needs, the requirements not to distribute surpluses, profits etc. to members, and the types of rent charged.

Analysis & Findings

One AHB says that section 29 (deliberative processes) applies to its reports. It is unclear if it is saying that the reports concern its own internal deliberative processes, or that their disclosure could impact on matters that are still under review by the Agency. The exemptions relevant to third party interests are sections 35 to 37 (confidential, commercially sensitive  and personal information) and I note that the Agency did not rely on section 29. Therefore, I do not intend to consider this exemption.

Section 30(1)(a) - prejudice to tests, etc. and their procedures

Section 30(1)(a) provides that a request may be refused if granting it could, in the opinion of the head of the FOI body, reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct thereof.

The provision envisages two potential types of "prejudice" or harm: (i) to the "effectiveness" of the tests, etc (i.e. the ability of the test, etc to lead to a result of some kind) or (ii) to the procedures or methods employed for the conduct of such tests, etc. Where an FOI body relies on section 30(1)(a), it should identify the potential harm that might arise from disclosure, show how the "prejudice" or harm might be caused, and consider the reasonableness of any expectation that the harm will occur. 

The Agency says that its analysis of the AHBs' capabilities is based on candid and detailed assessments given to it by the AHBs of their own strengths, weaknesses and circumstances in various areas. It says that AHBs would be concerned at the disclosure to the world at large of information that they voluntarily provided to the Agency on a confidential basis for the sole purpose of individual and private assessment.

The Agency says that, where regulation is statutory, regulators are often prohibited from disclosing information obtained from regulated entities. While this may be so, I must deal with the facts of the present case.

In relation to the confidentiality of the information supplied, the Agency notes that the Code itself says that the reports will only be supplied to the AHB and, on request, to third parties. It refers also to a disclaimer on the reports. I note that the disclaimer says that the information in the report has been prepared for the relevant Housing Association only and is not for general circulation. The Agency says that this disclaimer makes it clear that its reports have been prepared solely for the AHBs, are based on "raw" information supplied by the AHBs that has not been edited in any way by the Regulation Office, and that such information is being treated as confidential. It refers to an associated protocol that, while noting that some information in the reports is in the public domain, says that other information is "supplied specifically for regulatory or supply purposes, and/or ... for a specified purpose and/or that they are commercially sensitive or confidential for other reasons."

The Agency says that if access to the reports is granted, AHBs can be reasonably expected to either provide less or poorer information, or disengage entirely from the voluntary regulation process. It says that it needs a sizable amount of detailed information in order to be able to carry out its assessments fully and effectively and that any impact on the information it receives will prejudice the effectiveness of its assessments and the voluntary regulation system.

Finally, comments made by some of the AHBs in relation to sections 35 and 36 of the FOI Act seem, on their face, potentially relevant to my consideration of the Agency's arguments. In short, the AHBs say that they would have to carefully consider the extent and type of information that they would provide to the Agency in future to take account of the possibility that it may be disclosed to third parties.

Legislation setting the regulation of AHBs on a statutory footing has yet to be enacted.

The Comptroller and Auditor General (C&AG) noted the lack of statutory regulation in his 2017 Annual Report and when speaking before the Public Accounts Committee (the PAC) on 25 October 2018. The Department's accounting officer told the PAC on 25 October 2018 that the Department is at an advanced stage in preparing the necessary legislation. He said that the legislation will give the regulator powers for approving and registering housing bodies, setting standards for the sector and ensuring AHB compliance with the standards. He also said at that time that, subject to Government approval, it was expected that the Bill would be published in the coming weeks.

The Department's comments to the PAC suggest that legislation for regulation is more imminent than does the Agency's submission to this Office. In any event, at this point in time, I do not consider that compliance with the Code is truly voluntary.

Like any organisation, AHBs need money in order to carry out their functions. Any decision by AHBs to remain outside the Code, to disengage from it or to refuse to cooperate fully with the Agency's assessments will, further to Circular 15/26 and according to the Department's comments to the PAC, impact on their ability to access public funding. In this regard, the C&AG's 2017 Annual Report noted that AHBs "obtain a significant level of funding from government sources." He also told the PAC on 25 October 2018 that his analysis found that "the bulk of the capital funding for the [AHBs'] stock of properties comes from public sources."

It might be argued that AHBs can still seek finance from private (rather than public) sources. It is reasonable to expect that they will have a better chance of getting such finance in the first place, or such finance at a reasonable cost, if they can provide the financial institution with satisfactory reports and other relevant documentation. In short, at this point in time it is clearly in an AHB's financial and overall interests not only to sign up to the Code but to engage fully with the assessment process.

Accordingly, I do not accept that granting access to the records at this point in time could reasonably be expected to give rise to the harms envisaged in the exemption i.e. to prejudice the effectiveness of the Agency's assessments or the procedures it employs for those assessments. I find that section 30(1)(a) does not apply to the records.

Section 30(1)(b) - functions relating to management

The Agency did not explicitly rely on section 30(1)(b) but given the type of argument put forward under section 30(1)(a) above, I considered whether this exemption was relevant here. Section 30(1)(b) of the FOI Act is a discretionary exemption that provides for the refusal of access to a record if such access could, in the opinion of the head, reasonably be expected to "have a significant, adverse effect on the performance by an FOI body of any of its functions relating to management (including industrial relations and management of its staff)".

The Commissioner expects an FOI body relying on section 30(1)(b) to identify the potential harm to the performance by an FOI body of any of its functions relating to management that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur. When invoking section 30(1)(b), the FOI body must make an assessment of the degree of importance or significance attaching to the adverse effects claimed. Establishing "significant, adverse effect" requires stronger evidence of damage than, for instance, the "prejudice" standard in other provisions of the Act. In other words, not only must the harm be reasonably expected, but it must also be expected that the harm will be of a more significant nature than that required under those provisions with a "prejudice" standard. Having identified the significant adverse effect envisaged, the FOI body should then explain how release of the particular record(s) could reasonably be expected to result in this significant adverse effect.

Having regard to the terms of the exemption, the circumstances in this case including the remaining content of the records in scope and my consideration above of the AHBs' relationship with the Agency, I am not satisfied that section 30(1)(b) applies.

Section 35 - confidential information/information subject to duty of confidence

Section 35(2)

The reports were all prepared by the Agency, an FOI body and so I must first consider section 35(2) before I consider the arguments made regarding sections 35(1)(a) and (b) (information given in confidence or subject to a duty of confidence).

Section 35(2) provides that subsection (1) shall not apply to a record which is prepared by a head or any other person (being a director or staff member of an FOI body or a service provider) in the course of the performance of his or her functions "unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than an FOI body or head or a director, or member of staff of an FOI body or of such a service provider."

I accept the Agency's position that the AHBs are not service providers for the purpose of section 35(2) of the FOI Act. Therefore, section 35(1) is not dis-applied in this case.

Section 35(1)(a)

Section 35(1)(a) of the FOI Act provides for the mandatory refusal of a record containing information:

  • given to a public body in confidence and
  • on the understanding that it would be treated by it as confidential and
  • in the opinion of the head, its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and
  • it is of importance to the body that such further similar information as aforesaid should continue to be given to the body.

The Agency says that, for the reasons set out above in respect of section 30(1)(a), the records meet all four requirements for section 35(1)(a) to apply. The AHBs' submissions also outline why they believe that the provision applies.

Parts of the records clearly contain the Agency's views and recommendations. The Commissioner takes the view that in so far as information consists of opinions and observations formed by members of staff of an FOI body in carrying out their functions, the opinions and observations concerned are not 'imparted' to them by anyone. Accordingly, section 35(1)(a) cannot apply to these details.

I also find that section 35(1)(a) does not apply to the rest of the records i.e. the information provided to the Agency by the relevant AHBs. All of the four requirements of section 35(1)(a) as set out above must be met in order for the exemption to apply. In particular, I do not accept that the third requirement has been met in this case. As I have already explained, at this point in time it is clearly in an AHB's interests to sign up to the Code and engage fully with the assessment process because to do otherwise will impact on their interests.

Section 35(1)(b)

Section 35(1)(b) provides for the mandatory refusal of a record where "disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment (other than a provision specified in column (3) in Part 1 or 2 of Schedule 3 of an enactment specified in that schedule) or otherwise by law.

In summary, the Agency and some of the AHBs say that, as noted earlier, statutory regulators are often prohibited from disclosing information obtained from regulated entities. In the circumstances of this case, they argue that granting access to the records would breach an equitable duty of confidence (a duty provided for "otherwise by law") that the Agency owes to the AHBs, particularly having regard to the comments in the Code, the associated protocol and the disclaimer.

The AHBs also say that the reports refer to internal policies that could be of use to various parties with which they may be competing. They say that financial assessment reports (which are not under review) contain details of financial and funding models that are only available to a limited number of senior employees and management. They say that developers and others could use this and other information to estimate maximum amounts that AHBs could afford to pay, thus impacting on their negotiating positions and potentially driving up property prices. They say that the reports could generally be taken out of context and thus impact on their reputations today. Finally, one AHB refers to ongoing negotiations in the context of an excerpt of a report that is not under review and says that the negotiations "could [be] prejudiced".

In considering if there exists such a  duty of confidence, I have regard to the three elements of what are generally known as the "Coco" tests (Coco v. A. N. Clark (Engineers) Ltd. [1969] R.P.C. 41):

"First, the information itself … must ‘have the necessary quality of confidence about it’. Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it."

All three elements of the Coco tests have to be met in for an equitable duty of confidence to exist. However, I do not consider the second test to have been met in this case. While I note the comments in the Code, the associated protocol and the reports themselves regarding confidentiality, other factors are relevant to my consideration of the matter. As I have already explained, the Code does not seem to be voluntary at this point in time.

Furthermore, it is Government policy since July 2013 that AHBs would play a significant part in social housing provision. According to the Irish Council for Social Housing, AHBs in 2018 delivered 38% of social housing nationally. On 21 February 2019, the Irish Independent reported comments made by the Minister's spokesman describing AHB building projects on council land with State assistance as "social housing delivery equivalent with local authority-build." In such a context, it seems to me that AHBs are part of the State's response to the delivery of housing units. The reports contain findings on and recommendations relating to the AHBs' capacity and capability to contribute to the delivery of Government policy in this regard. I should make it clear that I would take the above view regardless of the Eurostat decision referred to above.

Finally, while the Code intends that AHBs would attract additional private funding, it also intends to ensure that priority for any available public funding is given to AHBs that engage fully with the Code. As already mentioned, the C&AG recently found that the bulk of capital funding for AHB properties comes from public sources, while Eurostat also noted low levels of private sector funding.

Accordingly, I do not accept that the AHBs gave the Agency the information concerned in circumstances imposing an obligation of confidence such that its disclosure would constitute a breach of a duty of confidence in equity or otherwise as required by the terms of section 35(1)(b). I find that the records are not exempt under section 35(1)(b).

Section 36(1)(b) - commercial sensitivity

Section 36(1)(b) requires the refusal of access to records containing certain types of information whose disclosure could reasonably be expected to result in material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of the person in the conduct of his or her profession or business or otherwise in his or her occupation. The essence of the test in section 36(1)(b) is not the nature of the information but the nature of the harm which might be occasioned by its release.

The harm test in the first part of section 36(1)(b) is that disclosure "could reasonably be expected to result in material loss or gain". This Office takes the view that the test to be applied is not concerned with the question of probabilities or possibilities but with whether the decision maker's expectation is reasonable.

The harm test in the second part of section 36(1)(b) is that disclosure of the information "could prejudice the competitive position" of the person in the conduct of their business or profession. The standard of proof to be met here is considerably lower than the "could reasonably be expected" test in the first part of this exemption.  However, this Office takes the view that, in invoking "prejudice", the damage which could occur must be specified with a reasonable degree of clarity.

In the High Court case of Westwood Club v The Information Commissioner [2014] IEHC 375 Cross J. held that it is not sufficient for a party relying on section 36(1)(b) to merely restate the provisions of the section, list the documents and say that they are commercially sensitive. A party opposing release should explain why disclosure of the particular records could prejudice their financial position. Furthermore, a general prediction without any supporting evidence is not sufficient to satisfy the requirement that access to the record could reasonably be expected to result in the outcome envisaged. In the Supreme Court case of Sheedy v the Information Commissioner ([2005] 2 I.L.R.M. 374, [2005] 2 IR 272, [2005] IESC 35) Mr J Kearns stated that "[a] mere assertion of an expectation of [prejudice] could never constitute sufficient evidence in this regard”. 

The Agency says that disclosure of the reports could impact on competitive processes between regulated and non-regulated AHBs, as well as between regulated AHBs and private housing operators. It also says that disclosure of AHBs' financial capacity for purchasing units could result in developers working only with AHBs that could pay most. Again, these arguments seem to me to be undermined by certain of the Agency's comments regarding the public interest i.e. that the reports concern historical matters and that the organisations have changed and advanced in the interim.

The Agency refers generally to AHBs for which social housing provision is but one part of their operations and says that granting access to the records will impact on their ability to carry out their other functions. However, it does not identify which of the AHBs it has in mind or any information that may impact on those separate functions, or explain how those functions might be harmed. None of the AHBs in this review have made such an argument in submissions to this Office. I see no need to consider it further.

The AHBs say that the reports disclose various policies. They say that these details could be of use to competitors such as developers and/or landlords from whom similar information would not be available, or other AHBs seeking to expand or competing with them for scheme management contracts.

The AHBs say that they are obliged to negotiate prices for properties that provide the best value for State money. They say that developers could use financial and governance information to estimate the maximum purchase prices that AHBs could afford to pay, force AHBs to compete between themselves to acquire units and potentially drive up property prices. One AHB says that details of financial and funding models are only available to a limited number of senior employees and management and that the information in the reports amounts to a trade secret. They say that the information in the records could be taken out of context and impact on their reputations today, which would affect their ability to negotiate with developers, local authorities, financial institutions and other third parties. They say that disclosure of information relating to still ongoing negotiations could negatively affect those negotiations.

As already outlined, while I am of the view that AHBs essentially form part of the State's response to the delivery of housing units, I have also accepted that they compete with other parties in certain respects. Section 36(1)(b) can potentially apply to information that would impact on AHBs in this regard.

While granting access to the records would give an insight into the operations of the AHBs concerned in 2014 and 2015, any possibility that the records may be misunderstood or that particular inferences might be drawn from them is not an appropriate reason for refusing access to them under FOI.

It is well settled that it is not sufficient to make assertions as to harms arising from the grant of access to records without explaining how those harms arise. In this regard, the Agency and the AHBs make many assertions of harm based on references to the general content of the records. They do not explain how that general content would give rise to the harms concerned.

For instance, the reports do not appear to contain any/extensive details of financial or funding models. While they contain some financial information from 2014 and 2015, neither the Agency nor the AHBs explain how one might estimate an AHB's current financial capacity from such information. The limited details about the AHBs' policies may well have changed since 2014 and 2015. Furthermore, in the context of arguments on the public interest, the Agency says that the reports concern historical matters and that the organisations have changed and advanced in the interim, while one of the AHBs also refers to the historic nature of the records. I note also that details of the AHBs' commercial plans have been excluded from the scope of this review.

At the same time, I recognise the possibility that the disclosure of historic information concerning an organisation's governance, management and financial capabilities could impact on its current reputation and thus could prejudice its current competitive position. I am prepared to find the records to be exempt under section 36(1)(b) accordingly.

The public interest

I do not consider that any of the exceptions to section 36(1), as set out in section 36(2) of the FOI Act, apply in this case. However, section 36(3) provides that subsection (1) does not apply where the public interest would, on balance, be better served by granting than by refusing to grant the FOI request.

On the matter of where the public interest lies, I have had 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] 1 I.R. 729, [2011] IESC 26) (the Rotunda case). The Rotunda case describes a public interest as "a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law"). Although this comment was made in relation to another provision of the FOI Act, I consider it to be relevant to consideration of public interest tests generally.

The FOI Act recognises, both in its long title and in its individual provisions, that there is a significant public interest in government being open and accountable. Thus, there is a very significant public interest in ensuring openness and accountability for the Agency's assessment of the various capabilities of the AHBs in a context where the Government has adopted a policy that makes AHBs key providers of social housing.

Furthermore, section 11(3) of the FOI Act requires public bodies when performing a function under the Act to have regard to the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principle of transparency in government and public affairs, the need to strengthen accountability and improve the quality of decision making of FOI bodies, and the need to inform scrutiny, discussion, comment and review by the public of their activities. I note that the applicant's internal review application referred the Agency to this requirement.

The Agency says that "transparency and accountability are valid public interest factors in principle". It also says that actual or potential scrutiny by other means is not "a complete bar" to the grant of access in the public interest. Overall, however, it considers that the public interest does not weigh in favour of granting access to the records. It also says that there is no public interest in granting the request because it is unnecessary to do so to ensure the accountability of the assessment processes and because any AHB receiving public funding undergoes separate assessment processes by two State bodies.

While I accept that the records concern the governance, finances and other aspects of the AHBs' operations, their contents are also directly relevant to the role of the Agency in its operation of the assessment process. Granting access to the records would clearly serve the public interest identified above by disclosing the nature and thoroughness of those assessments. The Agency does not explain how it is, at present, held accountable for its assessments of AHBs. In any event, while the availability of oversight mechanisms may be relevant when considering the weight of the public interest in granting a request, I do not necessarily accept the Agency's view that such availability as a matter of course "weakens, possibly even significantly" that weight. Furthermore, the fact that funding applications undergo separate assessment processes by two State bodies does not in my view reduce the weight of the public interest in granting access to the particular records covered by this review.

The AHBs' position is, essentially, that the public interest in transparency is sufficiently served by the information already in the public domain about the AHBs themselves and the AHB sector (such as financial accounts, strategic plans, annual reports, information on the Agency's website, annual activity reports submitted to the Charities Regulator and audited accounts submitted annually to the Companies Registration Office). None of the AHBs, however, indicate how such material discloses anything about the Agency's assessment process itself, or explained how the extent and nature of that publicly available information is relevant in considering whether access should be granted to the records. In any event, even if the public interest is already served to some extent by the placing of some information in the public domain, it would clearly be further served by granting access to the records.

The applicant also argues that there is a public interest in knowing how public funds are spent, which I accept is an element of openness and accountability. However, the records in this case are not of themselves concerned with applications made by AHBs for public funding. It is not apparent to me how access to them will further the public understanding of the basis on which particular public monies are awarded to AHBs as opposed to the understanding of how AHBs operate. That said, I would not necessarily accept the Agency's argument that openness regarding the public funding of AHBs is "less significant" because "there is only an element of public funding, and an increasing element of private investment". This contention does not correlate with the C&AG's recent finding that the bulk of funding for AHB capital stocks comes from public sources.

The public interest in favour of granting the request has to be balanced against the weight of the public interest, recognised by section 36(3) of the Act, in protecting the release of information to which section 36(1)(b) applies.

In the normal course, section 36 applies to information about private sector businesses. The Commissioner's general approach in such cases is that the FOI Act was designed to increase openness and transparency about how FOI bodies conduct their operations, rather than a means by which the operations of private enterprises were to be opened up to scrutiny. One AHB referred to this Office's finding to this effect in Case No 150209, which concerned records relating to technical glitches experienced by the licensed operator of the National Lottery. The decision concerned was based on entirely different facts, circumstances and information and I do not see it as relevant to this review. Furthermore, a decision made by this Office in one particular case does not necessarily create a binding precedent for other cases.

In any event, it is not the case that all contacts between an FOI body and a third party business should as a matter of course be required to be withheld. This Office generally distinguishes between the public interest in disclosing information which relates purely to the business of a third party and information which relates to the activities of the FOI body, e.g. the development of policy, the exercise of a regulatory function or the use of State resources. Where the information of a third party and an "FOI body" overlap, this Office aims to strike a balance between ensuring openness on the part of an FOI body and limiting the impact of disclosure on the affairs of the third party. In this particular regard, I wish to make it clear that while I accept that AHBs operate in commercial spheres, I would nonetheless distinguish them from truly private enterprises. I have already noted their responsibilities since July 2013 in the delivery of social policy further to Government policy, the considerable amount of social housing units provided and managed by them and their significant funding from public sources.

The Agency says that there is a public interest recognised by Government policy (i.e. the Code) in ensuring the effectiveness of AHBs in their operations and the fitness of these bodies in terms of their management, governance etc. It says that because there is "such a burning requirement for increased housing supply", the overriding public interest must be in achieving greater supply and not in any way even causing the potential for disadvantage to AHBs in their efforts in the sector.

While I accept that there is a public interest in enabling AHBs to play their part in delivering Government policy regarding social housing provision, the sensitivity of the particular records is also relevant. It is not apparent to me from my examination of the records or from the submissions that they comprise detailed sensitive information about the running of the AHBs' business. It seems to me that much of the information is either historic, general or too high level to be of substantial use to competitors. My finding that the disclosure of the historic reports could affect the AHBs' reputations today should be seen in this overall context.

The Agency makes other arguments as to why the public interest does not weigh in favour of granting access to the records. These include that the lower the threshold for application of an exemption is, the greater the public interest is in refusing access to it; that the public interest in favour of granting a request needs to be shown to be capable of materially or appreciably furthering the public interest or the public understanding of a matter before access should be granted; and that there is no need to grant access to records in the public interest where a requester (who is not making the request in their own private interest) is not disadvantaged by the refusal of access. Its arguments do not change my mind on the consideration and balancing of the public interest factors in this case. Finally, I do not accept, as the Agency says, that it is in the public interest to refuse access to information because the grant of access is of itself considered to be "unfair".

I have carefully weighed the competing public interest factors in favour of and against release of these records and considered the circumstances of this case. I find that, on balance, the public interest in directing that access be granted to the records outweighs the public interest in refusing access to them.

I should also say that I have considered whether partial release of the records, such as the recommendations, would serve the public interest in openness. However, it seems to me that this would render the ensuing copies of the records misleading and thus would breach section 18 of the FOI Act.

Section 40(1)(d) - unwarranted benefit or loss

Section 40(1)(d) provides for the refusal of access to a record where such access could reasonably be expected to result in an unwarranted benefit or loss to a person or class of persons.

The Agency says that for the reasons already outlined, granting access to the records is likely to prejudice the AHBs' competitive positions with respect to non-regulated AHBs and private developers, landlords and others in the housing sector that compete with AHBs. It says that given the voluntary nature of the regulation, the praiseworthiness of those who elect to sign up to it, the important policy aims that are achieved as a result and the confidential understanding on which the voluntarily regulated AHBs submit information to the Agency, it is clear that the benefits likely to be gained by their competitors and the losses likely to be suffered by AHBs, are entirely unwarranted.

Given the considerations I have already outlined, I find that refusal under this exemption is not justified. In any event, I would find that the public interest in favour of granting access to the records would outweigh the public interest in refusing such access.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Agency's decision in relation to those parts of the records that are under my review. I direct that access be granted to them.

I specify that, subject to sections 24 and 26 of the FOI Act, effect shall be given by the Agency to my decision within five working days of the expiration of the 4 week period for the bringing of an appeal to the High Court from this decision as provided for at section 24(4) of the FOI Act.

For the assistance of the FOI body and the AHBs, I attach an Appendix to this decision that lists the details of the records that are excluded from the scope and thus do not fall to be released.

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.

 

 

 

Elizabeth Dolan

Senior Investigator