Case number: OIC-130488-C7F3S8

Whether the Council was justified, under sections 35, 36 and 37 of the FOI Act, in refusing access to certain records containing details of rental payments to landlords

 

18 October 2023

 

Background

On 28 June 2022, the applicant submitted a request to Dublin City Council for a copy of annual returns made to Revenue by the Council, under section 888 of the Taxes Consolidation Act 1997, for payments made by the Council to property owners for the years 2018 to 2021 inclusive. In a late decision dated 18 August 2022, the Council refused the request under sections 35(1)(b), 36(1)(b), 36(1)(c) and 37(1) of the FOI Act. On 2 September 2022, the applicant sought an internal review of that decision, making detailed submissions on various aspects of the Council’s decision. On 5 October 2022, the Council issued a late internal review decision, wherein it affirmed its refusal of the request. On 13 October 2022, the applicant applied to this Office for a review of the Council’s decision.

During the course of the review, the Council indicated that it had reconsidered its position and would consider releasing some of the records in part. On 3 February 2023, the applicant agreed that if the Council were to part-release such records, he would consider the matter settled and the case could be closed. I understand that prior to releasing any records, the Council contacted some of the landlords named in the records to notify them that it intended to release the records. On 6 April 2023, the Council reverted to this Office and said it had not, in fact, released any records and thus it had not been possible to reach a settlement. The applicant was informed of this and the review recommenced.

In communications with the applicant, the Investigator highlighted the inherent difficulty with progressing the review in light of the significant number of potentially affected third parties that would have to be consulted and offered an opportunity to make submissions. She explained that in light of the level of resources that would be required to conduct such an exercise, consideration would have to be given to discontinuing the review under section 22(9)(a)(vii) of the FOI Act. That section provides that the Commissioner may discontinue a review if he is of the opinion that it would, by reason of the number or nature of the records concerned, require the examination of such number of records or an examination of such kind of the records concerned as to cause a substantial and unreasonable interference with or disruption of the work of the Office.

In the circumstances, the Investigator suggested that the applicant might consider narrowing the scope of the review to a sample of the records, which would enable this Office to deal with the substantive arguments in the case while conducting appropriate consultation with a smaller subset of the affected third parties. Notwithstanding that the applicant did not accept that such a consultation was necessarily required, he agreed to narrow the scope of the review to the 2021 records only, and to include only those landlords who are corporate bodies/legal entities, and individual landlords who were paid more than €50,000 by the Council in 2021. On that basis, the relevant third parties were notified of the review and given an opportunity to make submissions.

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, the applicant, and the relevant third parties. I have also had regard to the contents of the records at issue.

Scope of Review

The records at issue consist of two excel spreadsheets, generated by the Council for the purposes of making a return to Revenue, showing details of rental payments to private landlords in 2021 under the Rental Accommodation Scheme (RAS) and the Social Housing Current Expenditure Programme (SHCEP), respectively. The applicant has agreed to confine the information sought from these spreadsheets to the following information only, which is contained in two columns of the spreadsheets:

  • For all legal entity landlords, the name of the landlords and the amounts paid to them by the Council in 2021 under the RAS and SHCEP schemes;
  • For all individual landlords who were paid over €50,000 in 2021, the name of the landlords and the amounts paid to them by the Council in 2021 under the RAS and SHCEP schemes.

No other information contained in the spreadsheets (including the addresses of the properties for which rent has been paid, or the addresses/contact details of the landlords) is under consideration.

While the Council confirmed during the review that it was no longer relying on section 35 to refuse access to the information sought, a number of the third parties referenced that section in their submissions. In the circumstances, this review is concerned with whether the Council was justified in refusing access to the above described records under sections 35, 36 and 37 of the FOI Act.

In an email sent on 21 April 2023, the applicant indicated that he believed that records relating to payments to landlords by the Dublin Regional Homeless Executive (DRHE) should also be included in this review. While I appreciate that the applicant was given minimal information by the Council as to what exact records it had identified as falling within the scope of the request, such that he was not aware until engaging with this Office that  the DRHE records had not been provided, given the concerns already set out about the number third parties and the practical implications of that in terms of resources, I have confined this decision to the sample of the RAS and SHCEP schemes set out above.

Preliminary Matters

Before addressing the substantive issues in this case, I wish to make some preliminary comments.

Consultation with third parties

It is regrettable that this review took so long to bring to a conclusion. This is partly because, as described above, at one stage it appeared that a settlement might be possible. When this did not occur, and the investigation resumed, we considered it necessary to consult with the third party landlords named in the records. 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 (my emphasis).

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. It is in this context that we believed it necessary to consult with the relevant landlords named in the records.

The applicant disputed that such consultation was necessary, and pointed to a previous decision by the Information Commissioner (OIC-110328) which he said established a precedent whereby the issue of consultation does not arise in the release of payment records by a local authority to a corporate landlord, and that our intention to consult in this case represented a change in policy. First of all, it is important to note that decisions by the Information Commissioner do not set binding precedents and each decision is made based on the specific facts and circumstances of the case under review. Notwithstanding that, I do not believe that the approach taken in this case is inconsistent with the case referenced by the applicant. In case OIC-110328, I annulled the decision of Limerick County Council in respect of records relating to corporate landlords and directed it to conduct a fresh decision-making process. I did not, however, direct release of the information at issue and in explaining why I did not consider it appropriate to do so in that particular case, I made reference to section 22(6) and my belief that I would have to notify all relevant parties before directing release of such records.

The consultation process itself took some time, with the Council providing contact details for the relevant parties. Email notifications were issued to the parties. In the small number of instances where an email was returned undelivered or an auto-response was received, we followed up to ensure the notification was sent to an operational email address. Ultimately, there was only one named landlord for whom an up to date contact email address was not sourced. In the circumstances of the case, I am satisfied that reasonable efforts were made to notify the parties named in the record and who may be affected by this decision. Written responses were received from a small proportion of the third parties, which will be discussed in the analysis section below, under each of the relevant exemptions. Of the responses received, approximately the same number had no objection to the records being released as those who objected to release. I do not intend to address each individual argument made against release, but rather I have summarised the main themes emerging. However, I confirm that I have had regard to all submissions made.

Data Protection and GDPR

In several of the third party submissions received, GDPR and data protection rights were referenced. In one submission, it was specifically argued that a recent decision by the Court of Justice of the EU (C-37/20 (Luxembourg Business Registers) and C-601/20 (Sovim) ), which relates to registries of beneficial ownership and data protection rights, means that any information in the records which enables individuals, their financial interests, or association with companies investing in Council’s housing schemes to be identified, should not be disclosed. In light of these concerns, it is important to set out the interplay between the FOI Act and data protection legislation.

Article 86 of the General Data Protection Regulation provides that personal data in official documents held by a public authority or a public body or a private body for the performance of a task carried out in the public interest may be disclosed by the authority or body in accordance with Union or Member State law to which the public authority or body is subject in order to reconcile public access to official documents with the right to the protection of personal data pursuant to the Regulation. Section 44 of the Data Protection Act 2018 provides that, for the purposes of Article 86, personal data contained in a record may be disclosed where a request for access to a record is granted under and in accordance with the FOI Act 2014 pursuant to an FOI request.

In short, data protection legislation does not prohibit public bodies from processing FOI requests where the records sought contain personal information relating to individuals other than the requester. The FOI Act is entirely independent of data protection legislation and FOI requests for access to records must be processed in accordance with the provisions of the FOI Act. Indeed, the FOI Act provides for the release of personal information of third parties in certain circumstances, including where the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the individuals concerned. Any concerns a public body has, or third parties have, about the release of personal information relating to individuals other than the requester can and should be addressed by considering the applicability of the exemption contained in section 37 to the records at issue.

Burden of proof

In its judgment in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors, [2020] IESC 57 [59] (the eNet judgment), the Supreme Court said that “it is the FOI body that must explain and justify a conclusion that the records are exempt by reference to the relevant provisions of the Act, and equally, it is the FOI body that must explain why the public interest does not justify release in the public interest.” I also note that, 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), Kearns, J. made it clear that 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. He stated that “[a] mere assertion of an expectation of [prejudice] could never constitute sufficient evidence in this regard”.

However, while FOI bodies must justify their decisions, the eNet judgment in particular also says that a failure by an FOI body to do so does not lead to an inevitable or statutorily mandated outcome. Rather, the Commissioner must exercise his inquisitorial remit to adjudicate the merits of the decision to refuse by reason of an analysis of the records and the interests engaged, which might suggest either disclosure or refusal. This is particularly relevant when records have been refused under a mandatory exemption that serves to protect the interests of third parties.

Analysis and Findings

Background

The Council provided some background information on RAS and SHCEP which I think is useful to set out before looking at the exemptions. I have also had regard to the Analysis of Social Housing Current Expenditure Programme published by the Department of Public Expenditure and Reform in 2021, in seeking to understand how these housing programmes operate.

The RAS was introduced as a social housing support to cater for the accommodation needs of persons on the Council’s housing list, those who have a long-term housing need and those in receipt of Rent Supplement normally for more than 18 months. The Council signs a Residential Tenancy Agreement with the property owner to provide a home for 6 years. Monthly rent at 92% of current market is paid to the landlord and, as I understand it, the tenant pays a contribution to the rent directly to the Council.

The Council explained that the Long Term Leasing Initiative was initially introduced in 2009 to enhance the delivery of social housing. This is funded under SHCEP. In this initiative, the Council leased fully furnished vacant units from owners/developers for lease terms of 10 to 25 years, with rental payments to landlords of 80% of market rate, and 85% where management fees are applicable, and the owner is responsible for payment of management fees.

The Enhanced Long Term Leasing initiative (also funded under SHCEP) was then introduced in 2018 to target new build and not-yet-built housing units. The minimum number of units to be proposed by a single lessor was set at 20 units, with the maximum lease term extended to 25 years and rent paid of up to 95% market rent with the lessor being obliged to carry out all internal and external repair to the units for the lease term.

Section 35: Information obtained in confidence

As stated previously, the Council’s position at this point is that section 35 is not applicable. However, three of the third parties who made submissions argued that the records are exempt under section 35.

Section 35(1)(a) is a mandatory exemption which provides for the withholding of certain records containing information given to an FOI body in confidence. Section 35(1)(b) provides a mandatory exemption for records where disclosure of the information would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment or otherwise by law. The Commissioner accepts that breach of an equitable duty of confidence is comprehended by section 35(1)(b).

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 member of the staff 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 the staff of, an FOI body or of such a service provider. As section 35(1) does not apply if the records fall within the terms of section 35(2), I consider it appropriate as a first step to examine the applicability of section 35(2) to the information at issue. 

The records at issue are spreadsheets that were created by the Council for submission to Revenue, as is required on an annual basis under section 888 of the Taxes Consolidation Act 1997. It appears to me that the spreadsheets were created from information held by the Council for the purposes of administering the various housing schemes, including the names of the landlords to whom payments were made and the total paid to them in respect of various rental properties in that year. I am satisfied that the records at issue were prepared by Council staff in the course of the performance of their functions. A representative of one third party argued that the record contained confidential and commercially sensitive information on the third party and could not, in the circumstances, be said to be solely “prepared” by the Council. I do not accept this argument. The fact that a record may contain third party information does not mean that it was prepared by any such third party.

Having found that the records at issue were prepared by Council staff, I must consider whether disclosure of the information in the records 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 the staff of, an FOI body or of such a service provider. While the third parties made various arguments as to why they believed release of the records would represent a breach of a duty of confidence owed to them, it seems to me that there is only a need to examine the substance of these arguments if it is established that the potential duty of confidence is owed to “a person other than an FOI body or head or a director, or member of the staff of, an FOI body or of such a service provider”.

The Council was invited to comment as to whether the landlords in this case constitute service providers. While this was in the context of arguments made by the applicant in relation to the applicability of section 37, I am satisfied that the response is relevant when considering if section 35(2) applies. The Council said it did not consider the individual landlords to be service providers in the traditional sense. It said the landlords entered into an agreement to lease their properties to the Council and that they had no involvement in identifying the tenant or offering the property to prospective tenants. It said that, in its view, the agreement to lease their properties facilitates the provision of a service by the Council in providing housing to individuals but that the property owners are not, themselves, providing a service to the Council.

I do not dispute the Council’s position that it is providing a service to the tenants who are housed in the properties provided through these schemes. However, I do not believe that this excludes the possibility that the landlords are also service providers to the Council.

Section 2 of the FOI Act defines a ‘service provider’ as follows:

a person who, at the time the request was made, was not an FOI body but was providing a service for an FOI body under a contract for services and contract for services in this definition includes an administrative arrangement between an FOI body and another person.

There is no definition of ‘service’ in the FOI Act. The Consumer Protection Act 2007 defines a services as including, without limitation:

any service or facility provided for gain or reward or otherwise than free of charge, including, without limitation . . . services or facilities for . . . accommodation, transport, travel, parking or storage…

I am satisfied that the landlords, both individuals and legal entities, through their provision of accommodation facilities to the Council in exchange for an agreed rent from the Council, are service providers for the purposes of the FOI Act.

Therefore, even if it was successfully argued that a duty of confidence is owed to the landlords in respect of certain information, I find that section 35(1) cannot apply in this case by virtue of the exclusion in section 35(2) which provides that the duty of confidence must be owed to someone other than an FOI body, a member of staff of an FOI body or a service provider.

Section 36: Commercially sensitive information

Section 36(1) provides a mandatory exemption for what is generally described as “commercially sensitive” information. It is subject to a public interest test, as set out in section 36(3).

Section 36(1) provides that a request shall be refused if the record concerned contains;

a. trade secrets of a person other than the requester,

b. financial, commercial, scientific, technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of that person in the conduct of his/her profession or business, or

c. information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates.

The Council’s submissions

In its original decision and internal review decision, the Council referred to sections 36(1)(b) and (c). It said that the records contained financial information relating to a number of individuals and that it did not consider it unreasonable to believe that release of this information regarding these rental payments could have negative commercial consequences for both the individuals concerned and the Council in its future negotiations.

In its submissions to this Office (which, it is important to note, were prepared prior to the scope of the records under consideration being narrowed), it said that the files uploaded to Revenue identified the name of the landlord/agent and the exact address of the properties owned by them. It said that it also showed the annual rental payments made by the Council for each property. It said that it could be reasonably expected that release of this information could result in giving other market actors a competitive advantage in proposing properties to the Council and agreeing market rents. The Council also said that release of the records could reasonably be expected to result in material or financial loss to the Council.

The applicant’s submissions

The applicant argued that the records sought do not include any details regarding the number, location, size or quality of the properties for which payments were made, nor the level of equipment or any associated services provided. He said that in these circumstances, the records do not reveal anything that might give other market actors an advantage in dealing with Dublin City Council or in competing with the landlords identified in the records. He also pointed to the publication by the Council, similar to other public bodies, of quarterly reports showing purchase orders of over €20,000 and said that there was no evidence that these well-established, regular disclosures have damaged the businesses involved or the Council’s ability to negotiate with them.

Third party submissions

I will summarise the themes emerging from the submissions made by those third parties who made submissions under section 36.

It was argued that release of the records would negatively impact the competitive position of landlords in terms of securing optimal rents in the future or in seeking to sell the property.

Concerns were raised that release of the records would lead to unfair scrutiny, comment or vilification in the media. It was noted that the rents paid under the various schemes provide a significant saving to the exchequer compared to market rates, and that this was unlikely to be highlighted in any commentary.

In one submission it was argued that the information under consideration was potentially commercially sensitive to the tenants and in another it was similarly argued that release of the landlords’ names would serve to easily identify the properties involved which could lead to the tenants being identified.

In a number of submissions, the point was made that the landlords were operating in a competitive market and that release of the records would adversely affect business going forward by providing their competitors with commercially sensitive financial information. It was argued that this information could be exploited by competitors in setting future rents, which would undermine the landlords’ ability to effectively compete and operate their business, when they don’t have access to the equivalent information on their competitors’ rental rates. One submission said that this would impact competitiveness in the marketplace by conferring an advantage on competitors.

One landlord said that it was currently negotiating the sale of its property companies to a global financial services company and that the publication of this information could dissuade its purchaser from completing the acquisition, resulting in a huge financial loss to it.

In a submission from an entity that works with and represents various investors/landlords in their engagement with local authorities, it was argued that release of the records would lead to an exit of landlords from the various arrangements that they have entered into with Dublin City Council. It said that, in its experience, if the names of landlords are published there will be a drop-off in their engagement with the schemes. It said that although such landlords agree to a reduced rate of rent, they reap other benefits including security of tenure for the period of the long-term lease and the knowledge that they will not lose out financially in terms of voids when the property is unoccupied due to switching private tenants on short term leases, and the financial and time investment that goes into maintaining properties in the private sector. It submitted that if landlords are minded to pull out of the schemes due to fear of negative personal publicity, this could reasonably be expected to result in material financial loss to them over a longer period. Furthermore, it said that this would lead to material financial loss to the company representing them and would have a significant prejudicial effect on its competitive position and its ongoing business operations and viability, as well as prejudicing the conduct or outcome of several ongoing negotiations between its clients and the Council, should property owners walk away from negotiations due to fear that their information will be released. It said that it has liaised with its client base who have confirmed that they do not wish their information to become public.

My analysis

Section 36(1)(b) provides for the mandatory refusal of a request if the record concerned contains financial, commercial, scientific or technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation. It is also subject to a public interest balancing test at section 36(3).

The harm test in the first part of subsection (1)(b) is whether disclosure of the information “could reasonably be expected to result in material financial loss or gain”. The Commissioner takes the view that the test to be applied in this regard is not concerned with the question of probabilities or possibilities, but with whether the decision maker’s expectation is reasonable. The nature of the harm envisaged and a basis for a claim that such harm could reasonably be expected to result from disclosure of the particular information in the record(s) at issue should be shown by an FOI body or a third party relying on this provision.

The harm test in the second part of subsection (1)(b) is whether disclosure of the information “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 only requirement which has to be met in the second part of section 36(1)(b) is that disclosure "could prejudice the competitive position" of the person concerned. The standard of proof necessary to meet this test is considerably lower than the standard required to meet the test of "could reasonably be expected to" in the first part of section 36(1)(b). While the standard of proof to meet this test is reasonably low, this Office nonetheless takes the view that, in invoking the phrase "prejudice", the damage which could occur as a result of disclosure of the information must be specified with a reasonable degree of clarity.

In seeking to establish whether the requirements of section 36(1)(b) have been met, it is important to first look at the specific contents of the records themselves and what they do and do not disclose. As stated earlier, the only information under consideration for release is the name of the landlord and the amount paid in rent by the Council to them in respect of residential properties, in 2021. The record contains no further details of the property or properties (e.g. location, size, type of property, state of repair) or other details of the landlord, other than the name. While the argument was made by a number of third parties and by the Council that this information would be exploited by competitors, it was not explained how the specific information could meaningfully be used in competing against them, nor is it evident to me, given that it only indicates the amount paid for a property in that year with no other details of what that property was. Neither is it apparent to me how release of this information could negatively impact the competitive position of landlords in terms of securing optimal rents in the future or in seeking to sell the property, again when the amounts paid are not linked to a specific property or even a specified size or location of a property.

I note the concerns around negative publicity should the information be released as well as concerns that any ensuing reporting, if it were to arise, would be unlikely to focus on the more positive aspects of the schemes e.g. that the rents paid are lower than the market rate and therefore achieve savings for the exchequer. This Office does not generally accept that the possibility that released information will be used in some particular way, or will be misinterpreted, or will not be properly understood, is a valid reason for refusing access to the information, nor does the FOI Act provide for the withholding of information on the grounds that it is factually inaccurate. There is nothing to prevent the Council from explaining how the schemes work. In any event, it is not apparent how such public commentary, if it were to occur, could reasonably be expected to result in material financial loss or gain to any of the parties involved, or how it could prejudice their competitive position.

The argument that landlords will opt out of these lease agreements with the Council if the records are released seems to me to be based simply on the fact that they do not want this information to be put into the public domain. While I appreciate that the preference of some of the landlords, and indeed of the Council, is that this information is not released, it has not been satisfactorily explained how the release of the information at issue might give rise to the harms identified in section 36(1)(b), nor is it apparent to me how they might arise. I acknowledge the landlords charge a discounted rent to the Council and that there are other benefits to the landlords as part of this arrangement (long leases, no fallow periods etc). However, it seems to me that for anyone doing business with a public body that is subject to the FOI Act, and where there are established rules around procurement and value for money, there should be no expectation that such business would be conducted in complete secrecy. I note, for example, that under the FOI Act, public bodies must prepare and publish a ‘publication scheme’ in accordance with the “Model Scheme” provided for in the legislation and that the Model Scheme provides that FOI bodies should publish details of public contracts awarded over €25, 000, including contract type, contractor, value, award date, duration and brief description.

On a related point, the company that represents landlords and engages with the Council on their behalf argued that the exit of landlords from these Council schemes would lead to a material financial loss for the company itself, as well as prejudicing its competitive position. I do not dispute that if landlords, who are essentially this company’s clients, decided to opt out of these Council schemes, that this could have a detrimental impact on that company’s business. However, no explanation has been given as to why the release of the information at issue might cause landlords to exit the schemes. As has been explained above, engagement with the schemes has tangible benefits for landlords, and it is not apparent to me that the mere disclosure of the payments they received in 2021 might cause them to exit the schemes.

On balance, having considered the specific information contained in the records, and the various arguments put forward by the Council and by the third parties (including those who confirmed that they did not object to release), in addition to the applicant’s arguments, I am not satisfied that section 36(1)(b) applies. Notwithstanding the relatively low bar in terms of the standard of proof required, I am not satisfied that disclosure of the information at issue could reasonably be expected to result in a material financial loss or gain to the named individual or legal entity landlords, or to the Council, or that it could prejudice the competitive position of the landlords, their agents, or the Council in the conduct of their business.

Section 36(1)(c) of the FOI Act provides for the refusal of a request if the record sought contains information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates. The standard of proof required to meet this exemption is relatively low in the sense that the test is not whether prejudice or harm is certain to materialise but whether it might do so. Having said that, the Commissioner expects that a person seeking to rely on section 36(1)(c) would be able to show that contractual or other negotiations were in train or were reasonably foreseen which might be affected by the disclosure and explain exactly how the disclosure could prejudice the conduct or the outcome of such negotiations.

In one submission, reference was made to a specific negotiation that was in train for the possible sale of the legal entity landlord’s property companies to a global financial services company. It said that release of the information could dissuade the purchaser from completing the acquisition. It seems to me that any party to such a negotiation would already have access to the information contained in the record as part of its due diligence in completing such a sale. As such, I have taken it that the argument is not that it is simply access to the information by the potential buyer that could prejudice the outcome of the negotiation, but rather the fact that the buyer would potentially be put off by this information being released to the world at large. I refer to my earlier point about doing business with a public body that is subject to FOI and expectations of what that entails in terms of transparency. I do not accept that it has been shown how the disclosure of the information at issue could prejudice the conduct or outcome of these negotiations. Similarly, I do not accept the argument made in another submission that release of the record could prejudice the conduct or outcome of several ongoing (unspecified) negotiations between the company’s clients and the Council, should property owners walk away from negotiations due to fear that their information will be released. While it is clear that some of the third parties do not want the information released, that is not the same as identifying prejudice from the release. I am not satisfied it has been shown that disclosure of the information at issue could prejudice the conduct or outcome of contractual or other negotiations and I find that section 36(1)(c) does not apply.

As I have found that section 36(1) does not apply, there is no need for me to examine the public interest test in section 36(3).

Section 37: Personal information

Section 37(1) of the FOI Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of third party personal information. Section 37(2) provides that section 37(1) does not apply in certain circumstances. 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.

Section 2 of the FOI Act defines personal information as information about an identifiable individual that, either (a) would, in the ordinary course of events, 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 goes on to specify 14 categories of information which, without prejudice to the generality of the above definition, constitute personal information, including (ii) information relating to the financial affairs of the individual and (xiii) information relating to property of the individual (including the nature of the individual's title to any property).

Section 2 also provides that certain information is excluded from the definition of personal information, including:

(ii) in a case where the individual is or was a service provider, the name of the individual or information relating to the service or the terms of the contract or anything written or recorded in any form by the individual in the course of and for the purposes of the provision of the service.

Submissions on section 37

The applicant argued that that none of the records he was seeking constitute personal information under section 37. Referring to the FOI Decision Makers Manual Part 2: Exemptions & Consultation Procedures (available on the Central Policy Unit website: (https://foi.gov.ie/guidance/manuals/) , he pointed to the definition of service providers and said that he was seeking only the name of the individual and for information relating to the services provided under the contract making their property available to the Council. He emphasised that he was not seeking any information that would identify tenants.

In its submissions (made before the scope of this review was narrowed), the Council said that releasing the records, with the address of the properties, would inadvertently identify the tenants of these properties as tenants of the Council. When asked to comment as to whether it considered landlords to be service providers, as previously discussed under section 35, the Council did not accept this to be the case.

A small number of written submissions were made by individual landlords. One said that the money paid to him was paid in his capacity as a private individual, as opposed to a legal entity/corporate landlord. He said that as this relates to his personal private financial information, he objected strongly to its release and said that he believed he was entitled to avail of the exemption contained in section 37. Furthermore, he said that he believed that it is in the public interest that his right to privacy was upheld and that this outweighed the public interest in disclosing his personal private information. In another submission, similar points were made and reference was made to GDPR.

Furthermore, it was argued that the rent figure was not an income, though it could be seen as such, and did not reflect other costs like mortgage and maintenance. The submission went on to say that there was no objection to the payment information being released but that there was no requirement for the landlord’s name or home to be made public, and that if such information were to be released, it could put the landlord or their family at risk and could lead to feeling threatened in their home.

In another submission, it was argued that even in the case of legal entity landlords, in the case of a company, individuals associated and involved with those companies may be easily identified should the records be released. It essentially said that in these circumstances, both section 37 and GDPR should serve to prevent the release of the records.

My analysis

It is important to clarify again that the only information under consideration here is the name of the landlord and the amount(s) paid to them by the Council in 2021 in respect of residential property or properties through the various schemes. The addresses of these properties, and the addresses of individual landlords do not fall within the scope of this review. It has not been shown, nor is it evident to me, how this information could put anyone at risk or make them feel threatened.

I do not accept that section 37 could potentially apply to information about landlords that are legal entities, companies, or indeed approved housing bodies. This is not consistent with the definition of personal information as set out in section 2. The fact that naming a legal entity landlord could lead to an individual person then being associated with that legal entity does not, in my view, bring the information into the realm of personal information.

The only part of the record, therefore, that I am considering under section 37 is the relatively small number of individuals named in the spreadsheets who received more than €50,000 in rent from the Council in 2021.

I am satisfied that this constitutes information about an identifiable individual’s financial affairs and information relating to their property. However, I must examine the exclusion at (II) which provides that in a case where the individual is or was a service provider, the name of the individual or information relating to the service or terms of the contract are excluded from the definition of personal information.

I have already found, in my examination of section 35, that the landlords in this case, both individuals and legal entities, through their provision of accommodation facilities to the Council in exchange for an agreed rent from the Council, are service providers for the purposes of the FOI Act. In these circumstances, the name of the individual landlords contained in the record are excluded from the definition of personal information. It seems to me that the annual rent agreed between the landlord and the Council must be considered to comprise one of the terms of the contract between the two parties and/or information relating to the service, such that the rent paid in 2021 is also excluded by virtue of (II).

As the information is not, therefore, personal information as defined in section 2 of the FOI Act, I find that section 37(1) does not apply as access to the record concerned would not involve the disclosure of personal information. There is therefore no need for me to examine the public interest test in section 37(5)(a).

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, under sections 35, 36 or 37 of the Act, to the relevant parts of the record within the scope of this review. I therefore direct it to release:

  • For all legal entity landlords, the name of the landlords and the amounts paid to them by the Council in 2021 under the RAS and SHCEP schemes;
  • For all individual landlords who were paid over €50,000 in 2021 the name of the landlords, and the amounts paid to them by the Council in 2021 under the RAS and SHCEP schemes.

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