Case number: OIC-139513-T8F6N0

Whether the Housing Agency was justified in refusing access to records including minutes of meeting, internal memos and correspondence relating to a named Approved Housing Body

 

15 December 2023

 

Background

In a request dated 14 April 2023, the applicant submitted a request to the Housing Agency (the Agency) for the following records relating to a named Approved Housing Body (AHB):

1. Correspondence between the Housing Agency’s Regulation Office and the AHB

2. Minutes of any meetings held between the Regulation Office and the AHB

3. Minutes of any internal Regulation Office meetings relating to the AHB

4. Any internal Regulation Office memos relating to the AHB

5. Correspondence between the Regulation Office and any external public bodies that relate to the AHB.

The applicant specified that he was seeking the records between the years 2017 – 2021. On 19 May 2023, the Agency issued its decision. Of the 26 records identified as coming within the scope of the request, it released five in full, granted partial access to 10 and refused access to 11. It cited sections 29(1), 35(1), 36(1), and 37(1) as a basis for withholding records in whole or in part. On 19 May 2023, the applicant applied for an internal review of that decision, wherein he noted that the decision letter failed to explain why the exemptions were being applied. On 13 June 2023, the Housing Agency affirmed its original decision. On 16 June 2023, the applicant applied to this Office for a review of the Housing Agency’s decision.

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 applicant, the relevant AHB, and the Agency. I have had regard to the correspondence between the applicant and the Agency and to the correspondence between this Office and all relevant parties on the matter. I have also had regard to the contents of the records at issue. I have decided to conclude this review by way of a formal, binding decision. In referring to the records at issue, I have adopted the numbering system used by the Agency in the schedule of records it prepared when processing the request.

Scope of Review

As record 4ci is a duplicate of record 4bi are duplicates, I have excluded record 4ci from this review. Moreover, during the course of engagements with the applicant, he indicated that he was not seeking any email addresses withheld across the records to which section 37 had been applied. He clarified that he was, however, seeking the redacted names of the Directors of the AHB. When considering the applicability of section 37(1), therefore, I will consider only the names of the AHBs Directors/Associates redacted from the records.

Accordingly, the scope of this review is concerned solely with whether the Agency was justified in refusing access in whole or in part, under sections 35(1), 36(1), 37(1) and 29(1) of the FOI Act, to the remaining 20 records relating to a named AHB.

Preliminary Matters

Before I address the substantive issues arising, I would like to make a number of preliminary comments.

First, a review by this Office under section 22 of the FOI Act is de novo which means that in this case, it is based on the circumstances and the law as they apply on the date of the decision. It should be noted that a decision made by this Office in one particular case does not create a binding precedent for other cases.

Secondly, 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 somewhat limited.

Finally, it is relevant to note that the release of records under FOI is, in effect, regarded as release to the world at large given that the Act places no constraints on the uses to which the information contained in those records may be put.

The Regulation of AHBS

AHBs are independent legal entities that own, lease and manage social housing. They are private not-for-profit organisations formed for the purpose of relieving housing need. They independently source housing on the open market. They compete with each other and also with private developers and/or landlords in bidding processes for houses and land for the provision of housing. They acquire units through leasing and management arrangements. They submit competitive bids to the Agency and local authorities where these entities have established competitive processes for the development of housing and invite AHBs to make bids.

In 2013, the relevant Minister launched the AHB Voluntary Regulation Code (the Code). The Code notes that Government housing policy places AHBs at the heart of social housing provision in the coming years. It describes itself as a stepping stone to a legally binding statutory regulatory framework and provides a context in which AHBs can sign up to voluntary regulation and oversight. It sets out key governance, management, measurement and financial requirements applicable to all AHBs to some extent and classifies AHBs as Tier 1, 2 or 3 depending on levels of risk. AHBs are required to sign up to the Code and to meet certain requirements before they are eligible for certain types of public funding as provided by bodies other than the Agency.

The Housing Agency acted as the interim regulator of AHBs under the Code until the establishment of the statutory regulator, the Approved Housing Bodies Regulatory Authority (AHBRA) in February 2021. AHBRA describes its purpose as supporting stronger governance and the financial viability of the AHB sector, with a particular focus on safeguarding the significant public investment made in the delivery of social housing by AHBs. The powers of the Authority were commenced in July 2022. Importantly, the Regulatory Framework within which AHBs now operate includes the registration for AHBs, the Standards for AHBs, monitoring and assessing of compliance, education and guidance.

As part of its Regulatory Framework, AHBRA will carry out a monitoring and assessment programme. Accordingly, all registered AHBs will be required to complete and submit an Annual Monitoring Form to AHBRA each year. AHBs will be asked to provide a range of data and information relating to their organisation in the areas of tenancy management, property and asset management, financial management and reporting and governance. Section 38 of the Housing (Regulation of Approved Housing Bodies) Act 2019, allows AHBRA carry out an assessment of compliance by an AHB, including a reactive assessment, should any material issues come to their attention. AHBs assessed will receive an assessment report which provides an overall regulatory outcome of compliant or non – compliant.

It is also relevant to note that in February 2018, the Central Statistics Office and Eurostat re-classified 14 Tier 3 AHBs to be part of 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, the exposure of government to certain financial risks and the AHBs’ non-market nature (e.g. their aims of relieving housing needs, the requirements not to distribute surpluses, profits etc. to members, the types of rent charged, etc.).

Analysis and Findings

The records in question

While, as noted above, I am limited in the description which I can provide of the records at issue, I believe I am not in breach of section 25(3) by explaining that the records involved at issue relate specifically to governance issues that were identified in respect of the relevant AHB, a medium sized housing association. The records largely concern the Regulation Office’s engagement with the AHB to address the issues identified.

The records include emails between the AHB and the Housing Agency, emails between the Housing Agency and third parties, Annual Regulatory Returns, organisational reviews carried out by third parties and Companies Registration Office (CRO) documents.

Certain information has been redacted from records 1, 4a, 4b, 5, 6, 8, 10, 11, 12, and 13 under sections 36(1)(b), 36(1)(c), and 37(1). Records 3, 4bi, 4bii, 4biii, 4c, 5a, 6a, 7, 8a and 9 have been withheld in their entirety under sections 35(1)(b), 36(1)(b), 36(1)(c), and 29(1).

Section 35 – Information Obtained in Confidence

The Agency relied on section 35(1)(b) in support of its decision to refuse access, in whole or in part, to records 4bi, 4bii, 4biii, 4c, 5a, 6, 6a, and 7. That section provides for the refusal of a request where the disclosure of the information concerned would constitute a breach of duty of confidence provided for by an agreement, enactment or otherwise by law. A duty of confidence provided for “otherwise by law” is generally accepted to include a duty of confidence arising in equity. This Office 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 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." The net effect of section 35(2) is that if the record at issue has been prepared by an FOI body or a service provider, then the person to whom a duty of confidence is owed cannot be an FOI body or its staff or a service provider. If it is, then section 35(1) cannot apply.

Record 4bi, 6 and 7 were created by the Agency. Records 4bii, 4biii, 4c, 5a and 6a were created by the AHB or by third parties which were providing services to the AHB.

Section 35(2)

The Agency’s argument is that the release of the records at issue would constitute a breach of a duty of confidence owed to the AHB. The third parties that created a number of the records were providing services to the AHB, and not to the Agency or any other FOI body. The AHB is not an FOI body. Accordingly, section 35(2) is of no relevance to those records.

For the records that were created by the AHB, the question arises as to whether the AHB can be deemed to be a service provider for the purposes of section 35(2). The term “service provider” is defined as “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”. The records at issue are held by the Agency in the context of its [then] role as interim regulator under the AHB Voluntary Regulation Code. The AHB is an independent not-for-profit organisation. The records at issue were not prepared in the course of the performance by the AHB of its functions as a service provider, nor do they relate to any such service provided for an FOI body. Accordingly, I am satisfied that I can appropriately consider the applicability of section 35(1)(b) to the records in question as section 35(2) does not serve to disapply section 35(1) in respect of those records.

As for the records that were created by the Agency, the Agency’s position is, as outlined above, that the release of the records would constitute a breach of a duty of confidence owed to the AHB. In my view, the purpose of section 35(2) is to ensure that section 35(1) cannot be relied upon to protect records relating to the service being provided and it does not mean that a duty of confidence can never be owed to a provider of services for an FOI body. Having regard to the nature of the records at issue and the context in which they are held by the Agency, I am satisfied that the AHB cannot be regarded as a service provider for the purposes of section 35(2) and that section 35(2) does not serve to disapply section 35(1) in respect of those records.

Section 35(1)(b)

As I have outlined above, a duty of confidence provided for “otherwise by law” is generally accepted to include a duty of confidence arising in equity and this Office accepts that breach of an equitable duty of confidence is comprehended by section 35(1)(b). In the Supreme Court decision in the case of Mahon v Post Publications Ltd [2007] 3 I.R. 338, Fennelly J confirmed that the requirements for a successful action based on a breach of an equitable duty of confidence, at least in a commercial setting, are found in the judgment of Megarry J in Coco v. A. N. Clark (Engineers) Ltd. [1969] R.P.C. 41, at 47:

“[T]hree elements are normally required if, apart from contract, a case of breach of confidence is to succeed. 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."

Fennelly J summarised or restated the requirements of what he called “the contours” of the equitable doctrine of confidence as follows:

1. “the information must in fact be confidential or secret: it must ... ‘have the necessary quality of confidence about it’;

2. it must have been communicated by the possessor of the information in circumstances which impose an obligation of confidence or trust on the person receiving it;

3. it must be wrongfully communicated by the person receiving it or by another person who is aware of the obligation of confidence.”

I have adopted this approach in considering whether disclosure of information in the records at issue would constitute a breach of an equitable duty of confidence owed to the AHB in question.

In its submissions to this Office, the Agency has outlined its belief that the parameters and framework of the Voluntary Regulation environment which was in place from 2013 – 2021 establishes agreement where an AHB opted into regulation on a voluntary basis. The Agency argued that the information in the records was given to it on a confidential basis, and that while there is no statutory prohibition, or written agreement that sets out rights and obligations as regards the maintenance of confidentiality of the information provided, nevertheless, given the surrounding circumstances the information was submitted on the understanding that any onward disclosure would breach a duty of confidence, provided for in equity. The Agency argued that this determination is supported by comments in the Voluntary Regulation Code (VRC), the interim Regulation Committee (iRC) Protocol and the Regulatory Return Guidance Note.

The Agency also argued that the iRC Protocol clearly identifies that the AHBs will supply information based on the understanding that information not in the public domain that is provided by the AHBs to the Agency for regulatory or other specified limited purposes, will be considered confidential and commercially sensitive, treated and maintained as confidential and used only for such purposes (and not, for example, and in particular, onward – disclosed to any third party). It argued, therefore, the information provided to the Agency is understood by all parties to be submitted in confidence and treated as confidential.

In the submissions provided by the AHB, it contended that the information it provided during the course of the regulation process was submitted on an understanding of confidence. It argued that information was tendered in an individual capacity, and that there was no statutory obligation for the provision of information, as the process was voluntary and confidential, and as the Agency was attempting to assist the AHB for future statutory reporting. The AHB expressed concern that issues/documents relayed to the Regulation office as part of an internal review of the AHB’s practices and procedures with the objective of reviewing and reinforcing these procedures would even be considered for release. It further argued that no new institutions formed under the Regulation of Approved Housing Bodies Act 2019, should have any retrospective powers past the date of their formation in relation to the release of confidential information provided during the course of their engagement with the Regulation Office or pre the establishment of the AHBRA.

Although the applicant did not specifically make arguments relating to the application of section 35 as part of this review, he has stressed what he considered the undeniable public interest in releasing the records sought. He alleged that the AHB in question used charity money to enter into an agreement with a private property development company that involved a specific housing project. He said that that despite having paid the private company thousands of euros of charity money, the AHB has not received any houses, almost a decade after this agreement was made. Moreover, he alleged that the AHB directors who orchestrated this deal are also the owners and directors of the private company, which he said is an obvious conflict of interest and which, he argued, the Agency's Regulation Office itself would surely acknowledge. He argued that this background should mean that the public interest justification in this request overrides all other concerns, including commercial sensitivities, and that given the unique circumstances, this Office should make an exception in this case to previous recent decisions refusing AHB-related records.  

My Analysis

The information in question constitutes documents such as regulatory returns, draft director’s reports, financial statements and third party appraisals. Also included is correspondence relating to the financial governance of the AHB. The information in question concerns the private affairs of the AHB and is not publicly available. Moreover, I do not consider that the information has lost its quality of confidence with the passage of time, given its nature and the potential effect its release could have on the AHB. I am satisfied that the information has the necessary quality of confidence about it and that the first requirement for an equitable duty of confidence to exist is met.

In relation to the second requirement, namely whether the information was imparted in circumstances importing an obligation of confidence, while I accept that it was in an AHB's financial and overall interests not only to sign up to the Code but to engage fully with the assessment process, I do not accept that this means that the Code could not be considered truly voluntary. Indeed, a number of AHBs did not opt in to voluntary regulation at the time and yet continued to provide the services that all AHBs provide. Any information the AHBs may have imparted in the course of assessments carried out was imparted in accordance with the terms of the Code. Having regard to the voluntary nature of the Code, I accept that the AHBs who opted in to the regulation standards at the time, did so on the understanding that the information provided would be treated as confidential. The information at issue in this case was also imparted in accordance with the terms of the Code. In my view, the AHB in question had a reasonable expectation that the information given to the Agency would be treated as confidential and not for general circulation, in circumstances were the engagement between the AHB and the Agency was for the purposes of preparing the AHBs for future statutory regulation. I am satisfied that that the information in the records was communicated in circumstances which impose an obligation of confidence on the Agency and that the second requirement is met. It is also clear to me that if the information was released it would be to the detriment of the AHB in question. In the circumstances, I consider that the third requirement has been satisfied.

In conclusion, I find that section 35(1)(b) applies to records 4bi, 4bii, 4biii, 4c, 5a, 6, 6a and 7. I wish to note that although the applicant has argued that there is a significant public interest in the release of the records in question, section 35(1)(b) is not subject to the general public interest balancing test in section 35(3). However, it is established that the action for a breach of confidence itself subject to a public interest defence in the context of section 35(1)(b). The public interest ground which may justify or excuse a breach of a duty of confidence are quite narrow and include, for example, the revelation of wrongdoing or danger to the public. In my view, the records at issue contain no such information and accordingly I am satisfied that there is no basis for setting aside the requirements of section 35(1)(b) in this case.

Section 36 – Commercially Sensitive Information

Section 36(1) of the FOI Act provides a mandatory exemption for what is generally described as commercially sensitive information. The Agency cited sections 36(1)(b) and 36(1)(c) in support of its withholding of records 3, 4bi, 6a, 7 and 8a in their entirety. Moreover, while the Agency refused access to record 9 under section 29(1), section 36(1)(b) is, in my view, a more relevant exemption to consider. Given the de novo nature of a review by this Office as explained above, I deem it appropriate to also consider whether section 36(1)(b) applies to record 9. The Agency also redacted certain information from records 4(a), 6, 10, 11, 12 and 13 under section 36(1). As I have found section 35(1)(b) to records 4bi, 6, 6a and 7, I do not need to consider the applicability of section 36(1) to those records. This leaves me to consider whether section 36(1)(b) and/or section 36(1)(c) applies to records 3, 4(a), 8(a), 9, 10, 11, 12 and 13.

Section 36(1)(b) provides for a mandatory refusal of a request where the records sought contain 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 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 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 the 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.

The records at issue comprise mainly of records created by the Agency in the course of its engagement with the AHB, and include letters to other organisations highlighting details of concern in relation to the AHB that have been released in part to the applicant. Other records include a record of an internal meeting which addresses the governance of the AHB and potential next steps for the Agency. The records all reference information that was submitted by the AHB including information concerning payments of invoices to a private third party.

In its submissions, the Agency argued that the release of the information at issue could reasonably be expected to result in a material financial loss to the AHB in question. It argued that the disclosure of the information contained in the records could prejudice the AHB in the conduct of its business and in contractual negotiations. It said the information outlined in the records reflects the extensive information provided by AHBs in the returns process, and that the information reflects governance, financial and performance management of housing units. It argued that the release of this information could prejudice and impact negatively on the competitive process between the AHB and private housing operators. In considering the harm against the AHB, the Agency determined that the reputational risk based on property information and issues noted on control and governance which are historic and reported in a lagged environment could very definitely prejudice the outcome of contractual negotiations which the AHB engages in during the course of its business.

Cognisant of the constraints imposed on this Office by section 25(3), I consider it appropriate to state that the records at issue contain matters of concern relating to governance and oversight of the AHB. With respect to certain records that were partially released, a large amount of information concerning the Regulation Office’s engagement with and regulation of the AHB in question has been made available to the applicant, although specific sensitive financial and governance information has been redacted from a number of records.

Having regard to the competitive environment in which the AHB operates and the nature of the matters outlined in the information at issue, I am satisfied that the release of the records could prejudice the competitive position of the AHB, notwithstanding the historic nature of the information in the records. I find, therefore, that section 36(1)(b) applies to the records. Having found section 36(1)(b) to apply, I must go on to consider the other provisions of section 36 to which subsection (1) is subject. 

Section 36(2) and 36(3)

Section 36(2) provides for the release of information to which section 36(1) is found to apply in certain circumstances. I am satisfied that none of the circumstances identified at section 36(2) arises in this case. Section 36(3) provides that section 36(1) does not apply where the FOI body considers that the public interest would, on balance, be better served by granting than refusing to grant the request.

In considering where the balance of the public interest lies in this case, I have had regard to section 11(3) of the Act which provides that in performing any functions under the Act, an FOI body must have regard to, among other things, the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. However, in doing so, I have also had regard to the judgment of the Supreme Court in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (“the Enet case”). In that case, the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest. Rather, a “sufficiently specific, cogent and fact-based reason” is required “to tip the balance in favour of disclosure”.

In its submissions, the Agency argued that the AHB in question is a private entity that submitted to voluntary regulation ahead of the statutory footing which is now in place. It said this furthered the public interest by doing something not required by law, even if it furthered its own private interest at the same time. The Agency argued that that even if one could point to a public interest that was served by the release of such exempt information, it would be outweighed by the public interest in upholding the rights and legitimate interests of the information holders to maintain the confidentiality and secrecy of that information. The Agency also argued that it would be against the public interest for an FOI body, the Agency, to renege and to be seen to renege, on the understanding of confidentiality of information submission given to AHBs. It further argued that it would be contrary to the intention and policy of the Oireachtas for example, for the Agency to disclose confidential and commercially sensitive information submitted by those who proactively submitted to voluntary regulation in a pre-statutory context, and yet to have disclosure prohibited in the statutorily mandated regulation context.

The Agency further referenced the judgement of the Supreme Court in the Enet case, and noted that while the Court determined that it did not require something as extreme as revelation of corruption or bribery by the contents of the records, it did say that there must be something more than the general public interest in disclosure and that the reason must come from scrutiny of the contents of the records and the balancing of interests of commercial sensitivity or confidentiality against the public interest in disclosure of that content. Accordingly, the Agency argued that the contents of the records ought to reveal something strongly in the public interest to reveal and not merely account for expenditure of public funds, or governance improvements being implemented. It said it identified nothing in the records that reaches the threshold and it argued that accordingly, the exemptions it relies upon that are subject to public interest overrides should not be overridden by the application of such provisions.

The applicant argued that there is an undeniable public interest in releasing the records sought, given the circumstances he described concerning the AHB’s engagement with a private development company as referenced above.

My Analysis

In considering where the balance of the public interest lies in this case, a key factor, in my view, is the fact that the Agency obtained the relevant information in the records at issue against a background of a Voluntary Regulation Code. While I fully accept that there were significant financial incentives for the AHBs to sign up to the Code and to engage fully with the assessment process, the fact remains that the Code was voluntary. In such circumstances, it seems to me that AHBs were entitled to expect that commercially sensitive information would not be disclosed to the world at large.

In my view, a distinction can be drawn 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 an FOI body e.g. the development of policy, the exercise of a regulatory function or the use of state resources. The issues identified by the applicant as favouring release of the records in the public interest do not concern expenditure by a public body of public funds. The AHB in question is not an FOI body, nor is it subject to the FOI Act. As a general principle, I do not believe that the FOI Act was designed as a means by which the operations of private enterprises were to be opened up to scrutiny. Where the information of a third party and 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 a third party. In the particular circumstances arising in this case, i.e. the voluntary code to which the AHB prescribed to pre a statutory framework for regulation, I consider that there is a strong public interest in ensuring the candid engagement of any third party to such a pre –statutory framework, through the maintenance of the confidentiality of their commercially sensitive information.

I note that the Agency has released a certain amount of information relating to its internal consideration of the matter of its engagements with the AHB, including letters to Departments and related third parties. It has withheld specific commercial information that I am satisfied is sensitive and if released would cause harm to the AHB in question. It seems to me that the Agency has tried to strike a balance between its role as regulator and the importance of transparency in that respect, and the financial/commercial information of a private enterprise which if released could harm the business.

In my view, there is a strong public interest in ensuring the candid engagement of any third party to a pre-statutory regime such as the relevant voluntary regulation process in this case through the maintenance of the confidentiality of their commercially sensitive information. I am satisfied that the public interest is, on balance, better served by ensuring that third parties will opt in to such pre-statutory regimes in the furtherance of the development of a policy or regulatory function, and to give any parties to such the opportunity to prepare themselves adequately for any enforcement powers which may come into operation on foot of a new regime.

Having carefully weighed the public interest factors for and against the release of the relevant information, I find that the public interest would, on balance, be better served by withholding the information at issue. I find therefore, that the Agency was justified in refusing, under section 36(1)(b) of the Act, access to the information and records at issue. Having found section 36(1)(b) to apply, I do not need to consider the applicability of section 36(1)(c).

Section 37 – Personal Information

The Agency redacted certain information from records 1, 4b, 5, and 8 under section 37(1) of the Act. Section 37(1) 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 personal information relating to an individual other than the requestor.

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. This includes information relating to the employment or employment history of the individual.

Certain information is excluded from the definition of personal information. Where an individual is a member of staff of an FOI body, personal information does not include the name of the individual, or information relating to the position held or its functions, or the terms upon and subject to which the individual occupies or occupied that position, or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of the functions of the position. Similarly, 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, does not comprise personal information.

The information withheld from the records at issue comprises the name of a Director of the AHB in question who was in correspondence with the Agency. In its submission to this Office, the Agency said the redacted information constituted the personal information of individuals who are not civil or public servants and are not a service provider to the Housing Agency.

As has been established already during my consideration of section 35(2), the records in question are held by the Agency in the context of its former role as interim regulator of AHBs. The records at issue were not prepared in the course of the performance by the AHB of its functions as a service provider, nor do they relate to any such service provided by an AHB for a public body. Accordingly, I am satisfied that the exclusions to the definition of personal information do not apply in this case. The disclosure of the information would involve the disclosure of information relating to the employment of the individual concerned. As such, I find section 37(1) applies to the redacted information.

Section 37(2)

Section 37(2) of the FOI Act sets out certain circumstances in which the exemption at section 37(1) does not apply.  I am satisfied that none of the circumstances in section 37(2) apply to this information. That is to say, (a) the information at issue does not relate solely to the applicant; (b) the third parties have not consented to the release of the information; (c) the information is not of a kind that is available to the general public; (d) the information does not belong to a class of information which would or might be made available to the general public; and (e) the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.

Section 37(5)

Section 37(5) of the FOI Act provides that access to personal information relating to a third party may be granted where (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. It has not been argued that releasing the information would benefit the individuals to whom it relates and I find that section 37(5)(b) does not apply in the circumstances.

In relation to the issue of the public interest, it is again relevant to note the provisions of section 11(3) of the Act which provides that in performing any functions under the Act, an FOI body must have regard to, among other things, the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. As I have indicated above, the AHB in question is not an FOI body and it is not subject to the FOI Act, nor is the FOI Act intended to open up the operations of private enterprises to scrutiny. While it seems to me that the AHB is a type of body that might be deemed capable of prescription under section 7 of the Act as a prescribed body for the purposes of the Act, the fact remains that no such bodies have been prescribed to date. Accordingly, it is not apparent to me how the release of the information at issue would serve the public interest to the extent that it would outweigh, on balance the privacy rights of the individual concerned. I find that the public interest would, on balance, be better served by withholding the name of the individual at issue. I find therefore that the Agency was justified in redacting, under section 37(1) of the Act, the personal information at issue.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Housing Agency’s decision. I find that the Agency was justified in refusing access, either in whole or in part, to the records at issue under sections 35(1)(b), 36(1)(b) and 37(1) of the FOI Act.

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