Whether the Council was justified in refusing access to certain information relating to the applicant’s engagement with the Council in connection with their accommodation needs under sections 15(1)(a) and 31(1)(a) of the FOI Act
18 December 2019
In a detailed 10 part request dated 15 March 2019, the applicants submitted a request to the Council, through their legal representatives, for access to a wide range of records and information relating to their application for housing supports and more generally relating to the provision of housing, including emergency accommodation, in a specified area of Cork. They also sought statements of reasons relating to their housing situation. The application for statements of reasons is being considered in a separate review by this Office and does not form part of this review.
In a decision dated 15 April 2019, the Council identified 39 records as relevant to the request, of which 36 were released in full and three were withheld in part under section 31(1)(a) of the FOI Act on the basis that the withheld parts are protected by legal professional privilege. The Council refused some parts of the request under section 15(1)(a) of the FOI Act on the basis that no relevant records exist or could be found. It also provided certain information in response to a number of other parts.
On 25 April 2019, the applicants sought an internal review of that decision, following which the Council affirmed its decision. On 23 July 2019, the applicants sought a review by this Office of the Council’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 correspondence between the applicants and the Council as set out above and to the correspondence between this Office and both the applicants and the Council on the matter. I have also examined the records at issue and had regard to the nature and contents of the records concerned. 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 Council when processing the request.
Scope of Review
This review is concerned solely with the question of whether the Council was justified in refusing certain parts of the request under sections 15(1)(a) and 31(1)(a).
In their correspondence with this Office, the applicants expressed concerns about the alleged lack of clarity provided by the Council in relation to their accommodation needs. They stated that the purpose of their request was to obtain clarification as to the level of priority being afforded to their housing application and as to the efforts being made by the Council to secure emergency accommodation in the area specified. I would like to make two preliminary comments on that point.
Firstly, section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that this Office cannot have regard to the applicants’ motives for seeking access to the information in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest (not relevant in this case).
Secondly, while the purpose of the Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from a public body must make a request for records that contain the information sought. Requests for information or for answers to questions, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information or for an answer to a question can reasonably be inferred to be a request for a record containing the information or answer sought.
Furthermore, the Act does not require public bodies to create records if none exist, apart from a specific requirement, under section 17(4), to extract records or existing information held on electronic devices. If the body does not hold a record containing the information sought and cannot search for and extract the electronically held records by taking reasonable steps, then that is the end of the matter.
Finally, I note that the applicants requested this Office to investigate, among other things, the manner in which the Council’s allocations policy is being applied to their housing application. This Office has no role in examining how public bodies carry out their administrative functions. Our role is limited to considering the appropriateness of the decision taken on the relevant FOI request.
Analysis and Findings
Section 31(1)(a) - Legal Professional Privilege
The Council refused access to parts of records 8, 12, and 15 under section 31(1)(a). That section provides for the mandatory refusal of a request if the record concerned would be exempt from production in proceedings in a court on the ground of legal professional privilege. Legal professional privilege enables the client to maintain the confidentiality of two types of communication:
• confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege), and
• confidential communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation (litigation privilege).
The relevant parts of the three records that have been withheld comprise emails Council staff received from the Council’s Senior Executive Solicitor. Two attachments to record 8 have also been withheld.
This Office accepts that, provided the ingredients of the relevant type of privilege are present in any given case, the fact that the professional legal adviser concerned is employed as an in-house legal adviser does not prevent the client from being able to assert privilege over the communications at issue. It also accepts that privilege attaches to records that form part of a continuum of correspondence that results from the original request for advice. Having examined the relevant parts of the records in question, I am satisfied that they attract legal professional privilege and that section 31(1)(a) applies.
The first attachment to record 8 comprises legal advice the Council received from a barrister. I am satisfied that section 31(1)(a) applies to that attachment. The second attachment is a related fee note issued by the barrister. In my view, the attachment is not captured by the scope of the original request and need not be considered for release. The fee note is of no relevance to the level of priority being afforded to the relevant housing application or to the efforts being made by the Council to secure emergency accommodation in the area specified.
The Council refused some parts of the request on the grounds that section 15(1)(a) applies. Section 15(1)(a) of the FOI Act provides that a request for access to records may be refused if the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. My role in such cases is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his or her decision. The evidence in "search" cases consists of the steps actually taken to search for the records, along with miscellaneous other evidence about the record management practices of the public body, on the basis of which the public body concluded that the steps taken to search for the records were reasonable.
I should say at this stage that while some parts of the applicants’ request were for certain records, other parts were requests for certain information. In their application for review, the applicants suggested that if no records exist in respect of certain parts of their request, the Council should nevertheless provide the information sought
As I have outlined above, the Council is not required to provide responses to requests for information if such information is not contained within records it holds or to create records to provide such information. It is also relevant to note that a request under the Act for access to a record must contain sufficient particulars in relation to the information concerned to enable the record sought to be identified by the taking of reasonable steps (section 12(1)(b) refers).
According to the Council, it identified and made a decision on all relevant records it identified as coming within the scope of the request. It said its procedure is to keep all information relating to housing applications on one file and that all information and correspondence is attached to that file. It said that relevant personnel were asked if they had any separate records relating to the request and searches were carried out on the email accounts of relevant personnel for any records relating to the applicants. In relation to requests for records on certain aspects of Council policy, the Council said that no written records exist. It said that a limited number of people dealt with these matters and they all knew how the arrangements worked. It said that some of the information provided was based on telephone communications for which no written records existed.
Among other things, the Council refused access to records of its communications with a named facility regarding its suitability for emergency accommodation under section 15(1)(a). In their application for internal review, the applicants argued that the Council had confirmed that the facility had previously accommodated homeless families and that one of the records released suggests that some communication took place with the facility regarding the applicants. In their application for review to this Office, they alleged that legal representatives of the facility had written to the Council on at least one occasion in relation to its suitability for the provision of homeless accommodation.
In its internal review decision, the Council stated that the communication was by telephone only and that no written record of that communication exists. It stated that no communication has ever been undertaken regarding the suitability of the facility for emergency accommodation. The applicants have not presented any evidence to suggest that this was not the case.
The applicants also took issue with the Council’s reliance on section 15(1)(a) to refuse that part of their request seeking details of whether it had ever placed or paid for emergency accommodation for homeless persons in any other short term accommodation provider in the named area from 2015 to the date of their request. However, I note from the Council’s internal review decision that it confirmed that no other emergency accommodation had ever been sourced in the area in question. The applicants have not presented any evidence to suggest that this was not the case.
On the matter of the absence of records relating to the position of the applicants on the housing list, how that position was assigned, or to the number of applications prioritised above or below them, I note that the Council explained that it had provided the applicants with a copy of its allocations scheme which provides information on how applicants qualify for social housing support and the priority their basis of need gives them. The Council also stated that it does not operate a numerical type positioning of applicants on a housing list.
While I can appreciate that such a procedure may make it difficult for housing applicants to make informed judgements as to the fairness of their treatment compared with others, this Office has no role in examining the manner in which the Council performs its administrative functions relating to the provision of accommodation.
On the matter of the absence of records relating to the arrangements the Council put in place to provide homeless persons in the named area with emergency accommodation, I note that the Council explained in its decision letter that it does not make such arrangements, that persons seeking emergency accommodation source the accommodation themselves, and that payment for same is made by the local community welfare officer and/or the Council. In its internal review decision, it stated that this procedure has been in place since at least 2011 and was agreed between the then Department of Social Welfare and the Council. It stated that no written records exist. In its submission to this Office, the Council stated that the arrangement was in place until very recently, that there was a limited number of staff who dealt with homeless persons within the divisions and that they all knew how the arrangement worked.
The applicants also sought details of the number of houses in the named area owned by the Council that were offered for letting to housing applicants from September 2018 to the date of their request, whether the (housing) applicant to whom the house was offered had had expressed an interest in the property through the choice based letting system operated by the Council, and what category of priority each applicant had pursuant to the scheme of letting priorities.
The Council’s decision indicated that there were two properties and that the basis of need was “homeless” and referred to the Housing Allocation Scheme, but did not provide information or records as to how the allocation of the properties was processed. In its internal review decision, it stated that it could not provide any additional information without identifying the families involved. The Council informed this Office that the information provided was extracted from the Council’s database, and that any records relating to the allocation of the particular properties would identify the families involved and would disclose personal information of persons other than the applicants.
In their application for review, the applicants did not accept that the provision of the information sought would lead to the identification of third parties and went on to state that no identifying data was sought in relation to the houses owned by the Council or the (housing) applicants to whom they were offered. During the course of the review, the Council was asked to provide clarification as to whether the two properties were offered via the choice based letting system.
The Council informed this Office that one of the properties was not offered via the choice based letting system; that the Housing Officer would have obtained a list of all housing applicants for that particular property type/size and made their recommendation based on the circumstances of those applicants. The second property was advertised on the choice based letting system and the Housing Officer would have obtained a list of all those who had expressed an interest in the property via this system and made their recommendation based on the circumstances of these (housing) applicants. The Council also stated that the applicants were not approved for the property type/size of the first property, and did not express an interest in the second property, and so would not have been considered.
The Council stated that any records held on the process of housing allocations contain sensitive personal information on the families who were allocated the properties, those who applied for housing in the named area, and those who expressed an interest in properties advertised on the choice based letting system. In the circumstances, where the information sought has now been provided and where the applicants have indicated that they are not seeking identifying information, I am satisfied that these records are outside the scope of the review and it is not necessary for me to examine and make a determination on the applicability of any exemption to these records.
In conclusion, therefore, having regard to the nature of the searches conducted by the Council for relevant records and to the explanations provided for the absence of certain records, I am satisfied that the Council has taken all reasonable steps in an effort to locate all relevant records. I find, therefore, that the Council was justified in refusing access to any further records under section 15(1)(a).
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby
affirm the decision of the Council and find that section 31(1)(a) applies to parts of records 8, 12 and 15 and that the Council was justified in refusing access to further relevant records under section 15(1)(a) n the ground that no such records exist.
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.