Case number: OIC-57878-J5Y8G8
7 April 2020
In 2017, the Minister for Housing, Planning and Local Government announced a number of key actions intended to progress the delivery of vacant homes back into use as soon as possible. One such initiative was the activation of a website that had been developed by the Council on behalf of the local government sector. The website (vacanthomes.ie) acts as a central portal for individuals to anonymously log possible vacant properties and alert local authorities who can then follow up with the owners to see whether the house can be re-used quickly.
In a request to the Council dated 19 August 2019, the applicant sought access to a copy of the database/spreadsheet held by the Council that is based on material gathered through the website. The Council’s decision of 13 September 2019 released a table showing the numbers and percentages of houses logged in each of the 31 local authority areas (3,105 houses in total). The applicant sought an internal review on 17 September, saying that the Council had not provided a copy of the record he had requested.
The Council’s internal review decision of 9 October 2019 affirmed its decision on the request and also sought to rely on section 30(1) of the FOI Act (functions and negotiations of an FOI body).
On 16 October 2019, the applicant applied to this Office for a review of the Council’s decision. In the course of the review, the Council provided this Office with a spreadsheet based on details submitted through the website over the period 1 July 2017 to 19 August 2019. This was done further to section 17(4) of the FOI Act which, generally speaking, requires FOI bodies to create records containing information held electronically that can be extracted using reasonable steps. The Council sought to rely on section 37 of the FOI Act (personal information) in relation to the contents of the spreadsheet.
I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out that review, I have had regard to the above exchanges and contacts between this Office, the Council and the applicant. I have also had regard to the provisions of the FOI Act.
The scope of this review is confined to whether the Council’s decision on the applicant’s request was justified under the provisions of the FOI Act.
Section 15(1)(a) – record does not exist
As set out in the Council’s internal review decision, the actual follow-up of the houses logged on the website is a matter for each individual local authority. Some individual local authorities have deleted a number of the registered properties since the applicant’s request was received. Accordingly, as the applicant knows, the spreadsheet provided by the Council to this Office during the review is not identical to that which would have been created if the Council had extracted the details from the website on receipt of the applicant’s request. It would be best practice that an FOI body would, immediately on receipt of an FOI request for access to a record such as a database or spreadsheet that is subject to regular change, “freeze” a copy of the information as it stood at that time. Unfortunately, this was not done in this case.
Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused where the record does not exist or where it cannot be found after all reasonable steps to ascertain its whereabouts have been taken. I agree with the Investigator’s view that the particular record the subject of the applicant’s request no longer exists. I find that section 15(1)(a) applies to it.
The applicant’s request does not cover the spreadsheet that was provided to this Office during the review, because it does not contain the information that it would have contained if it had been created on receipt of his request. However, it is open to the applicant to make a fresh FOI request for that record. In the interests of all involved, in my view it is appropriate to consider the Council’s reliance on section 37 of the FOI Act in relation to the contents of the spreadsheet concerned, which I have examined.
Section 37 – personal information
Section 37(1), subject to sections 37(2) and (5), requires the refusal of access to a record containing personal information. In particular, section 37(2)(c) provides that section 37(1) does not apply where information of the same kind as that contained in the record in respect of individuals generally, or a class of individuals that is, having regard to all the circumstances, of significant size, is available to the general public.
For the purposes of the FOI Act, personal information is defined as information about an identifiable individual that (a) would ordinarily be known only to the individual or members of the family, or friends, of the individual, or (b) is held by a public body on the understanding that it would be treated by it as confidential. The definition also includes a list of 14 non-exhaustive examples of what must be considered to be personal information, including (xiii) information relating to the property of the individual (including the nature of the individual’s title to any property) and (xiv) the views or opinions of another person about the individual. It has been settled by the Courts that once information falls within one of these “listed classes” in the definition, it is personal information.
The Council says that releasing the spreadsheet will disclose information that can be used to establish ownership of the properties further to searches in the land registry, planning permissions etc.
This Office’s Investigator put the applicant on notice of the potential relevance of section 37 and invited his comments. He says that property ownership is already in the public domain via the Land Registry and is accessible to anyone. He says that even if this were not the case it would be open to the Council to redact names or give a partial address for the properties.
I have examined the spreadsheet. Although those who submit details do so anonymously, I am satisfied that certain details as provided contain sufficient information for the particular informants to be identified.
In any event, the entirety of the information in the spreadsheet is concerned with identifiable properties that are alleged to be vacant. Release of such details, when combined with details of property ownership that are already in the public domain, enables one to ascertain that a particular individual’s property is alleged to be vacant and has been the subject of a report on the vacanthomes.ie website. Indeed, the spreadsheet contains names of persons said to be owners and/or former owners of some allegedly vacant properties.
I am satisfied that the spreadsheet in its entirety contains information of a type that is captured by the various examples of what comprises personal information about identifiable individuals. In the above circumstances, the question of redacting identifying information does not arise. I would also say that, in any event, I would not consider it practicable for the Council to examine over 3,000 entries with a view to identifying and redacting any specific references to third parties or parts of addresses.
If the spreadsheet were covered by the applicant’s request and this review I would find that it is exempt under section 37(1) of the FOI Act. While section 37(1) is subject to the consideration of sections 37(2) and (5), only section 37(5)(a) would have potential relevance in this case. In relation to section 37(2)(c) in particular, it is clear from my analysis above that it would not be relevant because the information in the spreadsheet differs from the kind that is already in the public domain in relation to property ownership.
Section 37(5)(a) – the public interest
Section 37(5)(a) provides that a record that is otherwise exempt under section 37(1), may be released if on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of an individual to whom the information relates should be upheld.
On the matter of where the public interest lies, I have regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner 1 I.R. 729,  IESC 26) (the Rotunda case).
It is noted that in considering the public interest tests the Commissioner may only have regard to "true public interest[s] recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law." Although these comments were made in relation to a provision other than section 37 of the FOI Act, I consider them to be relevant to consideration of public interest tests generally.
The FOI Act recognises a public interest in promoting the openness and accountability of FOI bodies. If I were considering the matter, I would accept that there is a public interest in this case in promoting openness and accountability in relation to the State’s efforts to deal with the housing crisis.
As the applicant is aware, each local authority follows up on houses within its own particular area. The details logged via the website require validation by the local authorities in the first instance. Only then are the local authorities in a position to take whatever actions they consider necessary in relation to the properties concerned. The Council says that this is an ongoing process and that it is not possible for it to state which of the houses are actually vacant. Its position is that the public interest does not weigh in favour of release of details that may not necessarily be accurate.
The applicant says that it is overwhelmingly in the public interest that details of vacant properties in the State are made public. He says that the entire idea of this website is to encourage property owners to put properties back into circulation in an attempt to deal with homelessness. He says that a strong case can be made that publication of the list under FOI will help to encourage or speed up that process.
I accept that release of the record would serve the public interest that I have identified above to some extent. However, I do not believe that it would do so to any significant extent. It is important to bear in mind that the record at issue does not disclose anything about how the Council, or indeed any other local authority, is performing its functions in relation to the provision of housing. Rather, it contains details submitted through the website by the public that require further validation and examination. Furthermore, any general interest that the public may have in the contents of the spreadsheet does not equate to there being a "true public interest" in its release. FOI is concerned with the activities of public bodies generally and is not necessarily a means by which information about individual property owners is intended to be made known to the public at large.
On the other hand, both the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy (which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution). It is also relevant that the release of a record under the FOI Act is understood, effectively, to be equivalent to its release to the world at large. In my view, the possibility that the details in the record may not be valid would add further weight to the public interest in refusing access. I am satisfied that placing the record in the public domain would breach the rights to privacy of identifiable individuals to a considerable extent. I should also say that while I recognise the importance of increasing the stock of housing in the country, I am not persuaded that releasing personal information to the world at large under FOI is an appropriate or proportional means of achieving this aim.
Having considered the matter carefully, if the record was covered by the request and this review, I would find that the public interest in favour of granting access to it does not outweigh the public interest that the right to privacy of individuals should be upheld.
Finally, I note that the Investigator also put the applicant on notice of the Commissioner’s powers under section 22(9)(a)(vii) of the FOI Act. Section 22(9)(a)(vii) provides that the Commissioner may discontinue a review if he is or becomes of the opinion that accepting the application would, by reason of the number or nature of the records concerned or the nature of the information 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 work of his Office.
It is clear that the question of discontinuance no longer arises in the circumstances of this particular review. However, for the sake of completeness, I will comment on the applicant’s view that section 22(9)(a)(vii) of the FOI Act could not be relevant in any event.
As noted above, there is a significant number of entries in the spreadsheet. The Investigator told the applicant that if the record was covered by the review, and if I formed the view that the information in it may not be exempt under section 37, or that it is so exempt but that its release may be required in the public interest, I would be obliged, in order to follow fair procedures, to consult with any individuals whose interests could be affected by such release. She said that in her view a considerable amount of work would be involved in identifying, notifying, inviting and considering submissions from the potentially affected third parties.
The applicant says that there is no obligation on the Commissioner to contact the parties in the record because ownership of the properties is already in the public domain via the Land Registry. It is clear from my analysis above that release of the record would disclose information relating to identifiable individuals that is not already in the public domain. Generally, this Office’s procedures are designed to ensure that affected parties are put on notice and allowed to be heard when issues affecting their interests arise during a review.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Council’s refusal to grant the request, although under section 15(1)(a) rather than the provisions cited in its decisions.
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.