Decision
Mr X and Sustainable Energy Authority of Ireland
From Office of the Information Commissioner (OIC)
Case number: OIC-154544-B1G0P6
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-154544-B1G0P6
Published on
Whether the SEAI was justified, under section 37(6) of the FOI Act, in refusing to confirm or deny the existence of records sought by the applicant in relation to a retrofit carried that was carried out by the SEAI on a specified property in 2022
18 November 2025
In a request dated 24 June 2024, the applicant sought access to records relating to retrofit work carried out by the SEAI in 2022 to a property that he co-owns. In a decision dated 21 October 2024, the SEAI refused the applicant’s decision, citing section 37(6) of the FOI Act to refuse to confirm or deny the existence of records relevant to his request. On 30 October 2024, the applicant sought an internal review of the SEAI’s decision. In its internal review decision of 19 November 2024, the SEAI affirmed its original decision. On 17 December 2024, the applicant applied to this Office for a review of the SEAI’s decision.
I wish to note that, in the course of conducting this review, the SEAI provided this Office with copies of relevant related correspondence it exchanged with the applicant, and I have considered same.
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 SEAI, and the comments made by the applicant in the course of correspondence he exchanged with the SEAI and in his application to this Office for a review. I have decided to conclude this review by way of a formal, binding decision.
This review is solely concerned with whether the SEAI was justified in refusing to confirm or deny the existence of records relevant to the applicant’s FOI request under section 37(6) of the FOI Act.
Before I address the substantive issues arising in this case, I would like to make some preliminary comments. Firstly, it is important to note that while I am required by section 22(10) of the FOI Act to give reasons for my decisions, this is subject to the requirement of section 25(3) that, in the course of a review, I take all reasonable precautions to prevent disclosure of information that, if it were included in a record, would cause the record to be exempt from release. Accordingly, in the analysis which follows, I must be careful not to disclose whether or not records of the type sought by the applicant exist in light of the SEAI’s reliance on the relevant refusal to confirm or deny provisions.
Secondly, it is important to note that a review by this Office is considered to be “de novo", which means that in this case, it is based on the circumstances and the law as they pertain at the time of the decision and is not confined to the basis upon which the FOI body reached its decision.
Finally, it should be noted that the FOI Act places no constraints on the uses to which the information contained in records released under the legislation may subsequently be put. Thus, the release of records under FOI is not generally considered to equate to release to any one person, but rather is generally understood to have the same effect as publishing them to the world at large.
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 personal information. This does not apply where the information involved relates to the requester (section 37(2)(a) refers). However, section 37(7) provides that, notwithstanding section 37(2)(a), an FOI body shall refuse to grant a request if access to the record concerned would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester (commonly known as joint personal information). Thus, where a record contains personal information relating to the requester which is closely intertwined with personal information relating to another party (or parties), and where it is not feasible to separate the personal information relating to the requester from that relating to the other party (or parties), it can be described as joint personal information and section 37(7) must be considered. Section 37(7) is subject to sections 37(2)(b) to (e), 37(5) and 37(8).
Section 37(6), as relied upon by the SEAI in this case, provides that where a request relates to a record that would fall to be refused under section 37(1) if it existed, and the FOI body considers that the disclosure of the existence or non-existence of a record would involve the disclosure of personal information relating to an individual or individuals other than the requester, it must refuse the request and must refuse to disclose whether or not the record exists. This provision of the FOI Act is intended to protect the personal information of a third party in situations where knowledge of the existence, or non-existence, of particular records would effectively disclose that party's personal information.
The usefulness of section 37(6) depends upon it being invoked both in instances in which relevant records do not exist as well as in cases in which relevant records do exist. To require an FOI body to disclose the non-existence of a particular record essentially negates the effectiveness of the entitlement to refuse to disclose the existence of such a record. In short, for section 37(6) to apply, the following requirements must be satisfied:
• the record sought must be of a type whose release, if it existed, would disclose personal information of a third party and would be exempt from release by virtue of section 37(1),
• none of the exceptions to the section 37(1) exemption, contained at sub-sections (2) or (5) of section 37 would apply, and
• the FOI body must be of the opinion that to state whether or not relevant records exist would, of itself, involve the disclosure of personal information of a third party.
Section 2 of the FOI Act defines personal information as information about an identifiable individual that either (a) would ordinarily be known only to the individual of his/her family or friends or (b) is held by an FOI body on the understanding that it would be treated by the body as confidential. Section 2 goes on to detail 14 specific categories of information which are included in the definition without prejudice to the generality of the forgoing definition, 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).
The applicant’s request was for details of retrofit works carried out by the SEAI on the property in question under a particular upgrade scheme (“the scheme”), including but not limited to all correspondence (letters and emails) regarding the retrofit including the application process, the contract between the relevant party and the SEAI, a statement of works and details of works carried out, the cost of the retrofit, details of any potential clawback, and any other relevant information.
In its submissions on section 37(6), the SEAI stated that, should it confirm whether or not records relevant to the applicant’s FOI request exist, this would itself disclose the personal information of another individual for the purposes of section 2 of the FOI Act. This was the case, argued the SEAI, because to confirm the existence of relevant records would be effectively to confirm to the applicant whether an individual had made an application to the SEAI under the scheme. The SEAI noted that this would reveal personal information about an individual and allow inferences to be drawn about the state of any such individual’s property and financial status. The SEAI stated that, by refusing to confirm or deny the existence of the records, it was preventing the risk of such a revelation. The SEAI stated that its intention in citing section 37(6) was to comply with a mandatory exemption under the FOI Act that is intended to give strong protections to the privacy rights of individuals.
The SEAI also noted that to confirm the existence of the records would be to disclose information relating to the individual’s financial affairs and to their property (both of which are, as outlined above, among the 14 categories of personal information set down in section 2 of the FOI Act). In particular, the SEAI stated that to confirm the existence of the records would be to disclose the fact that the applicant under the scheme met certain qualifying criteria (specifically that they are in receipt of a particular social welfare payment), that the property has received the benefit of retrofit measures, and that the property value has increased (at least to the nominal value of the measures and the subsequent improvement in the Building Energy Rating). The SEAI stated that, in reaching its decision, it had been cognisant of the fact that it was required to disregard what the applicant knows or says he knows, and that – even if one was to accept that the applicant is likely to be in a position to have a good insight into the relevant facts already – this did not mean that the information in any records that might exist would not be regarded as personal information relating to a third party for the purposes of the FOI Act.
Having considered the SEAI’s arguments, and having regard to the request made and the nature of the records sought, I am satisfied that to release the relevant records, if they exist, would involve the disclosure of personal information relating to identifiable individuals. Although I am limited in the extent to which I can discuss my reasoning by the requirements of section 25(3) of the FOI Act, I consider that I am free to outline the basis for my view as follows. Based on the information provided to me by the SEAI, and in particular in light of the nature of the scheme and the criteria by which individuals qualify to have work carried out under the scheme, it seems to me that the release of records of the kind sought by the applicant, if they exist, would reveal information relating to an individual who had made an application to the SEAI under the scheme. This information would include not only the fact of an application having been made and granted, but certain other information, which I accept is personal, that could be derived from knowledge of the fact that an individual was deemed to be eligible for works to be carried out under the scheme. It is relevant to note in this regard that in order to receive a grant, an applicant must be in receipt of a qualifying payment from the Department of Employment Affairs and Social Protection. Release of the records sought in this case, if they exist, would therefore disclose whether or not a third party other than the applicant had applied for, and/or received, a grant in respect of retrofit works on a property that the applicant co-owns, and/or that the third party was eligible for such works/grants by way of being in receipt of the relevant social welfare payment.
I also take the view that – as the applicant is the co-owner of the relevant property – that release of the records sought, if they exist, may tend to reveal joint personal information for the purposes of section 37(7) of the FOI Act.
Section 37 provides for certain circumstances where subsection (1) does not apply. Subsection (2) sets out certain circumstances in which the exemption at section 37(1) does not apply. In addition, section 37(7) is subject to section 37(2)(b) to (e), 37(5) and 37(8). I am satisfied that none of the relevant circumstances provided for in subsections (2) and (8) apply to the information concerned.
Subsection (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(s) to whom the information relates. I am satisfied that subsection (5)(b) does not apply in this case.
In considering where the balance of the public interest lies in this case, I have had regard to section 11(3) of the FOI Act which provides that in performing any functions under the legislation, 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 and “there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure”. Although the Court’s comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.
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). Unlike other public interest tests provided for in the FOI Act, there is also a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. Privacy rights will therefore be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy.
In his application to this Office for a review of the SEAI’s decision on his request, the applicant did not specifically make any arguments relating to the public interest. He stated that, as a joint owner of the relevant property, he has a material interest in a matter affected by an act of the SEAI. He argued that he had been obstructed at every juncture by the SEAI in obtaining information about the subject matter of his FOI request. He stated his belief that the SEAI had approved funding and works on the property and that, if there existed a potential clawback on the cost of the retrofit works if the property was sold, then as joint owner he had a right to know the details of this. Moreover, in the course of his correspondence with the SEAI, he indicated that he had given no permission for work to be carried out at the property which he co-owns. While I consider that the applicant has expressed what is essentially a private interest in obtaining access to the records at issue, at the same time I am satisfied that there exists a public interest in individuals such as the applicant – in other words, co-owners of property – being made aware of retrofit schemes being applied for in respect of, and works carried out on, their property and, if any such works have been carried out, whether a clawback exists (in other words, whether they as co-owners may become financially liable for the cost of any retrofit works carried out) if the property is sold. The question I must consider is whether, and the extent to which, the release of the records – if they exist – would further this public interest.
In this regard, I would first of all note that the SEAI appears to confirm in correspondence with the applicant that, in the case of joint ownership of property, one co-owner may make an application under the retrofit scheme, and the permission or consent of any other co-owner(s) is not required. It is also worth noting that, in direct correspondence with the applicant prior to the making of his FOI request, the SEAI appears to me to have confirmed that any clawback that exists in the event that the property is sold would be activated against the individual who had made an application under the retrofit scheme – that is to say, a co-owner of the property would not be liable to repay the cost of any work carried out under the retrofit scheme, if he or she had not themselves made an application to the SEAI. For the avoidance of any doubt, in the course of conducting this review I contacted the SEAI on this point and it confirmed that, in the event of the SEAI seeking to exercise a clawback of the funds expended on the retrofit works (for example, in the event of the property being sold), same would be pursued solely against the applicant under the scheme and not against (as is the case here) a co-owner of the property who did not apply under, or enter into any agreement with the SEAI pursuant to, the scheme.
On the basis of the above, my view is, firstly, that the information provided by the SEAI to the applicant relating to the operation of the grant scheme goes a considerable distance in satisfying the public interest I have identified, and it is not clear to me that that the release of the records, if they exist, would serve to further enhance this public interest to any real degree. Furthermore, in circumstances where it has been confirmed that any clawback is only pursuable against an applicant under the scheme (and not a co-owner of the property who has had no engagement with the SEAI), I take the view that the strength of the public interest argument in favour of releasing the records, if they exist, is lessened considerably.
Furthermore, as referenced above, it is also important to note that the release of information under FOI is, in effect, regarded as release to the world at large as the FOI Act does not make any provision for restricting the use of information released pursuant to an FOI request. As such, any benefit to the public interest that I have identified above must be balanced against the privacy rights of the individuals concerned, which rights are afforded significant protection under the FOI Act. Having regard to the specific nature of the applicant’s request, this is not a case where records can be released whilst protecting privacy rights, if such records exist. Rather, release of such records would necessarily disclose personal information relating to an identifiable individual. In the circumstances, I am satisfied that the public interest in granting the request would not, on balance, outweigh the privacy rights of the individuals whose personal information would be disclosed.
I therefore find that the records sought are of a type whose release, if they exist, would involve the disclose of personal information of third parties and would be exempt from release by virtue of section 37(1). Moreover, in relation to section 37(7), I am satisfied that none of the other subsections of section 37 to which section 37(7) is subject – in other words, subsections 2(b) to (e) and 8 – would operate to disapply that provision of the FOI Act. In other words, to the extent that the records, if they exist, might be said to contain joint personal information of the applicant and any other individual(s), that information would also be exempt from release by virtue of section 37(7).
The final issue I must consider is whether the disclosure of whether or not relevant records exist would, of itself, disclose personal information relating to third parties. Having regard to the wording of the applicant’s request and the nature of the records sought in this case, I am satisfied that it would. I find, therefore, that the SEAI was justified in refusing the request under section 37(6) of the FOI Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the SEAI’s decision. I find that the SEAI was justified, under section 37(6) of the FOI Act, in refusing to confirm or deny the existence of the records sought by the applicant.
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.
Neill Dougan
Investigator