Decision
Ms. X and Cork City Council
From Office of the Information Commissioner (OIC)
Case number: OIC-143657-F2W0J2
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-143657-F2W0J2
Published on
Whether the Council was justified in refusing, under section 15(1)(a) of the FOI Act, the applicant’s request for a copy of the BER input report on the property in which she is a Council tenant, on the ground that it does not hold the record sought
3 July 2024
A Building Energy Rating (BER) assessment is carried out by an Independent Registered Assessor. The Sustainable Energy Authority Ireland (SEAI) administers the BER system in accordance with the European Union (Energy Performance of Buildings) Regulations 2012 (the 2012 Regulations). Its statutory functions include registering BER Assessors to carry out BER Assessments, issuing directions in relation to how BER assessments are to be carried out by BER Assessors and how BER certificates are to be issued, and maintaining the national BER register and BER assessor register.
On 11 September 2023, the applicant made, through her representatives, the following request for records to the Council:
1. The BER input report for a number of identified residential properties. The applicant provided details of the BER Assessor who carried out the assessment.
2. Records of the specification, insulation values, construction details and BER reports of certain specified properties (a) as designed, and (b) as built, including as built drawings and reports.
3. Any other record of the specification, insulation values, construction details and BER reports of the windows and external doors of certain identified properties (a) as designed, and (b) as built, including as built drawings and reports, manufacturer/supplier certificates/invoices/delivery dockets
All references to communications with the applicant throughout this decision refer to communications with the applicant or her representatives as appropriate.
In a decision dated 29 September 2023, the Council provided copies of the BER Certificate and BER Advisory Report for one of the identified properties of which the applicant is a tenant and refused the remainder of the request under section 15(1)(a) of the FOI Act, on the ground that it does not hold the records sought.
On 9 October 2023, the applicant sought an internal review of that decision. The applicant argued that the records sought are under the control of the Council as the Council owns the properties in question. She provided details of a conversation she had with the SEAI wherein the SEAI indicated that it was open to the property owner to request “a full Dwelling report or the XML file”. The applicant said she understood the technical term for the BER input report to be the “XML file”.
On 1 November 2023, the Council issued its internal review decision wherein it affirmed its refusal of the request under section 15(1)(a) of the FOI Act. In relation to parts 2 and 3 of the request, it also refused access to any relevant records that would have been provided by the developer of the properties as part of the planning process under section 15(1)(d) of the Act (information already in the public domain). It also cited section 37(1) of the Act as a ground for refusal of records on the ground that access to the records would involve the disclosure of third party personal information.
On 7 November 2023, the applicant applied to this Office for a review of the Council’s decision to refuse access, under section 15(1)(a) of the FOI Act, to the BER detailed input file (the XML file) for the property of which she is a tenant.
During the course of this review, the Investigating Officer requested submissions from the Council and subsequently provided the applicant with details of those submissions wherein it set out its reasons for refusing access to the record under section 15(1)(a) of the FOI Act. The Investigating Officer invited the applicant to make further submissions on the matter. The applicant provided additional submissions, stating that she was of the view that the record, while not in the physical possession of the Council, is held by the Council for the purposes of the FOI Act.
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 during the course of this review and to the submissions made by the Council in support of its decision. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether the Council was justified in refusing access, under section 15(1)(a) of the FOI Act, to the XML File (BER detailed input file) for the property in which she is a Council tenant, on the basis that it does not hold the record in question.
Before I address the substantive issue in this case, I wish to make a couple of preliminary comments.
In her correspondence with this Office, the applicant raised a number of concerns regarding the Council’s obligations under contract regarding tenants of Council properties. It is important to note that this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies. The remit of this Office is solely concerned with a review of the decision taken by the FOI body on the FOI request and the scope of the review in this case is as I have described above.
Secondly, it is important to note that section 13(4) of the FOI 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 applicant’s 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 or release of the information where the Act requires a consideration of the public interest (not relevant in this case).
Section 15(1)(a) of the Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The role of this Office in a case such as this 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/her decision and also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.
The evidence in “search” cases generally consists of the steps actually taken to search for the records along with miscellaneous and other information about the record management practices of the FOI body, insofar as those practices relate to the records in question. It is important to note that the FOI Act is concerned with access to records that a public body holds as opposed to records that a requester considers ought to exist.
As outlined above, the Council provided this Office with details of its reasons for concluding that the record sought does not exist, details of which were provided to the applicant. While I do not propose to repeat those details in full here, I confirm that I have had regard to them for the purpose of this review.
In its submissions to this Office, the Council stated that the applicant’s request was sent to the Housing Directorate, as the Housing Capital Section within the Directorate deals with the construction of local authority houses and acquisitions of properties for social housing.
The Council said that for all housing acquisitions, a temporary paper and electronic file is set up initially to record data such as valuations, BER certificates and any correspondence with potential vendors. It said that once an acquisition has gone sale agreed, a unique file reference number is assigned to the property, which is generated through the Council’s Acquisitions Database in Microsoft Access. The Council said this number is then used to create a permanent paper and electronic file within the Housing Capital Network. The Council said that when a search is conducted for a housing acquisition file, the Microsoft Access database is accessed to retrieve the file number using the address of the property for the search. Once the file number has been identified, both the electronic file on the Network and the paper file are accessed. The Council said that on receipt of the applicant’s request, the Programme Manager of Affordable Housing Delivery searched the Acquisitions Database using the address to retrieve the file number. It said that once the file number was identified, searches were then carried out of the paper and electronic files to identify the record sought. It said no records relevant to the applicant’s request were found.
The Council said that as part of the search process, it requested the Legal Affairs Section to search its files for the relevant property to ascertain whether the BER input report may have been included during the conveyancing. It said that following a search of both its paper and electronic files, the Legal Affairs Section confirmed that as part of the conveyancing, the Council requested a copy of the BER certificate which was on file and was provided to the applicant even though the record was not requested by the applicant. It said the BER input report was not on the conveyancing file.
The Council said it did not build, nor was it involved in any way with the construction of, any of the properties referred to by the applicant in her request. It said that these properties were built by a third party following a grant of planning permission. It said that, as part of the conveyancing of these properties, the Council requested a copy of the BER certificate. It said it did not seek the relevant BER input report. It said it does not hold the BER input report. It said this report may be held by the vendor, the vendor’s solicitor and the SEAI. It said the SEAI is not a service provider to the Council and is a separate FOI body. It added that the BER Assessor is not a service provider for the Council, and that it did not engage the services of the relevant assessor to provide a service for the Council. The Council said it assumed that the Assessor would have been commissioned and paid by a third part (the vendor) for the purposes of selling the property.
The applicant argued that that the SEAI was a service provider, and that there was a contract between the SEAI and the Council by administrative arrangement. She said section 2(5) of the FOI Act provides that a reference to records held by an FOI body includes a reference to records under the control of that body. The applicant said the Council knows or was informed that such a record or copy of such a record was and is held by the SEAI and by others including the Assessor who carried out the BER Assessment. The applicant said it is not correct for the Council to claim that it does not know where the record is located or that the record concerned does not exist or cannot be found, albeit not currently in its possession. The applicant said the Council was informed and is aware that it is entitled to obtain a copy of the BER input report from the SEAI by simple request.
The applicant added that the Council is not obliged to make an FOI request to the SEAI to obtain the BER input report. She said that SEAI is obliged to furnish a copy of the report to the Council, as the Council owns the property. She said this is an administrative arrangement between the Council and SEAI. She said the report is therefore directly or indirectly under the control of the Council and should have been furnished to the applicant as part of her FOI request. She said the Council’s responsibility to make all reasonable searches to determine if it has a requested record within its possession or control includes an obligation to establish if any other FOI body holds the record sought, particularly any other FOI body it knows has possession of the record.
The FOI Act provides for a right of access to records held by an FOI body. Having regard to the details of the Council’s submissions, I accept that the Council does not physically hold a copy of the BER input report sought in this case. Indeed, the applicant appears to accept this to be the case. However, the Act contains a number of provisions which extend the right of access to certain records not physically held by an FOI body.
First, section 2(5) of the Act provides that a reference to records held by an FOI body includes a reference to records under the control of that body. Secondly, section 11(9) of the Act provides that a record in the possession of a service provider shall, if and in so far as it relates to the service, be deemed for the purposes of this Act to be held by the FOI body, and there shall be deemed to be included in the contract for the service a provision that the service provider shall, if so requested by the FOI body for the purposes of this Act, give the record to the FOI body for retention by it for such period as is reasonable in the particular circumstances.
Section 2(5)
The applicant’s argument is that the BER input report, while held by other parties, is under the control of the Council, as the relevant property owner. The FOI Act does not define when a record might be deemed to be under the control if an FOI body for the purposes of the Act. In considering when records can be deemed to be under the control of an FOI body, this Office is of the view that it may have regard to matters such as the relationship between the parties and any legal rights that a party seeking to assert control over the records might have. The High Court has previously considered the issue of control in the case of The Minister for Enterprise, Trade and Employment vs the Information Commissioner [2006] IEHC 39, and in the case of Westwood Club v Information Commissioner and Anor [2013 No. 175 MCA]. These judgments set out various non-exhaustive matters to consider when considering if an entity is controlled by a public body, such as which party has day to day operation of the relevant functions; which party has real strategic control; and the extent of the financial nexus between the parties. It is worth noting, however, that in both cases, the Court approached the question of whether the records at issue were under the control of the FOI bodies in question by considering whether the entities that physically held the records were under the control of the FOI bodies. It is not the applicant’s argument in this case that the SEAI or the relevant BER assessor is under the control of the Council. Rather, her argument is, in essence, that the BER input report is under the control of the Council as it has an entitlement to receive a copy of the report.
The SEAI is governed by the European Union (Energy Performance of Buildings) Regulations 2012 (the 2012 Regulations).
As I understand it, the record sought in this case is described in the 2012 Regulations as a “BER data file”. Regulation 3(1) defines “BER data files” as follows:
“an electronic file which contains a report on the outcome of a BER assessment of a building in a form approved by the Issuing Authority, which is completed by a BER assessor and provided to the Issuing Authority for the purpose of notifying it of the record to be made or updated on the BER register in respect of that particular building, and shall be deemed to include any calculations and related data or documents accompanying that report.”
Regulation 22(2) provides that
“A BER assessor, upon completion of a BER assessment, or a DEC assessor, upon completion of a DEC assessment, shall submit to the Issuing Authority the related BER data file, or DEC data file, completed by him or her and associated data and any other documents specified by the Issuing Authority and in a manner specified by the Issuing Authority.”
Regulation 27(1)(b) provides that the SEAI shall establish, operate, and maintain a BER register comprising BER certificates, provisional BER certificates, advisory reports, BER data files and related data or documents Regulation 24(4) provides for the following access rights in relation to the register:
(a) extracts from the register of BER assessors, comprising the name of each current BER assessor, the name of his or her employer (if any), place of business, contact details, and the designated classes of buildings to which his or her BER registration applies, shall be open to public inspection on the internet or, during normal office hours, at the offices of the Issuing Authority;
(b) extracts from the BER register, comprising BER certificates, provisional BER certificates where applicable, and accompanying advisory reports, shall be open to public inspection on a restricted basis on the internet or, during normal office hours, at the offices of the Issuing Authority;
(c) other than provided for in subparagraphs (a) and (b), a data file or other extract from a register relating to a BER assessment for a particular building shall normally only be made available to—
(i) the BER assessor that carried out the relevant BER assessment, or his or her then employer,
(ii) a BER assessor undertaking any subsequent BER assessment of the relevant building, or his or her employer, or
(iii) the relevant owner of the building, or an agent acting on behalf of the owner, via a BER assessor;
It is apparent from the Regulations that a date file, such as is sought by the applicant in this case, shall normally only be made available to the relevant owner of the building through a BER assessor. As such, as the owner of the property in question, I accept that it is open to the Council to obtain a copy of the record sought in this case. The question I must consider, however, is whether this entitlement to obtain a copy of the record means that the record must be deemed to be under the control of the Council for the purposes of the FOI Act. In my view, it does not.
The Oxford English Dictionary defines "control" as the "power to direct; command". Black's Law Dictionary defines "control" as meaning "the power or authority to manage direct superintend, restrict, regulate, administer or oversee." While these definitions are broad in scope, it seems to me that they support a finding that having a right of access to a record is not the same as having control of that record. As I have outlined above, in considering when records can be deemed to be under the control of an FOI body, this Office takes the view that it may have regard to matters such as the relationship between the parties and any legal rights that a party seeking to assert control over the records might have.
It seems to me that the purpose of section 2(5) of the Act is to ensure that records that might ordinarily be held by an FOI body in connection with the performance of its functions do not inappropriately fall outside the scope of the FOI solely on the basis that the FOI body does not have physical possession of the records. The record at issue in this case is not, in my view, such a record. SEAI is a body that is entirely independent of the Council and has direct responsibility for administering the BER system. As such, apart from the right to obtain copies of data files where it owns relevant buildings, the Council has no authority to exercise any aspect of control over such records that are held by the SEAI. For example, it cannot determine how and when such records must be created, held, used, or disposed of. It is entirely a matter for the SEAI, in accordance with the 2012 Regulations, to determine such matters. I find, therefore, that the record sought in this case is not under the control of the Council for the purposes of section 2(5).
Section 11(9)
As I have outlined above, section 11(9) provides that a record in the possession of a service provider for an FOI body, and that relates to the service provided, is deemed to be held by the FOI body for the purposes of the FOI Act. The applicant’s argument is that the SEAI is obliged to furnish a copy of the relevant data file to the Council as owner of the property and that this obligation creates, in effect, a contract in the form of an administrative arrangement between each property owner and the SEAI.
“Service Provider” is defined in section 2(1) of the Act 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 SEAI is not a service provider for the Council for the purposes of the FOI Act. Apart from the fact that the SEAI is an FOI body in its own right, at no stage was it providing a service for the Council in this case under a contract for services. The fact that it may have a statutory obligation to provide a copy of a record to the Council in accordance with the 2012 Regulations does not mean that it is providing a service for the Council in respect of that record.
Record held by the BER Assessor
For the avoidance of doubt, I find that any copies of the relevant record that might be also held by the relevant BER Assessor are not under the control of the Council, nor did the BER Assessor provide a service for the Council under a contract for services. As outlined above, the Council did not engage the services of the Assessor. It said it assumed that the Assessor would have been commissioned and paid by a third party for the purposes of selling the property.
All Reasonable Steps
As I have outlined above, section 15(1)(a) of the Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. Having regard to my finding that the record sought in this case is held by the SEAI, is not under the control of the Council, and is not held by a service provider for the Council, I am satisfied that the requirement to take all reasonable steps did not include an obligation on the Council to procure a copy of the record form the SEAI in order to grant the request.
In conclusion, therefore, having regard to my findings as to the applicability of sections 2(5) and 11(9) as outlined above and to the details of the Council’s reasons for refusing the request under section 15(1)(a) as set out in its submissions, I find that the Council was justified in refusing, under section 15(1)(a) of the Act, the applicant’s request for the XML File (BER detailed input file) for the property in which she is a Council tenant, on the basis that it does not hold the record in question.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Council’s decision to refuse, under section 15(1)(a) of the Act, the applicant’s request for the XML File (BER detailed input file) for the property in which she is a Council tenant, on the basis that it does not hold the record in question.
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