Decision
Ms. X & Housing Agency
From Office of the Information Commissioner (OIC)
Case number: OIC-156452-K9Z8P0
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-156452-K9Z8P0
Published on
Whether the Housing Agency was justified under sections 15(1)(a), 32(1)(b) and 37(1) of the FOI Act in refusing access to records relating to applications made to it by the applicant under statutory schemes for financial assistance available to homeowners affected by the Irish defective block crisis
2 April 2026
By way of context, the applicant is a homeowner whose property has been affected by the well-publicised Irish defective block crisis, relating to homes which have been damaged by the use of defective concrete blocks during their construction. As part of the government response to the crisis, and by way of the Remediation of Dwellings Damaged by the Use of Defective Concrete Blocks Act 2022 (“the 2022 Act”), the Defective Concrete Blocks Scheme was established, under which affected homeowners can apply for financial support. This scheme was subsequently replaced by the Enhanced Defective Concrete Blocks Scheme, which provides for a broader and more comprehensive suite of remedial measures for affected homeowners. While it is not necessary here to go into the detail of either scheme (referred to hereinafter as “the redress schemes”), I note that the Housing Agency acts as agent to local authorities and has two main functions in relation to the current scheme: firstly, to determine whether or not a home meets the damage threshold for entry into the redress schemes, and secondly, to determine the appropriate remediation option and grant amount. For this purpose, the 2022 Act requires the Housing Agency to arrange for an engineer to assess relevant properties and make a report. The applicant has made an application to the Housing Agency under the redress schemes.
In a request dated 12 November 2024, the applicant sought access to records relating to the Housing Agency’s consideration of, and decision on, her application under the redress schemes, as well as all relevant correspondence between the Housing Agency and Donegal County Council.
In a decision dated 11 December 2024, the Housing Agency part-granted the applicant’s request. It identified 48 records as relevant to the request, of which it fully released 32, partially withheld 13 and fully withheld three, pursuant to sections 29(1) and 30(1)(a), 32(1)(b) and 37(1) of the FOI Act. On 9 January 2025, the applicant sought an internal review of the Housing Agency’s initial decision.
In its internal review decision of 31 January 2025, the Housing Agency varied its initial decision, releasing in full two records (records 28 and 29) that it had initially withheld and affirming its decision to withhold the remainder of the records at issue. It should be noted that the Housing Agency no longer sought to rely on sections 29(1) or 30(1)(a) of the FOI Act at internal review stage. On 27 June 2025, the applicant applied to this Office for a review of the Housing Agency’s decision.
I note that, in her request for an internal review of the Housing Agency’s original decision, the applicant specified 16 records in respect of which she wished to appeal, namely records 1, 10, 11, 13, 14, 15, 16, 39, 40, 41, 42 and 45, as well as records 28 and 29 which were subsequently released to her by the Housing Agency. However, its internal review decision, in addition to indicating that it would release records 28 and 29 in full, the Housing Agency stated that the applicant was appealing its decision in respect of only 10 other records, namely records 15, 16, 28, 29, 39, 40, 41, 42, 45 and 46. In other words, the Housing Agency did not appear to regard the applicant as having appealed its original decision in respect of records 1, 10, 11, 13, 14 and 37. This appeared to me to be a mis-reading of the applicant’s request for an internal review, and in subsequent correspondence from the applicant, she confirmed that it had been her intention to seek an internal review of the Housing Agency’s decision on all 16 records (including records 28 and 29), as referenced in her internal review request, that had been wholly or partly withheld. I contacted the Housing Agency to advise that this was the case and to request that it confirm its position in relation to the remaining records. The Housing Agency subsequently confirmed that it continued to regard the remaining records at issue – that is, records 1, 10, 11, 13, 14 and 37 – as being partly exempt from release under section 37(1) of the FOI Act. The applicant was subsequently put on notice of the Housing Agency’s position in this regard and made further submissions on this point.
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 Housing Agency as well as the applicant’s comments in her application for review. I have also had regard to the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision.
As noted above, records 28 and 29 were released to the applicant in full at internal review stage. I also note that record 46 does not appear to me to be concerned with the subject matter of the applicant’s FOI request. This record comprises an email from the Housing Agency to a relevant contractor requesting that it carry out searches for records relevant to the applicant’s FOI request. This concerns the manner of the Housing Agency’s response to the FOI request and does not engage the subject of the request itself – in other words, it does not relate to the Housing Agency’s decision on the applicant’s application under the redress schemes. Accordingly, I am satisfied that record 46 can be removed from the scope of this review.
I note that, in her initial FOI request, the applicant also sought access to certain audio recordings. In response, the Housing Agency stated that no such recordings exist. I followed up with the applicant on this point and she accepted the position of the Housing Agency. Accordingly, this review will not examine the issue of access to records in the form of audio recordings.
In light of the above, this review is solely concerned with whether the Housing Agency was justified, under sections 37(1) and 32(1)(b) of the FOI Act, in refusing access in whole or part to the remaining 13 records at issue.
Before I outline my analysis and findings in this matter, there are a number of preliminary points I wish to make. Firstly, I wish to highlight section 22(12)(b) of the FOI Act which, as the Housing Agency is aware, provides that a decision to refuse to grant an FOI request shall be presumed not to have been justified unless the FOI body satisfies the Information Commissioner that the decision was justified. This means that the onus is on the Housing Agency of satisfying this Office that its decision to refuse the request was justified in this case. In the case of The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (“the Enet case”), the Supreme Court found that the head of the FOI body dealing with the request must be conscious at all stages of the process that the overriding presumption is one of disclosure, with the result that any refusal to disclose must be fully reasoned and sufficiently coherent, fact specific, and logically connected to the document or record such that the justification is sufficient.
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.
Furthermore, it should be noted that section 13(4) of the FOI Act provides that, subject to the legislation, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. Thus, while certain provisions of the FOI Act implicitly render the motive of the requester relevant, as a general rule, the actual or perceived reasons for a request must be disregarded in deciding whether to grant or refuse an access request under the FOI Act.
I also wish to note that this Office has no role in adjudicating on how FOI bodies perform their functions generally, nor to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies. Our role in this case is confined to reviewing the Housing Agency’s decision regarding access to the records at issue.
Moreover, it should be noted that the release of records under the FOI Act must be regarded, in effect, as release to the world at large, given that the legislation places no constraints on the uses to which a record released under FOI can be put. With certain limited exceptions provided for in the legislation which are not relevant here, FOI is not about granting access to information to particular individuals only and, as noted above, a requester's reasons for making a request are generally not of relevance. Thus, records are not released under FOI for any limited or restricted purpose.
Finally, it is important to note that, although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent the disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of certain relevant records is limited.
The records at issue
As noted above, there are 13 records at issue in this review. The Housing Agency refused access in part under section 37(1) of the FOI Act to records 1, 10, 11, 13, 14, 15, 16 and 37. It relied on section 32(1)(b) of the FOI Act to partly withhold access to records 39, 40, 41 and 45. The Housing Agency withheld record 42 in full, and while it did so under sections 29(1) and 30(1)(a) in its original decision on the FOI request, it relied instead on section 32(1)(b) to withhold this record in its internal review decision.
Bearing in mind the requirements of section 25(3), the records which are the subject of this review can be described as follows:
Records 1, 10, 14, 15, 16 and 37 are spreadsheets showing lists of properties affected by defective blocks and containing identifying information relating to applicants such as names, addresses, telephone numbers and application reference numbers. Of these, record 10 also contains information on whether applications under the redress schemes have met the threshold for remediation, record 15 contains information on which remediation option has been recommended by engineers engaged in the process, and record 37 contains information relating to the relevant remediation option and the amount payable by way of remediation.
*Records 11 and 13 are maps of parts of County Donegal showing the sites at which various houses affected by defective blocks are located.
*Records 39, 40 and 41 consist of email correspondence between the Housing Agency and a consulting engineer, dated between 22 and 24 May 2024, in relation to the applicant’s application under the redress schemes.
*Record 42 is a thread of internal Housing Agency email correspondence dated between 24 and 27 May 2024 in relation to the applicant’s application under the redress schemes.
*Record 45 is a thread of internal Housing Agency email correspondence, dated between 29 and 31 October 2024, and incorporating an email to the Housing Agency from the applicant.
It should be noted that, in relation to records 1, 10, 11, 13, 14, 15, 16 and 37, only one entry in each list (or on each map) relates to the applicant’s application under the redress schemes or to her property. The other entries in the lists (or on the maps) relate to the applications and/or properties of other homeowners.
Section 37(1)
Section 37(1) provides that, subject to the other provisions of the section, an FOI body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information relating to third parties. The effect of section 37 is that, generally speaking, access to a record shall be refused if it would involve the disclosure of personal information relating to individual(s) other than the requester, unless one of the other relevant provisions of section 37 applies.
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 or to members of his/her family or to his/her friends, or (b) is held by an FOI body on the understanding that it would be treated by the FOI body as confidential. Furthermore, the FOI Act details 14 specific categories of information that is personal, without prejudice to the generality of the foregoing definition.
In addition, Paragraph (I) of section 2 of the FOI Act excludes certain information from the definition of personal information, including "... in a case where the individual holds or held office as a director, or occupies or occupied a position as a member of the staff, of a public body, the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or 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 aforesaid ...". Similar information is excluded in the case of service providers under Paragraph (II) of section 2.
In her request to the Housing Agency for an internal review of its original decision, the applicant addressed the Housing Agency’s reliance on section 37(1), stating that, while she accepted that personal information relating to third parties could be withheld, the redactions applied to the records were excessive. She stated that the redactions under section 37(1) “…should not extend to information related to my application, which I am entitled to access”.
In its submissions regarding section 37(1), the Housing Agency stated that records to which section 37 had been applied contained the personal information of other applicants under the redress schemes, and in particular their names, reference numbers and geographical locations. The Housing Agency stated that all such redacted material comes within the definition of personal information, as it could be used to identify the individuals to whom it relates, and does not pertain to the applicant.
Having viewed the unredacted records, I consider that it is straightforwardly the case that all of the information redacted from records 1, 10, 11, 13, 14, 15, 16 and 37 is the personal information of individuals other than the applicant. There is no additional information redacted from these records that is not personal to other individuals. As the Housing Agency has stated, the redacted information contains the names, references numbers under the redress schemes, and geographical locations of affected properties, all of which relate to individuals other than the applicant. As noted above, the redacted material also contains information relating to the relevant remediation option and payment amount to be applied in respect of affected properties other than that of the applicant. The unredacted information – in other words, the material in the records that has been released to the applicant – is the small amount of information in each of the above records that relates solely to the applicant, her property and her application under the redress schemes. I fully accept that the redacted information in the records is personal, for the purposes of section 2 of the FOI Act, to individuals other than the applicant, and is therefore squarely within the scope of section 37(1).
However, the matter does not end there, as 37(1) is subject to the other provisions of section 37. Section 37(2) provides that section 37(1) does not apply in certain circumstances. I am satisfied that no such circumstances arise in this case and that section 37(2) does not, therefore, apply.
Section 37(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 to whom the information relates. I am satisfied that section 37(5)(b) of the FOI Act does not apply.
Before I consider the applicability of section 37(5)(a), there are a number of important points to note. First, and as outlined above, section 13(4) provides that, subject to the FOI Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. In relation to the question of the public interest, this means that I cannot have regard to the applicant's motives for seeking access to the records at issue, except in so far as those motives reflect, or overlap with, what might be regarded as true public interest factors in favour of release of the records, i.e. insofar as the concerns raised in relation to the request may also be matters of general concern to the wider public.
Secondly, it is important to note that, as noted above, the release of records under the FOI Act must be regarded, in effect, as release to the world at large, given that the legislation places no constraints on the uses to which a record released under FOI can be put. With certain limited exceptions, which are not relevant in this case, FOI is not about granting access to information to particular individuals only and, as noted above, a requester's reasons for making a request are generally not of relevance. Thus, records are not released under FOI for any limited or restricted purpose.
All of this means that in considering whether a right of access exists to records under section 37(5)(a), any decision to grant access would be on the basis that there is an overriding public interest in the release of the records effectively to the world at large that outweighs the privacy rights of the third-party individuals concerned.
In considering where the balance of the public interest lies in this case, I have had regard to section 11(3) which provides that in performing any functions under the FOI 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 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.
The FOI Act recognises the public interest in the protection of the right to privacy both in the language of section 37 and the Long Title to the legislation (which makes clear that the release of records under FOI must be consistent with the right to privacy). It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. 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. Moreover, even where an overriding public interest exists in granting the request, there is a discretionary element to the application of section 37(5)(a).
In its submissions regarding section 37(5)(a), the Housing Agency stated that, while there is a public interest in openness and accountability in respect of its operations, the information at issue consists of the personal information of third parties, which it stated is inherently private. It argued that the public interest in releasing the specific personal details does not outweigh the public interest in protecting the privacy rights of the individuals concerned.
In terms of public interest arguments made by the applicant, I note that in her request to the Housing Agency for an internal review of its original decision, she stated that she is “…seeking full transparency in these documents in accordance with my statutory rights”. Furthermore, in her subsequent submissions the applicant addressed section 37(5)(a) directly, arguing that in making her FOI request, she was attempting to understand how the Housing Agency reached its decision in applying a downgraded remediation option in relation to her property. She stated that her property was a semi-detached house, and that the house attached to hers had been approved for demolition and a year is now rebuilt. The applicant stated that the two properties had been built at the same time, using the same blocks. The applicant stated that, while she accepted that this was a private interest in the release of the information, her view was also that there is a clear public interest in ensuring that the Housing Agency administers the redress scheme in an effective, impartial and fair manner.
The applicant stated that, during a visit to the Housing Agency in November 2024, she spoke to a senior member of staff there. She advised that she explained the situation in which she found herself – in other words, that the house attached to hers, which had been built at the same time using the same blocks, had been approved for demolition, while her property had been downgraded from “option 1” remediation (demolition) to “option 3” (repair). The applicant alleges that on this occasion the Housing Agency staff member responded by effectively conceding that this situation made no sense and that both houses should have been demolished together. In sum, the applicant stated that she had been treated differently by the Housing Agency and needed to understand why this had occurred.
I have carefully considered the arguments of the parties in relation to the correct balance of the public interest for the purposes of section 37(5)(a) of the FOI Act. As the applicant acknowledges, she has expressed what is essentially a private interest in the release of the information. That being said, I fully accept that there is a clear public interest in ensuring that the Housing Agency administers the redress schemes in an effective, impartial and fair manner. Indeed, while I cannot verify the information that the applicant has provided to me (i.e. that a property adjoining hers, which was built at the same time and with the same blocks, was approved for demolition, while her property was not), to the extent that this is a correct statement of the facts, I would suggest that there is a significant and strong public interest in the release of information that would tend to shed some light on this apparent discrepancy. To this point, and in the situation outlined by the applicant whereby she has a very clear view that she has been treated differently to other applicants under the redress schemes without explanation, I would accept that the release of certain information in the records pertaining to other applications (that goes to, for example, remediation options decided upon regarding similarly affected properties) might further the public interest in ensuring the correct, fair and impartial administration of the redress schemes.
At the same time, my view is also that the extent to which the redacted information in the records might further this public interest is essentially very limited. That is to say, the withheld material does not seem to me to offer any real element of explanation that would tend to illuminate the decision-making process in the Housing Agency that would have led to (for example) one property being approved for demolition and another being approved for a lesser remediation option based on repair. The redacted information is very much limited to a simple indication of which remediation option has been approved for which property, and goes into no detail regarding the thinking process that went into such approval. Accordingly, while I have accepted that the applicant has identified a significant public interest in the release of material that would assist in ensuring that the redress schemes are administered in a correct, effective and impartial administration, based on the actual content of the information at issue I cannot envisage a manner in which its release would further this public interest to any real, significant degree.
The information that I have identified in the records as falling within the scope of section 37(1) – while not material that I consider could be described as inherently private or particularly sensitive – has nonetheless been found to comprise personal information for the purposes of section 2 of the FOI Act. Having regard to the nature of the information at issue, to the fact that the release of information under the FOI Act is, in effect, release to the world at large, and to the notably strong protections given to the privacy rights of third-party individuals as outlined above, I find that the public interest in granting access to the information at issue does not, on balance, outweigh the public interest in upholding the right to privacy of the relevant individuals. I find, therefore, that section 37(5)(a) does not apply.
Accordingly, I find that the Housing Agency was justified in refusing access to the information in the records that it withheld pursuant to section 37(1) of the FOI Act.
Section 32(1)(b)
Section 32(1)(b) provides for the refusal of a request where the FOI body considers that access to the record sought could reasonably be expected to endanger the life or safety of any person.
Section 32(1)(b) is not a commonly used exemption. As a general point, this Office takes the view that the exemption should not be applied without careful consideration having been given as to whether the expectation set out in the subsection is a reasonable one in all the circumstances. It should only be invoked in circumstances of the most serious nature. An assessment of the expected consequences of releasing particular records in terms of endangering life or safety is required. It is not necessary, or indeed possible, to establish that such harm will occur but there must be a reasonable expectation of such harm arising.
In its submissions, the Housing Agency said that, in applying exemption 32(1)(b), it had taken into consideration the broad the environment in which its staff and consultants were operating. The Housing Agency noted that the defective blocks crisis is a sensitive and emotive issue, and stated that there had been an escalation of threatening and abusive behaviour towards its employees and the consultants it had engaged to undertake the required technical assessments. The Housing Agency gave examples of this behaviour, which included a number of incidents which took place outside an employee’s home, one of which involved an individual loitering and taking photographs outside the employee’s private residence, and which was reported to An Garda Síochána. The Housing Agency also stated that both it and its appointed agents have been subject to continued inappropriate and grossly unsuitable correspondence, which it said had been received both anonymously and directly from applicants under the redress schemes. The Housing Agency stated that the receipt of this correspondence had created an unsafe and unreasonable environment for staff and agents. The Housing Agency went on to note that, in some instances, the correspondence has increased following the release of records under FOI. It noted that certain records which have previously been released under FOI appear to have been provided to the press, which had resulted in the publication of public servants’ names in a number of articles.
The Housing Agency stated that, as a direct result of the pattern of behaviour outlined above, one of its agents has been required to amend operational protocols, including placing restrictions on which staff members are permitted to undertake functions necessary to discharge obligations under the relevant framework. It said that these changes were implemented solely to safeguard staff wellbeing and to mitigate risks arising from the conduct that had been encountered.
The Housing Agency argued that, based on the above, it holds legitimate and well-founded concerns regarding both the physical and mental well-being of its staff, recognising its fundamental duty of care under the Safety, Health and Welfare Act 2005 towards them. It said that these concerns remain a top priority, as the organisation acknowledges the critical importance of fostering a safe, supportive, and sustainable working environment. Furthermore, the Housing Agency stated that it is acutely aware of the challenges associated with staff retention and the need to ensure that skilled and experienced personnel are in place to resource and support its role under the current scheme. It argued that, in this context, the release of the records at issue could reasonably be expected to lead to further inappropriate correspondence, thereby heightening the risk to staff and agents. The Housing Agency argued that withholding the records was necessary to ensure both the safety of staff and that its statutory functions can continue to be carried out in a safe and secure manner.
For the avoidance of any doubt, at no point has the suggestion been advanced that the applicant herself has behaved in the manner outlined by the Housing Agency, or that its reliance on section 32(1)(b) is directly linked to any actions of the applicant personally. Rather, it appears to me to be the case that the Housing Agency’s arguments relate to a more general pattern of behaviour by members of the public at large, and reflect the fact that disclosure of a record under FOI is deemed equivalent to its publication to the world at large.
I have carefully considered the submissions made by the Housing Agency. As noted above, this particular exemption is not commonly used. The question I must consider is whether the expectation set out by the Housing Agency is a reasonable one in all the circumstances. In order for the exemption to be upheld, it should be possible to clearly link the expectation of serious harm to the content and context of the records. At the outset, I acknowledge that in the current climate the defective blocks crisis is an extremely well-publicised, controversial and emotive issue, and one that tends to engender strongly held views.
However, I must note that I am not entirely satisfied that a number of points made by the Housing Agency in support of its position are viable arguments, in and of themselves, for the withholding of records under section 32(1)(b) of the FOI Act. For example, the Housing Agency has noted that records previously released under FOI appear to have been provided to the press, and that the names of public servants have been published in the media as a result. However, the FOI Act generally envisages the release of the names of staff members of FOI bodies where they appear in relevant records in the context of the performance of their official functions. For example, the names of staff members are generally not considered to be personal information by virtue of the exception to the definition of such information in section 2 of the FOI Act. This Office considers that the exclusion is intended to ensure that section 37 will not be used to exempt from release the identity of a staff member while carrying out his or her official functions. Moreover, as noted above, the FOI Act places no restrictions on the uses to which information released under FOI can subsequently be put. It is therefore entirely legitimate from an FOI perspective for information released under FOI to be used as the basis for media coverage of particular issues – indeed, such use is of obvious importance in helping to ensure transparency and accountability in public bodies, which is wholly in keeping with the broad aims of the FOI Act (this is not to say that other provisions of the FOI Act cannot apply to exempt information relating to its staff, consultants and employees of related agencies, and I address this point further below).
Similarly, the Housing Agency has referenced “inappropriate and grossly unsuitable” communications that it has received, both anonymously and directly from applicants under the relevant schemes. I have absolutely no doubt that such correspondence is extremely unpleasant and upsetting for any staff members to receive, and I fully acknowledge that no employee of any organisation should be subjected to such material in the course of their work. However, it seems to me that conduct which may well be described as “inappropriate and grossly unsuitable” falls some way short of constituting behaviour that might give rise to concerns for the life or safety of an individual. As noted above, the position of this Office is that section 32(1)(b) should only be cited in the in circumstances of the most serious nature. It is not clear to me – and nor has the Housing Agency argued – that the communications it refers to contain, for example, explicit or implied threats against any individuals. To my mind, there is a dividing line between communications that might well be considered “inappropriate and grossly unsuitable” (by reason of, for example, foul language or explicit content) and those which might constitute (for instance) threats against or intimidation of a person. As a general proposition, I can envisage a scenario in which the latter category of communications might (depending on the wider context and specific circumstances) potentially serve to ground an argument for the withholding of records under section 32(1)(b). I am not satisfied that this is the case for the former, albeit that such correspondence is undoubtedly entirely unacceptable and may well be extremely distressing to the recipient.
By the same token, the Housing Agency referred to the importance generally of the well-being of its staff and its fundamental duty of care to employees under health and safety legislation, as well as the importance of fostering a safe, supportive, and sustainable working environment. It also highlighted the challenges associated with staff retention. The argument of the Housing Agency here appears to be that the current climate in relation to the defective blocks crisis will adversely affect its ability to perform its functions and fulfil its obligations in relation to these matters. Again, I am in no doubt at all that the Housing Agency might face significant challenges in these areas, and it may well be the case that these challenges manifest themselves in – for example – difficulties in retaining staff. However, again it must be noted that section 32(1)(b) should only be invoked in the most serious of circumstances. I find it difficult to accept that difficulties the Housing Agency may be experiencing in terms of obligations to its staff generally, under health and safety legislation, as well as its duty to foster a safe and supportive working environment, constitute sufficient grounds to exempt records from release under section 32(1)(b). I take the same view regarding any difficulties the Housing Agency may face in terms of staff retention which, in any case, seem to me to be challenges that are to a greater or lesser extent perennial in any organisation, albeit that they may well be significantly exacerbated for the Housing Agency by the current conditions.
This being said, I find certain other arguments made by the Housing Agency under section 32(1)(b) to be more convincing. In particular, it has referenced certain incidents when unknown individuals have attended at the home of a Housing Agency employee, which on one occasion necessitated the making of a report to An Garda Síochána. It seems clear to me that such incidents are of the utmost seriousness, the gravity of which moreover far exceeds the other factors that the Housing Agency outlined in support of its position. As noted above, in claiming section 32(1)(b) it is not necessary, or indeed possible, for an FOI body to establish that relevant harm will occur. What I must consider is whether the Housing Agency has shown that there is a reasonable expectation of this. I fully accept that, in the context of the defective blocks crisis, the Housing Agency’s expectation – that the life or safety of an employee may be endangered by individuals attending at their home – is reasonable.
The matter does not end there, however, because in order for a record to be exempt from release under section 32(1)(b), the expectation of the relevant harms that I have accepted is reasonable must be tied to the contents of that record, as well as the context in which it was created. I have outlined above the context in which the records were created. It remains for me to examine whether the specific contents of the records at issue are such that, in that context, their release could reasonably be expected to endanger the life and safety of a person.
As noted above, the Housing Agency cited section 32(1)(b) to withhold certain material in records 39, 40, 41, and 45, as well as record 42 in full. In relation to the partly-withheld records, I have reviewed same and note that the majority of the withheld information is that which would tend to identify individual contractors, as well as the name of a contracting firm, involved in the email correspondence contained in the records. My view is that, given the current climate and the circumstances outlined by the Housing Agency – and in particular noting the incidents when individuals have attended at the home of a staff member, necessitating the making of a report to An Garda Síochána – it is reasonable to suggest that that the release of this information could endanger the life or safety of those individuals. I therefore find that, in the circumstances, the material that the Housing Agency redacted from records 39, 40, 41 and 45 that relates to individual contractors and a contracting firm comes within the scope of section 32(1)(b) of the FOI Act.
There is a small amount of redacted information in the above records that I do not accept meets the harm test in section 32(1)(b). Specifically, the Housing Agency appears to have also withheld information relating to the applicant herself. It is not clear to me how the release of this information might reasonably be expected to endanger the life or safety of an individual, and accordingly section 32(1)(b) does not apply to this material. For the sake of completeness, I have also considered whether I should find that this information should be exempt from release under section 37(1). My view is that it is not so exempt, as it relates to the applicant herself (section 37(2)(a) of the FOI Act refers).
In relation to record 42, which the Housing Agency withheld in full, I would note first of all that there is certain material in this record (such as names and contact details of Housing Agency employees) that it released unredacted where it appears in the other records that were partly withheld under section 32(1)(b). However, given the fact that the release of records under FOI must be considered to constitute, at least potentially, release to the world at large, and on the basis of my analysis above, I am satisfied that the Housing Agency is nonetheless justified in relying on section 32(1)(b) in respect of this record in its entirety.
I note that, under section 32(3), subsection (b) of section 32(1) does not apply to a record in certain limited circumstances and where the body considers that the public interest would, on balance, be better served by granting the request. I am satisfied that none of the limited circumstances arise in this case. I find, therefore, that the Housing Agency was justified in withholding from release the relevant information that it redacted from records 39, 40, 41, and 45 under section 32(1)(b) of the FOI Act, and in withholding in full record 42.
For the avoidance of doubt, the above finding does not preclude this Office from arriving at a different conclusion in respect of similar arguments advanced in future reviews. Each case will be considered on its merits based on the particular facts and circumstances.
As a final point, I wish to note that I have every sympathy for the situation in which the applicant finds herself. It is apparent from her submissions that she has a strong belief that she has been treated differently by the Housing Agency to other applicants under the redress schemes. Such concerns seem to me to go to the performance of the Housing Agency’s functions generally, and are not matters that fall within the remit of this Office to address. The applicant may wish to consider contacting the Office of the Ombudsman if she feels she has been the victim of maladministration.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Housing Agency’s decision. I find that the Housing Agency was justified under section 37(1) of the FOI Act in withholding from release the information that it redacted from records 1, 10, 11, 13, 14, 15, 16 and 37. I also find that the Housing Agency was justified under section 32(1)(b) of the FOI Act in withholding record 42 in full, and in redacting the information I have identified above in records 39, 40, 41, and 45 that relates to individual contractors and contracting firms. However, I find that the withheld information in records 39, 30, 40 and 45 that relates to the applicant herself is not exempt from release under section 32(1)(b) or section 37(1), and I direct the release of this information.
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