Decision
FLAC and Department of Housing, Local Government and Heritage
From Office of the Information Commissioner (OIC)
Case number: OIC-146244-K8D2V5
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-146244-K8D2V5
Published on
Whether the Department was justified in refusing access to records concerning a review of the Housing Act 1988
23 October 2025
The applicant’s FOI request of 1 November 2023 sought access to “[a]ny and all reports emerging from the review of sections 2 and 10 of the Housing Act 1988” (the 1988 Act), … including (but not limited to) any final report and any report setting out findings and recommendations arising from the review”. He said the review was undertaken by the Department and representatives of the County and City Managers Association, and that the Housing for All Q4 2022 Progress Report stated that the review had been completed.
The Department’s decision of 29 November 2023 withheld 25 records under section 29(1) of the FOI Act (deliberative processes). The applicant sought an internal review of that decision on 20 December 2023. In its internal review decision of 15 January 2024, the Department affirmed its refusal of the request. It cited section 28(1)(a) (record submitted to Government) in respect of eight records and section 29(1) in respect of the remaining 17 records as the basis for refusal. On 2 February 2024, the applicant applied to this Office for a review of the Department’s decision.
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 my review, I have had regard to the above exchanges, to correspondence between this Office, the Department and the applicant, to the contents of the records at issue and to the provisions of the FOI Act. In referring to the records at issue, I have adopted the numbering system used by the Department in the schedule of records it prepared when processing the request.
The scope of this review is concerned solely with whether the Department was justified in refusing the applicant’s request under sections 28(1)(a) and 29(1) of the FOI Act.
The applicant takes issue with how the Department carried out the review of the 1988 Act. He says it did not carry out any public or stakeholder consultation or publish any report into the review and its recommendations. However, this Office has no role in examining or making findings on the Department’s performance of its functions, and my review cannot take account of the applicant’s views on this matter.
I also wish to highlight section 22(12)(b) of the FOI Act which, as the Department 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 Department of satisfying this Office that its decision to refuse the request was justified in this case. In the case ofThe Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57, 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.
It seems that the Department did not consider it necessary to ask the applicant to clarify what he meant by seeking access to “reports” at any point during its decision-making processes. However, the Department’s submission argues that the request does not cover records 11, 14 to 16, 20, 24 and 25 on the basis that these are not reports but, rather, different types of documents. I acknowledge that the official making the submission was not involved in the Department’s initial decision-making.
The Department said that records 11 and 14 are, respectively, the minutes of a meeting and notes taken during a meeting. It said record 15 is a working policy document considering potential options, and which contains queries and tracked changes and summarises relevant issues. It said record 16 is a draft consultation feedback briefing document for the Minister that contains multiple tracked changes and comments. It said record 20 is a summary of feedback received. It said record 24 is a working document (concerning “refusal offers of accommodation consideration”, according to the Department’s schedules) in which multiple questions are raised for further consideration. It said record 25 sets out the proposed wording of section 10A for inclusion in the Act, if amended.
The Investigator invited the applicant’s comments on the Department’s position, including what he meant by seeking access to “reports”. Primarily, he argued that the Department has no right to revise its decisions during this review, and that no such mechanism is provided for in the 2014 Act. He said the word “report” refers to “any written outputs to arise from the review process … (including draft legislative provisions and working documents)”. He said records summarising feedback, recounting meetings, identifying issues and setting out briefing information plainly come within the ordinary meaning of the word “report”.
I am satisfied that an FOI body may revise its position on an FOI request during a review by this Office. The possibility that an FOI body may revise its position is expressly contemplated by section 22(9)(a)(iv) of the FOI Act. Section 22(9)(a)(iv) provides that the Commissioner may discontinue a review where there is no longer any issue requiring adjudication, as access to the records in question has been granted by the FOI body in the course of the review. FOI bodies may also seek to revise their positions by relying on provisions of the FOI Act that they did not claim in their decisions or, as is the case here, by arguing that records were considered in error. Furthermore, it is long settled that a review by this Office is considered to be de novo, and is based on the circumstances and the law as they pertain at the time of this Office’s decision. It is worth noting that this Office is obliged to consider the application of mandatory exemptions where they appear relevant, even where not claimed by an FOI body.
In all of the circumstances, I am satisfied that I have no power to consider the potential release of records that are not covered by an FOI request, even if those records were included in an FOI body’s initial decision-making processes. Nevertheless, I do not accept the Department’s arguments that certain of the records previously identified are not captured by the scope of the request. The ordinary meaning of “report” is, in my view, quite broad. I note that the Oxford dictionary defines a “report” as, among other things, “an account of a situation, event etc., brought by one person to another” and “a descriptive account or statement”. The purpose of the FOI Act is to provide for a right of access to records held by FOI bodies “to the greatest extent possible”. Both decision makers regarded all 25 records to fall within the scope of the applicant’s request. Having considered the matter carefully, I am satisfied that I am entitled to review the Department’s decision in respect of all 25 records.
It is open to the applicant to make a fresh request for any records that the Department’s initial decision makers may have excluded from consideration on the basis that they are not “reports”.
The Department relied on section 28(1)(a) to refuse access to records 1 to 5 and 21 to 23. That section provides for the refusal of a request if the record concerned has been, or is proposed to be, submitted to the Government for its consideration by a Minister of the Government or the Attorney General and was created for that purpose. The section is concerned with the status of a record, i.e. its submission to the Government by a Minister or the Attorney-General for consideration and its creation for that purpose.
Section 28(6) defines ‘‘Government’’ as including a committee of the Government, that is to say, a committee appointed by the Government whose membership consists of (a) members of the Government, or (b) one or more members of the Government together with either or both of one or more Ministers of State or the Attorney General. Section 28(6) also provides that a “record” includes a preliminary or other draft of the whole or part of the material contained in the record.
In its internal review decision, the Department said all eight records relate to documents provided to the Government Cabinet Committee for Housing (CCH) for consideration. In its submissions to this Office, it said the records are all papers that were created for and submitted to the CCH in advance of their meetings, as requested by the Minister’s Office.
The applicant said he was not satisfied that it has been established that each of the relevant records were originally created for the purpose of consideration by Government. He said the records refused were created across a range of dates from at least November 2022 to October 2023. He argued that it was incumbent on this Office to establish when the records were created and whether this was before the Minister’s office requested their submission to the CCH. He argued that the records may only be refused if they were prepared on foot of such a request and not for some different, earlier purpose. He said that the fact that the records are addressed to the CCH does not, of itself, mean that the Department may rely on section 28(1)(a). He said the records may have been prepared for a different purpose prior to their submission to the CCH.
According to the Department’s schedule, records 1-5 and 21-23 are papers or briefings, addressed to the CCH, regarding the review of the 1988 Act and on homelessness. Respectively, they are dated 21 November 2022, 31 January 2023, 2 March 2023, 17 April 2023, 12 October 2023, 26 June 2023, 26 June 2023 and 21 November 2022. It seems to me that record 22 is a preliminary or other draft of record 21.
The Department did not identify any other records that it considers to qualify for exemption under the discretionary section 28(1)(a). Neither did it identify any records that might comprise a preliminary or other draft of records 1-5 and 21-23. However, I note the contents of Appendix 3 to Record 10. According to the schedule, record 10 is a note on the review of the 1988 Act. However, Appendix 3 to that record is a paper addressed to the CCH, dated 12 May 2022. I also note the contents of record 15. While described in the schedule as a Note on Housing Act 1988 policy, record 15 is headed “Cabinet Committee on Housing 21 November – potential recommendations being considered”. It deals with one particular recommendation and seems to me to comprise a preliminary or other draft of part of the material contained in record 1. I am satisfied that it is appropriate for me to consider Appendix 3 to record 10 and record 15 under section 28(1)(a), given the Department’s position on other records of the same type.
For section 28(1)(a) to apply, three requirements must be met i.e.
• the record has been (or is/was proposed to be) submitted to the Government for its consideration and
• has been (or is/ was proposed to be) submitted by a Minister of the Government or the Attorney General and
• was created for the purpose of submission to the Government for its consideration.
I note that the relevant CCH consisted of the Taoiseach, Tánaiste, the Minister for Housing, Local Government and Heritage, five other Ministers and “any other Ministers or Ministers of State as required”. I am satisfied that the CCH is a committee of the Government, which may be considered as “Government” further to the provisions of section 28(6) of the FOI Act.
In circumstances where all of the relevant records are addressed to the CCH, and where the Department states that the Minister requested that the records be created for submission to the CCH in advance of their meetings, I do not consider it necessary to conduct a detailed examination of their dates, or purpose, of creation.
With respect to the cases referred to by the applicant, I note that the records in Case Nos. 020277 and 030622 were both appendices to other records that had been submitted to Government. I acknowledge that the appendix in Case No. 020277 appeared to have been created before the relevant Committee had asked for a report on a particular issue. In particular, however, the Commissioner was satisfied from material before him that the appendix had been created for a different purpose than for submission to Government for its consideration by a Minister or the Attorney General. Similar circumstances do not arise in this case.
I also note the position taken in Case No 030622. The Guidance Note says that where records are copies of, or are very similar to, records which were prepared for a purpose other than submission to the Government, they may not be exempt under section 28(1)(a). Having considered the matter carefully, it seems to me now that the key issue in considering section 28(1)(a) is not whether a record contains the same or similar content as another or earlier record, but rather whether the particular record was created for the purpose of submission to Government. Further to the above, I am satisfied that records 1-5, 15, 21-23 and Appendix 3 to record 10 were (or were proposed to be) submitted to the CCH for its consideration, and also that they were created for such a purpose. In circumstances where the Department says it submitted the records to the CCH further to a request to do so from the Minister’s Office, I can accept that the records were submitted by the Minister. I am satisfied that all three requirements of section 28(1)(a) have been met.
I find that records 1-5, 15, 21-23 and Appendix 3 to record 10 are exempt under section 28(1)(a) of the FOI Act. However, this is not the end of the matter. The provisions of section 28(3) of the FOI Act must also be considered.
Section 28(3) of the FOI Act provides that section 28(1) does not apply to a record a) if and in so far as it contains factual information relating to a decision of the Government that has been published to the general public, or b) if the record relates to a decision of the Government that was made more than 5 years before the receipt by the head concerned of the FOI request concerned. The applicant contends that the Government has made and published decisions on the matter and that factual information should be released from the records further to section 28(3)(a).
The applicant argued that the Minister for Housing and the Government have consistently published their decisions arising from the review of the 1988 Act. He also referred to factors set out in our section 28 Guidance Note as potentially relevant in considering whether a decision of the Government has been published, such as the announcement of a decision in a press release and the actions of Government or a Minister. In addition, he referred to two cases cited in the Guidance Note. Case No. 98058 found that a press release approved by the Government had effectively published a decision of Government, as had the Minister’s actions in publishing a Bill and introducing it to the Seanad. Case No. 98060 found that a Minister’s signing of a European Convention and Protocol had made the general public aware that the Government had authorised the Minister to do so.
The applicant provided a copy of a Consultation Note provided by the Department to members of the National Homeless Action Committee (NHAC) in October 2023. He also provided a copy of the cover email. He emphasised that the Department described the Consultation Note as giving an overview of its intended reforms, and the legislative and policy means of doing so.
I note that NHAC is a cross-governmental and inter-agency oversight group with membership drawn from key Departments, agencies and stakeholders. It is concerned with the delivery of policy measures and actions to address homelessness and also has a role in addressing and responding to emerging homeless-related issues. NHAC is chaired by the Minister for Housing, Local Government and Heritage and consists of representatives of various Government Departments, public bodies, and other entities such as St Vincent de Paul, Focus Ireland, Simon Communities, etc. According to the material supplied by the applicant, the Department invited NHAC’s observations and feedback on proposed legislative changes by 27 October 2023. The Department also referred to an intention to submit a Memorandum for Government on the matter. The Consultation Note summarised the review and consideration of the issues, and outlined the proposed new provisions in high level, general, terms.
The applicant gave examples of national media coverage of the Consultation Note. He argued that the Consultation Note is a publicly available document, which was circulated by the Department and which outlines the reforms that it intends to bring forward to give effect to the review’s recommendations. He noted that the Minister subsequently informed NHAC that the decision to implement the reforms had been deferred but said that the Programme for Government confirms the Government’s intention to reform the 1988 Housing Act. The Department’s position is that section 28(3)(a) does not apply. It said that a Government decision has yet to be made on the legislative changes to the 1988 Act. It said it prepared a General Scheme (Heads) of a Bill but did not seek a Government decision to do so due to an oversight on its part. It said no further action has been taken on the matter because it has been considering stakeholder feedback. It said the Programme for Government commits to reforming the 1988 Act, and that progressing this commitment will involve building on the work to date, including the review. The Department also said that the Consultation Note was created for, and circulated to, key stakeholders for their information and in order to obtain their views on the matter. It said the document was not intended to be made public, and that this should have been made clearer to the stakeholders.
For section 28(3)(a) to apply, a decision of the Government must have been (i) made and (ii) published to the general public. Both factors must be met in order for factual information relating to that Government decision to be releasable.
It is in the public domain that the Government intends to reform the 1988 Act, and that the Minister and the Department are preparing proposals in this regard. In addition, while the Department did not intend for the Consultation Note to enter the public domain, its contents have nonetheless been publicised and commented on in the media. However, I do not consider these factors to mean that a decision of Government has been made on the matter for the purposes of section 28 of the FOI Act. In particular, I have no reason to dispute the Department’s position that no Government decisions have been made to date on any aspect of the review of the 1988 Act.
In the circumstances, I am satisfied that section 28(3)(a) of the FOI Act does not apply in this case. It follows that I do not need to consider the potential release of any factual information in the relevant records.
Section 29(1) provides for the discretionary refusal of a request if (a) it contains matter relating to the deliberative processes of an FOI body (including opinions, advice, recommendations, and the results of consultations), and (b) the granting of the request would, in the opinion of the head of the FOI body, be contrary to the public interest and, without prejudice to the generality of paragraph (b), the head shall, in determining whether to grant or refuse to grant the request, consider whether the grant thereof would be contrary to the public interest by reason of the fact that the requester concerned would thereby become aware of a significant decision that the body proposes to make.
The requirements of sections 29(1)(a) and (b) are independent and the fact that the first is met carries no presumption that the second is also met.
A deliberative process involves the consideration of various matters with a view to making a decision on a particular matter. It would, for example, include some weighing up or evaluation of competing options or the consideration of proposals or courses of action.
The public interest test in section 29(1)(b) differs from the public interest test found in other exemptions under the FOI Act. Other exemptions require the public body to be of the opinion that the public interest would be better served by release. To avail of section 29 so as not to release a record, the public body must be of the opinion that releasing the record would be against the public interest.
The FOI Act clearly envisages that there will be cases in which disclosure of the details of an FOI body’s deliberations - whether before or, in some cases, after a decision based on those deliberations has been made - would be contrary to the public interest. However, this is not to say that such disclosure is always, as a matter of principle, against the public interest. Any arguments against release under section 29 should be substantiated and supported by the facts of the case. An FOI body should show how granting access to the particular record would be contrary to the public interest, e.g. by identifying a specific harm to the public interest flowing from release.
Generally speaking, it would be contrary to the public interest to release a record where a specific harm to the public interest flows from release. While there is nothing in the section 29 exemption itself which requires the deliberative process to be ongoing, the question of whether the process is ongoing or at an end may be relevant. Furthermore, section 29 specifically requires consideration of whether the requester would, by the release of the record(s), become aware of a significant decision that the FOI body proposes to make.
A record that is exempt under section 29(1) may still fall to be released in the circumstances listed in section 29(2).
In inviting the Department’s submissions, the Investigator asked it to explain, in particular, how harms would be caused by release of the records. She said that the Department had not considered whether some or all of the records might relate to a part of the deliberative process that has now concluded. She also noted that the media had reported on the Consultation Note.
The Department argued that the records relate to the deliberative processes of considering appropriate amendments to make to the 1988 Act. It said that, further to the review, it drafted Heads of a Bill to amend the legislation. It said that, further to a consultation process for those proposed amendments, it received some feedback raising concerns about the operation of the legislation. It said it is still considering the feedback and whether the draft legislation needs further amendments. It said that work in the area will continue this year in line with the commitment in the new Programme for Government to “reform the 1988 Housing Act”. As noted already, the Department also said that the Consultation Note was not intended to be made public.
The Department listed various factors for and against disclosure of the records. It referred to the right of the public to have access to information. It said that disclosure will reveal reasons for decisions. It referred to the accountability of administrators and scrutiny of decision-making processes, and to the need for the public to be better informed and more competent to comment on public affairs.
It said that, on the other hand, release of records would impair a future decision. It said that premature release could contaminate the decision-making process, and impair the integrity and viability of the decision making process to a significant or substantial degree without countervailing benefit to the public. It said that it is in the public interest for the Government to make a decision on the matter in private, and to be allowed to consider the issues without the external pressure of having the information in the public domain. It said that release could reasonably be expected to prejudice the effectiveness of the examination of amendments to the 1988 Act. It also referred to certain information in the records, which section 25(3) precludes me from describing here. It said that it must be allowed to gather such information and to form decisions without undue intrusion.
The applicant said that the records do not remain part of a deliberative process. He said that the review of the 1988 Act has been completed. He said the Department is no longer deliberating on whether, or how, to give effect to the review’s recommendations, in that it has drafted proposed legislative amendments. He referred to record 25, which I have already described, and to the Consultation Note referred to earlier and the media coverage thereof. As I have noted, the applicant argued that the Consultation Note is a publicly available document, which was circulated by the Department and which outlines the reforms that it intends to bring forward to give effect to the review’s recommendations.
The applicant said that the public interest does not lie in favour of withholding the records. He said that as a result of the review of the 1988 Act, significant legal and policy changes are being advanced in relation to the primary legislation concerning homelessness. He said that the review was completed without any public or stakeholder consultation, and that no comprehensive report in relation to the review, its methods, or findings has been published. He said that by forwarding the Consultation Note to the NHAC, the Department has publicly outlined the decisions it made further to the review. He said this undermines the argument that there is a public interest in withholding the records.
In addition, the applicant said that sections 29(2)(b), (c) and (d) of the FOI Act are relevant. Further to these provisions of section 29(2), section 29(1) does not apply to (b) factual information, (c) the reasons for the making of a decision by an FOI body or (d) a report of an investigation or analysis of the performance, efficiency or effectiveness of an FOI body in relation to the functions generally or a particular function of the body.
Section 29(1)(a) specifies that it applies to a record containing matter "relating to" deliberative processes of an FOI body. It is not relevant whether the deliberative processes have concluded. I am satisfied that the records relate to the Department’s deliberative process in relation to the review of the 1988 Act. I find that section 29(1)(a) applies.
I will now consider whether disclosure of the records would be contrary to the public interest for the purpose of section 29(1)(b). I note here that the factors identified by the Department in favour of release of the records reflect the general principles of openness and transparency contained in section 11(3) of the FOI Act (which, generally speaking, recognises the need to enhance public scrutiny and accountability of government and public affairs, particularly the activities and decision making of FOI bodies). However, by considering public interest factors both for and against release, the Department appears to have carried out a general public interest balancing test. Section 29(1)(b) requires consideration of whether disclosure would be contrary to, or against, the public interest.
In my view, section 29 is intended to ensure that deliberations of FOI bodies are not prejudiced or impaired by the release of records relating to those deliberations. The Department contends that the records have ongoing relevance to deliberative processes. While I have no reason to dispute the Department’s position that it is continuing to deliberate on the most appropriate legislative amendments, this is not of itself a reason to find that release is contrary to the public interest, particularly without any explanation of how the ongoing deliberations may be harmed by disclosure of the particular records at issue.
The records are largely undated and do not appear to be in sequential order. For instance, record 8 is dated 12 September 2023, and record 11 is dated 20 July 2022. The contents of record 25 also appear in record 6. However, given the dates of the review and the FOI request, the records are at least a year old. Some of the records reflect the review that was carried out in 2022, and others appear to reflect the subsequent consideration of how to implement the review’s recommendations. In addition, the records include proposed legislative amendments which, as set out above, are being given further consideration by the Department.
I note the Department’s position that the Consultation Note was not intended to be made public. Nonetheless, the fact remains that certain information about the review and the Department’s intended approach to its recommendations has been reported on in the media. I accept that the records give further insight on these matters insofar as they had evolved up to November 2023 and that their disclosure may give rise to further public debate. However, I see no reason to consider this as contrary to the public interest.
The Department describes various harms as arising from disclosure of the records. However, it does not explain how disclosure of the particular contents of the records would cause such harms. It does not explain how disclosure would impair a future decision. It does not explain how disclosure would contaminate the decision-making process, or impair the integrity and viability of that process to a significant or substantial degree, or otherwise impact on the examination of amendments to the 1988 Act. It does not outline the kind of external pressure that it feels the Government would face if the records were released or, in particular, explain how this would impact on the Government’s decision-making process. Furthermore, and while section 25(3) precludes me from describing the information that the Department says it must be allowed to gather and reflect upon, the details do not seem to me to be of a particularly surprising nature in the overall context. In particular, neither does the Department explain how their disclosure could cause harm to the deliberative processes.
I have considered the contents of the records and the Department’s submission. For the reasons set out above, I am not satisfied that it has shown how it would be contrary to the public interest to disclose the remaining records. Neither can I see how this would be the case. Nor do I see any basis to consider that disclosure would be contrary to the public interest by reason of the fact that the requester would thereby become aware of a significant decision that the Department proposes to make. I find that section 29(1)(b) does not apply.
I find that the remaining records are not exempt under section 29(1) of the FOI Act. Therefore, I need not set out or analyse the various arguments on section 29(2).
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Department’s decision. I find that records 1-5, 15, 21-23 and Appendix 3 to record 10 are exempt under section 28(1)(a) of the FOI Act. I find that the remaining records are not exempt and I direct the Department to grant access to them.
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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.
Stephen Rafferty
Senior Investigator