Cinneadh
Mr X and The Approved Housing Bodies Regulatory Authority
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-143073-Q8D9D8
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-143073-Q8D9D8
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether AHBRA was justified in refusing access to certain information provided by Approved Housing Bodies (AHBs) in response to AHBRA’s annual monitoring survey in 2022 on the basis of sections 35(1)(a) and (b) and 36(1)(b) and (c) of the FOI Act
3 July 2025
By way of background, AHBs are independent legal entities that own, lease and manage social housing. They independently source housing on the open market. They compete with each other and also with private developers and/or landlords in bidding processes for houses and land for the provision of housing. They acquire units through leasing and management arrangements.
AHBRA is an independent authority established in February 2021, to provide for the regulation of AHBs for the purposes of protecting housing assets provided or managed by such bodies. In accordance with Section 9 of the Housing (Regulation of Approved Housing Bodies) Act 2019 (the 2019 Act), AHBRA is responsible for monitoring compliance by AHBs with the 2019 Act, collecting such information concerning AHBs as the Regulator considers necessary for the purposes of the performance of its functions, and publishing such information (including statistical information) concerning AHBs, as the Regulator considers appropriate. In 2022, AHBRA issued its first Annual Monitoring Form (the AMF) which AHBs were requested to complete. AHBRA stated in the published Annual Sectoral Analysis for the Approved Housing Body 2021-22 that it required the information captured by the AMF in order to allow AHBRA to identify sector risks, target future guidance and training, and to plan its annual assessment programme.
From 1st January 2022, AHBRA has been responsible for establishing and maintaining the register of AHBs and for registering organisations as AHBs. All organisations that had AHB status and were listed on the register maintained by the Department of Housing, Local Government and Heritage (the Department) were deemed to be registered with AHBRA in line with Section 34 of the 2019 Act. On 1st January 2022, 450 AHBs were deemed registered with AHBRA.
In a request dated 27 June 2023, the applicant sought access to four categories of records relating to AHBs, including their responses to certain questions in the published Annual Sectoral Analysis 2021-22 (based on the responses to AHBRA’s first AMF), as follows:
1. A list of the 63 registered AHBs that did not respond to the AMF, broken down by category.
2. An extract listing each AHB’s category and yes or no response to the survey questions as to whether it a) captures property information and b) captures void (or vacancy) information.
3. A list of the AHBs including name and category and its response to the survey query concerning the number of void dwellings (or vacancies) it had on 20 September 2020.
4. A list of the approximately 90 AHBs that were not deemed to be registered with AHBRA.
The applicant’s reference to 20 September 2020 appears to have been an error, as the published report referred to voids at 20 September 2022. In any event, the date was clarified in later correspondence from AHBRA to the applicant and it processed his request on the basis of the information received in response to the AMF concerned. On 4 July 2023, AHBRA contacted the applicant and informed him that it did not hold records relating to part 4 of his request, but that they might be held by the Department. It stated that he would need to make a new request to the Department for access to relevant records.
In a decision dated 27 July 2023, AHBRA refused access to records relating to part 1 of the applicant’s request under sections 15(1)(a), 17(4) and 30(1)(a) and part 3 on the basis of sections 35(1)(a) and 36(1)(b) and (c). It released one record in relation to part 2. The applicant sought an internal review of AHBRA’s decision. In particular, he noted that the record released in relation to part 2 did not contain the names of any AHBs. He did not seek a review in relation to part 4 of his request. On 21 August 2023, AHBRA issued its internal review decision, wherein it provided background information on its role in the housing sector and additional information concerning the status of certain AHBs which had not responded to the survey. It also referred to steps it might take to ensure that AHBs which had not yet responded would provide the information sought, including the publication of the names of those that did not reply. It refused part 1 of his request under sections 29(1) and 30(1)(a) of the FOI Act. It stated that it had granted part 2 in full but that in the event that the AHBs’ names were within the scope of his original request, it was relying on sections 35(1)(a) and 36(1)(b) and (c) to refuse access. It also relied on sections 30(1)(a), 35(1)(a) and 36(1)(b) and (c) in relation to part 3 of his request.
On 13 October 2023, the applicant applied to this Office for a review of AHBRA’s decision.
During the course of this review, this Office asked AHBRA whether it had published the names of the AHBs that had not responded to the survey, as mentioned in its internal review decision. In its response, AHBRA provided further information, including a link to its website where a list of the 10 remaining AHBs which had not responded to its survey was published. On 23 September 2024, this Office notified the applicant of the publication of the names in question. The Investigator informed him that as the names were now publicly available, she intended to proceed on the basis that part 1 of his request would not form part of this review. The applicant indicated that he had no objection to this.
The Investigator also asked AHBRA to provide a copy of record 2 containing the AHBs’ names. AHBRA did so, and indicated that it was relying on sections 35(1)(a) and (b) and 36(1)(b) and (c) of the FOI Act to refuse access to records relating to parts 2 and 3 of the applicant’s request (records 2 and 3) in full or in part.
During the course of the review, this office notified the 387 AHBs listed in records 2 and 3 of the review and invited them to make submissions. The AHBs were informed that if they made no response, this Office would proceed on the basis that they had no objection to the release of the records sought. It was not possible to contact five of the AHBs using the contact details provided by AHBRA, as the information was out of date. Nonetheless, a large number of AHBs contacted this Office by telephone, email or letter on foot of the notification. Of those, 126 AHBs objected to the release of the information sought and 25 expressly confirmed that they had no objection to release. A number discussed the case with this Office’s Investigator by telephone and made no further contact. However, the vast majority, some 217, made no response at all.
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 communications between the parties as set out above and to the communications between this Office and AHBRA, the applicant, and the relevant AHBs. 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. I wish to apologise at the outset for the significant delay in concluding the review.
This review is solely concerned with whether AHBRA was justified in refusing to release records 2 and 3 in full or in part on the basis of sections 35(1)(a) and (b) and 36(1)(b) and (c) of the FOI Act.
In the submissions received from the AHBs, a number referred to information potentially being used for reasons other than that for which it was originally sought. One submission in particular referred to the General Data Protection Regulation (GDPR). It is important to note that the FOI Act is entirely independent of data protection legislation and FOI requests for access to records must be processed in accordance with the provisions of the FOI Act. In any event, I am satisfied that the records at issue in this case do not contain personal information. Neither have any of the parties argued that they do. Accordingly, section 37, the provision in the FOI Act which relates to the personal information of third parties, is not relevant to this review.
Another AHB which made submissions during this review referred to previous decisions of this Office as having set a precedent. However, it is important to note that decisions by the Commissioner do not set binding precedents and each decision is made based on the specific facts and circumstances of the case under review. Notwithstanding that, I do not believe that the approach taken in this case is inconsistent with the cases referenced. I shall discuss this further below.
Records 2 and 3 comprise two Excel spreadsheets. Record 2 lists the AHBs by name and category and records their yes/no responses to the survey questions about whether they capture property information, and void information. Record 3 is a spreadsheet containing a list of the AHBs and categories and their responses to the question concerning the number of void properties they had at the relevant time.
AHBRA released record 2 in part, i.e. it released a record showing the category of each AHB and their responses, but not their names. It refused access to record 3 in its entirety.
Record 2 – whether the AHBs’ names are within the scope of the applicant’s request.
Part 2 of the applicant’s request specifically stated as follows:
“Page 31 of the Sectoral Analysis provides information in relation to the monitoring query concerning property and asset management. In relation to this data, I am seeking an extract listing each AHB response for:
a. captures property information
b. captures void info
If possible, please indicate the AHB category. I assume, in both cases, this is a simple yes/no response. For the avoidance of doubt, this extract should include AHBs that responded with a 'yes' and with a 'no.'”
As set out above, AHBRA released a record to the applicant containing the relevant category and responses for each AHB, but not the AHBs’ names. The applicant raised this in his internal review request. AHBRA’s internal review decision stated that his request in respect of part 2 “was granted in full”. Its position was that the applicant had “now indicated” that he was “in fact seeking the identity of each AHB”. AHBRA noted that his original request sought at part 2, “if possible, the AHB category", whereas part 3 sought the "name/category of each AHB". The internal reviewer stated that his interpretation of the applicant’s request as a whole was that he did not request the names of AHBs in part 2 of his request and that this “therefore constitute[d] a new request”.
Having considered the matter, I am satisfied that the applicant was seeking information on the individual AHBs and, in any event, he put the matter beyond doubt in his application for internal review. He sought an extract listing each AHB response. I am satisfied that this can reasonably be interpreted as a request for a list that identifies both the relevant AHB and its specific response. Accordingly, I am satisfied that the names of the AHBs falls within the scope of the applicant’s original request. I will proceed to consider whether AHBRA was justified in its refusal to release this information.
Records 2 and 3 – substantive issues arising
As noted above, AHBRA relied on sections 35(1)(a) and (b) and 36(1)(b) and (c) of the FOI Act to refuse access to record 2 in part and record 3 in full. I consider section 36 to be of most relevance, so I will consider its application in the first instance.
Section 36 - Commercially sensitive information
Section 36(1) provides for the mandatory refusal of a request if the record concerned contains;
(b) financial, commercial, scientific or technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation, or
(c) information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates.”
The essence of the test in section 36(1)(b) is not the nature of the information but the nature of the harm that might be occasioned by its release. The harm test in the first part of subsection (1)(b) is that disclosure of the information “could reasonably be expected to result in material financial loss or gain.” The test to be applied in this regard is whether the decision maker's expectation is reasonable. The harm test in the second part of subsection (1)(b) is whether disclosure of the information “could prejudice the competitive position” of the person concerned. The standard of proof necessary to meet this test is considerably lower than the standard to meet the test of "could reasonably be expected to" in the first part of subsection 36(1)(b). However, this Office takes the view that in invoking "prejudice", the damage which could occur must be specified with a reasonable degree of clarity.
While the standard of proof required to meet the test in section 36(1)(c) is relatively low, this Office expects that a person seeking to rely on this exemption would be able to show that contractual or other negotiations were in train or were reasonably foreseen which might be affected by the disclosure and to explain how exactly the disclosure could prejudice the conduct or the outcome of such negotiations.
AHBRA’s submissions
In its original and internal review decisions, AHBRA said record 3 contained commercial information whose disclosure could reasonably be expected to a) prejudice the competitive position of the AHBs concerned in the conduct of their businesses and b) prejudice the conduct or outcome of negotiations by the AHBs listed. It said AHBs are independent legal entities that compete with each other and other parties in competitive processes for the development of housing. It said the information sought was not generally available to the public and that the AHBs were not informed that it would be published. It said the information in record 3 referred to the service performance and management of existing units owned or managed by individual AHBs and that its release “could likely prejudice and impact on the competitive position, both between AHBs and between AHBs and other housing providers”. In its internal review decision, it added that the disclosure of record 2 in full would tie the information already released to specific AHBs and that the same harms would apply to the release of record 2 in full.
On 4 October 2023, in correspondence with the applicant in relation to his request which was provided to this Office for the purposes of this review, AHBRA explained that a void is best defined as “any property or dwelling that doesn’t have a tenant living in it for a period of time”. It said that, given the range of accommodation types provided by AHBs, organisations were sometimes not clear on how to record information for voids or whether they needed to report such data. By way of example, it said that AHBs who provide emergency style accommodation may have empty bed spaces on the specific date in question, but that these did not meet the definition of a void. However, AHBRA said that some AHBs included these figures as part of their voids reporting. It indicated that it tried to be more specific in how voids should be reported in its later surveys to avoid this issue.
AHBRA added that many AHBs do not capture voids as they do not arise, based on their specific business model. It also said that the information included in the Annual Sectoral Analysis was self-reported by AHBs and not subject to any validation. Its position was that providing actual figures for voids reported in the survey would not be “statistically useful at this time as we continue to work on improving the quality of this type of information being reported by AHBs for 2023”.
The applicant’s submissions
In his request for internal review, the applicant argued that in its decision, AHBRA was treating certain AHBs, which he described as publicly funded charities, as if they were profit- driven private commercial companies competing against one another. His position was that “AHBs are really only competing against other AHBs who are also applying for public funding from the same State agencies”. He argued that information relating to voids in specific AHBs “might assist those state bodies in making good decisions about what AHBs to provide funding to (or not)”. He was also of the view that such state bodies “might have to reconsider funding poor-performing AHBs that [were] not adequately managing their existing resources”. The applicant made no further submissions during this review.
AHB submissions
As noted above, 126 of the 387 AHBs listed in the records expressly objected to the release of the records at issue. Of the remainder that contacted this Office in response to the notification of the review, 25 indicated that they had no objection to the release of the records sought. 14 discussed the case by telephone but made no subsequent objection. As also set out above, the vast majority (217 AHBs) did not respond at all.
102 AHBs, ranging from small to large organisations, objected to the release of the records concerned and essentially submitted the same arguments by way of a template letter. In relation to section 36, the AHBs said they were “independent organisations that often compete for the award of contracts or in negotiating delivery of new homes”. They said that, as a result, there was commercial and financial information contained in their monitoring forms which “could affect [their] commerciality or competitiveness”. In addition, they noted that the information in question was captured at a particular point in time and argued that it could be “taken out of context” if released.
Of the remaining 24 AHBs that objected to the release of the records sought, most did not elaborate on their reasons for objecting. However, a small number made substantive arguments in support of their position. One organisation objected to release of the information sought on the basis that it was not an FOI body. Others were concerned that the release of the records sought would reveal the location of housing for vulnerable women or Ukrainian refugees, thereby putting them at risk. Another organisation was concerned that the records may be misinterpreted “without the appropriate context”, which could lead to “misunderstandings about the circumstances within the AHB Sector and the Care and Support sector in particular”. It said the survey reflected the number of bed spaces, rather than the number of individual dwellings, so that a report of 5 voids may mean one house with five bedrooms, rather than five separate properties. The organisation also said that voids might arise due to a lack of funding from the HSE to replace a tenant who had passed away; or due to a tenant requiring more/quiet space in a property due to their medical, psychological or high support needs. It also said that some bedrooms might be allocated for staff accommodation within these properties, but that these would be counted as voids for the purposes of the survey. It essentially argued that a misinterpretation of the standalone raw data might cause harm to an AHB’s reputation, and that the AHB sector might appear less effective than it was.
Another AHB referred to two previous decisions of this Office which concerned information provided by AHBs to the Housing Agency and the Charities Regulator (cases OIC-102999 and OIC-127650 respectively). It said that this Office had upheld both bodies’ refusal to release records submitted by AHBs (copies of Engagement Regulatory Returns to the Housing Agency and compliance correspondence with the Charities Regulator) on the grounds of “confidentiality, commercial and other sensitivity and likelihood of harm” and that in the latter case there was “an emphasis on reputational harm” which might flow from release. The AHB argued that all AHBs compete for funding with each other and with private housing developers/operators and that the release of “sensitive records” on vacancies, particularly in a “very basic and unexplained manner” could “very well result in prejudice to the competitive position” of the AHBs and could “potentially result in significant reputational damage to some or indeed to all AHBs”.
Another AHB said it provides disability residential services to persons referred by the HSE. It said that it submits a quote to the HSE for suitable housing based on an assessment of the specific needs of the individual referred. It said the HSE also seeks quotes for the same placement from other residential providers, including private operators, who were neither charities nor registered AHBs. It said that once quotes were submitted, a “negotiation process ensues”. It essentially stated that while it was “regularly advised” by the HSE that its services were expensive, it was “difficult if not impossible” to verify or benchmark the costs of such services in Ireland. It essentially argued that, on this basis, placing its property information in the public domain would give private operators a commercial advantage, as they would have access to information about its properties that it would not have about theirs. It contended that this would prejudice its competitive position in residential services negotiations with the HSE, resulting in a possible financial loss to its organisation.
A further AHB (AHB X) said its circumstances were “quite unusual”, in that it had acquired ownership of all of its housing units from a now dissolved state agency, subject to a management agreement that had been granted by the agency to another AHB (AHB Y). It said that the terms of the arrangement meant that AHB Y was responsible for compliance and governance matters and could retain all of the net income arising from the units in question. AHB X was concerned that its reputation could be unfairly damaged by the release of isolated responses from its monitoring form, which could give an erroneous and misleading impression. It argued that its responses might give the impression that it was not diligent in the management of its properties, when, in fact, responsibility for doing so rests with AHB Y.
Another organisation argued that the release of the information sought to “unknown requesters/entities” could harm its interests. It said that the release of the records would reveal “sensitive operational data”, as it would expose “internal processes and vulnerabilities”. It argued that this information could be misused, thereby “compromising the integrity and efficiency of [its] operations”. It said the data concerned “reflect[ed] on strategic decisions and internal evaluations” and that its release without the AHB’s consent, would give competitors or “possible antagonists” an unfair advantage and harm or prejudice its position in the market. It contended that making the information public “could impact [its] future planning and undermine [its] strategic interests”.
My Analysis
I have carefully considered the various arguments against the release of the records sought in this case, as set out above. I have also had regard to the template monitoring form provided to this Office by AHBRA for the purposes of this review. I accept that the form
seeks detailed information on each AHD. However, the information the applicant has sought is quite limited, and its disclosure would involve the disclosure of nothing more than
whether reach AHB captures property information and void information and details of the
number of void properties they reported at a particular point in time, almost three years ago.
In the letter from this Office to the AHBs, notifying them of the review and inviting them to make submissions, this Office’s Investigator stated as follows: “[p]lease note that the information contained in the records seems to me to be very limited and relates to a point in time…, it does not necessarily reflect the position of your organisation at this time. In the circumstances, it is not currently clear to me how such information would be exempt under section… 36”. She then asked the AHBs to “provide all relevant information to explain specifically how or why any harm of a commercial nature could arise from disclosure having regard to the particular contents of the records at issue”. She also asked them to “identify the material financial loss or gain which is expected to your organisation from the release of records 2 and/or 3 and show how disclosure of the relevant information in the record(s) could reasonably be expected to cause that result”, and/or to “describe how your company's competitive position could be prejudiced by the disclosure of the relevant information”. She also asked the AHBS to, where relevant, “describe the relevant contractual or other negotiations you believe could be affected by the release of the records concerned, and please show how disclosure of the relevant information could prejudice the conduct or outcome of those negotiations”.
On foot of her letter, a number of AHBs spoke to this Office’s Investigator and indicated that a bed/room/property might technically be considered to be vacant where a tenant was in hospital or otherwise receiving inpatient treatment and their accommodation was being held for them in the hope that they would shortly return. Others referred to the continuing natural turnover arising from clients moving on or passing away, as well as the necessity to carry out repairs or other remedial works between tenants. Furthermore, I note AHBRA’s comments above about the inconsistency in reporting void information that arose in response to the initial survey. I can understand the concerns raised by the AHBs as to the possible erroneous conclusions to be drawn based on how many vacancies they had on a particular date. For example, I am willing to accept that an AHB mismanaging its properties might report a high number of vacancies, and that mismanagement issues might cause some reputational damage to an individual AHB. However, it seems to me that in the absence of any explanation as to why a particular AHB had a number of vacancies on a particular date a number of years ago, it would be difficult to extrapolate a reason. This seems to me to particularly be the case where the reporting of voids was inconsistent.
In this particular set of circumstances, where the figures reported may have been incorrectly included in the AMF, it seems to me to be unlikely that damage could be caused to the reputation or competitive position of an individual AHB from the release of the records sought. Moreover, the information at issue is now almost three years old and given the nature of the rapidly moving housing market, it seems to me that the information discloses little or nothing about the current reputation of the AHBs. In any event, this Office has stated on many times in the past that that the possibility of information being misunderstood is not a good reason to refuse access to records under FOI as apart from anything else, such an argument seems to be based on an assumption, which we do not accept, that public bodies are incapable of explaining their records to the public and are unable to present information to the public in a way which will allow any objective observer to draw accurate and balanced conclusions.
In regard to the two previous cases cited by an AHB above, it seems to me that they can be distinguished from this review on the basis of their factual circumstances and context. Case OIC-102999 related to records concerning matters such as “governance, financials, performance, strategic, funding, operational costs, oversight, growth strategies, targeted funding sources, and the service performance management of existing and future units”. In that case the Senior Investigator found the records to be “quite detailed and sensitive”, as they included details of the AHBs’ “rent and income management, financial viability, debt profile, growth plans” etc. Case OIC-127650 related to records concerning an ongoing investigation into issues raised by the Housing Agency with the Charities Regulatory Authority in relation to an AHB’s activities. The Investigator found that the release of such records in those circumstances could have reputational and other commercial impacts for the AHB in question. In this case, the information contained in records 2 and 3 does not comprise similar such sensitive information. Neither have any of the parties argued that this is the case. I am satisfied that the nature of the records and the context of their creation is quite different in the case under review.
Very few of the AHBs who made submissions to this Office referred to the particular information contained in records 2 and 3 in their submissions or explained how the harms identified could arise from the release of the records sought. The template letter provided by the majority of AHBs that responded simply stated that there was “commercial and financial information” contained in the completed survey forms, but did not explain how or why the release of the limited information sought in this case could cause harm. Of the other AHBs that made substantive submissions, one simply described the information relating to voids as “sensitive” and asserted that its release could prejudice its competitive position or cause significant reputational damage. Another stated that the release of “information about [its] property management” would give its private competitors a commercial advantage. A third AHB referred to the release of “isolated snippets of information without any context” which it believed could damage or undermine public confidence in the AHBs concerned. Yet another stated that the release of “sensitive operational data, … would expose internal processes and vulnerabilities” which could give competitors an unfair advantage. Furthermore, while another AHB was concerned that the release of the records sought could lead to the identification of properties housing vulnerable individuals, I am satisfied that the specific information in the records sought does not contain any details identifying or relating to such accommodation.
While all of the AHBs that objected to release seemed to be of the view that the release of the records sought could cause harm to their positions, none have explained how the release under FOI of the fact that they did or did not collate certain data at a point in time, or how many vacancies they had on a particular date, with no context or explanation provided, could result in a material loss, harm their individual competitive positions, or give an unfair advantage to a competitor.
Furthermore, while AHBRA and some of the AHBs stated that the AHBs negotiate as part of their normal business model and that such negotiations could be prejudiced by release of the records sought, none of the parties have explained how this might occur, having regard to the specific information sought in this case. I note in particular that while one AHB argued that the release of the records sought could allow private competitors to have access to its pricing information, the records do not contain any pricing information. Furthermore, it is unclear to me how the release of records that revealed, say, that a particular AHB did or did not collect property or void information and how many voids it had in September 2022 could prejudice negotiations for placements in 2025 or into the future.
In the circumstances of this case, having carefully considered matters, I do not accept that AHBRA or the individual AHBs that made submissions to this Office have adequately explained how the release of the limited information sought in this case could cause the harms identified. Furthermore, it is not clear to me from the content of the records concerned that their release without any further explanation or context, could be of use to the AHBs’ competitors or that it could cause reputational harm to individual AHBs, to the extent that it could result in a material financial loss to the AHBs, or that it could prejudice their competitive positions or the conduct or outcome of negotiations carried on by the AHBs.
Accordingly, I find that AHBRA was not justified in refusing access to records 2 and 3 in full or in part on the basis of section 36(1)(b) or 36(1)(c) of the FOI Act.
Section 35(1) provides that an FOI body shall refuse to grant an FOI request if;
“(a) the record concerned contains information given to an FOI body in confidence and on the understanding that it would be treated by it as confidential and the body considers that its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and it is of importance to the body that such further similar information as aforesaid should continue to be given to the body, or
(b) disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment (other than a provision of an enactment specified in Schedule 3) or otherwise by law.”
Section 35(2) provides that subsection (1) shall not apply to a record which is prepared by a head or any other person (being a director or staff member of an FOI body or a service provider) in the course of the performance of his or her functions "unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than an FOI body or head or a director, or member of staff of an FOI body or of such a service provider."
The net effect of section 35(2) is that if the record at issue has been prepared by an FOI body or a service provider, then the person to whom a duty of confidence is owed cannot be an FOI body or its staff or a service provider, otherwise section 35(1) cannot apply. The records in this case were prepared by staff of AHBRA, which is an FOI body. However, AHBRA and a number of the AHBs have argued that a duty of confidence is owed to the AHBs that provided the information. The AHBs are independent not-for-profit organisations, and I am satisfied that they are not FOI bodies and are not acting as service providers to an FOI body in this case. Accordingly, I will consider whether the release of the records would constitute a breach of a duty of confidence owed to the AHBs provided for by a provision of an agreement or enactment or otherwise by law.
AHBRA said AHBs submit their confidential and commercially sensitive information to AHBRA on the understanding that any onward disclosure of the information by AHBRA would not only breach a duty of confidence due to them but also cause loss and detriment to the AHBs concerned. It said AHBs submit annual monitoring information to AHBRA on the understanding that this information will solely by used by AHBRA for the purposes of carrying out its regulatory functions and monitoring compliance with the Standards for AHBs and the provisions of the 2019 Act. It said it considers that AHBs submit information to it (in particular, in their Annual Monitoring Form) in confidence and on the understanding that it will be treated by AHBRA as confidential. It said its Monitoring Policy (which applies to the AMF Programme) states that,“Any information provided by an individual AHB in the Annual Monitoring Form will be treated as confidential. AHBRA will not publish individual monitoring returns from AHBs, unless there is a legal basis to do so”.
AHBRA said the information furnished by AHBs is considered to have been given in confidence and on the understanding that it would be treated as confidential by AHBRA given the assurance in the policy document. It said this policy was published on AHBRA’s website in advance of the AMF being sent to individual AHBs and that a link was circulated to all AHBs in an electronic newsletter. It said the AMF itself referred recipients to the AHBRA website as well as stating that,“In the event that AHBRA receives a request for information relating to a specific AHB under the FOI Act 2014, AHBRA shall consult with the relevant AHB in respect of the request to identify any information which is not to be disclosed on grounds of confidentiality or commercial sensitivity” . In response to a query from this Office regarding whether it had consulted in this case, AHBRA said that the statement “was included in recognition of the fact that FOI bodies are not in a position to give guarantees of confidence”. It also stated that the intention was that if information relating to one individual/specific AHB was sought, that it “would have consulted it before making a determination in relation to the release of information”.
AHBRA also referred to section 65 of the 2019 Act, which, it said, “prohibits the disclosure of confidential information obtained while performing functions under the [2019] Act unless required by law or duly authorised by AHBRA”
The AHBs’ submissions
The template letter provided by the majority of the AHBs that made submissions, argued that “it was always the understanding that information provided to AHBRA as part of a statutory return would not be shared or published and would at all times be treated as confidential unless consent to disclosure was given by us directly”. The individual AHBs that made substantive submissions to this Office also made various arguments in this regard. The majority referred to the explanatory note which accompanied the AMF sent out by AHBRA as set out above, as well as AHBRA’s statement that while it was subject to FOI, it would consult with the AHB concerned if it received a request for information relating to a specific
AHB before making a decision on any relevant FOI request.
One organisation stated that the information provided was solely shared with AHBRA as “a regulatory requirement”, with the understanding it would be held in confidence. Another AHB stated that it completed and submitted annual accounts as appropriate, that all information had been provided to AHBRA in complete confidence, that it was not a public body and not subject to FOI. It also said that for any business to successfully operate, it was “vital that all business or commercially sensitive information remain absolutely confidential at all times”.
Another organisation stated that it was “greatly concerned” about the public disclosure of information which it had provided to ABHRA “in reliance upon [an] assurance of complete confidentiality”. It referred to “candid, complete and open communication” between the parties involved. It stated that AHBRA’s monitoring process “expressly contemplates that AHBs will extract information which is specific, confidential and commercially sensitive, solely to facilitate the regulatory process”. It argued, essentially, that while there was no written confidentiality agreement in place, that there was “an express agreement as to what the annual review process will involve and the basis upon which information shar[ed] as
part of it [would] be treated”.
A different AHB stated that it was a private registered company and registered charity which had become an AHB “by default rather than by intention”. Essentially, it stated that it was required to provide social housing in order to be able to provide the specific residential services it was established to deliver. The AHB said that since AHBRA was established in
2021, it had been required to complete and submit annual returns, providing detailed information about its residences, property management and tenancies. It stated that it “strenuously object[ed]” to its property information being open to public scrutiny. Its position was that it was not a requirement of housing legislation that it publish information about its housing, “so it should not be released to third parties” under FOI. It argued that there was “a reasonable expectation” that the information it supplied to AHBRA would be treated as confidential. It stated that if that “transpire[d] not to be the case” it would have to “review [its] position”. It also essentially argued that if it was not a public or state body for the purposes of other matters, that it should not be treated as such in relation to the release of its confidential information.
Another organisation argued that it was “clear from [the] materials that were furnished” by AHBRA with the 2022 AMF that it was “entitled to feel reassured that the information it was providing was being given in confidence for AHBRA’s internal use as a regulatory body” and that the information was “given on the basis that it would be treated by AHBRA as confidential as expressly acknowledged by AHBRA in its policy document”. It argued that release of the information sought would constitute a breach of a duty of confidence owed by AHBRA, and that it had been “induced to provide the information to AHBRA on the basis of its assurance of confidentiality”.
A different AHB argued that the information was given to AHBRA on the understanding that it was given in confidence, and that while it was “legally compelled to forward sensitive information” to relevant Government Bodies, it “should not also be obliged to have that sensitive information … shared at will without [its] consent, … knowledge or permission”. It also stated that the release of the records sought would “violate and constitute a breach of confidentiality”.
Applicant’s position
In his request for internal review, the applicant raised a number of issues regarding AHBRA’s reliance on section 35. He argued that the fact that AHBRA stated that the information provided would be treated as confidential did not mean that it should be exempt from release under the FOI Act. He referred to a previous decision of this Office in OIC case No. 030056, Ms T and the Order of Sisters of Charity of Jesus and Mary, as referenced in paragraphs 12-20 of Maeve McDonagh’s book, Freedom of Information Law, 3rd Edition, 2015. That case concerned an assurance of confidentiality made by an FOI body to a third party, which was found by the Commissioner to be inconsistent with the FOI Act. Essentially, the applicant argued that the same circumstances applied in this case, i.e. that AHBRA was not in a position to make a guarantee of confidentiality to the AHBs where AHBRA was subject to the FOI Act.
The applicant noted that AHBRA’s Monitoring Policy document stated that it would not release "individual monitoring returns from AHBs, unless there is a legal basis to do so". He also noted that the document included a footnote that states AHBRA is subject to the FOI Act. He argued that the footnote effectively acknowledged that AHBRA could not give “a blanket guarantee” that the information provided would be exempt from release under FOI. The applicant also argued that it was “highly debatable” how confidential the particular information sought was. He stated that the information concerned doesn't disclose the locations of the void dwellings in question, but that rather, it simply revealed the number of such dwellings, which in some cases was “likely to be very low”. He further argued that local authorities “are supposed to record information concerning void AHB units to manage social housing units adequately”. He said that in 2015, and again in 2017, the Local Government Audit Service (see VFM Report No 29, “The oversight role of local authorities in the provision of social housing by Approved Housing Bodies”) recommended that local authorities should operate a management system that tracks “details of voids, length of time for re-lets [and] details of property inspection." His view, essentially, was that given that void information was “supposed to be shared with local authorities”, that the same or similar information provided to AHBRA could not be truly confidential.
I have considered whether the release of the records at issue would constitute a breach of a duty of confidence owed to the AHBs provided for by a provision of an enactment, namely section 65 of the 2019 Act. I am satisfied that it would not.
Section 65(1) provides as follows:
A relevant person shall not disclose confidential information obtained by him or her while performing functions under this Act unless he or she is required by law, or duly authorised by the Regulator, to so do.
Confidential information is defined as including “information that is expressed by the Regulator to be confidential either as regards particular information or as regards information of a particular class or description”.
This provision is, in essence, an anti-leaking provision which does not, of itself, prohibit the release of information generally by AHBRA. It also suggests that not all information obtained by AHBRA is confidential. I am satisfied that the release of the records at issue would not constitute a breach of a duty of confidence owed to the AHBs provided for by section 65 of the 2019 Act.
I have also considered whether the release of the records would constitute a breach of a duty of confidence owed to the AHBs “otherwise by law”. A duty of confidence provided for “otherwise by law” is generally accepted to include a duty of confidence arising in equity. In the Supreme Court decision in the case ofMahon v Post Publications Ltd [2007] 3 IR 338 Fennelly J confirmed that the requirements for a successful action based on a breach of an equitable duty of confidence, at least in a commercial setting, are found in the judgment of Megarry J inCoco v. A. N. Clark (Engineers) Ltd. [1969] RPC 41, at 47:
“[T]hree elements are normally required if, apart from contract, a case of breach of confidence is to succeed. First, the information itself ... must 'have the necessary quality of confidence about it'. Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it."
Fennelly J summarised or restated the requirements of what he called “the contours” of the equitable doctrine of confidence as follows:
“1. the information must in fact be confidential or secret: it must ... ‘have the necessary quality of confidence about it’;
2. it must have been communicated by the possessor of the information in circumstances which impose an obligation of confidence or trust on the person receiving it;
3. it must be wrongfully communicated by the person receiving it or by another person who is aware of the obligation of confidence
I have adopted this approach in considering whether the disclosure of information in the records at issue would constitute a breach of an equitable duty of confidence owed. It seems to me that the undertaking given by AHBRA to AHBs that information provided in AMFs would be treated as confidential could not reasonably have been understood by the AHBs to be absolute. This is particularly so in circumstances where the AHBs were on advance notice of the fact that AHBRA is subject to the provisions of the FOI Act 2014 and that the possibility existed of certain information being released on foot of an FOI request made to it. Indeed, AHBRA itself acknowledged in its submissions to this Office that “FOI bodies are not in a position to give guarantees of confidence”. 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”. Pursuant to section 11(3) of the Act, in performing their functions under the Act, FOI bodies must have regard to, among other things, the need to achieve greater openness in their activities and to promote adherence by them to the principle of transparency in government and public affairs. I fully accept that AHBs are entitled to expect that certain information they provide in an AMF would be treated as confidential, such as commercially sensitive information. However, as I have set out above in my analysis in respect of the applicability of section 36, I do not consider the information at issue in this case to be commercially sensitive. I also note that section 65 of the 2019 Act clearly indicates that it is open to AHBRA to publish even confidential information.
The disclosure of record 2 would disclose nothing more than whether certain AHBs capture property information and/or void dwelling information. It is not apparent to me that such information could reasonably be regarded as having the necessary quality of confidence about it or that it was communicated by the AHBs in circumstances which impose an obligation of confidence on AHBRA. The information is not intrinsically private or sensitive information about the AHBs. I accept that some AHBs would have concerns about the release of the information in record 3, namely the number of void dwellings each AHB had at the time. However, the primary concerns appear to be based on a potential for the information to be misunderstood. Moreover, I do not accept that AHBs could reasonably expect that the information provided in an AMF would remain confidential indefinitely, particularly information which is not, in my view, commercially sensitive, or even if it was at the time, is no longer commercially sensitive given the passage of time. Accordingly, I do not accept that the information at issue has the necessary quality of confidence about it or that it was communicated by the AHBs in circumstances which impose an indefinite obligation of confidence on AHBRA. I find, therefore, that section 35(2) serves to disapply section 35(1) in this case.
In conclusion, therefore, as I have found the records not to be exempt under sections 35(1), 36(1)(b), or 36(1)(c), I direct their release to the applicant in full.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul AHBRA’s decision. I find that AHBRA was not justified in refusing access to the records at issue under sections 35(1) or 36(1) of the FOI Act and I direct their release to the applicant.
Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.
Stephen Rafferty
Senior Investigator