Whether the Council was justified in refusing the applicant's housing application from 2004 and statistical information sought regarding the origins of other housing applicants

Conducted in accordance with section 22(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

In a request made in January 2017, the applicant sought access to three categories of records or information relating to housing applications, including her own. The Council granted the request in part and refused it in part under sections 15(1)(a) and 15(1)(c) of the FOI Act.  On 7 June 2017, the applicant applied to this Office for a review of the Council's decision.

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 to date by the applicant and the Council.  I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

In correspondence with this Office, the applicant confirmed that she was satisfied with the Council's response to the third part of her original request; the third part of the request is therefore no longer relevant to this review.  The applicant's request otherwise sought access to her own housing file and to the following information:

"the breakdown of numbers of Dundalk residents, and non-Dundalk residents, local residents and non-local residents (people outside of County Louth), foreign nationals, multiple and single applications both housed by Louth County Council and refused by Louth County Council from 2004 to date".

In its decision, the Council granted access to the applicant's housing file, but the file as released did not include the applicant's housing application dated 23 September 2004.  In relation to the breakdowns sought, the Council indicated that it does not hold the information in a readily accessible format and that granting the request would, by reason of the number or nature of the records concerned or the nature of the information concerned, require the retrieval and examination of such number of records or an examination of such kind of records concerned as to cause a substantial and unreasonable interference with or disruption of the work of the Council.  During the course of this review, however, the applicant clarified that item 2 of her request was for statistical information only relating to the origins of other housing applicants; it seems that her request is based on her understanding of the "'local needs' preference" that applies in relation to housing applications.  She maintained that the statistical information she seeks is readily retrievable and referred to the housing needs assessment carried out every three years under section 9 of the Housing Act 1988.  The Council, in turn, referred to the publication of the housing needs reports, which are available on the website of the Housing Agency (https://www.housingagency.ie/).  

Nevertheless, in recent correspondence, the applicant has indicated that she remains dissatisfied with respect to both her housing application and the statistical information sought at item 2 of her request.  Accordingly, my review is concerned with the question of whether the Council was justified in refusing access to the applicant's housing application dated 23 September 2004 and the statistical information sought.  For the sake of clarity, I note that it is outside the function of the Information Commissioner to investigate complaints against public bodies or to adjudicate on how public bodies perform their functions generally.

Analysis and Findings

Section 15(1)(a) provides that access to a record may be refused if the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken.  In cases such as this one, the role of the Commissioner is to decide whether the decision maker has had regard to all the relevant evidence and to assess the adequacy of the searches conducted by the public body in looking for relevant records.  The evidence in "search" cases generally consists of the steps actually taken to search for the records along with miscellaneous other information about the record management practices of the public body insofar as those practices relate to the records in question.  On the basis of the information provided, the Commissioner forms a view as to whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found.  It is not normally the Commissioner's function to search for records. 

I should also explain that, in implementing the terms of the FOI Act, the Commissioner is primarily concerned with ensuring public access to extant records in accordance with the provisions of the Act.  The Act does not require FOI bodies to a create record if none exists, apart from a specific requirement to extract records or existing information held on electronic devices (discussed below). 

The 2004 housing application
In this case, it is not disputed that the applicant's housing application dated 23 September 2004 should be available but is missing.  In contacts with this Office, the Council has acknowledged that a housing application was received from the applicant in 2004.  The Council has also admitted that it originally searched for the wrong type of housing application based on a mistaken assumption that it made.  Nevertheless, after the error was brought to its attention by this Office, the Council carried out a new search of both electronic records and the filing cabinets where similar files which were not closed are stored, but was still unable to find the missing application.  Enquiries by the decision maker to staff who worked in the relevant section of the Council at the time have not yielded any response to date, however.

The Council has also pointed out that the address provided by the applicant in 2004 is different from the address currently on her files.  It seems that the Council closed the application file from 2004 because of a lack of response to correspondence that was sent to the former address.  The Council has also noted that, under the National Retention Policy for Local Authority Files relating to an application for Housing Purchase, it is only obliged to retain a refused application for three years.  The Council thus implicitly suggests that the applicant's 2004 application may have been destroyed, but it has also admitted that the retention policy is not necessarily adhered to and that the application should still exist.

The applicant was notified of the Council's position, and in her response she emphasises that her file number has not changed since 2004.  She regards it as unacceptable that her 2004 application may have been destroyed while the remainder of her file remained intact.  I note, however, that the Council has not actually claimed that the application was in fact destroyed; it has merely suggested that this is a possibility.  The Council says that it has searched the filing cabinets where similar files which were not closed are stored, but it has not stated whether any search has been undertaken of the filing cabinets or other relevant storage facilities where the closed files are kept, i.e. those which have not in fact been destroyed in accordance with the National Retention Policy.  The decision maker has also not received the requested search details from the relevant staff members who may have further knowledge of the application.  In the circumstances, I am not satisfied that all reasonable steps have been taken to search for the missing application.  I therefore find that the Council's decision in relation to the 2004 application should be annulled with a direction that further steps be undertaken to search for the missing record, such steps to include consulting further with the relevant staff members and carrying out a search of any storage facilities where closed housing applications may be kept.

The statistical information
The Council has explained that it does not compile statistical information based on the origins of housing applicants in the manner suggested by the applicant's request.  A local connection requirement applies in order to be placed on the housing lists, but it is not otherwise relevant for the Council to determine whether applicants are originally from Dundalk or County Louth or whether they are "foreign nationals".  While certain details relating to nationality and, where relevant, the housing applicant's local connection to a particular area are inputted into a database called iHouse, the Council's position is that none of the pre-programmed reporting tools currently in use will provide the information requested.  I find no reason to dispute the Council's position on the matter.  Section 17(4) provides that where an FOI request relates to data contained in more than one record held on an electronic device, the FOI body shall take reasonable steps to search for and extract the records, using any facility for electronic search or extraction that existed on the date of the request and was used by the FOI body in the ordinary course.  I accept that no facility was or is currently available in the ordinary course to extract the statistical information that the applicant seeks regarding the origins of other housing applicants.  I am therefore satisfied that section 15(1)(a) applies to item 2 of the applicant's request.

Decision 

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of the Council in this case.  I annul its decision to refuse access to the applicant's 2004 housing application under section 15(1)(a) and direct that further steps be undertaken to search for the missing records, such steps to include consulting further with the relevant staff members and carrying out a search of any storage facilities where closed housing applications may be kept.  I affirm its decision to refuse access to the statistical information sought regarding the origins of other housing applicants.

Right of Appeal

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.

Elizabeth Dolan
Senior Investigator