Whether the Authority was justified in refusing access to records relating to its handling of the applicant-�s two reports of possible unlicensed trading, as well as records concerning the criteria used by the Authority to decide whether a license is required and any related legal advice on the basis of sections 15(1)(a), 15(1)(d), 15(1)(i)(i), 29(1)(a) and 37(1) of the FOI Act

6 May 2021

Background

By way of context, all multi-unit developments (e.g. apartment complexes) must have an Owners Management Company (OMC), which is the legal owner of the common areas of the development on behalf of the owners of the units. Many OMCs appoint a licensed property services provider such as a property management agent to look after the day-to-day running of such developments. However, OMCs can also opt to manage these matters themselves, by employing service providers directly without using an intermediary. The Authority licenses and regulates property services providers such as auctioneers, estate agents, letting agents and management agents. It also provides a complaints investigation and redress system for consumers.

The applicant made two complaints to the Authority in 2019 concerning two separate businesses, which he believed were in breach of the Property Services (Regulation) Act 2011 (the 2011 Act) by providing property services without a license to the OMC of a named multi-unit development in circumstances which required a license.

The Authority acknowledged both of the applicant-�s complaints and informed him that it did not comment on individual cases and would not keep him updated concerning any related investigations. It said that his direct involvement in these matters had ceased once he had made his reports and they had been acknowledged.

In a request dated 29 June 2020, the applicant sought access to all records relating to the Authority-�s handling of his reports of possible unlicensed trading concerning two named companies, as well as records relating to the criteria used by the Authority to decide whether a license is required by an OMC/property services provider and any related legal advice.

In a decision dated 23 July 2020, the Authority refused his request. It identified 18 relevant records, to which it refused to grant access on the basis of sections 15(1)(d) (records in the public domain), 15(1)(i)(i) (records already available to the requester), 29(1) (records relating to the deliberative process of an FOI body) and 37(1) (third party personal information). The Authority also attempted to clarify matters by providing some additional information relating to the requirement for providers of services to OMCs to be licensed.

The applicant sought an internal review and the Authority affirmed its original decision on the same basis in relation to records 1-18. It also relied on section 15(1)(a) in relation to his request for legal advice provided to the Authority, as it stated that no such records existed. The Authority again sought to clarify matters surrounding the requirement for a business providing property services to be licensed under the 2011 Act.

On 4 January 2021, the applicant applied to this Office for a review of the Authority-�s decision, wherein he referred solely to the Authority-�s refusal to grant access to records 10-12 and 18. During the course of the review he also queried the lack of records identified by the Authority relating to one of the companies he complained about (Business B). This Office-�s Investigator informed the applicant that the Authority-�s reliance on sections 15(1)(a), 15(1)(d) and 15(1)(i)(i) would not be considered, as his application to this Office had solely concerned its refusal to release records 10-12 and 18. She also provided some additional information in relation to how the Authority said it had dealt with his second complaint. She indicated that the lack of records relating to Business B seemed reasonable to her, having regard to the Authority-�s description of its procedures. In his response dated 1 April 2021, the applicant did not object to the scope of the review, but he did indicate that he did not agree with the Investigator-�s view that the decision-maker-�s basis for deciding that no additional records existed concerning the Authority-�s decisions on his complaints was reasonable (section 15(1)(a) of the FOI Act refers).

I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the submissions made by the applicant and by the Authority in support of its decision. 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.

Scope of Review

This review is solely concerned with whether the Authority was justified in its decision to refuse to grant access to records 10-12 on the basis of section 37(1), record 18 on the basis of section 29(1) and additional records relating to Businesses A and B on the basis of section 15(1)(a) of the FOI Act.

Preliminary Matters

I note that, in its submissions to this Office, the Authority has indicated that both of the businesses concerned in the applicant-�s complaints were providing services directly to the relevant OMC in circumstances where a license was not required.

It is important to note, as a preliminary matter, that this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.

It is also important to note that section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request under section 12 shall be presumed not to have been justified unless the head of the relevant FOI body shows to the Commissioner's satisfaction that its decision was justified. This means that the onus is on the Authority to satisfy this Office that its decision to refuse access to the records sought was justified.

Analysis and Findings

Section 15(1)(a) -� Whether additional records exist

In his submission to this Office, the applicant queried the lack of records on the schedule provided by the Authority relating to Business B. He was concerned that correspondence with the business by the Authority had not been considered in relation to his FOI request. He subsequently indicted that he also believed this to apply to additional records relating to Business A. This means that section 15(1)(a) may be relevant.

Section 15(1)(a) provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The role of this Office in a case involving section 15(1)(a) is to decide whether the decision maker has had regard to all the relevant evidence and, if so, whether he/she was justified in coming to the decision that the records sought do not exist or cannot be found. The evidence in such 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 FOI body insofar as those practices relate to the records in question.

In this case however, it seems to me that the Authority-�s procedures and practices generally are of more assistance in determining whether its effective reliance on section 15(1)(a) to refuse to grant access to records relating to Business B was justified.

In its submission to this Office, the Authority stated that its staff member dealing with the complaint -�made a determination-� based on the details provided by the applicant that Business B did not require a license. It said that it appeared that the business was providing cleaning and maintenance services directly to the OMC, which it stated was not a qualifying property service under the 2011 Act. The Authority also stated that, accordingly, no further action was taken in relation to Business B. It is clear from the records at issue that the complaint relating to Business A was processed differently, as a staff member wrote to the business concerned.

In his email dated 1 April 2021, the applicant was of the view that if the Authority made a determination as to whether a license was required (in relation to both businesses), that records must exist setting out the determination(s), the reason(s) for said determinations and other relevant additional information. He was also of the view that all of this would have been required for the Authority to explain to this Office how the complaint was handled. He stated that it was -�highly unlikely-� that it had simply -�relied on someone-�s memory of the events concerned-�, which would not be -�good practice-�.

The applicant appears to be of the view that processing complaints of this type requires formal decision making and the creation of additional records at various stages. However, it seems to me that staff who process complaints from members of the public are often in a position to determine from a review of the contents of a letter or email whether a valid complaint has been made that requires further investigation. For instance, in the case of applications to this Office for a review of a public body-�s decision on a FOI request, this Office-�s staff would have regard to whether the public body in question was subject to FOI, if the applicant had made an original and internal review request and whether the relevant timelines were met. I am of the view that an experienced staff member would often be able to tell if an application for review was valid simply by examining these matters, without any formal, written decision being made. A valid application would then simply be moved through the various stages of the acceptance, assignment and investigation process. An applicant would be notified if an application was invalid. My understanding is that, in much the same way, the relevant staff member in the Authority read the applicant-�s complaint and was satisfied that no investigation or further action was required. Furthermore, as outlined above, unlike in this Office, the Authority does not inform the complainant of the outcome in these matters. It appears as if once assessed and deemed not to require further action, such a complaint is merely filed on the Authority-�s systems. In the circumstances, I would not expect any additional records to exist.

On the other hand, the Authority identified additional records concerning the complaint regarding Business A, as the staff member processing incoming complaints appears to have determined that further action was required and issued a letter to the business concerned. This also seems to be in line with the Authority-�s procedures.

Having regard to the provisions of the 2011 Act, the content of the applicant-�s complaints and the relevant records and the Authority-�s submissions to this Office, I am satisfied that the decision maker was justified in coming to the decision that no records relating to Business B other than the original complaint exist. I also find that he was justified in coming to the decision that no additional records relating to Business A exist. I find therefore that the Authority was justified in effectively refusing to grant access to additional records relating to the applicant-�s complaints on the basis that they do not exist under section 15(1)(a) of the FOI Act.

Section 29(1)

Section 29(1) of the FOI Act provides that an FOI body may refuse to grant an FOI request if the record contains matter relating to the deliberative processes of an FOI body and granting the request would be contrary to the public interest. These are two independent requirements and the fact that the first is met carries no presumption that the second is also met. It is therefore important for public bodies to satisfy this Office that both requirements are met.

The section further provides that, without prejudice to the generality of paragraph (b), in determining whether to grant or refuse to grant the request, the body must consider whether the grant of the request would be contrary to the public interest by reason of the fact that the requester would become aware of a significant decision that the body proposes to make. Moreover, the exemption does not apply insofar as the record concerned contains any of the information or matter referred to in section 29(2) of the Act.

The first requirement to be met in order for section 29(1) to apply is that the record must contain matter relating to the 'deliberative processes' of an FOI body. An FOI body relying on this exemption should identify both the deliberative process(es) concerned and any matter in particular records which relates to these processes. A deliberative process may be described as a thinking process, which informs decision making in FOI bodies. It involves the gathering of information from a variety of sources and weighing or considering carefully all of the information and facts obtained with a view to making a decision or reflecting upon the reasons for or against a particular choice. Thus, it 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.

In its original decision, the Authority quoted section 29(1)(a) and stated that record 18 was in working draft form, under deliberation and had not yet been finalised. It did not refer to section 29(1)(b) or explain how its release would be contrary to the public interest. It did not elaborate on the application of section 29 in its internal review decision. In its submission to this Office, the Authority stated that the record relates to a draft PSRA staff guidance document in relation to OMCs, which was still in draft form and awaiting approval from the CEO.

The Authority said that the finished document was intended to provide guidance to its staff in making a determination on when a licence is required by OMCs. It said that the document contains interpretations of sections of the Property Services (Regulation) Act 2011 and outlines scenarios where a licence may or may not be required.

Based on the Authority-�s description of the information note above, and having regard to its contents, I am willing to accept that the record concerned relates to the Authority-�s deliberations on how to address any confusion arising among the general public as to the application of the 2011 Act and when a PSRA license is required by someone providing property services to an OMC. Accordingly, I accept that the record contains matter relating to a deliberative process and that section 29(1)(a) applies.

Contrary to the public interest

In addition to showing that a record contains matter relating to its deliberative processes, an FOI body relying on section 29 for its refusal to grant access to a record must show that release of the record would be contrary to the public interest as required by section 29(1)(b). The public interest test in this section is a stronger public interest test than the public interest test in many other sections of the FOI Act, which require that, on balance, the public interest would be better served by granting than by refusing to grant the request. For release to be contrary to the public interest, this Office would generally expect the body to identify a specific harm to the public interest flowing from release. Furthermore, a mere assertion of harm without supporting evidence is not sufficient to satisfy the requirement that granting access to the record would be contrary to the public interest.

This Office-�s Investigator asked the Authority to explain how release of record 18 at this point would be contrary to the public interest. In response, the Authority acknowledged the general public interest in the public knowing how an FOI body reaches a decision, but was of the view that -�the greater public interest-� lay with the record not being released prematurely in draft form as it could -�negatively affect future decision making processes-�. The Authority did not expand on these statements.

The record at issue is a three-page document clearly headed DRAFT in red letters. The note sets out a draft interpretation of the relevant parts of the 2011 Act and is clearly intended to be used by the Authority-�s staff when dealing with queries on these matters. I note that the Authority has confirmed to this Office that, although the document was intended to be an internal record for staff use, it is willing to provide a copy of the information note to the applicant once it is finalised. I also note that that once the information note is finalised, it appears that it would fall within the exception to section 29(1) at section 29(2)(a) of the FOI Act, which deals with rules, procedures, guidelines etc. used by FOI bodies for the purpose of making decisions or determinations.

Neither party in this case has argued that release of record 18 would mean that the applicant would become aware of a significant decision the Authority proposed to make.

I have considered the contents of record 18 and I accept that the document is still in draft format. However, I do not consider that the Authority has adequately demonstrated how the disclosure of the draft information note at this stage in the process would be contrary to the public interest. Accordingly, I find that the Authority was not justified in refusing to release record 18 under section 29 of the FOI Act. I hereby annul its decision to refuse access and direct the release of the record concerned to the applicant.

Section 37(1)

The Authority relied on section 37(1) to refuse to grant access to records 10-12. These records comprise correspondence between the Authority and one of the businesses (Business A) mentioned in the applicant-�s complaints.

Section 37(1) of the FOI Act is a mandatory exemption, which provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information. This does not apply where the information involved relates to the requester (section 37(2)(a) refers).

Section 2 of the FOI Act defines the term -�personal information-� as information about an identifiable individual that either (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual or (b) is held by an FOI body on the understanding that it would be treated by the body as confidential.

Section 2 also details fourteen specific categories of information which is personal without prejudice to the generality of the foregoing definition, including (ii) information relating to the financial affairs of the individual, (iii) information relating to the employment or employment history of the individual, (vi) information relating to any criminal history of, or the commission or alleged commission of any offence, by the individual, (xiii) information relating to the property of the individual (including the nature of the individual-�s title to any property), and (xiv) the views or opinions of another person about the individual.

Records 10-12 comprise the Authority-�s letter to Business A on foot of the applicant-�s complaint, the business-�s response and subsequent correspondence including a clarification of matters by the Authority.

In his submission to this Office, the applicant stated that his request did not relate to natural persons and that it was difficult to see how the records could contain personal information. In essence, the applicant was of the view that the correspondence concerned would mostly relate to the information he provided and the relevant legal provisions and queries raised by the Authority, at least initially. He was also of the view that the personal information of third parties, if any, could be redacted.

The applicant also referred to the AGM of the OMC, which took place late last year. He stated that the owner of Business A said at that meeting that the notification from the OMC, which formed the basis of his complaints, had been incorrectly worded and that the Authority had accepted this. The applicant also said that the draft minutes of the AGM had since been circulated to the OMC-�s members, which referred to a complaint made to the Authority alleging that the (named) owner of Business A was involved in providing property management services to the OMC without a license and that the Authority had accepted that the allegation had no merit. He was of the view that these events supported his contention that as far as records 10-12 related to these matters, they could no longer be considered to be personal information. 

I note that the applicant-�s original complaint concerning Business A referred to the business and not the owner and I accept that the owner corresponded with the Authority on behalf of his business in his capacity as Director. I also note that this Office has found in previous cases that information relating to companies cannot be held to be "about an identifiable individual" and that the section 2 definition of personal information did not apply.

However, in this case the business is in the owner-�s name -� i.e. Mr X and Business [removed]. I note that the owner is listed as the sole managing partner on the business website. Furthermore, the details of the business listed on the Companies Registration Office website show that form RBN1 (Application for registration of a business name by an individual) was used when setting up the business and it appears not to be a limited company. Furthermore, the records sought concern a complaint that the business in question was providing a property service without a licence, which carries a penalty of a fine or imprisonment or both under the 2011 Act. My understanding is that if the business was found to be operating in breach of the 2011 Act and a prison term was imposed, the named business owner would have to serve the sentence personally. Additionally, it could be argued that the records also relate to the fact that the owner of Business A (presumably) owns a property in the development and was therefore part of the OMC. Lastly, the complaint also fundamentally relates to whether or not the OMC was paying him or his business in return for any services provided.

It is important to note that while it may well be the case that personal information relating to an individual is known to the applicant, this does not alter the fact that the information is personal information. The Commissioner considers that, when a record is released under the FOI Act, this, in effect, amounts to disclosure to "the world at large", as the Act places no restrictions on the subsequent uses to which the record may be put. Thus, the fact that third party personal information is known to a requester does not change the fact that such information may be exempt from release under the FOI Act. Furthermore, the fact that the requester may be aware of or may have provided some of the information repeated in a record does not mean that s/he necessarily has any entitlement to it under FOI.

As set out above, to be considered to be personal information as defined in section 2 of the FOI Act, the content of withheld records does not need to be known only to the individual or members of the family, or friends, of the individual or to be held by an FOI body on the understanding that it would be treated as confidential. It does, however, need to be particular information relating to an identifiable individual. It seems to me that, in the circumstances of this case, the director in question would be personally identifiable from the records concerned, even if his name was redacted. It also seems to me that the information in the records at issue could be said to relate to his financial affairs, his employment, the commission or alleged commission of an offence by him/his business, his property, and the views or opinions of another person about him.

Accordingly, I find that records 10-12 contain the personal information of an identifiable individual other than the applicant and that section 37(1) applies.

Section 37(2)

Section 37(2) provides that section 37(1) does not apply in certain circumstances, as set out in paragraphs (a) to (e). I am satisfied that none of the circumstances specified apply in this case, i.e. the records do not contain information relating to the applicant, the director of Business A has not consented to its disclosure to the applicant, information of the same kind as that contained in the record in respect of individuals generally (or of a class of individuals that is, having regard to all the circumstances, of significant size) is not available to the general public, the individual concerned was not informed before giving the information to the Authority, that it belongs to a class of information that would or might be made available to the general public, and disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.

Section 37(5)

Section 37(5) provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the information would benefit the person to whom the information relates. It is not apparent to me that the release of the information at issue would benefit the third party concerned. I find, therefore, that section 37(5)(b) does not apply.

In relation to the public interest test contained in section 37(5)(a), I wish to emphasise that in carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. In summary, section 11(3) recognises the need to enhance public scrutiny and accountability of government and public affairs, particularly the activities and decision making of FOI bodies. However, in a judgment delivered on 25 September 2020 (The Minister for Communications, Energy and Natural Resources v The Information Commissioner & Ors [2020] IESC 57, available on our website www.oic.ie), the Supreme Court held that general principles of openness and transparency do not provide a sufficient basis for directing the release of otherwise exempt information in the public interest. Rather, a -�sufficiently specific, cogent and fact-based reason-� is required -�to tip the balance in favour of disclosure-�. While the comments of the Supreme Court were made in the context of the public interest test in section 36, which is concerned with the protection of commercially sensitive information, I consider them to be relevant to the consideration of public interest tests generally.

Both the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy (which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution). Unlike other public interest tests provided for in the FOI Act, there is also a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. Privacy rights will therefore be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy.

The applicant has not made any specific arguments in relation to the public interest in the release of these records. I consider that there is a public interest in openness and transparency in relation to how the Authority carries out its investigative and regulatory role in relation to the matter of property services and licensing. However, I have also had regard to the fact that the records concerned do not just relate to how an FOI body carries out its regulatory and oversight functions, they also relate to allegations made against a business directly linked to an identifiable individual which were determined to be unfounded by the Authority.

In the circumstances of this case, I find no relevant public interest in granting access to the withheld information that, on balance, outweighs the right to privacy of the individual to whom the information in question relates. I find therefore, that section 37(5)(a) does not apply.

Consequently, I find that the Authority was justified in refusing access to the withheld records under section 37(1).

I also note that even if I had not found section 37(1) to apply to the records, section 36 might be relevant. Section 36 is a mandatory exemption which provides for the exemption of commercially sensitive information.

Releasing parts of records

Section 2 of the Act defines -�record-� as including -�a copy or part-� of any thing falling within the definition of a record. Section 18(1) provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the FOI body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers).

The Commissioner takes the view that neither the definition of a record under section 2 of the Act nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, he is not in favour of the cutting or "dissecting" of records to such an extent. He takes the view that, being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.

I am satisfied that it would not be practicable to direct the release of records 10-12 subject to the redaction of any information relating to the personal information of a third party, as the remaining information would be misleading.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the decision of the Authority. I annul the Authority-�s decision to refuse access to record 18 as I find that it has not demonstrated that its release would be contrary to the public interest and I direct its release to the applicant. I affirm the Authority-�s decision to refuse access to records 10-12 on the basis of section 37(1) of the FOI Act. I find that the public interest does not, on balance, favour their release. I also affirm the Authority-�s effective reliance on section 15(1)(a) to refuse to grant access to any additional records relating to the applicant-�s complaints, on the grounds that they do not exist.

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 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.

Deirdre McGoldrick

Senior Investigator