Whether the Council was justified in refusing access to various records relating to emergency accommodation facilities in Dublin that were subject to enforcement proceedings by the fire authority under sections 29(1), 30(1), 31(1), 36(1) and 37(1) of the FOI Act

27 June 2022

Background

This case has its background in an earlier OIC decision issued on 14 October 2021 (Case OIC-107885). The applicant had requested records indicating how many emergency accommodation facilities in Dublin were currently subject to enforcement proceedings by the fire authority, and records showing reasons for the enforcement action in each case. I annulled the Council's decision to refuse, under section 15(1)(a) of the FOI Act, the part of the request that was for records that contained the reasons for enforcement action taken by the Council in relation to the relevant properties and directed the Council to conduct a fresh decision making process on the request.

On 17 November 2021, the Council issued a new decision to the applicant, wherein it provided a Schedule listing 159 records relating to 14 properties all of which it refused to release, citing sections 29(1), 30(1), 31(1), 36(1) and 37(1) of the FOI Act. While the applicant had indicated in her original request that names and addresses of specific properties could be redacted or withheld, the Council nevertheless provided her with a document listing the 14 properties outlining their fire certificate status. It said the buildings in question have a granted fire safety certificate application, which indicates that they are in compliance with Building Regulations and Building Control Regulations for the works undertaken. It said the fire safety certificates are available to view, for a fee, and provided details of how to access them.

On the same day, the applicant sought an internal review of the Council's decision. On 7 December 2021, the Council affirmed its refusal of the request, following which 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 my previous decision on this matter, the submissions made by the Council, and the applicant's comments in her application for review. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

My previous decision on the applicant's FOI request considered in detail the question of what records the applicant was looking for. I concluded that the applicant was seeking records containing information outlining any issues of concern on the part of Dublin Fire Brigade and/or the Council in respect of the various properties identified. I then remitted the matter back to the Council for fresh consideration.

While I observed in my previous decision that the Council appeared to have taken an overly restrictive interpretation of the applicant's request, it seems to me that in this second processing, it has taken an overly broad interpretation of the request. In its submissions to this Office, the Council described the records as the files held by Dublin Fire Brigade relating to each of the 14 properties. Having examined the records identified by the Council, it is clear to me that the vast majority of the records identified do not actually fall within the scope of the request. While an examination of the relevant files held by Dublin Fire Brigade would seem to be the logical starting point for carrying out appropriate searches for the records sought, it appears that the Council did not proceed to examine each of the records held on the files in order to identify which records contain information outlining any issues of concern on the part of Dublin Fire Brigade and/or the Council in respect of the various properties identified. Rather, it instead simply listed all of the records contained in the files and then applied a blanket approach to the refusal of the request.

I must note that because many of the records listed by the Council relate to more than one property, the same records are frequently held on more than one file and are therefore listed in the Schedule more than once. Accordingly, only around half of the 159 records listed on the Schedule are unique records, the rest are duplicates. Secondly, the majority of the unique records do not actually fall within the scope of the request. For example, the records include correspondence with public representatives seeking updates on various premises, correspondence between the Council and third party fire consultants about work being undertaken, internal communication about the processing of other FOI requests, communication with building owners about remedial works being completed, technical documentation relating to certification of fire proofing materials, and internal communication about the properties that is unrelated to fire safety. In my view, only 13 of the records actually contain information of the type sought by the applicant.

Moreover, as I have outlined above, the applicant clearly stated that names and addresses of specific properties could be redacted or withheld. She also clarified in her application for review to this Office that any personal information contained within the records could be redacted. Therefore, in my consideration of the applicability of the various exemptions cited by the Council in its decision, I have considered only those 13 records or parts of records that I consider to contain the information actually sought by the applicant i.e. records containing specific concerns related to the individual properties at issue but with all names/addresses of properties redacted (or any other information that would identify their location) and all personal information of third parties redacted.

A further difficulty arises as a result of the Council's decision to provide the applicant with a separate document listing the 14 properties at issue and their fire certificate status, whilst seeking to refuse access to all information held relating to those properties. In the Schedule of Records the Council provided to the applicant, it categorised each of the 159 records as relating to one of the 14 properties, with the address of each property listed. Section 25(3) of the FOI Act requires that I must take all reasonable precautions in the course of a review to prevent the disclosure of exempt information. This means that were I to refer to a particular record by number in this decision, simply cross referencing it against the Schedule will reveal its address. In the circumstances, I have prepared an appendix to this decision which specifically identifies the 13 records by number and which part of the record (if not all of it) I consider to fall within the scope of the request. This appendix will be provided to the Council only.

The scope of this review is therefore concerned solely with whether the Council was justified in refusing access to the 13 records in question, in whole or in part, under sections 29(1), 30(1), 31(1), 36(1) and 37(1) of the FOI Act.

Preliminary Matter

It is important to note that section 22(12)(b) of the FOI Act provides that, in a review, "a decision to refuse to grant a request under shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified". This places the onus on the Council of satisfying this Office that the decision to refuse access to the records at issue in this case was justified.

Analysis and Findings

Section 29(1) - Deliberations of FOI bodies

Section 29(1) of the Act provides for the discretionary refusal of a request if (a) the record contains matter relating to the deliberative processes of an FOI body and (b) 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 show to the satisfaction of the Commissioner that both requirements are met. The public interest test at section 29(1)(b) is a strong test. Any arguments against release should be supported by the facts of the case and it should be shown how release of the record(s) would be contrary to the public interest. The exemption does not apply in so far as the record(s) contain any of the information or matter referred to in section 29(2). Thus, where an FOI body is relying on section 29(1) for the refusal of a record, it is very important to go on to consider whether section 29(2) applies in relation to the record concerned.

A -�deliberative process' as envisaged by section 29(1)(a) 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. The fact that a deliberative process exists and is ongoing does not mean that the exemption automatically applies without consideration of all the provisions of section 29. Equally, the fact that a deliberative process is at an end does not mean that the exemption automatically does not apply.

In its submissions, the Council said that the records sought form the files held by Dublin Fire Brigade (DFB) relating to 14 properties. It said that the Fire Prevention Section is tasked, under the Fire Services Act 1981 and 2003, with ensuring fire safety in buildings is achieved. It said that the records in question form part of a deliberative process and, as an ongoing case, DFB continues to consider the technical proposals and proposed fire safety strategy and designs. It said that the legislation places responsibilities on persons in control of a premises for fire safety in that premises, and that it liaises with and advises such persons on fire safety matters. It said that at any stage in this process, it can consider further enforcement action and escalate the case to serving a Fire Safety Notice, Closure Notice or prosecution in the Courts.

The Council went on to say that that the records form the basis of the investigation of a property and the engagement between DFB and the property owners and detail the issues identified as part of the investigation. As such, the Council said that they inform the decision as to whether enforcement action is required. It said that release of these records would result in the applicant becoming aware of decisions made or contemplated by DFB and that even after works have been undertaken at a property, there remains the potential for a decision to be revisited and enforcement action initiated. It said that it was of the view that section 29 seeks to create space for DFB to consider significant issues and that fire safety is one such significant issue. It said that the release of the records would make the applicant aware of the thinking processes of DFB when arriving at decisions on enforcement.   

Having considered the matter and carefully examined the records, I am satisfied that the records falling within the scope of this review do not contain recommendations, advice and opinions, which, in my view, relate to a deliberative process as envisaged by section 29. I consider that the information contained in the 13 records coming within the scope of the review relate to various concerns, questions raised, and recommendations in relation to fire safety at a number of premises that have been used as emergency accommodation for people experiencing homelessness. While I accept that the information contained in the records may feed into deliberations by DFB in determining what next steps to take, I do not consider that the records themselves relate to a deliberative process. I do not accept that the release of the records would make the applicant aware of decisions made or contemplated by DFB given that the records contain only issues of concern in terms of fire safety at unidentified premises. I find that section 29(1)(a) does not apply to the records at issue.

I should add that even if I were to find that section 29(1)(a) were to apply to the records, I am satisfied that a number of sub-sections of section 29(2), which serve to dis-apply section 29(1), are relevant in the current case. For example, I consider that parts of the records contain factual information and reports of technical experts (section 29(2)(b) and 29(2)(e) refer). However, given my conclusion on section 29(1)(a), I do not consider it necessary to consider the applicability of the various exceptions in section 29(2) to the records in this case.

As the requirements of both section 29(1)(a) and 29(1)(b) must be met in order for section 29(1) to apply, I find that section 29(1) does not apply and I have not gone on to consider whether release of the records would be contrary to the public interest.

Section 30 -� Functions and negotiations of FOI bodies

Section 30(1)(a) of the Act provides for the refusal of a request if the FOI body considers that access to the record concerned could reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct thereof. The public interest test at section 30(2) must also be considered.

Section 30(1)(a) envisages two potential types of "prejudice" or harm. The decision maker must hold the view that the release of the record could reasonably be expected to prejudice the "effectiveness" of the tests, examinations, investigations, inquiries or audits, or prejudice the "procedures or methods employed for the conduct thereof-�. Where an FOI body relies on this provision, it should identify the potential harm in relation to the relevant function specified in paragraph (a) that might arise from disclosure. Having identified that harm, it should consider the reasonableness of any expectation that the harm will occur. The FOI body should explain how and why, in its opinion, release of the record(s) could reasonably be expected to give rise to the harm envisaged. A claim for exemption under section 30(1)(a) must be made on its merits, in light of the contents of each particular record concerned and the relevant facts and circumstances of the case.

In its submissions, the Council said that the release of the records would make the applicant, and by extension the world at large, aware of the procedures and methods utilised by staff within DFB when carrying out their investigations. It said that DFB continues to consider the technical proposals and proposed fire safety strategy and designs and that it liaises and advises persons in control of these premises on fire safety matters pertinent to their buildings. It explained that at any stage in the process, in consideration of the relative risk as presented, it could consider further enforcement action and escalate the case to serving a Fire Safety Notice, a Closure Notice or prosecution in the Courts as provided for in the relevant legislation.

It appears that the Council is arguing that that the second limb of section 30(1)(a) applies i.e. that release of the records could reasonably be expected to prejudice the procedures or methods employed for the conduct of DFB's investigations. However, the Council has not explained, nor is it not apparent to me, how such harm could arise. Having regard to the content of the records at issue, I cannot see how their release would reveal details of procedures and methods used by DFB in their investigations into fire safety issues, let alone prejudice these procedures and methods.

In the circumstances, I find that section 30(1)(a) does not apply.

Section 31 -� Parliamentary, court and certain other matters

The Council refused to release the records under section 31(1)(a). This a mandatory exemption applying to a record that would be exempt from production in proceedings in a court on the ground of legal professional privilege (LPP). It does not require the consideration of the public interest. LPP enables the client to maintain the confidentiality of two types of communication:

• confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege) and,
• confidential communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation (litigation privilege).

Where a claim for exemption is made on the basis that the records are covered by legal professional privilege, each record should be considered in its own right. In its submissions, the Council said that the point along the process at which -�enforcement proceedings' are deemed to have commenced is not easily defined. However, it said that in all instances, it has to exercise diligence regarding the information pertinent to each case so as not to prejudice any future legal action, should it be necessary. It said that the records form the basis of the Fire Enforcement investigation files and that all records have the potential to be used as evidence should a decision be made to commence proceedings. It said that while some of the properties involved have carried out works and are not currently the subject of proceedings, the potential for enforcement action remains and as such these records may be relied upon in litigation.

It appears therefore that the Council is relying on the principle of litigation privilege in support of its refusal of the request under section 31(1)(a). As the records do not contain any communication between the Council and a professional legal adviser, I must consider whether they contain confidential communications between the Council/DFB and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation. In the case of Silver Hill Duckling Limited v. Minister for Agriculture [1987] I.R. 289, O'Hanlon J. held that, in order to attract legal professional privilege, "the dominant purpose for the document coming into existence in the first place should have been the purpose of preparing for litigation then apprehended or threatened".

The Council did not make any particular arguments in relation to specific records but have broadly argued that all records could potentially be used as evidence should legal proceedings commence. It said that such legal proceedings are always a potential course of action for DFB in the context of its enforcement powers in relation to fire safety.

Having carefully examined the records at issue, I am not satisfied that they attract litigation privilege. Firstly, for litigation privilege to apply, there must be contemplated or pending litigation. The mere possibility of proceedings is not sufficient. Secondly, the Council has not shown that the dominant purpose for the creation of any of the records was in preparation for contemplated/pending litigation. I find that the Council has not justified its decision to refuse the request under section 31(1)(a).

Section 36 -� Commercially sensitive information

The Council said that the records were also exempt from release under section 36(1)(b). That section provides that an FOI body shall refuse to grant a request if the record concerned contains 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.

The Council said that the records relate to the condition of properties being investigated by DFB and provide a snapshot of the condition of a property and any causes for concern at a particular point in time. The Council argued that the release of the records could reasonably be expected to result in a financial and reputational loss to the owners of the properties involved by making the applicant, and by extension the world a large, aware of the condition of the property which could have an effect on the perceived value/viability of the property. It said that release could also prejudice the competitive position of the property owners involved in any future negotiations relating to their properties. It said that the Council generally also required property owners to continue to make their properties available for critical homeless and emergency accommodation services.

The essence of the test in section 36(1)(b) is not the nature of the information, but the nature of the harm which might be occasioned by its release. The harm test in the first part of section 36(1)(b) is that disclosure "could reasonably be expected to result in material loss or gain". This Office takes the view that the test to be applied is not concerned with the question of probabilities or possibilities but with whether the decision maker's expectation is reasonable. The standard of proof in relation to the second limb of section 36(1)(b) is low; all that is required is the possibility of prejudice with the only requirement being that disclosure "could prejudice the competitive position" of the person concerned.

Given that the records under consideration for release do not contain the names/addresses of the properties, or any personal information of third parties I cannot see how release of such records could give rise to the financial or reputational loss suggested by the Council. I do not find this expectation to be reasonable when the records contain only issues of concern in terms of fire safety at unidentified premises. Nor do I accept that the records contain financial, commercial, scientific or technical or other information whose disclosure could reasonably be expected to prejudice the competitive position of the person to whom the information relates.

I find that section 36(1)(a) does not apply to the records at issue.

Section 37 -� Personal information

The Council also stated that the records were refused under section 37(1) of the FOI Act. Section 37(1) of the FOI Act 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. Section 2 of the FOI Act defines 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 that body as confidential. Section 2 goes on to specify 14 categories of information which, without prejudice to the generality of the above definition, constitute personal information.

The Council stated that the records contain personal information which is important to the case file and is central to its engagement with the building owner/manager and fire safety consideration of the building. The applicant, however, stated that any personal information contained in the records at issue could be redacted. In circumstances where the applicant is not seeking the release of any personal information, I find that section 37(1) does not apply to the remaining information within the records at issue.

 Conclusion

I find that sections 29(1), 30(1), 31(1), 36(1) and 37(1) of the FOI Act do not apply to the 13 records or parts of records that I consider to fall within the scope of the applicant's request and I direct the release of those records.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Council's decision. I find that it was not justified in refusing access, under sections 29(1), 30(1), 31(1), 36(1) or 37(1) of the FOI Act, to the records that I have deemed to fall within the scope of the request and I direct their release.

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 requester not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

Stephen Rafferty
Senior Investigator