Whether the Council was justified in refusing access to the statistical information sought regarding the number of criminals housed by the Council since 2004, along with details of the persons who attended a meeting in March 2017

17 April 2018 

Background

On 19 July 2017 the applicant sought details of the numbers of previously known criminals housed by the Council in the Louth area since 2004, including certain named individuals, known drug dealers, persons wanted for murder, and details of persons who attended a meeting in March 2017 with the Council's Housing Allocations Officer regarding placements offered to persons in a named estate who did not reside, and had no connection, in the Ardee area.

The Council refused the request on 18 August 2017 under section 15(1)(a) of the FOI Act on the ground that no relevant records exist. On 29 August 2017, the applicant sought an internal review of the Council's decision following which the Council affirmed its original decision. On 30 October 2017 the applicant sought a review by this Office of the Council's decision.

I have now completed my review in accordance with section 22(2) of the FOI Act.  In carrying out the review, I have had regard to the submissions made to date by the applicant and the Council on the matter.

Scope of the Review

This review is concerned solely with whether the Council was justified in refusing the applicant's request as described above under section 15(1)(a) on the ground that no relevant records exist.

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.

The number of criminals housed by the Council since 2004
I should say at the outset that it does not appear to be in dispute that the Council holds certain information of relevance to the applicant's request. I note, for example, that applicants for social housing support are requested to supply details of any convictions of any member of the household for certain offences under certain specified statutory provisions. The relevant application form also states that "The housing authority may request and obtain information from another housing authority, the Criminal Assets Bureau, An Garda Siochána, the Minister for Social Protection, the Health Service Executive [HSE], or an approved housing body in relation to occupants or prospective occupants of, or applicants for, local authority housing, and any other person the authority considers may be engaged in anti-social behaviour".

In its submissions to this Office, the Council stated that it holds no discrete record that contains details of the numbers of criminal housed by it since 2004. It is important to note at the outset that while the purpose of the FOI Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from a  public body must make a request for records that contain the information sought. If the record sought does not exist, the body concerned is not required to create records to provide the information sought, apart from a specific requirement to extract records or existing information held on electronic devices.

Under section 17(4), where a request relates to data contained in more than one record held on an electronic device by the body concerned, the body must take reasonable steps to search for and extract the records to which the request relates. The reasonable steps are those that involve the use of any facility for electronic search or extraction that existed on the date of the request and was ordinarily used by the FOI body. Where these reasonable steps result in the creation of a new record, that record is, for the purposes of considering whether or not such a new record should be disclosed in response to the request, deemed to have been created on the date of receipt of the request.

In this case, I understand that the Council enters information provided by applicants for social housing support onto a database known as iHouse and that iHouse has a number of pre-programmed reporting tools relating to Council tenants. In its submissions to this Office, the Council stated that it confirmed with the developer of its electronic database system that there is no report that identifies an allocation to a person with a criminal conviction. It stated that the database has a basic search facility that searches by certain set parameters and that it contains no set parameters corresponding to the information that is sought relating to public order convictions. It stated that it is not possible to search the database by any term that does not fall within the set search categories.

Having considered the Council's submission, and having regard to the limitations on the steps required to extract data contained in records held electronically (i.e. the facility for electronic search or extraction must have existed on the date of the request and was ordinarily used by the body), I accept that it does not hold a record containing the information sought and that it is not required to create a new record under section 17(4).

I find, therefore, that the Council was justified in refusing the applicant's request for details of the numbers of previously known criminals housed in Louth since 2004.

Meeting with the Housing Allocations Officer
The applicant contended that a meeting involving the Council's Housing Allocation Officer took place in the Drogheda Branch of the Council in or around February/March 2017, regarding placements offered in a named estate to persons who did not reside and had no connection to a particular area in the county. The Council stated at original and internal review decision that it had no record of the alleged meeting, for either February or March 2017.

In its submissions to this Office the Council stated that the named Housing Allocation Officer identified in the applicant's request stated categorically that he held no meeting with any new tenants in February or March 2017 regarding the allocation of properties in the area specified. It provided emails to this Office from the Housing Allocation Officer to this effect. When provided with details of the Council's submission to this Office, the applicant disputed the Housing Allocation Officer's statement that no meeting took place. However, she provided no evidence to support her view. As such, I have no reason to doubt the Council's position. I find, therefore, that the Council was justified in refusing this part of the applicant's request under section 15(1)(a) on the ground that no relevant records containing the information sought exist.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Council to refuse access to details of the numbers of previously known criminals housed by the Council in the Louth area since 2004 and details of persons who attended a meeting in March 2017 with the Council's Housing Allocations Officer regarding placements offered to persons in a named estate who did not reside, and had no connection, in the Ardee area, on the ground that no relevant records containing that information 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 not later than four weeks after notice of the decision was given to the person bringing the appeal.
 

Stephen Rafferty
Senior Investigator