Whether the SEAI was justified in refusing access to an audit report concerning a BER inspection of the applicant’s house under various provisions of the FOI Act

14 May 2020

Background

In an FOI request dated 19 November 2019, the applicant sought access to an audit report concerning a Building Energy Rating (BER) inspection of her house. In a decision dated 5 December 2019, the SEAI refused her request on the basis that the report was exempt under sections 29 (deliberative process), 30(1)(a) (investigations and procedures for investigations), 36(1)(b) (commercially sensitive information), 36(1)(c) (negotiations of the person to whom the information relates) and 37 (personal information) of the FOI Act. The applicant sought an internal review on 23 December 2019. On 10 January 2019, the SEAI affirmed its refusal of the request under the FOI exemptions already relied on as well as sections 30(1)(b) (functions relating to management) and 35(1)(b) (duty of confidence). On 16 February 2020, the applicant applied to this Office for a review of the SEAI’s decision. During the review, the SEAI confirmed that it is no longer relying on section 29 of the FOI Act.

I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges and correspondence between this Office, the SEAI and the applicant. I have also had regard to the contents of the report at issue and to the provisions of the FOI Act.

Scope of the Review

The scope of this review is confined to whether the SEAI’s decision on the applicant’s request was justified under the provisions of the FOI Act.

Findings

In the overall circumstances, I will begin by considering the SEAI’s reliance on section 37 (personal information). While I am obliged to give reasons for my decision, section 25(3) requires this Office to take all reasonable precautions to prevent the disclosure of exempt material in the performance of its functions.

Section 37 – personal information

Section 37(1), subject to other provisions of section 37, requires the refusal of access to a record containing personal information. For the purposes of the FOI Act, personal information is defined as information about an identifiable individual that (a) would ordinarily be known only to the individual or members of the family, or friends, of the individual, or (b) is held by a public body on the understanding that it would be treated by it as confidential. The definition also includes a list of 14 non-exhaustive examples of what must be considered to be personal information, including (iii) information relating to the employment or employment history of the individual, (xiii) information relating to the property of the individual and (xiv) the views or opinions of another person about the individual. It has been settled by the Courts that once information falls within one of these “listed classes” in the definition, it is personal information.

The SEAI says that BER assessors are registered with it to carry out BER assessments in line with relevant legislation and other requirements. Homeowners can choose to engage any BER assessor to carry out their assessment provided that the assessor is on the SEAI’s register. The SEAI says that the applicant was issued a C1 BER as part of conveyancing documentation upon purchase of the property the subject of the report. The relevant assessor was engaged by the previous owner. The applicant queried aspects of the rating with the SEAI. Following a site visit by an SEAI auditor and further to additional evidence supplied by the applicant, the BER was changed to a C3 and the initial BER assessment was revoked.

While the level of detail that I can give in describing the withheld report is limited, I am satisfied that it contains personal information for the purposes of the FOI Act. Clearly, the report concerns the applicant’s property and thus contains personal information relating to her. However, it also concerns the initial assessment that was carried out by the BER assessor (Mr/Ms Y). I am satisfied that the report contains information relating to Mr/Ms Y’s performance in this regard and therefore relates to his/her employment or employment history.

I should say that while the report does not name the assessor, it contains the BER certificate number for the applicant’s property. It also refers briefly to other audits of the BER assessor’s work that do not relate to the applicant’s property and the related BER certificate numbers. I understand that BER advisory reports (which contain the assessor’s name) and BER certificates (which contain the assessor’s own unique registration number and that of his/her company or employer) are required to be made available to prospective buyers/tenants of properties and are also provided to property owners as part of the conveyancing process. In such circumstances, I am satisfied that Mr/Ms Y can be identified by combining the details in the report at issue with other details in BER advisory reports and certificates that are available to various parties. While the applicant says that she already knows the assessor’s name, it is relevant that the release of records under FOI is generally accepted to be equivalent to placing such records in the public domain.

In addition, I am satisfied that the personal information relating to the applicant is inextricably linked to personal information relating to Mr/Ms Y (joint personal information). Section 37(7) provides that, notwithstanding section 37(2)(a) (see below), access to a record shall be refused where access to it would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester. It is not feasible to separate out information relating solely to the applicant.

I find the report to be exempt under section 37(1) of the FOI Act. While section 37(1) is subject to the consideration of sections 37(2) and (5), only section 37(5)(a) has potential relevance in this case. In relation to section 37(2)(a) in particular, I am satisfied that no information falls for release further to this provision of the FOI Act. I have already outlined the provisions of section 37(7). While the record comprises joint personal information, as outlined above, I do not consider that personal information relating to the applicant can be separated from that of Mr/Ms Y.

Section 37(5)(a) – the public interest

Section 37(5)(a) provides that a record that is otherwise exempt under section 37(1), may be released if, on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of an individual to whom the information relates should be upheld.

On the matter of where the public interest lies, I have regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner [2011] 1 IR 729, [2011] IESC 26) (the Rotunda case). It is noted that in considering the public interest tests the Commissioner may only have regard to "true public interest[s] recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law." Although these comments were made in relation to a provision other than section 37 of the FOI Act, I consider them to be relevant to consideration of public interest tests generally.

Furthermore, McDermott J., in his December 2016 judgment in the case of F.P. and the Information Commissioner [2014 No. 114 MCA] ("the F.P. case") which was subsequently upheld by the Court of Appeal, said that private as opposed to public interests were not a sufficient basis upon which to exercise the discretion in favour of the appellant under the relevant public interest test in that case. He also said that "the ‘public interest’ in granting access is not to be determined on the basis of the appellant’s personal circumstances or desire to explore or pursue civil proceedings or criminal complaints.”

The applicant says that it is in the public interest and a matter of public safety and health for the record to be disclosed. She says that the extent to which the status of the house was misrepresented and misclassified to her has cost a lot of money and has impacted on her health. She says that for the sake of the public it is imperative that scrupulous and exacting ratings be truthfully rendered. She says that she is entitled to a copy of the SEAI report so that she can “compare fact versus fiction”.

While I can appreciate why it is important to the applicant to obtain access to the report, the above judgments make it clear that I cannot, in making this decision on the right of access under FOI, take into account her private interests in the grant of access to the withheld information. Furthermore, it is not appropriate for me to direct the release in the public interest of third party personal information, effectively to the world at large, on the basis that the applicant is not happy with the actions of the SEAI, Mr/Ms Y or any other party.

As the Commissioner said in his composite decision in cases  090261/090262/090263, "I believe that the recognition of a public interest in promoting procedural fairness through FOI is more properly understood as an acknowledgement that the public interest in openness and accountability is entitled to significant weight when the constitutional rights of individuals may be affected by the actions of public bodies. It does not mean that it is for me as the Information Commissioner to determine the precise scope of what fair procedures would have required of a public body in a certain set of circumstances."

There is a public interest in this case, which is recognised by the FOI Act, in promoting openness and accountability in relation to the SEAI’s performance of its functions. This public interest is entitled to significant weight in the circumstances and I accept that it would be served by granting access to the report.

On the other hand, 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). Having regard to the contents of the report, I am satisfied that placing the details concerned in the public domain would significantly breach the rights to privacy of an identifiable individual other than the applicant (i.e. Mr/Ms Y).

Having considered the matter carefully, I find that the public interest in favour of granting access to the report does not outweigh the public interest that the right to privacy of an individual other than the applicant should be upheld.

Other provisions relied on

Having regard to my findings on section 37 in this case, there is no need for me to consider the SEAI’s reliance on other provisions of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the SEAI’s decision to refuse access to the record under section 37(1) of the FOI Act.

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