Ms R and Residential Tenancies Board

• Jurisdiction: Ireland
• Judge: Senior Investigator
• Judgment Date: 01 December 2021
• Case Outcome: The Senior Investigator affirmed the RTB's decision to refuse access to the records concerned.
• Court: Information Commission
• Respondent: Residential Tenancies Board
• Record Number: OIC-111632-J0F8D4

Whether the RTB was justified in refusing access, under section 37(1) of the FOI Act, to correspondence between a landlord and the RTB relating to the appeal of an RTB adjudicator’s decision

OIC-111632-J0F8D4

Background

The applicant was living in private rented accommodation. In a dispute with her landlord, an RTB adjudicator determined the case in the applicant’s favour. Her landlord then appealed this decision to the RTB’s Tenancy Tribunal. In an FOI request dated 25 June 2021, the applicant sought access to all communication, correspondence and emails related to the appeal of the adjudicator’s decision.

In a decision dated 22 July 2021, the RTB part-granted the request. In the Schedule of Records, it listed 27 records relevant to the request. It refused access to 11 records and redacted certain information from seven further records, under section 37(1) of the FOI Act. The remaining records were released in full. The applicant sought an internal review of that decision on 5 August 2021, following which the RTB affirmed its decision. On 13 August 2021, the applicant sought a review by this Office of the RTB’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 correspondence between the RTB and the applicant as outlined above and to the correspondence between this Office and both parties on the matter. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision. In referring to the records at issue, I have adopted the numbering system used in the Schedule of Records provided to the applicant by the RTB.

Scope of the Review

The applicant confirmed to this Office that she was concerned only with the records that were refused in their entirety and that the redactions in the partially released records could be excluded from the scope of the review.

In the course of the investigation, it became apparent that the RTB had omitted, in error, to include references to attachments to two emails in its Schedule of Records. It amended the Schedule of Records to reflect that Record 1 contained 26 pages, rather than 1 page, and Record 8 contained 8 pages, rather than 1 page. The updated Schedule was sent to the applicant. However, as all of the attached documents (with names and addresses etc. redacted) were already released to the applicant as part of the case file for the appeal before the RTB tribunal, I have excluded them from the scope of this review.

I also note that the final four pages of record 22 comprise a document entitled “Tribunal Procedures” that was released to the applicant as part of record 24. As such, I have also excluded those four pages from the scope of this review.

Therefore, this review is concerned solely with whether the RTB was justified, under section 37(1) of the Act, in refusing access to records 1 (email only – not the attachments), 4, 5, 7, 8 (email only – not the attachments), 10, 11, 13, 17, 21, and 22 (first page only).

Preliminary Issues

Before I address the substantive issues arising in this case, I would like to make a number of preliminary comments. Firstly, it is important to note that while I am required to give reasons for my decision under section 22(10) of the FOI Act, I am also required to take reasonable precautions to prevent disclosure of information in an exempt record, under section 25. This means that the extent to which I can describe the records at issue is limited.

Secondly, subject to the other provisions of the FOI Act, section 13(4) of the FOI Act requires FOI bodies and this Office to disregard an applicant's reasons for an FOI request. This means that I cannot have regard to the applicant's motives for seeking access to the information in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the FOI Act requires a consideration of the public interest.

Finally, section 18(1) of the Act 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 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). I take 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...