Council Fails to Release Records on Fire Safety in Homeless Hostels, Despite Information Commissioner Rulings

It’s been nearly 18 months since Dublin Fire Brigade said that it was taking enforcement proceedings in relation to two privately operated homeless hostels in the north inner-city.

At the time, in February 2021, at least nine homeless hostels in Dublin appear to have been operating without valid fire safety certificates, according to a list from Dublin Fire Brigade, released in November 2021, and showing which hostels had been regularised since.

But whether more of those were also subject to enforcement proceedings, and why exactly, is still unclear.

Dublin City Council, which includes Dublin Fire Brigade, has twice refused to release records under the Freedom of Information Act, with both decisions overturned by the Office of the Information Commissioner.

Most recently, on 27 June, the Office of the Information Commissioner instructed the release of some records, as usual giving the council four weeks to do so. It hasn’t yet, though.

Dublin City Council hasn’t responded to queries sent on Friday as to why it hasn’t released these records.

Green Party Councillor Janet Horner said: “I find it really concerning that we are struggling to get the basic information into the public domain regarding fire certificates.”

“It’s been a year and a half since we first raised fire-safety concerns in homeless accommodation,”said Horner, “and I would have hoped by this point we would have much greater clarity and transparency.”

What Reasons?

In February 2021, Dublin Fire Brigade said it had issued enforcement proceedings in relation to homeless hostels at 9 and 13 North Frederick Street.

The following month, Dublin City Council closed two hostels, at 10 and 13 North Frederick Street, temporarily to carry out works, said a spokesperson at the time.

It had also closed a hostel at 9 North Frederick Street permanently and planned to convert it into homes, the council spokesperson said.

That same month, Dublin Fire Brigade said that it was working with the owners of 14 homeless hostels to bring the hostels into compliance.

“The absence of fire certs in a number of buildings highlights the absence of even a very basic inspection regime that we could have confidence in,” said Social Democrats TD Cian O’Callaghan, in March 2021.

“How is it possible for Dublin City Council – which is the relevant fire authority – to source accommodation without fire certs?” O’Callaghan said.

While Dublin Fire Brigade had earlier said it was bringing enforcement action in relation to two hostels, it then said it couldn’t release records showing the reasons for the enforcement proceedings, because the records didn’t exist, “as no legal action has been taken”.

Says the response letter in March 2021: “I have considered the public interest in this case and it doesn’t apply in this instance because the records don’t exist.”

But relevant records do exist, found Stephen Rafferty, a senior investigator with the Office of the Information Commissioner in October 2021, after a review of the case.

According to Rafferty’s report, the council had said that the “reasons” for enforcement proceedings in nine of the cases was an email, while in the other five cases the  “fire brigade personnel had become aware of the properties in the course of their day to day activities”.

Rafferty found that the council’s interpretation of the word “reasons” was too narrow.

“It seemed to this Office that the plain and ordinary meaning of ‘reasons’ for enforcement proceedings … would be particular issues of concern with the individual properties that might require enforcement action,” says Rafferty in the decision.

He found that relevant records did exist and so he instructed the council to consider the matter again.

Five More Reasons

In November 2021, after considering the matter again, Dublin City Council refused again to release the records.

This time, it gave five different reasons, including commercial sensitivity, deliberations of a public body, functions and negotiations of public bodies, legal privilege and personal information.

At that stage, the council released updated information on the fire safety status of 14 homeless hostels one of which spans two buildings.

From that document, it appears that in February 2021, eight hostels had not had a valid fire certificate for use as hostels but since then had had fire certs issued.

Hostels at Mary’s Abbey and Manor Lodge had existing fire certificates, it says, while 10 North Frederick Street, which had been closed suddenly, had had a fire-safety certificate but had been shut down anyway. “Decanted March 2021,” it says.

One hostel, at 47/48 Amiens Street was still in the process of applying for a regularisation fire cert as of November 2021.

Another hostel at Ellis Quay had a fire certificate but was also required to apply for regularisation, it says.

The information released did not include the fire-safety reasons why Dublin Fire Brigade had issued enforcement proceedings against hostels.

In June this year, the Office of the Information Commissioner again ruled against the council and overturned its decision not to release some records. He said he identified 13 records relevant to this request.

Dublin City Council had said that releasing the records could interfere with its deliberative process. But Rafferty, who reviewed the case a second time, rejected that argument.

The council also said that releasing the records would be contrary to its successful functioning.

Rafferty said that for a public body to rely on that reason it needs to show that the release of the records “could reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits”.

“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 [Dublin Fire Brigade] in their investigations … let alone prejudice these procedures and methods,” he wrote.

Meanwhile, the legislation says that a public body can refuse a request under the Freedom of Information Act if the records “would be exempt from production in proceedings in a court on the ground of legal professional privilege”.

The council submitted that the records form the basis of the fire-enforcement investigation files and that all records could potentially be used as evidence in the future, wrote Rafferty.

But he said that to apply litigation privilege there would have to be “contemplated or pending litigation” and the council had not shown that the records were created primarily to prepare for litigation.

Dublin City Council said the records in question were commercially sensitive and that releasing them could cause a financial loss to the companies that own the buildings and could prejudice their competitive position, says Rafferty’s report.

The council said the “release of the records could reasonably be expected to result in a financial and reputational loss to the owners of the properties” by making people aware of the condition of the property, which could affect the perceived value of the property.

Rafferty said though, that the names and addresses of the properties could be redacted from the records. “I cannot see how the release of such records could give rise to the financial or reputational loss suggested by the council,” he wrote.

If the names are redacted, it means any records released still won’t show which reasons apply to which of the 14 hostels.

Finally, the council said the records contained personal information, but Rafferty said that that didn’t apply as any personal information contained in the records could also be redacted.

Rafferty found that the council was not justified in refusing to release the documents and directed their release on 27 June 2022.

Following a decision by the Office of the Information Commissioner, the public body has four weeks to decide whether to take a High Court action against the release of the documents.

The council is not taking a case to court, a staff member said by phone last Friday. But it hasn’t released the records yet.