Whether the Department was justified in refusing the applicant's request for access to a report by an informant which ultimately led to the cancellation of a passport that had been issued in his sister's name.

Review Application to the Information Commissioner under the Freedom of Information Acts 1997 & 2003 (FOI Act)

Background

In October 2010, at [a certain] Garda Station, the applicant signed a passport application on behalf of his then 44-year-old sister YX, who has Down's Syndrome. A passport was subsequently issued in YX's name to the address given in the passport application, which belonged to another relative named ZX. Following a report to the Gardaí that was forwarded to the Passport Office, the passport was cancelled on the grounds that the applicant did not have any legal authority to sign the passport application on YX's behalf and that the passport was not in YX's possession. Prior to the cancellation, a preliminary view letter was issued to Mr. ZX on 6 December 2011 suggesting that the applicant had "knowingly or recklessly provided information and/or documentation which are false in a material respect".

On 9 April 2012, the applicant made a request under the FOI Act for all records pertaining to the cancellation of his sister's passport and the mailing of a letter by the Passport Office to his uncle, Mr. ZX, stating that he had "knowingly or recklessly provided information or documentation that are false and misleading in a material respect". He specified that he sought access to certain records, including at item 1 a "[c]opy of the original report received by the Passport Office and relied upon to begin this action together with the name(s) of the person(s) making such report". In a decision dated 8 May 2012, the Department stated that it had decided "to grant all of the records pertinent to the [applicant's] request", but it did so in reference to a schedule attached to the decision that did not list item 1 of the applicant's request, which will be hereinafter referred to as the informant's report. The applicant applied for an internal review of the matter on the basis that the Department had not identified all of the records that were in fact pertinent to his request. In a decision dated 19 June 2012, however, the Department effectively affirmed its original decision by deciding to grant access to all of the records that the Department identified as pertinent to the request, again in reference to schedule that did not list the informant's report. The applicant applied for review of the matter by this Office in a letter dated 21 August 2012. As his application for review did not relate to his personal information only, the applicant was appropriately charged the prescribed application fee in accordance with section 47(6A)(a) of the FOI Act and the relevant regulations (SI No. 264 of 2003).

Following acceptance of the application for review, the Department was required under section 37(1) of the FOI Act to forward a numbered copy of all of the records that were the subject to applicant's request to this Office for the purposes of the review. The records forwarded included five documents whose existence had not previously been disclosed to the applicant, including the informant's report. The Department's explanation for not previously referring to these records was that it considered that certain "neither confirm nor deny" provisions of the FOI Act applied, namely, sections 23(2) and 26(4).

In the course of contacts with Ms. Melanie Campbell, Investigator of this Office, the Department accepted the "neither confirm nor deny" provisions were not appropriate in the circumstances of this case. The Department also agreed to release two of the five records, namely, an entry from the "stoplist" and a record from the audit file. On 2 November 2011, Ms. Campbell informed the applicant of her preliminary view that the remaining three records were exempt under section 23(1)(b) of the FOI Act. In his replies, the applicant explained his reasons for disagreeing with Ms. Campbell's preliminary view. However, he clarified that his request is now limited to the informant's report.

With the authority delegated to me by the Commissioner, I have now completed my review in accordance with section 34(2) of the FOI Act. I note that a review under section 34 of the FOI Act is de novo, which means that it is based on the circumstances and the law as they pertain at the time of the review. In carrying out my review, I have had regard to the relevant submissions in the case file, including the applicant's submissions in reply to correspondence from Ms. Campbell. I have also had regard to the contents of the informant's report and to the other records of relevance to the applicant's original request. I consider it appropriate to conclude the matter at this time by way of a formal, binding decision.

Scope of the Review

My review in this case is concerned solely with the question of whether the Department's decision to refuse the applicant's request for access to the informant's report was justified under the FOI Act. I note that the applicant maintains that the Department did not in fact make a decision to refuse access to the record concerned, because it decided to grant access to "all" of the records pertinent to his request. However, notwithstanding the poor choice of wording used in the decision, it is evident that the Department's decision to grant did not include reference to the informant's report, the existence of which the Department had decided to conceal, albeit erroneously, on the basis of the neither confirm nor deny provisions of sections 23(2) and 26(4) of the FOI Act. For the sake of clarity, I should also note that it is not within the remit of this Office to adjudicate on how public authorities carry out their functions generally.

Analysis and Findings

I consider that the informant's report falls squarely within the ambit of both sections 23(1)(b) and 26(1)(a) of the FOI Act. However, I agree with Ms. Campbell that section 23(1)(b) is the more relevant exemption for consideration in this case.

Section 23(1)(b) provides that a public body may refuse to grant a request if it considers that access to the record concerned could reasonably be expected to reveal or lead to the revelation of the identity of a person who has given information to a public body in confidence in relation to the enforcement or administration of the civil law or any other source of such information given in confidence.

The section is an exemption provision aimed at ensuring that members of the public are not discouraged from co-operating with agencies engaged in the enforcement or administration of the civil law, by providing information which might assist such agencies to perform their functions more effectively. For section 23(1)(b) to apply, three specific requirements must be met. The first is that release of the withheld information could reveal, whether directly or indirectly, the identity of the supplier of the information. The second is that the information must have been given to the public body in confidence, while the third is that the information must have been supplied to the public body in relation to the enforcement or administration of the civil law.

First Requirement
Based on my examination of the record, I find that its release would reveal the identity of the person who gave the information to the Gardaí which in turn was forwarded to the Passport Office. I therefore find that the first requirement of the exemption is met.

Second Requirement
I note that the report in this case was made by the informant following a verbal communication with the Passport Office. I am satisfied that the statement was made in writing at the request of the Passport Office in order to provide a basis for an investigation into whether the passport in YX's name had been lawfully issued and whether it was in YX's possession. I am also satisfied based on the information before me that the statement was made on an understanding of confidence and that the informant wishes for his/her identity to remain confidential. In the circumstances, I am satisfied that the second requirement of the exemption has also been met.

The applicant has suggested that the report was made maliciously by one or more of three named individuals and has provided a detailed account of the disputes which evidently exist in his family between himself on the one hand and his other siblings apart from YX on the other. However, I find no basis whatsoever to support any claim of malice in this case. On the contrary, while the applicant may consider himself as acting in YX's best interests and that he should be regarded as her "natural guardian", the circumstances indicate that he did not in fact have lawful authority to sign the passport application on YX's behalf and that the passport was not in fact in YX's possession. In other words, it seems that the substance of the report was accurate. (The question of whether the applicant should be regarded as "duly authorised" to act on YX's behalf for purposes of the Passport Act is not a matter for this Office to determine.) In any event, as Ms. Campbell explained, the purpose of the section 23(1)(b) exemption is to protect the flow of information from the public that public bodies require to carry our their functions relating to the enforcement or administration of the civil law; thus the exemption may apply where information was given in confidence but is subsequently found to be mistaken or unfounded.

Third Requirement
The third requirement is that the information in question must have been given to the public body in relation to the enforcement or administration of the civil law. I agree with Ms. Campbell that the information concerned was given in relation to the enforcement or administration of section 18 of the Passport Act 2008. I am therefore satisfied that the report qualifies for exemption under section 23(1)(b) of the FOI Act.

Section 23(3) provides that section 23(1)(b) does not apply in certain specified circumstances where the public interest would, on balance, be better served by granting than by refusing to grant the request. It is important to note that the public interest balancing test in section 23(3) differs from the public interest balancing test which exists in other exemptions in that the test in section 23(3) may be considered only where certain circumstances arise. Those circumstances are where the records disclose that an investigation is not authorised by law or contravenes any law or it contains information concerning the performance by a public body of functions relating to law enforcement or contains information concerning the effectiveness or the merits of any programme for prevention, detection, or investigation of breaches of the law. I am satisfied that no such circumstances arise in this case and that section 23(3) does not apply. I conclude that the Department was justified in its decision to refuse access to the record concerned.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of the Department to refuse access to the record concerned in this case.

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks after notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator
24 December 2012