Whether the Department was justified in its decision to refuse a request for access to records on the basis of section 21(1)(a) of the FOI Act.

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

Background

On 26 March 2012 the Department received a request, dated 1 March 2012, from the applicant's solicitors under section 7 of the FOI Act for " ... all Department of Agriculture Inspection Reports relating to commonage lands situate at B, County C on behalf of our client who is a shareholder in said commonage."

On 23 May 2012 the applicant's solicitors sought an internal review from the Department on the basis that no decision had been made on the request within the period prescribed under
the FOI Act.

On 12 June 2012 the Department, in its internal review decision, refused the applicant's request on the basis that the records identified as covered by the request were exempt from disclosure under section 21(1)(a) of the FOI Act. This provides for the refusal of a request where the disclosure of the record or records concerned might reasonably be expected to "prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or behalf of a public body or the procedures or methods employed for the conduct thereof". The Department, in its decision, failed to address the issue of whether this exemption should be set aside on the grounds that "the public interest would, on balance, be better served by granting than by refusing to grant the request" which is something required to be considered under section 21(2) of the FOI Act.

On 14 June 2012 the applicant, through her solicitors, applied to the Information Commissioner for a review of the Department's decision on the grounds, in particular, that she had not been made aware of any "tests, examinations, investigations, inquiries or audits conducted by or behalf of the public body concerned" relating to commonage lands in Roxboro in which she was a shareholder.

In conducting this review I have had regard to the provisions of the FOI Act, to the terms of the FOI request made in March 2012 and to clarifications provided by the Department regarding its handling of the request.

Scope of the Review

The issue in this review is whether or not the Department is justified in its decision to refuse the request by reference to section 21(1)(a) of the FOI Act.

Analysis and Findings

In the course of conducting this review it emerged that the Department had made its decision by reference to circumstances applying to a different commonage to that specified in the FOI request. The request concerns the B commonage whereas the Department's decision - as established in the course of this review - was taken with another commonage (D commonage) in mind. The applicant's solicitors pointed out that, while the applicant was a shareholder in the D commonage, her FOI request related to the B commonage in which she was also a shareholder. The Department has now accepted that it was a mistake on its part to have regarded the FOI request as pertaining to the D commonage. It explained that certain issues had arisen in relation to D commonage and that there was an investigation underway in relation to these issues. Whether or not release of the records relating to the D commonage would prejudice that investigation is not now, nor was it ever, an issue as the applicant was not seeking records relating to that commonage.

It is clear that the Department's decision making process in this case was seriously flawed. It appears that the Department's decision was made by reference to records other than the records actually sought in the request; and that the records actually captured by the request were not considered.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby annul the decision of the Department in this case. I direct that the Department now conduct a new decision making process in relation to the applicant's FOI request which addresses the right of access to those records captured by the request, as made.

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

Fintan Butler
Senior Investigator
27 June 2013