Whether the Department was justified in its decision to refuse access to certain records relating to the applicant's immigration and naturalisation files.

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

Background

On 5 December 2012, the applicant's solicitors applied for a copy of all information held on file in respect of the applicant's immigration and naturalisation cases. The Department wrote to the applicant's solicitors on 9 January 2013 with a decision in relation to the request and explained that access was being granted to all records with the exception of record no. 5 which was being refused on the basis of the exemptions contained in sections 20(1) and 26(1)(a) of the FOI Act. The applicant's solicitors wrote to the Department on 1 February 2013 and this was treated as a request for internal review. On 22 February 2013, the Department issued a decision on internal review, wherein it decided that section 20(1) applies to record no. 5 but that section 26(1)(a) does not apply. Following a further exchange of correspondence, the applicant's solicitors applied to the Information Commissioner on 7 May 2013 for a review of the Department's decision.

I note that Ms Rachel Dunn, Investigator, wrote to the Department on 22 August 2013 setting out her preliminary view that the material contained in the record does not form part of the decision making processes of the Department but rather it appears to refer to routine investigations concerning a specific applicant's identity/circumstances for the purposes of reaching a decision on his immigration/naturalisation application and accordingly, is not the type of record which would fall for exemption under section 20(1). She invited the Department to submit any further comments that it considered relevant to the review. The Department replied on 30 August, 2013 and claimed that section 21(1)(a) was the more appropriate exemption to consider in this case. Ms Dunn requested clarification from the Department regarding its claim for exemption under section 21(1)(a) and pointed out that section 34(12)(b) of the FOI Act places the burden of proof on the public body to show that its decision not to release the record concerned is justified. The Department issued a more detailed response which was received on 9 September 2013. Accordingly, I consider that the review should now be brought to a close by the issue of a formal, binding decision. In conducting this review, I have had regard to the wording of the original request and to the submissions which were provided by the Department and the applicant's solicitors. I have also carefully examined the record which has been provided to this Office by the Department for the purposes of this review.

Scope of the Review

During the course of the review, the Department submitted that section 21(1)(a) is the more appropriate exemption to consider in relation to the record at issue. Therefore, this review is concerned solely with whether the Department was justified in its decision to refuse access to record no. 5 under section 21(1)(a) of the FOI Act.

Analysis and Findings

Section 21
Section 21(1)(a) of the FOI Act provides that:

"A head may refuse to grant a request under section 7 if access to the record concerned could, in the opinion of the head, reasonably be expected to ­

(a) prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of a public body or the procedures or methods employed for the conduct thereof,"

In the case of the Sunday Times Newspaper & Others and the Department of Education and Science (case number 98104) the previous Information Commissioner, Mr. Kevin Murphy, explained the approach which he adopted to applying this exemption. In summary, the exemption is concerned with whether or not the decision maker's expectation is reasonable. It seemed to him that in arriving at a decision to claim a section 21 exemption, a decision maker must firstly identify the potential harm to the functions covered by the exemption that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur. I agree with the previous Commissioner's views in this matter.

I should explain at this stage that, while I am required by section 34(10) of the FOI Act to give reasons for my decisions, this is subject to the requirement of section 43 that I take all reasonable precautions to prevent disclosure of information contained in an exempt record during the course of a review. I also have to refrain from disclosing information which a public body contends is contained in an exempt record so as to preserve that party's right of further appeal. These constraints mean that, in the present case, the extent of the reasons which I can give is limited, as is the description which I can give of the record at issue.

I can say, however, that record no. 5 actually comprises a series of documents (identified as pages 12 to 26 in the Schedule prepared by the Department and released to the applicant) relating to a particular matter which the Department considered to warrant further investigation in connection with the applicant's application for naturalisation. I note that the Minister for Justice and Equality subsequently granted his application for naturalisation and that the Department has confirmed that there is no outstanding matter in relation to the application for naturalisation.

The Department's argument in relation to the harm that would arise upon the release of record no. 5 is that release would result in information regarding the investigation in relation to the validity of data provided becoming available publicly and that accumulated knowledge of internal systems for validating applications for a certificate of naturalisation could lead to the identification and exploitation of weaknesses in the system, thereby prejudicing the effectiveness of procedures for examining and investigating applications for a certificate of naturalisation. In effect, the Department is arguing that the disclosure of the contents of the record at issue, when combined with other available information, could compromise the Department's procedures for investigating the identity of applicants for naturalisation.

Having carefully examined the record at issue, it could not, in my view, be described as being of a particularly sensitive nature, nor do I believe that the disclosure of the record gives any particular insight into any specific practice or investigative process which a person applying for a certificate of naturalisation would not reasonably expect to take place. In other words, I believe it reasonable to assume that all applicants for naturalisation would have an expectation that investigations/enquiries of the kind considered in the record at issue might be carried out as part of the application process. The Department has also not presented any cogent arguments in this case which would convince me that there is a reasonable expectation that the information which is contained in record no. 5 could be combined with other publicly available information and lead to exploitation of the application system.

Accordingly, having regard to the provisions of section 34(12)(b) of the FOI Act, I find that the Department has not shown, to the satisfaction of this Office that its decision to refuse access to record no. 5 under section 21(1)(a) of the FOI Act is justified. I find, therefore, that section 21(1)(a) does not apply.

Section 28
I note that record no.5 also contains a small amount of information relating to the applicant's wife. For the purposes of the FOI Act, I am satisfied that such information can be described as either personal information relating solely to the applicant's wife or as joint personal information relating to the applicant and his wife. Sections 28(1) and 28(5B) of the FOI Act provide for the refusal of a request where access would involve the disclosure of such information. However, section 28(2) provides for the release of such information in certain circumstances, including where the third party consents to its release. Furthermore, section 28(5)(a) provides for the release of such information where the public interest in release outweighs, on balance, the public interest in refusing access. The applicant's solicitor has recently informed this Office that the applicant's wife would most likely provide written consent to the release of any such information. Accordingly, I do not consider it necessary to make a finding on the applicability of section 28.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby annul the decision of the Department of Justice and Equality in this case. I direct that the record at issue should be released in full to the applicant's solicitors, subject to receipt of the written consent of the applicant's wife in relation only to those parts of the record which contain her personal information.

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 from the date on which notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator
27 September 2013