Whether the Department was justified in deciding to refuse access to certain records relating to concerns raised by the applicant on the basis that the records relate to an ongoing deliberative process

Conducted in accordance with section 34(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 20 May 2014 the applicant applied to the Department for a copy of his complete file since 2005 and related records in connection with concerns he had raised with the Department. The Department issued a decision on the request on 9 July 2014, wherein access was granted to 117 records with access to a further 14 records being refused. The applicant sought an internal review of that decision, and that decision issued on 9 October 2014.

On 11 December 2014, the applicant applied to this Office for a review of the decision of the Department to refuse access to records numbered 11, 70, 95 and 107, as contained in the schedule of records from Crime 1 Division. During the course of the review, Mr. Art Foley of this Office contacted the Department and informed them of his view that the records at issue should be released. As the Department did not accept that view, I consider therefore that this 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 contents of the relevant records, to the correspondence between this Office and both the Department and the applicant and to the correspondence between the applicant and the Department.

In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997-2003 notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Scope of Review

Having examined the copies of the records that were provided to this Office, it is clear that record 70 is a copy of record 11 with a brief annotation, while records 95 and 107 are exact copies of record 70, including the annotation. Therefore, I have excluded records 95 and 107 from the scope of this review. Accordingly, this review is concerned solely with whether the Department was justified in refusing access to records 11 and 70 under section 20(1) of the Act.

Analysis and Findings

Record 11 is described in the schedule of records released to the applicant as a Garda Report. Record 70 is a copy of that report that contains a brief annotation. The Department has refused access to the records under section 20(1) of the FOI Act on the ground that they relate to an ongoing deliberative process. Section 20(1) provides that a public body may refuse to grant a request if the record concerned contains matter relating to the deliberative process of a public body.

In its submissions to this Office, the Department explained that as one of the actions agreed in response to the Guerin Report of 6 May 2014, the Government agreed to the establishment of a mechanism for the independent review of certain other allegations of Garda misconduct, or inadequacies in the investigation of the allegations, which had been made to the Minister or the Taoiseach with a view to determining to what extent and in what manner further action may be required in each case. The panel, comprising two Senior and five Junior Counsel, has been asked to make a recommendation to the Minister on what action, if any, might be appropriate in each case. The Department explained that the Minister will decide whether any further action is desirable and could practicably be taken in each case in light of the recommendations made. It added that the independent review is underway and that the applicant's file, containing the records at issue was passed to the review panel and that no recommendation on the applicant's case has been received to date.

The Department argued that the examination of cases by the panel forms part of an ongoing deliberative process that is being carried out by the Department. It argued that the full file of papers relating to the applicant's complaints have been referred to the panel and that it would be undesirable to consider disclosure of any additional records while the panel is still carrying out an examination of the case. It appears that the Department considers that the mere fact the records at issue are contained in a file which relates to a deliberative process is sufficient for section 20(1) to apply, regardless of their contents. If that is the case, then it is mistaken on a number of grounds.

Firstly, for the section to apply, the record must contain matter relating to the deliberative process and the process must be the deliberative process of a public body. Secondly, section 20(2) provides that section 20(1) does not apply in certain circumstances. For example, section 20(2)(b) provides that section 20(1) does not apply to a record in so far as it contains factual information. Thirdly, section 20(1) is also subject to a public interest balancing test as set out in section 20(3). That section provides that section 20(1) does not apply where the body considers that the public interest would, on balance, be better served by granting than by refusing the request. In considering the public interest test, it is necessary to have regard to the contents of the record at issue.

Section 43(3) of the FOI Act requires me to take all reasonable precautions to prevent the disclosure of information contained in an exempt record. This means that the description I can give of the contents of the records is limited. However, I believe I am not in breach of section 43(3) by stating that there is nothing in the record, in my view, that can be described as matter which can reasonably be said to relate to the deliberative process described by the Department. Furthermore, having regard to the arguments presented by the Department, it is not entirely clear that the record relates to the deliberative processes of the Department. It is a matter for the panel to consider the file and make a recommendation to the Minister. Only at that stage will the Minister consider what, if any, action might be taken on foot of any such recommendation. Section 20(1) requires that the record must contain matter relating to the deliberative processes of a public body and the independent review panel is not such a body.

More importantly, I am satisfied that the information contained in the records is entirely factual. As such, I am satisfied that section 20(2)(b) applies and that section 20(1) cannot, therefore, apply. I note that Mr Foley of this Office brought the matter of section 20(2)(b) to the attention of the Department during the course of the review. However, the Department failed to address this point in its response of 17 April 2015. The purpose of Mr Foley contacting the Department on this point was to draw the Department's attention to the fact that this Office considered section 20(2)(b) to be of relevance. It is disappointing to note that the Department did not avail of this opportunity to at least outline its views on the matter. Having regard to the contents of the records at issue, I find that they contain factual information for the purposes of section 20(2)(b) and that section 20(1) does not apply. Having regard to the provisions of section 34(12)(b) of the Act, which places the onus on the Department of satisfying this Office that its decision to refuse access was justified, I find that the Department was not justified in refusing access to the records at issue.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby annul the decision of the Department to refuse access to records numbered 11 and 70 under section 20(1) of the FOI Act and I direct the release of the records in full.

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