Whether the refusal of access by the Department to records concerning the implementation of Article 24 of the EU Services Directive is justified under sections 15(1)(c) and 28(1) of the FOI Act

Conducted in accordance with section 22(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 14 April 2015, the applicant made an FOI request to the Department for six specific records named on a schedule of records received from the Department of Justice, in addition to all records relating to the implementation of Directive 2006/123/EC (EU Services Directive) insofar as such records relate to solicitors and the Law Society of Ireland. By letter dated 14 May 2015, the Department granted partial access to some of the records sought, refusing access to the remaining records, or parts of records, on the basis that they were exempt from release under sections 28(1)(a) and 29(1) of the FOI Act. On 29 May 2015, the applicant applied for an internal review in respect of the withheld records. By letter dated 7 July 2015, the Department issued its internal review decision, in which it varied its original decision. It granted access to part of a record which had been withheld and withheld access to the remaining records, or parts of records, on the basis that they were exempt from release under sections 15(1)(a), 15(1)(c), 28(1) and 29(1) of the FOI Act. On 2 October 2015, the applicant applied to this Office for a review of the Department's decision.

I should note at the outset that this Office received a request for a review of an FOI decision by the Department of Justice and Equality (Department of Justice) in relation to records concerning the same subject matter. A separate decision on that will issue (Case Number 150350). As that case is relevant to this matter, I refer to it in this decision.

I should also note that the applicant acted through their solicitor in their dealings with the Department and this Office in this FOI request.

In conducting this review I have had regard to the Department's decision on the matter; the Department's communications with the applicant and with this Office; the applicant's communications with the Department and with this Office; the submissions of the Department; the content of the withheld records, provided to this Office by the Department for the purposes of this review; and to the provisions of the FOI Act.

Preliminary Matters

Before I consider the exemptions claimed, I wish to make the following points.

First, my jurisdiction under section 22 of the FOI Act is to make a new decision, in light of the facts and circumstances as they apply on the date of the review. This approach was endorsed by the High Court judgment of Mr Justice Ó Caoimh in the case of Minister for Education and Science v Information Commissioner[2001] IEHC 116. In The National Maternity Hospital and The Information Commissioner [2007] 3 IR 643, [2007] IEHC 113, the High Court (Quirke J) explained:

"The Commissioner was entitled to consider all of the material before her on the date on which she made her decision and to make her decision having regard to the circumstances which existed on [the date of her decision]".

Secondly, it is important to note that section 22(12)(b) of the FOI Act provides that when the Commissioner reviews a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore in this case, the onus is on the Department to satisfy me that its decision is justified.

Scope of the Review

I have examined annex 1 in records 5 and 6 and I consider that it falls outside the scope of the applicant's FOI request.

In correspondence with this Office, the Department claimed that annex 2 also falls outside the scope of the applicant's FOI request. It said: "while the document refers to Article 24 of the Directive, to the Irish Bar, and to the Legal Services Bill, it does not directly relate to solicitors and the Law Society". I accept that annex 2 does not refer to solicitors or the Law Society and that it does refer specifically to the Irish Bar. However, its content also relates more broadly to the timetable for implementation of Article 24 of the EU Services Directive by Ireland and therefore can also be said to relate to solicitors and the Law Society.

Therefore, the scope of this review concerns the records which remain withheld from the applicant and which fall within the scope of the applicant's FOI request: records 1, 2, 3 and 4, parts of records 5 and 6 (specifically, the aide-memoire and annex 2) and record 7. The Department claims section 28(1) for the aide-memoire in records 5 and 6 and section 15(1)(c) for record 7. The applicant requires a formal binding decision on the withheld records.

Analysis and Findings

Section 15(1)(c) - Refusal on administrative grounds
Section 15(1)(c) of the FOI Act provides that an FOI body may refuse to grant a request if granting the request would cause a substantial and unreasonable interference or disruption of the work of the FOI body.

Record 7 refers to all records relating to the implementation of Article 24 of the EU Services Directive insofar as they relate to solicitors and the Law Society, apart from the six records which the applicant specifically named.

The Department refused access to these records under section 15(1)(c). The Department submits that such records are very extensive and voluminous and that 113 files might contain relevant records. It says that these records are stored chronologically and not by section of the Directive. It also states that it has identified 528 digital records. The Department submits that it would require two staff working full time for 3.5 weeks to search the 113 hard copy files and two staff working full time for a further 2 - 3 days to search the digital records.

Section 15(4) of the FOI Act provides that FOI bodies are not entitled to rely on section 15(1)(c) unless they have assisted or offered to assist the requester to amend the request so that it no longer falls within section 15(1)(c). Therefore during this review, this Office asked the Department to point to when and how it had offered the applicant such assistance. The Department states: "given the volume and nature of the filing system used during the transposition of the Directive, it was not amenable to search by topic and the narrowed parameters of the applicant's request do not reduce the requirement for a burdensome trawl through multiple volumes of paper files. The difficulty is increased given absence of corporate memory through retirements, and restructuring which has left a knowledge gap in the terms of the content of older files".

The applicant notes that the Department's original decision did not rely on section 15 and submits that the Department did not engage in any meaningful attempt to assist the applicant in amending the request. The applicant further submits: "it is quite amazing that the Department purports to have created and/or stored a significant volume or records in such a manner that many potential requests under the FOI Act would be refused under section 15".

I must say that I have sympathy with the applicant's submissions on this point. In my view, the Department's submission amounts to an argument that because its filing system on the transposition of the EU Services Directive is inefficient and/or under-resourced, it cannot properly assist the applicant - or any future FOI applicants - under section 15(4) of the FOI Act. I consider this to be unacceptable. I do not believe that section 15 of the FOI Act is intended to protect inefficient record-keeping by FOI bodies. I also find it difficult to accept that if the Department was called upon by, for example, its Minister to address a point about the transposition of a particular part of the EU Services Directive, it could not access the relevant material. I recognise of course that the Department may be in a position, following meaningful engagement with the applicant under section 15(4), to justify the section 15(1)(c) exemption having regard to all the circumstances. I fully accept that the Department is entitled to have regard to the impact that processing an FOI request such as this would have on its work.

I therefore annul the Department's decision on record 7, on the basis that it has not properly complied with section 15(4) of the FOI Act. I direct the Department to undertake a fresh consideration of that part of the request and if the applicant requires this following the section 15(4) consultation, to take a new, first instance, decision on record 7.

Section 15(1)(i)(i) - Refusal on administrative grounds
In Case Number 150350, the Department of Justice granted the applicant access to records named as records 1 and 2 in this matter. Accordingly, I find that the Department is justified in withholding these records under section 15(1)(i)(i) of the FOI Act, on the basis that they are already available to the applicant.

The Department claims section 15(1)(a) for records 3 and 4, on the basis that they do not exist or cannot be found. I note that the applicant sought records 3 and 4 by reference to the Department of Justice's schedule. Yet, emails of the dates supplied by the applicant do not appear in the Department of Justice's schedule. Having regard to the Department of Justice's schedule, I believe that the dates referred to by the applicant are mistaken. I consider that the records which the applicant seeks are, most likely, records 23 and 25 on the Department of Justice's schedule, the details and dates of which are very similar to those of records 3 and 4 in the schedule for this FOI request. Accordingly, I find that the Department is justified in withholding records 3 and 4 in this case under section 15(1)(i)(i), on the basis that they are already available to the applicant, having been released by the Department of Justice in Case Number 150350. This Office drew this Office's view on this point to the applicant's attention and he has not disputed it.

Section 28(1) - Meetings of Government
The Department claims this exemption for the withheld parts of records 5 and 6. In its internal review decision, it states that the aide-memoire dated 15 July 2015 was an aide-memoire to Government. For section 28(1)(a) to apply, three requirements must be met. The record must have been submitted, or have been proposed to be submitted, to the Government; it must have been or have been proposed to be submitted by a Minister of the Government or the Attorney General; and it must have been created for the purpose of submission to the Government for its consideration. I have reviewed the aide-memoire and the Department's submission and I accept that it fulfils these criteria. I therefore find that the Department is justified in withholding access to the three page aide-memoire contained in records 5 and 6, on the basis that it is exempt under section 28(1).

However, the position is different as regards annex 2 in records 5 and 6. In its internal review decision, the Department specifically states that the addendum to the aide-memoire "was not specifically created for the purposes of advising Government". I therefore find that the Department is not justified in withholding access to annex 2 under section 28(1) and I direct its release.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of the Department. I affirm its decision to withhold records 1, 2, 3 and 4 under section 15(1)(i)(i) of the FOI Act and its decision to withhold the three page aide-memoire in records 5 and 6 under section 28(1) of the FOI Act. I annul its decision to withhold annex 2 in records 5 and 6 under section 28(1) and direct the release of that record. I annul its decision to refuse record 7 under section 15(1)(c) and direct the Department to undertake a fresh consideration of that part of the request. The effect of this finding is that the Department should consider the request for record 7 afresh in accordance with the provisions of the Act and, if the applicant requires this following the section 15(4) consultation, make a new, first instance, decision in respect of record 7. The applicant would have a right to internal review and to a review by this Office if they are not satisfied with that decision.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

Elizabeth Dolan
Senior Investigator