Case Number: 160236

Whether the Department was justified under sections 33(1)(a), 33(3) and 35(1)(a) of the FOI Act its decision to refuse access to part of a record concerning the applicant

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

Background

On 31 March 2016, the applicant made a request to the Department for access to all records held relating to him, including records relating to his application for citizenship. The Department issued a decision on 6 May 2016 partially granting the request. It granted access to 47 records in full, but refused access to five pages of one record, numbered 57 to 61 in the Schedule prepared by the Department. On 10 May 2016, the applicant sought an internal review of the decision to withhold the five pages in question and on 20 May 2016 the Department affirmed the original decision. The applicant wrote to this Office on 25 May 2016 seeking a review of the Department's decision to refuse access to pages 57-61.

This Office has received submissions both from the applicant and the Department and I consider that the review should now be finalised by way of a formal, binding decision. In conducting my review I have had regard to the submissions of the parties, to correspondence between the applicant and the Department, and to the contents of records provided to this Office for the purposes of this review.

Scope of the Review

This review is concerned solely with the question of the whether the Department was justified in its decision to refuse access to part of one record, identified as comprising pages 57-61 in the schedule of records provided to the applicant.

Preliminary Matter

It should be noted at the outset that a review by the Commissioner under section 22 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 his decision.

Analysis and Findings

While the Department initially relied upon section 35(1)(a) of the FOI Act as a ground for withholding the information at issue, Mr Mulligan of this Office invited both parties, during the course of the review, to the review to make submissions on the applicability of section 33. Having carefully considered the contents of the record at issue, it seems to me that section 33(3)(a) is the most directly relevant exemption for records of this type. Section 33(3)(a) provides that an FOI body must refuse to grant a request if the record concerned contains information obtained or prepared for the purpose of intelligence in respect of the security or defence of the State.

A record falling within the class or category of records described in section 33(3)(a) is subject to a mandatory exemption and access must be refused. Thus, the relevant test to apply in considering whether subsection (3)(a) applies is whether the record meets the description of the class or category of records set out in the subsection. The FOI body is not obliged to identify a potential harm that might arise from disclosure of the record. In addition there is no public interest override which would allow for the consideration of whether the public interest would be served by release.

In his submission, the applicant raised various matters relating to his dealings with the Department and referred to international human rights instruments in support of his position. However, the mandatory nature of this exemption means that these issues cannot be considered. As outlined above, the only relevant question is whether the contents of the record are such that section 33(3)(a) of the FOI Act applies.

Having carefully examined the records at issue, I am satisfied that the information contained therein is of the type specified in section 33(3)(a) of the FOI Act. Although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. This means that I am constrained in the amount of detail I am permitted to disclose in this decision in describing the records at issue and in setting out my reasons for concluding that section 33(3)(a) applies. Thus, I cannot comment further on the contents of this record.

Accordingly, I find that sections 33(3)(a) of the FOI Act applies to pages 57 to 61 that the Department was justified in its refusal to grant access to these pages. Having so found, it is unnecessary for me to consider any other potentially relevant exemptions.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the Department's decision to refuse access to pages 57 to 61 of one record.

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 not later than four weeks after notice of the decision was given to the person bringing the appeal.

 

Stephen Rafferty
Senior Investigator