Case Number: 160368

Whether the Department was justified in its decision to refuse access to certain records under sections 15(1)(a) and (g), and sections 29(1), 31(2)(b), 35 and 37 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 25 January 2016, the applicant made an FOI request to the Department for access to records relating to correspondence sent by the applicant's solicitor to the Department over a number of years and to other records associated with the Independent Review Mechanism (IRM). The IRM panel was established in 2014. It was a temporary, independent, process that was set up to review and report to the Minister for Justice on allegations of misconduct by members of An Garda Síochána.

The Department's decision of 14 July 2016 concerned records held in three Divisions: 'Crime', 'Policing' and 'Prisons and Probation Policy'. The Department released some records and withheld others under sections 15, 29, 31, 32, 35, 37 and 42 of the FOI Act. The applicant sought an internal review of the Department's decision on 22 July 2016. On 7 September 2016, the Department affirmed its original decision and referred specifically to exemptions at sections 15(1)(g), 29(1), 31(1)(a), 31(2)(b), 35 and 37 of the FOI Act.

On 8 September 2016 the applicant sought a review by this Office of the Department's decision.

The Department did not respond to the requests within the statutory time limits, as required by sections 13(1) and 21(4) of the FOI Act. Having made the initial request to the Department in January 2016, and an internal review request shortly after the original decision, it is a matter of concern to me that the entire FOI process from request to internal review decision took eight months for the Department to process.

It was not entirely clear to this Office what specific parts of the decision the applicant wished to have reviewed. In a telephone conversation with the Investigator, the applicant clarified that the application for review concerned further records which the applicant believed may exist and a specific matter about access to information relating to a named counsel appointed to the panel. I note here that both the applicant and the Department confirmed that a decision on a previous, similar FOI request (reference number - 156/163/2013) was made by the Department in April 2014.

Having clarified the scope of the review with the applicant, I have identified one record, to which the Department granted access in part and with which this review is concerned. The record is 'Policing Division' - Category 4 - document 'A', identified in the Department's schedule as record number 76.

I have now decided to conclude my review by way of binding decision. In carrying out my review, I have had regard to the above, to a submission from the Department, and to correspondence between this Office, the Department and the applicant. I have had regard also to the provisions of the FOI Act.

Scope of Review

This review is concerned with whether the Department was justified in refusing parts of the applicant's request under sections 15(1)(a) and 15(1)(g) of the FOI Act and with whether the Department was justified in its decision to withhold certain information in record 76 under sections 29, 31 and 35 of the FOI Act. While I am mindful of my obligations under section 25(3) of the Act, I note here that the withheld information concerns the name of a Senior Counsel at page 3 of record 76, opposite the fifth sub-heading. Other withheld information in record 76 is not within the scope of this review.

Preliminary Matters

I have given careful consideration to the applicant's request and to details in the telephone conversation with the Investigator. I have sympathy for the applicant in light of the circumstances which form the background to this request. However, I cannot take into account, or make any findings on, many of the issues raised by the applicant, since my remit under the FOI Act is relatively narrow.

Although I am obliged to give reasons for my decision, section 25(3) of the FOI Act also requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the records is limited.

In addition, section 13(4) of the Act requires that, subject to the Act, any reasons a requester gives for making a request shall be disregarded. This means that the applicant's motivation cannot be considered except insofar as this might be relevant to the consideration of public interest provisions.

Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant access to a record shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified.

Analysis and Findings

Section 15(1)(a) - Adequacy of search
Section 15(1)(a) of the FOI Act provides that a request for access to records may be refused if the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. This Office's role in such cases is to review the decision of the public body and to decide whether that decision was justified.

This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his or her decision. The evidence in "search" cases consists of the steps actually taken to search for the records, along with miscellaneous other evidence about the record management practices of the public body, on the basis of which the public body concluded that the steps taken to search for the records were reasonable. The Office's understanding of its role in such cases was approved by Mr Justice Quirke in the High Court case of Matthew Ryan and Kathleen Ryan v the Information Commissioner (2002 No. 18 M.C.A., available on this Office's website, www.oic.ie).

The exemption applies to that part of the applicant's request for access to records relating to the applicant's solicitor's correspondence during the period 1996 to 2001. The Department stated, as mentioned above, that the applicant made a previous FOI request for access to the same records.

The Department confirmed that in its decision on the applicant's previous FOI request it had identified records relating to the request in its 'Crime Division' only and that the applicant was granted access to those records in full, or in part. The Department also stated that no additional correspondence has been located in its filing system, computer database or file registration book. It stated that for the purposes of this review, the 'Policing' and the 'Prisons and Probation Policy' Divisions do not hold any records relating to the records requested. The Department also confirmed that searches had been undertaken in the 'Prisons and Probation Policy' division and that records within that division were "not relevant to the [applicant's] FOI request."

The position of the Department is that it has taken all reasonable steps to look for records of relevance to the applicant's request. I do not believe that the FOI Act requires me to direct the Department to carry out indefinite new searches. In view of the information provided by it relating to the search undertaken and the records identified in the schedules, I consider that the Department has taken all reasonable steps to ascertain the whereabouts of any further relevant records. I find, therefore, that section 15(1)(a) of the FOI Act applies.

Section 15(1)(g)- frivolous or vexatious or forms part of a pattern of manifestly unreasonable requests
A request may be refused under section 15(1)(g) where the public body considers that the request is frivolous or vexatious or forms part of a pattern of manifestly unreasonable requests from the same requester.

The Commissioner takes the view that refusal of requests under section 15(1)(g) should not be undertaken lightly. It seems to me that the Department's position that section 15(1)(g) could be applied seems to import certain motives into the applicant's request and goes on to speculate on the use to which the information sought might be put. In the circumstances of this case, I do not consider that the request was made in bad faith or that it forms part of a pattern of conduct that amounts to an abuse of process, or an abuse of the right of access. Neither, at this stage, has the formation of a pattern of manifestly unreasonable requests been established. I am not satisfied that the Department has justified refusal of the request under this section.

I find that refusal of the request is not justified on the basis of section 15(1)(g).

Section 29 - Deliberative Process
The Department referred to section 29 in refusing access to part of the record relating to the Senior Counsel.
Section 29(1) provides that an FOI request may be refused if (a) it contains matter relating to the deliberative processes of an FOI body (including opinions, advice, recommendations, and the results of consultations), and (b) the granting of the request would, in the opinion of the head of the FOI body, be contrary to the public interest. These two requirements are independent. The fact that the first is met carries no presumption that the second is also met. It is therefore important for FOI bodies to show to this Office's satisfaction that both section 29(1)(a) and section 29(1)(b) have been met.

A deliberative process may be described as a thinking process which informs decision making in FOI bodies. It involves the gathering of information from a variety of sources and weighing or considering carefully all of the information and facts obtained with a view to making a decision or reflecting upon the reasons for or against a particular choice. Thus, it involves the consideration of various matters with a view to making a decision on a particular matter. It would, for example, include some weighing up or evaluation of competing options or the consideration of proposals or courses of action.

The Department stated that, while the names of the panel are in the public domain, Counsel who participated in the IRM panel expected that they would not be identified as having dealt with any individual complaint. While the fact that a deliberative process is at an end does not mean that the exemption automatically does not apply, it may be relevant to the issue of the public interest.

Having examined the withheld part of record 76, I am not satisfied that its content could be considered to relate to a deliberative process. In my view, the content which has been redacted from the record is a mixture of factual information and administrative detail. Factual information would not qualify for the exemption (section 29(2)(b) refers). In any case, I can find nothing resembling a thinking process or weighing of options with a view to making a decision in this record. Therefore, the question of whether release of the information would be contrary to the public interest does not arise under section 29 and I find that the Department has not justified its claim for section 29 to apply.

Section 31 - Parliamentary, Court and Certain Other Matters
The Department has relied on section 31(2)(b) of the FOI Act to withhold part of Record 76. I note that it released most of the record.

Section 31(2)(b) provides as follows:
"...A head may refuse to grant an FOI request if the record concerned relates to the appointment or proposed appointment, or the business or proceedings, of...

(b) any other tribunal or other body or individual appointed by the Government or a Minister of the Government to inquire into specified matters at least one member, or the sole member, of which holds or has held judicial office or is a barrister or a solicitor...

... and the request is made at a time when it is proposed to appoint the tribunal, body or individual or at a time when the performance of the functions of the tribunal, body or individual has not been completed."

For the section to apply, a number of conditions must be met:

the record must relate to the appointment, proposed appointment, business or proceedings of a tribunal, body or individual,
the request must be made at a time when it is proposed to appoint the tribunal, body or individual or at a time when the performance of the functions of the tribunal, body or individual has not been completed and
the record must not relate to the general administration of the tribunal, body or individual or of any of their offices (section 31(3) refers).

The record at issue relates to the business or proceedings of the IRM. In a submission to this Office, the Department said that a panel, consisting of two Senior Counsel and five Junior Counsel, was appointed for the purpose of the review mechanism to "triage" a number of allegations of misconduct and decide what, if any, further action was required. According to the Department, the IRM did not make findings as such. While it is not entirely clear whether the IRM was "to inquire into specified matters", I accept for the purposes of this review that the IRM is a body of the type envisaged in section 31(2)(b) so that the first condition for the exemption to apply has been met.

As regards the third condition, I do not believe that the withheld information relates to the general administration of the IRM or its offices.

It remains for me to consider the second condition. As regards the timing of the request, the applicant made her initial FOI request to the Department in January 2016 and her internal review request which gave rise to this review on 22 July 2016 . The Minister is on record as having stated in response to a Parliamentary Question in December 2015 that the panel had, by then, provided recommendations in all 320 cases submitted to it and that the issuing of notification letters to complainants had commenced in June 2015. The Department said that Mr. Justice Murphy was appointed by the Minister to ensure that letters notifying complainants of the outcome of the review of their case accurately reflected the recommendations made. I note from records released in this case that a Ministerial decision issued to the applicant on 15 December 2015. In the circumstances, I regard the performance of the functions of the IRM to have been completed when the applicant made her request.

I find, therefore, that section 31(2)(b) does not apply.

Section 35 - Confidential Information
Section 35(1) provides for the mandatory refusal of an FOI request for a record that, generally speaking, contains information given in confidence or contains information subject to a duty of confidence. The Department did not specify whether it was relying on subsection 35(1)(a) or 35(1)(b). However, it stated that the records contained information given in confidence and it referred to the public interest test provided for at section 35(3). Given that the public interest test under section 35(3) does not normally arise where subsection 35(1)(b) is found to apply, I am taking it that the Department is relying on section 35(1)(a).

However, section 35(2) is also relevant. This provides that subsection (1) shall not apply to a record which is prepared by a head or any other person (being a director or staff member of an FOI body or a service provider) in the course of the performance of his or her functions "unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than an FOI body or head or a director, or member of staff of an FOI body or of such a service provider." Section 2 of the Act defines "service provider" as a person providing a service for an FOI Body under a contract for services, and contract for services in this definition includes an administrative arrangement between an FOI body and another person.

Even if, given the structure of the legal profession, the arrangement concerned was technically not under a contract for services, I take it that the equivalent of an administrative arrangement applied in relation to counsel's professional services. Consequently, as the Department has not identified any duty of confidence owed to a person other than a service provider, I find that it has not justified its application of section 35 in this case.

Section 37 - Personal Information
It seems that the Department is no longer relying on the section 37 exemption in this case. However, given that it is a mandatory exemption, where the rights of third parties may be at issue, I consider that it is appropriate to consider it.

Section 37(1)
Section 37(1) of the FOI Act provides that access to a record shall be refused if access would involve the disclosure of personal information. The FOI Act defines the term "personal information" as information about an identifiable individual that either (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual or (b) is held by an FOI body on the understanding that it would be treated by the body as confidential. Section 2 of the Act details fourteen specific categories of information which is personal information without prejudice to the generality of (a) and (b) above.

The Department noted that the matter of the withheld name of counsel was considered previously by this Office, in similar circumstances, in Case 160157 (available on www.oic.ie). The Department acknowledged that the decision in that case held that the name of counsel could not be held to constitute "personal information", so that the mandatory exemption under section 37 could not apply.

Section 2 of the FOI Act provides that certain types of information - including a service provider's name - about a person who "is or was a service provider" is not considered to be their personal information. Accordingly, I find that the exemption at section 37(1) of the FOI Act does not apply to withhold the name of the counsel in this case.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Department's decision. I affirm its refusal of access to further records under section 15(1)(a) of the Act. I annul the Department's decision under sections 15(1)(g); 29(1); 31(2)(b), 35 and 37 of the FOI Act in relation to the withheld part of record 76 and direct its release.

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 requester 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