Whether the Council was justified in its decision to refuse to disclose whether or not records exist relating to the applicant's request for records concerning a specified investigation

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

In his FOI request of 29 March 2016, the applicant sought access to

"... copies of correspondence, between any employee of the Council, or any agent acting on the Council's behalf, and any third parties, regarding allegations relating to a member of the Council's staff and the creation of false invoices that were met for work not actually carried out, and any investigation by the Council into such allegations and whether any such allegations have been reported to the Garda Síochána".

In its decision of 27 April 2017, the Council refused to confirm the existence or non-existence of relevant records. The applicant sought an internal review of that decision on 28 April 2017. The internal review decision of 17 May 2017 affirmed the original decision, "... taking cognisance of Section 35(4) of the Freedom of Information Act". The applicant sought a review by this Office of the Council's decision on 23 May 2017.

In conducting this review, I have had regard to the correspondence between the Council and the applicant and to the correspondence between this Office and both the Council and the applicant on the matter. I have decided to conclude the review by making a formal, binding decision.

Scope of Review

This review is concerned solely with the question of whether the Council was justified in refusing to confirm the existence or non-existence of records coming within the scope of the applicant's request.

Preliminary Matter

Although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. Accordingly the extent of the reasons I can give for my decision in this case is limited.

Analysis and Findings

The FOI Act contains a number of what are commonly known as refusal to confirm or deny provisions. They allow FOI bodies to refuse to confirm the existence or non-existence of records sought in certain circumstances where confirmation one way or the other would have the precise effect that the various exemptions seek to avoid. However, the use of refusal to confirm or deny provisions is not appropriate where it is the content of the record that merits protection, as opposed to its existence or non-existence.

Section 35(4), as cited by the Council in its internal review decision and in its submission to this Office, contains one such provision. It allows an FOI body to refuse to confirm the existence or non-existence of records where doing so would have the effect specified in section 35(1). Section 35(1) protects records containing information given to an FOI body in confidence whose disclosure would be likely to prejudice the giving to the body of further similar information and where it is important that such information should continue to be given to it.

In other words, if the Council considered that the mere disclosure of the existence or non-existence of relevant records would prejudice the future supply of similar important confidential information, then it would be entitled to rely on section 35(4) to refuse to confirm the existence or non-existence of such records. In such cases, regardless of whether or not relevant records exist, I must consider

(i) whether the disclosure of the existence of relevant records would prejudice the future supply of similar important confidential information and
(ii) whether the disclosure of the non-existence of records would prejudice the future supply of similar important confidential information

It is important to note here that in its submission to this Office, the Council stated that in response to media coverage in late April 2017, it issued the following statement:

"[The] Council can confirm that an independent investigation is ongoing into allegations of breach of financial procedures. In order to preserve the integrity of this investigation, no further comment will be made at this time."

It is clear, therefore, that allegations of breach of financial procedures were made and that an investigation of those allegations was being conducted at that time. In such circumstances, I fail to see how the disclosure of the existence of relevant records, if such records exist, could possibly prejudice the future supply of similar important confidential information. For example, I do not accept that the mere disclosure of the existence of records relating to a particular investigation being carried out on foot of allegations made by an individual would, of itself, result in persons refusing to make similar allegations in the future.

I note that the applicant's request describes the alleged breach of financial procedures as "... the creation of false invoices that were met for work not actually carried out...". I therefore accept that the disclosure of the existence of relevant records in this case would allow for inferences to be drawn, rightly or wrongly, as to the precise nature of the allegations being investigated. Nevertheless, even if that is the case, I fail to see how this would prejudice the future supply of such information. It is important to note that the disclosure of the existence of relevant records would disclose nothing more than the fact that the Council holds relevant records and would not, of itself, disclose details of the nature or contents of the records or the circumstances surrounding their creation.

Similarly, I fail to see how the disclosure of the non-existence of records could possibly prejudice the future supply of similar important confidential information. Accordingly, I find that the Council was not justified in refusing to disclose to the applicant whether or not records coming within the scope of his request exist.

Finally, for the benefit of the Council, I should explain that if relevant records exist and the Council wishes to claim exemption for such records to avoid certain harms, it is incumbent on it to consider each record and to identify both the harm and the basis on which it considers that the release of each record could give rise to that harm.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby annul the decision of the Council to refuse to disclose whether or not records coming within the scope of the applicant's request exist. I direct the Council to conduct a new decision-making process on the FOI request.

Furthermore, for clarity, I specify that the statutory time limit for the making of the decision begins no later than the expiration of the 4 week period for the bringing of an appeal to the High Court from this decision as provided for at section 24(4) of the FOI Act. This decision-making process will be subject to the time limits and other provisions of the FOI Act. I direct the Council to inform the applicant of the outcome in accordance with section 13 of the FOI Act.

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