Cases Number: 170268

Whether the IGB was justified in refusing access to records of correspondences, meeting minutes, and briefing notes, under sections 15(1)(d) and 15(1)(i) of the FOI Act.

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 17 October 2016, the applicant made a request to the IGB for:

• "A copy of all correspondences generated from April 2013 to September 2016 by letter, memo or email in relation to [his] correspondences with the Company Solicitors ([Holmes] O'Malley Sexton), Minister(s) for Agriculture, The Department of Agriculture and The Public Accounts Committee."
• "A copy of minutes of any meeting which name or make reference to [him] and any of [his] correspondences."
• "A copy of briefing notes which name or make reference to [him] and any of [his] correspondences."

In its decision of 22 December 2016, the IGB informed the applicant that it had not been able to locate any records that the Department of Agriculture, Food and the Marine (the Department) had not previously provided to him "in response to various requests and copied to the [IGB] by the Public Accounts Committee." It stated that it had not issued any further correspondence to the Public Accounts Committee on foot of that correspondence. It also informed the applicant that it had not found any reference to him in minutes dating after a particular period of time and that it presumed the applicant had copies of all previous minutes dating from another specified period. It stated that it did not consider that there were any records to release as the information was already in the public domain or already in his possession.

The applicant sought an internal review of that decision on 5 January 2017, arguing that the IGB had refused his request on the basis of presumptions. On 17 January 2017 the IGB informed the applicant that it had reviewed its original decision and could confirm that there were no records to release, as "an amount" of the information was in the public domain and therefore exempt from release under section 15(1)(d) of the FOI Act, or was already in his possession (section 15(1)(i) of the FOI Act refers). On 29 May 2017 the applicant sought a review by this Office of that decision. He noted that the IGB had subsequently released "some documents which were redacted under Data Protection".

I have decided to bring this review to a close by way of a formal, binding decision. In conducting this review, I have had regard to correspondence between the applicant and the IGB in relation to the request, and to communications between this Office and both the applicant and the IGB on the matter.

Scope of Review

This review is concerned solely with the question of whether the IGB was justified in refusing the applicant's request for certain records relating to him on the grounds that the records sought are either in the public domain or were previously released to the applicant and are available to him.

Analysis and Findings

It is important to note at the outset that section 22(12)(b) of the FOI Act provides that a decision to refuse to grant an FOI request shall be presumed not to have been justified unless the head of the relevant FOI body shows to the Commissioner's satisfaction that the decision was justified. Thus, the onus is on the IGB in this case to satisfy this Office that it was justified in refusing the applicant's request. Moreover, assertions or blanket claims are generally not sufficient to meet the burden of proof under section 22(12)(b); rather, full and succinct reasoning should be provided to show how or why the particular information concerned meets the criteria of the relevant exemption provisions.

Section 15

In refusing to grant access, the IGB cited section 15(1)(d). It also relied implicitly on section 15(1)(i). Subsection (1)(d) provides that an FOI body may refuse to grant a request where the relevant information is already in the public domain. Subsection (1)(i) provides that a request may refused where the request relates to records already released, either to the same or a previous requester, where the records are available to the requester concerned.

During the course of this review, the IGB was invited to justify its decision, by way of submissions to this Office. It was asked to explain why it considered that the relevant information was either already in the public domain, or the relevant records were already released and are available to the requester. It was also asked to comment on the applicant's assertion that further relevant correspondence between the IGB and the Department exists.

In response, the IGB contended that the applicant was provided with all correspondence between the IGB and the Department relating to him as part of a Data Protection Act disclosure but not under FOI. It added that certain other records had previously been sent to the Public Accounts Committee and so an amount of the information is already in the public domain. The IGB further stated that it had not been able to identify any additional correspondence as sought by the applicant.

I acknowledge that certain records have been released to the requester under the Data Protection Acts. However, the question I must consider is whether the IGB was justified in refusing the request on the ground that all of the records captured by the request have either already been released or are publicly available and that no further relevant records exist. The IGB's submission in no way addresses these issues. The IGB has given no indication of the nature and number of records that it considered as coming within the scope of the request. It has not, for example, provided a schedule of records and indicated the basis on which each record has been refused.

Furthermore, it is not possible for this Office to consider the IGB's arguments that no further relevant records exist in circumstances where it is not clear what records have been considered in the course of processing the FOI request. As such, neither this Office nor the requester has any way of determining whether all relevant records have been considered and whether they all fall into one or both categories.

In the circumstances, I cannot find that the IGB was justified in refusing the request under sections 15(1)(d) and 15(1)(i). However, I do not consider it appropriate to direct the release of records that have not first been considered by IGB for release and in the absence of any reasonable estimate of the nature or number of records involved. Therefore, following careful consideration, I have decided that the decision of the IGB should be annulled.

The effect of my finding is that the IGB must consider the request afresh and make a new, first instance, decision in accordance with the provisions of the FOI Act. In processing the request, the IGB must identify all records it holds that come within the scope of the request. If it seeks to rely on sections 15(1)(d) and 15(1)(i), the IGB should ensure that it specifically identifies which records are in the public domain, if any, and/or were previously released to the applicant and are available to him. The IGB must consider each record for release under the terms of the Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the IGB to refuse access to records under sections 15(1)(d) and 15(1)(i) of the Act. I direct the IGB to conduct a fresh decision-making process in respect of the request.

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