Case Number: 170345

Whether the Department was justified in its decision to refuse access to certain records under section 15(1)(i)(i) of the FOI Act, on the basis that the records had already been released to the applicant

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 31 May 2017, the applicant made an FOI request to the Department for access to records relating to any documents held by the Department that specifically mentioned the applicant in correspondence between a named Senior Counsel and the Department. The request covered the period February 2007 to October 2007. In its decision of 8 June, the Department refused access to the records under section 15(1)(i)(i), on the basis that the records had already been released to the applicant.

Following an application for an internal review, the Department affirmed the original decision on 22 June. In its decision, the Department stated that it had already responded to the applicant's request, and referred to decisions it had made on previous FOI requests received from the applicant and quoted FOI references 156/163/2013 and 156/049/2016. The Department said that the applicant had received "a copy of all documents released" under those requests and that it was "not necessary to enclose copies of these same records again". On 7 July 2017 the applicant sought a review by this Office of the Department's decision.

During the course of this review both the Department and the applicant were invited to make submissions. In her submission, the applicant stated that while she acknowledged receipt of records following previous FOI requests she had made, the Department did not supply her with any documentation that specifically mentioned her name in any correspondence from the then Minister for Justice to the Senior Counsel she had named in her request of May 2017.

A submission was not received from the Department. I will refer to this further in my decision.

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 applicant, 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 solely concerned with whether the Department was justified in refusing the applicant's request under section 15(1)(i)(i) of the FOI Act.

Preliminary Matters

I wish to state at the outset that I am very disappointed with the Department's lack of engagement with this Office in this case. As mentioned further in this decision, despite indications that it intended to respond, the Department failed to reply to repeated requests from this Office for clarification on matters concerning its decision.

Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request shall be presumed not to have been justified unless the body satisfies the Commissioner that its decision was justified.

Analysis and Findings

Section 15(1)(i)(i) - Refusal on administrative grounds
Section 15(1)(i)(i) provides that a head to whom an FOI request is made may refuse to grant the request where it relates to records already released, either to the same requester, or a previous requester where the records are available to the requester concerned.

The Department's decision on 156/163/2013, dated 8 April 2013, identified 284 records that came within the scope of the applicant's request. For the sake of clarity, I would point out that the applicant did not apply to this Office for a review of the Department's decision on 156/163/2013. Consequently, this Office is not aware of the details of the specific request made by the applicant on that occasion, other than the fact that records from February 2007 to March 2010 are covered, so that the records now being sought could be included. A review of the Department's decision on 156/049/2016 was conducted by this Office but concerned one record only and was in relation to a different named Senior Counsel.

In the decision schedule for 156/163/2013, which was provided to this Office by the Department for the purposes of the previous review referred to above, the Investigator identified a number of records which may be within scope of the applicant's current request. Access to all of the records identified by the Investigator was refused by the Department at that time under sections 20(1) (Deliberations of public bodies), 22(1)(a) (Legal Professional Privilege), 26(1)(a) (Information obtained in Confidence) and 28(1)(a) (Personal Information) of the FOI Acts 1997-2003. The equivalent sections of the FOI Act 2014 are sections 29(1), 31(1)(a), 35(1)(a) and 37(1) respectively. In the decision to refuse, the Department applied more than one section of the Act to each withheld record. It is not clear whether each exemption applied to all or parts of a record.

In her submission to this Office, the applicant stated that while she acknowledged receipt of records following previous FOI requests she had made, the Department did not supply her with any documentation that specifically mentioned her name in any correspondence from the then Minister for Justice to the Senior Counsel she had named in her request of May 2017.

On 18 August 2017, the Investigator wrote to the Department and invited it to make a submission. The Investigator explained that it was not clear to him if certain records listed in the Department's decision came within the scope of the applicant's current request. The Investigator asked the Department to identify the records that related to the specific wording and dates of the applicant's request, and to show how the Department considered that those records were already released to her. He referred the Department to the list of sample questions published on the Office website at www.oic.ie. Sample questions concerning section 15(1)(i)(i) ask an FOI body to show how the records were already released to the requester or to a previous requester, and to show that the records are available to the requester.

The Department was advised about the provisions of section 22(12)(b), as mentioned above, and was also advised that if it chose to make a submission, it should do so within two weeks, i.e. by 1 September 2017. However, a submission was not received, despite further communications between the Investigator and the Department on the matter, up to 23 October 2017.

I have examined the decision schedules of the Department's previous FOI request references 156/163/2013 and 156/049/2016. From the description of the records in schedule 156/163/2013, I agree with the Investigator that a number of records appear to be within scope of the applicant's current request. It is clear that access to such records was refused. On the basis of the information available to me, I cannot find that the records now being sought are already available to the applicant.

I find that the Department has not justified its decision to refuse access to the records under section 15(1)(i)(i) of the FOI Act, on the basis that they are already available to the applicant. However, I do not consider it appropriate to direct the release of any records at this stage. Instead, I consider that the appropriate course of action is to annul the Department's decision and to direct it to make a new first instance decision in respect of the applicant's original request.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Department's decision to refuse records on the basis of section 15(1)(i)(i), and direct it to conduct a new decision-making process on the FOI request. This decision will be subject to the time limits and other provisions of the FOI Act. I direct the Department 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.

Elizabeth Dolan
Senior Investigator