Whether the HSE was justified in refusing access to records relating to the applicants' intention to register their marriage on the ground that the records are exempt from release under sections 30, 31, 32, 35, 37 or 42 of the FOI Act

Background

The applicants acted through their solicitors in this matter. On 2 February 2017, the applicants made an FOI request to the HSE for all records held in connection with their intention to register their marriage. On 10 March 2017, the HSE granted access to some information and refused access to the remaining information, under sections 30 and 32 of the FOI Act. The applicants applied for an internal review decision on 14 March 2017. The HSE issued an internal review decision to the applicants on 10 April 2017, in which it affirmed its original decision, under sections 30, 31(1)(b), 32 and 35(1)(a) of the FOI Act. On 31 July 2017, the applicants applied to this Office for a review of the HSE's decision.

In reviewing this case I have had regard to the correspondence between the applicants and the HSE as outlined above, as well as correspondence between both parties and this Office. I have also had regard to the content of the withheld records provided by the HSE to this Office for the purposes of this review. The Investigator obtained submissions from An Garda Síochána (AGS) and I have also had regard to those.

Scope of the Review

I have adopted the numbering used by the HSE in its schedule of records. Although the internal review application refers to "items 36-49", it also states: "it is vital for our clients to know the reasons behind the HSE refusal in their application and the circumstances surrounding the lodgement of an objection". In a telephone call with this Office, the applicants' solicitor confirmed that the applicants seek access to all of the withheld records. The HSE's internal review decision notes the specific reference to items 36-49, but its final decision on page 8 refers to Records 36-48 and Records 51-57.

In the circumstances and having regard to submissions from the HSE and AGS, I am proceeding on the basis that the question for this review is whether the HSE was justified in refusing access to Records 36-48 and Records 51-57, under sections 30, 31(1)(b), 32, 35(1)(a), 37 or 42 of the FOI Act.

For completeness, I should note that in its internal review decision and submissions to this Office, the HSE refers to obligations under data protection legislation. My sole function is to review its decision under FOI. I should also note that copies of the applicants' passports are scheduled as Records 49 and 50, but I do not consider it necessary to review the HSE's decision on these.

Preliminary Matters

Before considering the exemptions claimed, I wish to make the following points. First, it is important to note that section 22(12)(b) of the FOI Act provides that when the Commissioner reviews a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore, in this case, the onus is on the HSE to satisfy me that its decision is justified.
Secondly, section 18 of the FOI Act provides that if it is practicable, records may be granted in part, by excluding the exempt material. Section 18 shall not apply if the copy of the record provided would be misleading. This Office takes the view that the provisions of section 18 do not envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs.  Generally speaking, therefore, this Office is not in favour of the cutting or "dissecting" of records to such an extent.  Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.

Finally, while I am required to give reasons for my decision under section 22(10) of the FOI Act, I am also required to take reasonable precautions to prevent disclosure of information in an exempt record, under section 25. This means that the extent to which I can describe the records at issue is limited.

Analysis and Findings

Section 42 - Restriction of Act
Records 51-57 comprise a letter objecting to the applicants' proposed marriage, prepared by AGS. In correspondence with this Office, the HSE says that it has considered Sections 42(b)(iii) and (vi) of the FOI Act in relation to this letter. Yet it makes no submissions in this respect.

Sections 42(b)(iii) and (vi) provide that the FOI Act does not apply to records held or created by the Garda Síochána that relate to the Special Detective Unit or the management and use of covert intelligence operations. As noted above, this Office obtained submissions from AGS in this case; those submissions do not refer to section 42. In the circumstances and having regard to section 22(12)(b), I have no basis on which to find that section 42(b)(iii) or (vi) applies to Records 51-57. I find that the HSE is not justified in refusing access to Records 51-57 under section 42 of the FOI Act.

Section 31 - Parliamentary, court and certain other matters
The HSE claims section 31(1)(b) (contempt of court) over Records 51-57. My understanding of contempt of court is that for contempt to have occurred, a party would have to contravene a court order or undertaking made to a court, commit an act of resistance to the court or engage in conduct liable to prejudice the trial of an accused person.

I do not see how these situations arise in relation to this letter. The HSE says that a number of pages have been prepared in contemplation of legal proceedings and prosecution. It also says that section 31(1)(b) is a mandatory exemption and therefore it is not required to consider the public interest. These submissions do not make out a case that section 31(1)(b) applies to Records 51-57.

Neither does AGS claim that section 31(1)(b) applies. In the circumstances and having regard to section 22(12)(b), I have no basis on which to find that section 31(1)(b) applies to Records 51-57. I find that the HSE is not justified in refusing access to Records 51-57 under section 31(1)(b).

I should add here that if the HSE's reference to section 31(1)(b) was an error and it intended to claim that litigation privilege applied under section 31(1)(a), I would have to conclude that this exemption does not apply. This is because I am not satisfied that the dominant purpose for the preparation of the records is for use in apprehended or threatened litigation.

Section 32(1)(a)(i) - Law enforcement and public safety
AGS claims that sections 32(1)(a)(i) and (ii) apply to Records 51-57. The HSE claims sections 32(1)(a)(i), (ii) and (iii). Where an FOI body relies on section 32(1)(a), it should identify the potential harm to the matters specified in the relevant sub-paragraph that might arise from disclosure and having identified that harm, consider the reasonableness of any expectation that the harm will occur. The FOI body should show how or why releasing the particular record could reasonably be expected to cause the harm which it has identified.
Section 32(1)(a)(i) and (ii) allows an FOI body to refuse access to records if access could reasonably be expected to prejudice or impair: (i) the prevention, detection or investigation of offences, the apprehension or prosecution of offenders or the effectiveness of lawful methods, systems, plans or procedures employed for the purpose of the matters aforesaid or (ii) the enforcement of, compliance with or administration of any law.

The HSE also claims section 32(1)(a)(iii), which concerns disclosure of lawful methods etc. for ensuring the safety of the public and the safety or security of persons and property. Yet it makes no specific submissions on this provision. AGS does not rely on it. In the circumstances and having regard to section 22(12)(b), I do not propose to consider section 32(1)(a)(iii) further.

Submissions
AGS says that the letter which comprises Records 51-57 relates to a Garda investigation of the applicants' proposed marriage. It says that the Civil Registration Act 2004 (as amended) creates specific offences in this respect. It submits that the letter discloses the procedures AGS used and the sources of its information. It submits that it is reasonable to believe that releasing this information will impair current and future investigations, as it will forewarn applicants of its techniques and become part of the means used to circumvent such investigations.
The HSE says that disclosing the letter will reveal methods of investigation and inevitably impair the prevention, detection or investigation of offences. It also says that releasing it will provide requesters with the opportunity to deduce certain information.
The applicants say that investigations and inquiries into proposed marriages are conducted in relation to the facts of the individuals seeking such a permission. They submit that the generality of a record can be of little use to others and it is not satisfactory to expect that releasing this type of record could prejudice the effectiveness of future investigations.

Analysis & Findings

AGS has requested that this decision does not specifically reference confidential information included in its submissions. As noted above, section 25 of the FOI Act limits how much I can say. However, I believe that I am entitled to say this much: first, this record is a letter from AGS objecting to a proposed marriage, under section 58 of the Civil Registration Act 2004. I can see that section 69 of that Act provides for certain offences. I accept that this record relates to the prevention, detection or investigation of offences and/or the enforcement of, compliance with or administration of law. Secondly, I consider that much of the letter discloses AGS's methodology in investigating the circumstances of the applicants' proposed marriage and the sources of information which it used in the circumstances of this case. I accept that material of this kind could in some instances assist people who are subject to similar investigations and allow them to prepare accordingly. I think it is reasonable to expect that revealing AGS's methodology and sources could prejudice its investigation or enforcement of the law. I therefore find that section 32(1)(a) applies to the following information:

• Record 51 - all
• Record 52 - all
• Record 53 - the last bullet point only
• Record 54 - all
• Record 55 - the last three paragraphs from the word "Enquiries" onwards

The public interest test in section 32(3) is limited to certain circumstances specified in paragraph (a)(i) or (a)(ii). I am satisfied that none of these circumstances apply.

I find that the HSE is justified in refusing access to the parts of Records 51- 57 listed above in bullet points, under section 32(1)(a) of the FOI Act.

However, I do not see how the remaining parts of the letter could reasonably be expected to prejudice or impair AGS's investigation or enforcement. They disclose the fact of the objection to the marriage and certain information about the applicants which would be known to them or reasonably inferred to be the case, including a chronology of events about them. I am not satisfied that disclosing this information could reasonably be expected to cause the harms identified above. It is publicly known that AGS liaises with other authorities in investigations of this kind. I find that section 32(1)(a) does not apply to the remaining information and the HSE is not justified in refusing access to the remaining information in Records 51-57 under section 32(1)(a).

I do not need to consider AGS's claim under section 37. This is because the names of, and personal details about, individuals other than the applicant are contained in the parts of the letter which I have found to be exempt under section 32.

Section 35 - Information obtained in confidence
The HSE claims section 35(1)(a) over Records 51-57. Given my finding under section 32, I am only required to consider this in relation to the remaining information in the letter concerned. For section 35(1)(a) to apply, four requirements must be satisfied: the information was given to an FOI body in confidence; it was given on the understanding that it would be treated by the FOI body as confidential; disclosing it would be likely to prejudice the giving to the body of further similar information from the same person or other persons; it is important to the body that such further similar information should continue to be given to the body. Section 35(1)(a) does not apply if the public interest would, on balance, be better served by granting rather than by refusing to grant the request (section 35(3) applies).

The HSE says that the Detective Superintendent in AGS who wrote the letter said that it was exempt under the FOI Act and the HSE therefore forms the opinion that it was provided in confidence. It also says that it is necessary for the HSE to receive such information and that releasing it would likely prejudice the giving of similar information to the HSE in future. Furthermore, it submits that releasing the letter would result in a loss of confidence by the wider public that information provided to the HSE in confidence could find its way in the public arena.

In my view, the HSE's submissions point to two kinds of information: the letter as given by AGS to the HSE and discrete pieces of information within the letter, as given by third parties to AGS. I will deal with the letter as a whole first. The Detective Superintendent in AGS did not say that the letter was exempt under section 35, but rather that it should be exempted under section 32, which I have addressed above. Even if the letter were information given to the HSE by AGS in confidence, I am not satisfied that it meets the third criterion of section 35(1)(a). AGS has a function in investigating proposed marriages of convenience, on foot of which it gave information to the HSE when lodging an objection to the proposed marriage in this case. It is clear from AGS's submissions and its own press release on the Garda operation around marriages of convenience that doing this is part of its role. In that context, I do not accept that disclosing the remaining information under FOI would be likely to prejudice AGS from giving further similar information to the HSE. As for the discrete pieces of information within Records 51-57 given by third parties, these were not given to the HSE but rather to AGS, which does not claim section 35(1). In any event, I have addressed AGS's submissions in connection with the sources of its information above, under section 32.

In the circumstances, I am not satisfied that section 35(1)(a) applies to the remaining information in Records 51-57. I find that the HSE is not justified in refusing access to that information under section 35(1)(a) of the FOI Act.

Section 30 - Functions and Negotiations
Although the HSE claims section 32(1)(a)(i), (ii) and (iii) over the withheld parts of Records 36-48, its arguments are fundamentally similar to the detailed arguments which it makes under section 30(1). As I discuss below, the gist of its argument is that disclosing the records will allow people to deduce the questions which the HSE is likely to ask when it interviews people about their intended marriage. Since the HSE's submissions under section 30 are more detailed, I have decided to consider the withheld parts of Records 36-48 under section 30.

Records 36-48 comprise a transcript of the HSE's interview with the applicants about their intention to marry. The HSE released the applicants' answers to its questions and withheld the rest, which mainly consists of the questions asked.

Section 30(1)(a) allows an FOI body to refuse to grant an FOI request if access to the record could reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct thereof. Section 30(1)(b) allows an FOI body to refuse to grant an FOI request if access to the record could reasonably be expected to have a significant adverse effect on its functions relating to management. Section 30(1)(c) allows an FOI body to grant an FOI request if access to the record could reasonably be expected to disclose positions taken or plans etc. used for the purposes of negotiations by or on behalf of the Government or an FOI body. When a public body relies on section 30(1), it should first identify the potential harm and having identified the harm, consider the reasonableness of any expectation that the harm will occur. Section 30(1) is subject to a public interest balancing test in section 30(2).

Submissions
On section 30(1)(a), the HSE submits that releasing Records 36-48 will reveal methods of investigation and enquiries utilised and inevitably impair the process. It says that it undertakes these functions in a climate of confidentiality and that an advantage is not afforded to one person over another. It submits that releasing this information will provide the applicants with the opportunity to deduce certain information, affecting the openness and transparency of its functions and procedures. It states that harm will present in the provision of expected or prepared responses.

On section 30(1)(b), the HSE says that the significant adverse effect is that its investigation and interview process could no longer be relied upon in that the provision of criteria and procedures could provide potential applicants with sufficient information to circumvent and interfere with the process.

On section 30(1)(c), the HSE says that the information will disclose positions taken, or to be taken, or plans, procedures, criteria or instruction used or followed, or to be used or followed, for the purpose of any negotiations carried on or being, or to be, carried on by or on behalf of the HSE.

The applicants submit that the HSE has not shown why the potential harm could reasonably be expected to occur. As noted above, they also say that the generality of a record can be of little use to others and that it is not satisfactory to expect that releasing this type of record could prejudice the effectiveness of future investigations.

Analysis & Findings

The records concern the HSE's investigation into a possible marriage of convenience. I accept that they relate to an investigation for the purposes of section 30(1)(a) of the FOI Act. However, the HSE has not pointed me to functions relating to management and they are not apparent to me. Therefore, I do not accept that the records relate to functions for the purposes of section 30(1)(b). Neither has the HSE pointed me to any negotiations under section 30(1)(c) and they are not apparent to me. Therefore, I do not accept that the records relate to negotiations under section 30(1)(c).

The essence of the HSE's submissions is that disclosing the records will allow people to deduce the questions which the HSE is likely to ask when it interviews people in connection with alleged marriages of convenience. It is said that this will prejudice the HSE in how it conducts its statutory function as Registrar when investigating alleged marriages of convenience.

The Civil Registration (Amendment) Act 2014 defines a marriage of convenience. It sets out the criteria which a Registrar must consider when forming an opinion on whether an intended marriage would constitute a marriage of convenience. This statute is publicly available. Moreover, the Department of Social Protection has publicised the matters which Registrars consider in forming their opinion on whether an intended marriage would constitute a marriage of convenience. The applicants themselves will have known the questions which were put to them in their respective interviews. Indeed, it seems to me that the substance of many of the questions can be deduced from the answers that have been released. In addition to this, as a former Information Commissioner observed in the context of asylum cases, there is nothing to prevent individuals from verbally passing on the facts of their cases to other applicants (Case 000274 Mr X & The Department of Justice, Equality and Law Reform). I can see from online media that people share information about questions asked in interviews about intended marriages.

In the circumstances, it seems to me that people can easily research questions which the Registrar is likely to ask when forming an opinion about marriages of convenience. I therefore believe that it is already open to people to prepare responses for possible questions. I take it that the Registrar will ask questions and form an opinion on the facts of the individual case. I am not satisfied that releasing the withheld information could prejudice the HSE's function in doing so. I do not consider it reasonable to expect that releasing these records could cause the harms identified.

I find that section 30(1) does not apply to the records. Given this finding, I am not required to apply the public interest balancing test under section 30(2) of the FOI Act. I find that the HSE is not justified in withholding access to the withheld parts of Records 36-48 under section 30(1) of the FOI Act.

For the avoidance of doubt, I would have found that section 32 did not apply to the withheld parts of Records 36-48.

Decision

Having carried out a review under section 22(2) of the FOI Act, I vary the HSE's decision. I affirm its decision on certain records (as listed above in bullet points), under section 32 of the FOI Act. I annul its decision on the remaining records and direct their 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 applicant 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