Whether the Department was justified in refusing to grant access to records in full or in part, relating to a named charity on the basis of sections 30, 35, 36 and 37 of the FOI Act

17 December 2018

Background

On 16 April 2018, the applicant sought access to records held by the Department relating to any internal audit investigation by a named charity (the charity) into its Irish division. His request covered records which were received or created between 16 July 2017 and 16 April 2018, inclusive. The Department's decision on 14 May 2018 identified 11 relevant records, of which it granted access to seven. It withheld two records in part and two in full, on the basis of sections 30, 35, 36 and 37.

The applicant applied for an internal review of the Department's decision to refuse access to two records - record 1 in full and record 6 in part. On 8 June 2018, the Department affirmed its original decision on the same grounds. On 28 June the applicant applied to this Office for a review of the Department's decision. During the course of this review, the Department indicated that it was also relying on section 29 in its decision to refuse to grant access to the records sought.

This Office's Investigator contacted the representatives of the Irish branch and the international branch of the charity and invited them to make a submission in relation to matters at hand. The Irish branch did not make a submission. The international branch made a submission referring to the interests of both branches and objecting to the release of the records at issue.

Having completed my review, 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 the correspondence between the Department and the applicant as set out above. I have also had regard to the communications between this Office and both the applicant and the Department, as well as the contents of the records concerned. I have also had regard to submissions made by the international branch of the charity to this Office.

Scope of Review

This review is solely concerned with whether the Department was justified in its decision to refuse to grant access to records 1(in full) and 6 (in part) on the basis of sections 29, 30, 35, 36 and 37 of the FOI Act.

Preliminary Matters

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. This means that the extent to which I can describe the contents of the records is limited.

It is also important to note that when a record is released under the FOI Act, it effectively amounts to disclosure to the world at large, as the Act places no restrictions on the type or extent of the subsequent use to which a record may be put.

Analysis and Findings

The records at issue in this case comprise a copy of the charity's internal investigation report (record 1 - refused in full) and a timeline of related events prepared by the Department (record 6 - released in part).

The Department refused to grant access to the records sought on the basis of sections 29, 30, 35, 36 and 37 of the FOI Act. Having carefully examined the records in question, it appears to me that section 30 is of most relevance. Accordingly, I will consider the applicability of section 30 to the information at issue in the first instance.

Section 30 - Functions relating to management

The Department refused access to the records at issue on the basis of sections 30(1)(a) and (b) in its original decision, although the document schedule mistakenly listed 30(1)(a) and (c). 30(1)(c) relates to the disclosure of negotiating positions, which was not referred to by the Department in either decision. In submissions to this Office, the Department referred to section 30 more generally and did not state which subsection it was relying on. Based on its arguments in its decisions and submissions to this Office, it seems to me that it intended to rely on sections 30(1)(a) and (b) to refuse access. Furthermore, I note that the international charity argued that section 30(1)(b) applied to the records.

Section 30(1) is a discretionary exemption which provides, insofar as is relevant, that a head may refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, reasonably be expected to:

"(a) prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or methods implied for the conduct thereof,
(b) have a significant, adverse effect on the performance by an FOI body of any of its functions relating to management."

Section 30(1) is subject to a public interest test at section 30(2).

The Department's arguments

I should state that the Department's submission in relation to section 30 was not broken down into subsections (a) and (b), but appeared to address section 30 in the round. In its initial decision, the Department stated that the release of the information in the records sought could prejudice its decision making processes or impair future decisions of the Department. Its internal review decision stated that it is important that reports such as the one at issue continue to be supplied to it on request. It further stated that records relating to internal audits also help to inform decisions of the Department whether to carry out its own investigations, inquiries or audits. It said that internal audit is an important function in terms of providing assurance that risk management, governance and internal control processes are operating effectively. The Department was of the view that the release of such records would be contrary to the public interest as it needs to make evidence-based decisions in the public interest.  

The charity

The charity stated that it had provided the audit report voluntarily "at Irish Aid's request", in confidence and on the mutual understanding that it would be treated as confidential. It stated that it had done so even though the report did not relate to "any complaints or findings of the misuse of Irish Aid funds or breach of Irish Aid matched funding obligations by" the charity. It also stated that the report did not contain evaluations or appraisals by Irish Aid of the charity or its use of funds. It further stated that the report was a comprehensive, full and frank internal investigation by the international branch, which provided an analysis of the complaints raised against the Irish branch, with supporting evidence. It said that the audit was commissioned as an internal learning exercise and that it found no "misuse, insufficient recording or misappropriation of volunteer donations". It also said that release of such information would have a "chilling effect on Irish Aid-™s ability to seek the voluntary provision of such investigative reports".

The applicant

The applicant did not address whether section 30 applied to the records concerned, other than to state that the public interest would favour release. However, it seems to me that his arguments relating to section 35 also apply to section 30. Insofar as the Department stated that the charity would no longer provide such reports, or at least not in such detail, if the record was released, and that it was critical that the Department receives such information, the applicant disagreed. In essence, he stated that the charity benefits from continuing to supply such information and that, if it did not provide it, the Department could reduce or cease its funding. He also contended that acceptance of state funding by a charity comes with the "assumption that public scrutiny is inevitable and necessary". Essentially, his argument was that as the Department provided so much of the charity's funding, it would not be in a position to withhold information from the Department or to insist that it be kept confidential when it had been provided.

Analysis

In essence, the Department has stated that it sought and was given the report on the understanding that it would be held in confidence. It also stated that the timeline document (record 6) reflects conversations and correspondence concerning the report and its contents. It further stated that such information was required so that the Department could make better informed decisions when monitoring and assessing charities in receipt of State funding. The Department has stated that the report was provided voluntarily and that the international branch was under no obligation to provide it. The international branch of the charity said that if this report is released, it would not make such reports available to the Department in future, or at the least not provide the full text of such reports. There is nothing before me to suggest that this would not be the case. It seems to me that the absence of reports of the type concerned - whether positive or negative - would make the Department's management of this area of its work more difficult.

While I acknowledge the applicant's arguments in relation to the level of funding involved, this money was provided to the Irish branch, not to the international branch. This Office has been informed that the two branches are separate legal entities and that the international branch is not party to the financial arrangement with the Department. In the circumstances of this case, I am willing to accept that release of the records concerned could affect the Department's ability to gather relevant information, including internal audit reports, which it requires to carry out its function of monitoring and assessing grant recipients.  Accordingly, I am satisfied that release of this record in these circumstances could reasonably be expected to have a significant, adverse effect on the Department's performance of its management functions, including its assessment and monitoring of grantees once the funds have been provided and I find that section 30(1)(b) applies to the records concerned.

Public interest

In view of this finding, I am required to apply the public interest balancing test under section 30(2) of the FOI Act.

On the one hand, section 30(1)(b) itself reflects the public interest in FOI bodies conducting investigations effectively. On the other hand, there is a public interest in transparency around the way in which the Department carries out its functions. Section 11(3) of the FOI Act requires FOI bodies to have regard to the need to achieve greater openness in their activities and to strengthen their accountability and improve the quality of their decision-making.

The Department stated that it considered that the public interest would be best served by refusing to grant the request for access. It said that it was in the public interest that such further similar information from this organisation or any other organisation should continue to be supplied to the Department so that it could take action in the public interest if necessary. The Department stressed that it was in the public interest that the Department's decision making not be impaired by the lack of access to such full and frank information. Furthermore, it stated that while the complaints referenced in both documents did not relate to the use of the Irish Aid funds, the records were currently being used to inform the Department's dealings with the charity. The Department stated that it carries out important functions in terms of providing assurances that risk management, governance and internal control processes [of the grantees] are operating effectively. In essence it argued that it was in the public interest for the Department to be as comprehensively informed as possible about the charities and programmes receiving government funding. It stated that its decisions as to whether to grant funds or to withhold or suspend funding are made on the basis of such information, therefore it was of great importance that it continued to have access to such reports, which the international branch was not obliged to provide.

In his internal review request, the applicant argued that the public interest test which applied to section 30 (1) favoured the release of the information sought. In this regard, he said that as the charity "survives on funding from the Department... and other public donations" it was clearly a matter of public interest that its financial affairs be publicly transparent and that "any questions related to probity be publicly examinable". He also queried how the public could be satisfied that its money is being used correctly if the report was not released.

The international branch of the charity submitted that the FOI Act itself recognises a strong public interest in protecting information relating to the functions and negotiations of FOI bodies. It stated that this was a recognition of the intrusion and harm that would otherwise occur as a result of the FOI regime on the normal rights of private businesses who are not subject to FOI. It said that the exemptions in the Act were designed to "prevent what would in effect be a -˜back-door-™ method of obtaining such information" from a private entity. It argued that the report "merely repeats unsubstantiated allegations of misuse of donor funds", as part of a good-faith reporting of its investigation, only to conclude that the allegations do not have merit. It was of the view that this meant that there was little or no public interest in the release of the records concerned.

It is common case between the international charity and the Department that the Department provided 70% of the funding for a particular project run by the Irish charity, and that the Irish charity raised the remaining 30% itself, by way of a particular fundraising programme (the Programme). Having examined the records at issue, I am satisfied that the complaints referred to in the records concerned relate to the Programme, and not directly to the use of Irish Aid funds. It is also clear from the records and the submissions set out above that the international branch was under no legal obligation to provide a copy of the internal audit report to the Department. Furthermore, as noted above, the international charity is a separate legal entity from the Irish branch and is not a beneficiary of Irish Aid funds.

I accept that the report at issue and similar records relating to other organisations are used by the Department to make better-informed decisions in its assessment of grant applications and  its ongoing monitoring of grant aid programmes. I also accept that it is important that such information continue to be provided to the Department so that it can carry out its functions in this regard. Furthermore, I am of the view that the records released by the Department to the applicant to date have gone at least some way towards satisfying the public interest in openness and transparency in how the Department carries out its functions and in the expenditure of public funds. On balance, I consider that the public interest does not favour release of the records at issue in this case. Accordingly, I find that the Department has justified its decision to refuse to grant access to the records concerned on the basis of section 30(1)(b) of the FOI Act.

As I have found the records to be exempt under section 30(1)(b) of the Act, I do not need to consider the Department's reliance on sections 30(1)(a), 35, 36 or 37 in its refusal to grant access to the records sought.  

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the Department's decision to refuse access to the records sought, in full or or in part, on the basis of section 30(1)(b) 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