Irish Information Commissioner's Decisions
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Cite as: [2019] IEIC 180447
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Mr Mark Tighe, The Sunday Times and the Department of Foreign Affairs and Trade (the Department)
Case number: 180447
Whether the Department was justified in refusing to grant access to records in full or in part relating to a particular charity in receipt of funding from the Department on the basis of various provisions of the FOI Act
29 May 2019
Background
On 18 May 2018, the applicant sought access to various records relating to the Department's interactions with Front Line Defenders (FLD) since 2010. FLD is a charity set up in 2001, with the stated aim of protecting human rights defenders (HRDs) who are at risk.
The Department required an extension of time to process the applicant's request and issued a decision on 6 July 2018, wherein it identified 91 records within the scope of the request. It granted access to 36 records in full, 10 in part and refused access to the remaining 45 records on the basis of sections 15(1)(d), 29(1)(a), 30(1)(a) and (b), 32(1)(b), 33(1)(d) and 36(1)(b). As well as the records released, the Department provided a table setting out various programmes operated by FLD and funded by the Department from 2010 to 2017, including the amounts of the funding for each year.
The applicant sought an internal review in respect of the Department's refusal of 50 of the remaining records in full or in part on 8 August 2018. The Department's decision on 4 September 2018 granted access to an additional 17 records in full and 12 in part. It refused to grant access to the remaining 21 records. While the Department mostly relied on the same exemptions cited in its original decision, it did not always apply them to the same records.
On 16 October 2018, the applicant applied to this Office for a review of the Department's decision. He indicated that he was unhappy with the Department's reliance on sections 29 (ongoing deliberations), 32 (public safety) and 36 (commercial sensitivity).
Having completed my review, I have decided to bring it 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.
Scope of Review
During the course of this review, this Office's Investigator contacted the applicant and informed him of her view that the records which had been withheld by the Department at internal review stage on the basis of exemptions other than those referred to in his application to this Office were outside the scope of this review. He agreed with her interpretation of the scope of the review. Accordingly, this review solely concerns records 4, 20 and 31 (withheld in full) and record 30 (released in part).
In submissions to this Office, the Department also cited sections 30(1)(a) and 33 in reference to its decision to refuse access to records 4 and 20, although it did not make any substantive arguments in this regard.
Accordingly, this review is solely concerned with whether the Department has adequately demonstrated that sections 29(1)(a), 30(1)(a), 32(1)(b) and 36(1)(b) of the FOI Act apply to records 4, 20, 30 and 31 (as numbered at Internal Review stage) in full or in part.
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.
Section 2 of the Act defines -record- as including -a copy or part- of anything falling within the definition of a record. Section 18(1) provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the FOI body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers).
The Commissioner takes the view that neither the definition of a record under section 2 of the Act nor the provisions of section 18 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, he is not in favour of the cutting or "dissecting" of records to such an extent. He takes the view that, being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records
Analysis and Findings
The Department refused to grant access to the records at issue in full or in part as follows:
- Record 4- refused in full on the basis of sections 29(1)(a) and 36(1)(b)
- Record 20- refused in full on the basis of sections 29(1)(a) and 32(1)(b)
- Record 30- refused in part on the basis of section 32(1)(b)
- Record 31- refused in full on the basis of sections 32(1)(b) and 36(1)(b)
Having carefully examined the records concerned, I am of the view that sections 29 and 32 are the most relevant, so I will initially consider the records under these exemptions.
Section 29(1)(a) - Records 4 and 20
Section 29(1) provides that an FOI request may be refused (a) if the record concerned contains matter relating to the deliberative processes of an FOI body (including opinions, advice, recommendations, and the results of consultations considered for the purpose of these processes), and (b) the granting of the request would, in the opinion of the head of the FOI body, be contrary to the public interest.
These two requirements are independent. The fact that the first is met carries no presumption that the second is also met.
When considering section 29(1)(a), this Office considers that a deliberative process may be described as a thinking process which informs decision making in FOI bodies. It involves the gathering of information from a variety of sources and weighing or considering carefully all of the information and facts obtained with a view to making a decision or reflecting upon the reasons for or against a particular choice. Thus, it involves the consideration of various matters with a view to making a decision on a particular matter. It would, for example, include some weighing up or evaluation of competing options or the consideration of proposals or courses of action.
Record 4 is an evaluation of FLD in the context of its strategic plan for 2015-2018. The record was created by an external consultant on behalf of FLD in January 2018. Record 20 is in three parts - (in the interests of clarity I will refer to them as A-C) - 20(A), FLD's internal annual report for 2014; 20(B), its 2015 business plan; and 20(C), its 2015-2018 strategic plan.
The Department stated that the evaluation of applicants for grants is the deliberative process contained in records 4 and 20. It also stated that these records were key materials used in evaluating FLD. Essentially, it is of the view that release of these records will allow competitors for funding to reproduce FLD's submissions and this would "diminish the integrity" of the process. Essentially, the Department stated that the assessment of partners for funding is ongoing and that an applicant's performance in respect of previous grants was taken into account when assessing subsequent applications for funding. It stated that the level of detail in the records concerned would be advantageous to a competitor and that release of this information would unfairly disadvantage FLD.
Based on the contents of the records concerned, and the Department's explanations above, I accept that the information in the records at issue comprises opinions and recommendations relating to how FLD had performed and/or what direction it should take, which were considered by the Department as part of its deliberative process when deciding whether to award further grants to FLD. Accordingly, I find that section 29(1)(a) applies to the records concerned. However, the Department must also show that release of the records at issue would be contrary to the public interest.
Section 29(1)(b) - the public interest
In relation to the issue of the public interest, it is important to have regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner[2011] IESC 26 ("the Rotunda case"). It is noted that a public interest ("a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest.
Furthermore, the public interest test contained in section 29, as set out in section 29(1)(b), differs from the public interest test found in other exemptions under the FOI Act. Other exemptions require the public body to be of the opinion that the public interest would be better served by release. To avail of section 29, the public body must be of the opinion that releasing the records would be against the public interest. In my view, this exemption tends more strongly towards release of records.
Therefore, public bodies must show that release of the material at issue would be contrary to the public interest. Generally speaking, this requires a body to identify a specific harm to the public interest flowing from release. While there is nothing in the exemption itself which requires the deliberative process to be ongoing, as acknowledged earlier in this decision, the question of whether the process is ongoing or at an end may be relevant to the issue of the public interest.
Section 29 also specifically requires consideration of whether the requester would, by the release of the record(s), become aware of a significant decision that the relevant FOI body proposes to make. However, neither party has argued that this arises in this case.
In submissions to this Office, the Department stated that it had assessed the balance between the public interest in accessing information concerning the expenditure of public funds and the public interest in the funds being awarded to the best qualified organisations. However, section 29(1)(b) does not require the balancing of opposing public interests, instead it requires that release of the records concerned would be contrary to the public interest.
In any event, the Department also referred to specific details in the records, which it stated would reveal vulnerabilities of people being assisted by FLD, which it considered could be exploited if the records were released. The Department also stated that the records identify various organisational strengths and weaknesses which, if revealed, could prejudice the safety of third parties. The Department was further concerned that the release of this information by the Irish government could damage Ireland's international relations and referred to section 33 in this regard. In essence, the Department's position is that it would be contrary to the public interest for records to be released which could be used by those who seek to "restrict, threaten, harm or kill" the very HRDs that the Department seeks to protect through its funding of FLD.
In submissions to this Office, the applicant reiterated his grounds for appealing the Department's original decision. In terms of the public interest, he is of the view that the Department did not adequately consider the public interest in transparency in its use of "substantial public funds" and in how it evaluated FLD's use of such funds. He argued that this Office's decision in another case (Case No. 170372, on our website www.oic.ie) was relevant. In that case, I found that records relating to another charity being funded by the Department, which were released in part, gave a distorted version of events as mainly negative comments were withheld. I was of the opinion that this did not present a balanced view of the charity concerned or how it was evaluated and monitored by the Department.
As I have stated above, the test that the release of these records would be contrary to the public interest is a high bar to meet. In this regard, I have carefully examined the records concerned, which contain direct or indirect references to individuals at risk, as well as a high level of detail concerning specific human rights issues in various countries. It is my understanding that the records at issue contain more detailed information than is currently in the public domain about these matters. In the circumstances of this case, I accept the Department's argument that the information contained in the records concerned could be used by those who seek to do harm to individuals defending human rights. While the Department has not relied on section 32 in respect of record 4, I note that that exemption itself recognises the public interest in ensuring that the life or safety of any person is not endangered.
Furthermore, while section 29 does not have a balancing test in respect of the public interest, I note that the Department has released most of the records sought by the applicant in this case. I consider this to go some way towards meeting the public interest in openness and transparency in how the Department assesses grant applications and monitors the use of public funds. Finally, while I note the applicant's arguments about the similarities between this case and Case No. 170372, I am satisfied that the facts are substantially different. In this case, the information concerns a charity which provides security and assistance to people who are under threat while defending human rights. I am satisfied that details of this type of activity are more sensitive than those in the previous case, where the records concerned funding for a development agency, which carried out programmes relating to the provision of emergency hygiene facilities and housing. Furthermore, it had not been argued in that case that release of the records would endanger the security of any individual.
However, I am not satisfied that the above arguments apply to records 20(B) and (C). I am satisfied that details of FLD's strategic plans are widely available. Its current plan is available on its website and I understand that earlier plans, including the 2015-2018 strategic plan were also published online, with no evidence of any harm arising. Accordingly, I find that granting access to the details of FLD's strategic plan contained in record 20(B) and record (C) in full would not be contrary to the public interest.
Having regard to all of the above, I find that section 29(1)(b) applies to records 4 and 20(A) in full and record 20(B) in part, and that it would be contrary to the public interest to direct their release.
As I have found the contents of records 4 and 20(A) and part of record 20(B) to be exempt under section 29(1), I do not need to consider the Department's reliance on any other exemptions in respect of these records.
Section 32(1)(b) - Records 20(B) and (C), 30 and 31
The Department withheld access to record 30 in part and records 20(B), 20(C) and 31 in full on the basis of section 32(1)(b) of the FOI Act. Section 32(1)(b) is a discretionary exemption that allows a public body to refuse to grant a request if it considers that access to the record concerned could reasonably be expected to endanger the life or safety of any person. In interpreting the words -could reasonably be expected to-, this Office considers that the test is not concerned with the question of probabilities or possibilities. It is concerned with whether or not the decision maker's expectation is reasonable. As such, a decision maker must firstly identify the potential harm to the functions covered by the exemption that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur.
The exemption is not commonly used and it should not be applied without careful consideration having been given to whether the expectation of endangerment is a reasonable one in all the circumstances. An assessment of the expected consequences of releasing particular records in terms of endangering life or safety is required. It is not necessary, or indeed possible, to establish that such physical harm will definitely occur, but the FOI body must show that there is a reasonable expectation of such harm arising.
In submissions to this Office, the applicant reiterated his grounds for appealing the Department's original decision and stated that he understood why five records had been withheld (at internal review stage) on security and international relations grounds. I am satisfied that this did not apply to the records under review in this case, which were initially refused under exemptions other than section 32.
The Department stated that, according to numbers provided to it by FLD, 2018 saw the highest number on record of HRDs targeted and killed for their work. It was of the view that the release of records which directly or indirectly identified such individuals could lead to potential security risks. The Department was also concerned that what may seem like innocent participation in events could result in various repercussions up to and including imprisonment and torture.
Essentially, the Department's position is that the pattern of violence and oppression against HRDs usually starts with lower levels of harassment which can escalate over time. While some of the information in the records is seven years old, in essence, the Department stated that release could reveal individual HRDs and steps taken to protect them. It is of the view that this could endanger the people involved. The Department is also concerned that the release of details of security provided by FLD, as well as the timelines involved, could allow people to circumvent similar steps taken to protect other HRDs. In summary, the Department stated that it proceeded with caution in responding to the applicant's request due to the nature of the information concerned. It was of the view that the nature of the applicant's original request (for access to correspondence and memos relating to the Department's decision to support FLD, the total amount given to the charity in each year and any records relating to assessments of the charity's work and its corporate governance) had been met without the release of the kind of information contained in records 20(B) and (C), 30 and 31.
I have carefully reviewed the records at issue and note that the information withheld from record 20(B) refers to named HRDs and steps taken by FLD to assist them. It also sets out details of training and events organised by FLD. The information withheld from record 30 refers to FLD's support of a named HRD. Record 31 contains details of FLD's programmes and schemes including specific details of steps taken to ensure the safety and security of individuals, as well as testimonials from identifiable individuals who had been assisted by FLD. I am satisfied that in the main the information in these records relating to the type of assistance FLD provides is above and beyond what is publicly available. However, as noted above, Records 20(B) and (C) contain details of FLD's strategic plan for 2015-2018, which was already made publically available by FLD.
Accordingly, in the circumstances of this case, I am willing to accept that the release of records 30 and 20(B) in part (other than details of FLD's strategic plan) and record 31 in full could reasonably be expected to endanger the life or safety of any person and that therefore section 32(1)(b) applies. It is 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. Therefore, access to these records cannot be restricted to the applicant. I also find that section 32(1)(b) does not apply to the details of the strategic plan contained in records 20(B) and (C).
The public interest
Section 32(3) contains a limited public interest test where section 32(1) does not apply. It provides that in certain circumstances, section 32(1) does not apply where the body considers that the public interest would, on balance, be better served by granting the request. The circumstances are as follows:
- if the record discloses that an investigation for the purpose of the enforcement of any law, or anything done in the course of such an investigation or for the purposes of the prevention or detection of offences or the apprehension or prosecution of offenders, is not authorised by law or contravenes any law, or
- if the record contains information concerning the performance of the functions of an FOI body whose functions include functions relating to the enforcement of law or the ensuring of the safety of the public (including the effectiveness and efficiency of such performance), or
- if the record contains information concerning the merits or otherwise or the success or otherwise of any programme, scheme or policy of an FOI body for preventing, detecting or investigating contraventions of the law or the effectiveness or efficiency of the implementation of any such programme, scheme or policy by an FOI body.
While the applicant made general public interest arguments as set out earlier, I am satisfied that none of the circumstances in section 32(3) apply in this case. Accordingly, I find that records 31 (in full) and 20(B) and 30 (in part) are exempt from release on the basis of section 32(1)(b) of the FOI Act.
As I have found records 4 and 30 to be exempt from release on the basis of sections 29 and 32 of the FOI Act, I do not need to consider the Department's reliance on section 36 of the FOI Act. I direct the release of the details of FLD's strategic plan for 2015-2018 contained in record 20(B) and record 20(C) in full. In the interests of clarity, the information in record 20(B) to be released is contained in the first two columns, headed "Strategic Plan 2015-2018 Objectives" and "Strategic Plan 2015-2018 Sub-Objectives".
I should also state that having examined the records at issue, I do not consider it feasible to redact information from records 4, 20(A) or 31, or additional information from record 20(B) which could not reasonably be expected to give rise to the harms identified above without causing the remainder of the records to be misleading (section 18 of the Act refers).
Decision
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the Department's decision to refuse access to the records concerned. I find that section 29(1)(a) applies to records 4 and 20(A) in full and record 20(B) in part and that it would be contrary to the public interest to direct their release. I also find that this does not apply to details of FLD's strategic plan 2015-2018 contained in record 20(B) and 20(C). I further find that section 32(1)(b) applies to records 30 in part and 31 in full and that the public interest does not favour their release. I direct the release of record 20(B) in part and 20(C) in full.
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