Whether the Department was justified in refusing access to records relating to the President’s Establishment Audit Committee, under sections 15(1)(d), 30(1)(a), 42(g) and 42(h) of the FOI Act
31 October 2019
Background
On 26 September 2018, the applicant made an FOI request to the Department for records “related to the audit committee set up to scrutinise the spending of Áras an Uachtaráin”, to cover the period 1 January 2018 to 26 September 2018. By letter dated 26 October 2018, the Department refused access to the records under section 42(h) of the FOI Act. On 30 October 2018, the applicant applied for an internal review. The Department issued an internal review decision by letter dated 23 November 2018, in which it affirmed its original decision. On 13 May 2019 the applicant applied to this Office for a review of the Department's decision.
In conducting my review, I have had regard to the correspondence between the applicant and the Department as outlined above and to the correspondence between this Office and both parties, as well as the content of the records that were provided to this Office by the Department for the purposes of this review.
Scope of this Review
The Department identified various letters and emails and their attachments as falling within the scope of the applicant’s FOI request. However, it did not schedule each record individually. Instead, it grouped them together in numbered tabs. I adopt its numbering by referring to records by name and by reference to the tab in which they appear. During the review process, the Department issued an updated schedule of records and relied on three further exemptions in relation to certain records. The question for me is whether the Department was justified in refusing access to the records under sections 15(1)(d), 30(1)(a), 42(g) and 42(h) of the FOI Act.
Preliminary Matters
Before considering the exemptions claimed, I wish to note that my jurisdiction under section 22 of the FOI Act is to make a new decision, in light of the facts and circumstances as they apply on the date of the review. The Courts have endorsed this approach. Secondly, 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 and the level of detail I can discuss in my analysis are limited.
Analysis and Findings
Section 15(1)(d) - Refusal on administrative grounds to grant FOI requests
Section 15(1)(d) of the FOI Act provides that FOI bodies may refuse access to information where the information is already in the public domain. During the review process, the Department claimed section 15(1)(d) over the following information: Tab 1 (Department of Public Expenditure and Reform Audit Committee Guidance 2014, Department of the Taoiseach Internal Audit Unit Charter); Tab 2 (DPER Audit Committee Guidance 2014); Tab 6 (Appropriation Account 2017 Vote 1 President’s Establishment); Tab 7 (Appropriation Account 2016 Vote 1 President’s Establishment, DPER Audit Committee Guidance 2014, Central Government Information Note, Revised Internal Audit Standards 2012 Final Version and Appropriation Account 2017 Vote 1 President’s Establishment).
I am satisfied that this information is in the public domain and find that the Department was justified in refusing access to it under section 15(1)(d) of the FOI Act. The Department should have stated at the outset that this information was in the public domain and should now assist the applicant in locating e.g. online links to the published documents, if that becomes necessary.
Section 42(h) – Records relating to the President
The Department originally claimed section 42(h) of the FOI Act over all the remaining records. It now claims section 30(1)(a) over three records and section 42(g) over part of one of those records. I consider those records below.
Section 42(h) provides that the FOI Act does not apply to a record relating to the President. In relation to this provision, Professor Maeve McDonagh, in her book Freedom of Information Law (para 4-131, Chapter 4 - Records Excluded from the Scope of the Act, 3rd Ed, 2015) states as follows:
"Documents relating to the President, on the other hand, are entirely excluded. The complete exclusion from the Act of records relating to the President was challenged during the passage of the FOI Bill 2013 through the Seanad. The sponsoring Minister responded to a suggestion that the Office of the President and the financial functions thereof be brought within the scope of the Act in the following manner:
“It has always been the tradition, and accepted in both Houses, that the President is above politics. It has been a firm and rooted tradition since the foundation of the State, and accepted in the Dáil and Seanad, that we do not discuss the President. In keeping with this independence I felt it would not be appropriate to cover the Office of the President under freedom of information.”"
The applicant says that the records are held by a department which is “FOI-able”. He says that they relate to a matter of some debate during the most recent Presidential campaign, as well as scrutiny by the Public Accounts Committee. On his first point, it is true that an FOI body holds the records. However, this does not negate the possibility that section 42(h) may operate so as to exclude those records from the ambit of the FOI Act. That is what I must consider. On his second point, these may be matters which would go to a public interest argument, but section 42 does not contain a public interest test.
In H(E) and the Information Commissioner [2001] IEHC 182, the High Court considered the question of whether records related to the requester’s personal information. The Court found that the test to be applied to determine whether a record “relates to” the personal information is “whether there is a sufficiently substantial link” between the requester’s personal information and the record in question. I find it useful to adopt this reasoning in examining whether the remaining records are records “relating to” the President, given the use of the phrase “relating to”.
I have examined the content of the remaining records, as well as three paragraphs in Tab 2 (the Department of the Taoiseach Internal Audit Unit Work Plan 2017 to 2019 and Department of the Taoiseach Audit Committee Annual Report 2016) which refer to the audit committee of the President’s Establishment. I am satisfied that they are records relating to the President, except for one record discussed below. They concern the Audit Committee of the President’s Establishment and/or the Office of the Secretary General to the President. I consider that there is a sufficiently substantial link between these records and the President. I therefore find that the Department was justified in refusing access to them under section 42(h) of the FOI Act.
This finding excludes the following record. Tab 1 contains a letter of appointment to the audit committee of the Department. I am not satisfied that it is a record relating to the President. It relates to the audit committee of the Department and I do not consider that there is a sufficiently substantial link between it and the President. I find that the Department was not justified in refusing access to it under section 42(h) of the FOI Act. During the review process, the Department also claimed that this record was exempt under section 30(1)(a) and I consider this claim below.
Section 30 - Functions and negotiations
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. 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).
The Department claims that the following records are exempt under section 30(1)(a): Tab 1 (letter of appointment and DPER Checklist of Effective Audit Committee) and Tab 2 (Department of the Taoiseach Internal Audit Unit Work Plan 2017 to 2019 and Department of the Taoiseach Audit Committee Annual Report 2016). I have found three paragraphs in Tab 2 to be exempt under section 42(h) above and therefore will not consider that information further. I consider page 7 of Tab 2 (Department of the Taoiseach Audit Committee Annual Report 2016) under section 42(g) below and therefore will not consider that here either.
The Department submits that releasing these records could reasonably be expected to prejudice the effectiveness of the procedures it employs for the purpose of performing its functions generally and have an adverse effect on internal audit matters and the detailed procedures employed for such audits. It says that its audit committee’s annual report is already subject to scrutiny and releasing it could result in the destabilisation and circumvention of existing accountability arrangements and prejudice the effectiveness of those arrangements. It says that disclosing a future work programme would prejudice the audit function. It says that if background documentation relating to audit work were routinely released, it could set a precedent which would undermine the work of the Internal Audit Unit.
This Office’s Guidance Notes, to which the Investigator drew the Department’s attention, make clear that the Commissioner must be satisfied that there is a link between granting access to the record concerned and the harm envisaged in section 30. A mere assertion of an expectation of harm is not sufficient. However, in its submissions, the Department does not demonstrate how releasing the particular content of these records is expected to cause the harm identified or why the harm could reasonably be expected to occur. In short, it has failed to link the content of the records with the nature of the alleged harm. Having examined the records in light of the Department’s submissions, I find that section 30(1)(a) of the FOI Act does not apply to these records and the Department was not justified in refusing access to them under section 30(1)(a). Given this finding, I am not required to consider the public interest balancing test under section 30(2) of the FOI Act.
Section 42(g) – Records relating to audits etc of the Comptroller and Auditor General
Section 42(g) provides that the FOI Act does not apply to a record relating to an audit, inspection, investigation or examination carried out by the Comptroller and Auditor General under the Comptroller and Auditor General Acts 1923 to 1993, the Exchequer and Audit Department Acts 1866 and 1921, or any other enactment, other than (i) such a record that was created before the commencement of the investigation, audit, inspection or examination aforesaid, or (ii) a record relating to the general administration of the Office of the Comptroller and Auditor General.
During the review process, the Department claimed section 42(g) over page 7 of Tab 2 (Department of the Taoiseach Audit Committee Annual Report 2016). Having reviewed the content of this page, I am satisfied that it constitutes a record relating to an audit carried out by the Comptroller and Auditor General and is not captured by paragraphs (i) or (ii). I therefore find that the Department was justified in refusing access to this page under section 42(g) of the FOI Act.
Decision
Having carried out a review under section 22(2) of the FOI Act, I vary the Department's decision as follows. I affirm its decision to withhold access to the majority of the records under sections 15(1)(d), 42(g) and 42(h), as outlined above. I annul its decision to withhold the records considered under section 30(1)(a) above and direct their release.
For the avoidance of doubt, the records which fall for release are: Tab 1 (letter of appointment and DPER Checklist of Effective Audit Committee) and Tab 2 (Department of the Taoiseach Internal Audit Unit Work Plan 2017 to 2019, without the two paragraphs relating to the Audit Committee of the President, and Department of the Taoiseach Audit Committee Annual Report 2016, without the paragraph relating to the Audit Committee of the President and without page 7).
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.