Whether the Department was justified in refusing access to certain records dating from 1 June 2015 relating to the applicant and her late son

4 December 2020

Background

The records in this case relate to circumstances that are extremely traumatic for the applicant and her family. I am not detailing these in my decision simply because to do so might identify the applicant and breach her privacy rights in relation to sensitive personal information. For the same reasons, I am not setting out the applicant’s FOI request of 20 September 2019 in any detail other than to say that it sought access to various records dating from 1 June 2015 relating to herself and her late son.

The Department made a decision on 19 November 2019 in relation to seven files of hard-copy (paper) records. It fully withheld one file (concerning an inquiry) containing 26 records but sent the applicant a working schedule indicating that it was granting access to some of the records concerned. The Department withheld all of the records concerned at the time of its decision. It granted full and partial access to some of the records on the other files. It withheld the remaining records and parts of records under sections 29(1) (deliberative process), 31(1)(a) (legal professional privilege), 31(1)(c)(ii)(I) (opinions considered at Oireachtas proceedings), 37(1) (personal information) and 42(j) (record given to a Minister for Oireachtas proceedings or committee) of the FOI Act. It said that it had identified several thousand electronic records covered by the request, which it was reviewing and would provide to the applicant as soon as possible.

The applicant sought an internal review on 29 November 2019. The Department’s internal review decision of 6 January 2019 said that its review of the electronic records was continuing. It affirmed its decision on the hard-copy records under the exemptions referred to above. It also relied on sections 30(1)(a) (investigations of an FOI body) and 31(2)(b) (records relating to a Tribunal or inquiry) in relation to certain specified records. On 10 January 2020, the applicant applied to this Office for a review of the Department’s decision.

As is the normal course, on acceptance of the application for review, this Office asked the Department to provide copies of the records the subject of its decisions i.e. copies of the original records and of any released in redacted form (the redacted records), which the Department provided. This Office’s support unit then asked the Department to provide a copy of a particular redacted record that it seemed to have omitted, which the Department also sent on. The redacted record was, in fact, amongst the records initially sent to this Office by the Department. However, this Office’s Investigator noted differences between what should have been identical copies of the redacted record. The Department said that it had not kept a copy of the redacted record and had provided a copy comprising its best recollection of what it had withheld.

On 19 February 2020, the Investigator invited the Department’s submissions, by 4 March 2020, as to why the relevant exemptions applied to the withheld hard-copy records. She also asked the Department to clarify certain matters, including whether it had taken copies of any redacted records, and to answer key questions.

The Department confirmed that it had not taken copies of any of the redacted records. What purported to be such records that it had sent to this Office was the Department’s best guess at what it had withheld. The Investigator asked the applicant to supply copies of the redacted records that she had received. She promptly provided these even though various difficulties arose because, according to the applicant, the Department had not provided her with names of the relevant files, nor had it tabbed or numbered the records. By comparing the redacted records provided by the applicant to their originals, the Investigator determined what the Department had actually withheld from the records concerned. I note that the Department’s best guess of what it had withheld differed in some cases to what, in fact, it had withheld.

On 28 February 2020, the applicant told this Office that the Department had sent her further records that it had recently found. Of the 21 records concerned (the February 2020 records), the Department withheld one record in full and a small number of others in part. The applicant says that the released records include record 14 on the inquiry file, which the Department appears to confirm. Its Secretary General wrote to the applicant on 24 February 2020 to explain how the records had come to light. He referred to one particular record that, in May 2019, the Minister for Justice and Equality (the Minister) had approved to be sent to the applicant. He said that this had not happened because of an accidental oversight. Arising from this, on 3 March 2020, the Investigator asked the Department to provide copies of the February 2020 records as well as an update on the electronic searches.

The Department did not make any submissions by 4 March 2020. This review could not proceed without the requested clarifications and answers to certain key questions. However, at this time this Office understood that a number of our staff were to be redeployed due to the Covid 19 crisis. It was also recognised that changes to the Department’s own normal arrangements were likely to cause disruption within that body. Having discussed the matter internally within this Office, the Investigator did not pursue this case with the Department until 7 May 2020.

On 25 May 2020, the Department provided copies of the February 2020 records, clarified various matters and replied to the Investigator’s key questions, some of which concerned specific records by way of examples. However, the Department did not make any submissions as to why the various exemptions apply to the wider set of records. One of the Investigator’s key questions concerned the application of sections 42(j) and 31(1)(c)(ii)(I) to record 35 on File 4/500/1/163 Part 2. The Department said that it would release this record except for a Briefing Note and Questions & Answers for the Minister’s use, which it said fall under section 42(j). On 18 September 2020, the Department confirmed that it had released various electronic records to the applicant.

I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges and to further correspondence between this Office, the Department and the applicant as set out later in this decision. I have also had regard to the contents of the records concerned and to the provisions of the FOI Act.

Scope of the Review

This review is confined to whether the Department’s decision on the applicant’s request was justified under the FOI Act. This Office has no role in relation to any other matters. It should be noted that I have considered all of the records. However, because of the overall number of records covered by my decision, I will refer specifically only to certain records, including those queried by the applicant and records that I am directing the Department to release.

A number of issues arise from the Department’s handling of the request. Its decisions concerned only hard copy records and did not deal with any electronic records covered by the request. The fully and partially withheld February 2020 records have not been through the formal FOI process. I am unclear as to whether these were found further to electronic searches or searches of hard copy files. From reviewing the file, I do not find it surprising that the applicant’s correspondence with this Office queries the adequacy of the Department’s searches for records covered by her request generally.

Preliminary Matter

As set out above, the Department did not take copies of the records it provided to the applicant in redacted form. This is very surprising, particularly given that the Department has been subject to FOI since 1998. While it attempted to recreate the redactions in respect of the copies it provided to this Office, its best guess at what it had redacted from records is not a basis on which I can carry out a proper review of an FOI body’s decision. It is also hard to see how it could hope to comply with any direction I would make to release further parts of such records.

Findings – hard copy and February 2020 records

This review will examine the hard-copy records the subject of the Department’s decisions. It will also include the fully and partially withheld February 2020 records. There is only a small number of records involved in this latter cohort of records and the same exemptions arise for consideration as in relation to the hard-copy records.

On 5 June 2020, the Investigator informed the Department of her intention to recommend the inclusion of the February 2020 records in this review. She told it that she did not intend to seek further submissions on those records. The Department’s reply of 29 June 2020 does not comment on this. The Investigator also noted that the Department had withheld details from a small amount of records that it had not referred to in its schedules (i.e. paragraph 17 of record 9 on File 4/500/1/163 Part 2 and a particular reference number contained in records 2, 20 and 21 of the February 2020 records). The Department says that it regrets its omission of the reference number withheld from the February 2020 records but does not comment on the other.

It is relevant to set out the Commissioner’s position on the provision of records with exempt information redacted. 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 public 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 Department has granted partial access to some of the records. I acknowledge that this was intended to ensure that the applicant would get as much access to information concerning herself and her son as possible. While I appreciate the importance that the applicant attaches to getting access to even the briefest excerpts of any of the withheld records, the Commissioner takes the view that, generally, neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from the remainder of such records for the purpose of granting access to those particular sentences or paragraphs. I should also make it clear that the FOI Act requires me not to take into account any reasons that the applicant has for making her FOI request.

I will deal firstly with records that are not covered by the request and records that are not subject to FOI further to the provisions of section 42 of the FOI Act.

Records not covered by request

I find that the attachment to record 5 on “File 4/500/1/163 Counsel’s Recommendations” is not covered by the applicant’s request. The Department says that the record concerns another person’s FOI request that was added to this file in error. I am satisfied that the content of the record bears this out. I am also satisfied that the remainder of record 5 on the February 2020 records concerns matters other than in relation to the applicant and her son and is not covered by the request.

Records to which the Act does not apply - sections 42(f) and (j)

The Department has relied on section 31(1)(a) (legal professional privilege) in relation to certain letters and emails that it received from the AG/AGO/CSSO in relation to various matters concerning the applicant and her son. However, section 42(f) provides that the FOI Act does not apply to, in particular, records created by the AG or AGO other than a record relating to general administration. The CSSO is part of the AGO. I am satisfied that the relevant records do not relate to general administration. I find, further to section 42(f) of the FOI Act, that the Act does not apply to them.

I note that the Investigator told the applicant on 29 June 2020 that the Department had not sent on copies of two records in particular, including record 25 on File 4/500/1/163 Part 1. The Department provided the copies concerned to this Office shortly after the Investigator had sent her email to the applicant. For the sake of completeness on the applicant’s part, I am satisfied that parts of record 25 were created by the AG/AGO and do not relate to general administration.  I find that the Act does not apply to such parts of this record further to section 42(f) of the FOI Act.

Section 42(j) provides that the FOI Act does not apply to a record given by an FOI body to a member of the Government or a Minister of State for use by him or her for the purposes of any proceedings in either House of the Oireachtas or any committee of either or both of such Houses or any subcommittee of such a committee (including such proceedings in relation to questions put by members of either such House to members of the Government or Ministers of State (whether answered orally or in writing)).

I am satisfied that some of the records were given by the Department to the Minister for the purpose of replying to Parliamentary Questions, including the remainder of record 35 on File 4/500/1/163 Part 2. I find that the Act does not apply to these records further to the provisions of section 42(j).

The Department says that section 42(j) applies to the entirety of record 4 of the February 2020 records, on the basis that it contains Leaders’ Questions material for use by the Taoiseach. The applicant has queried this record in particular. I accept that section 42(j) applies to the final two pages of this record, which appear to me to comprise briefing material for the Taoiseach’s use. However, the other two pages of the record comprise internal emails relating to the preparation of the briefing. I have no basis on which to accept that such emails were given to the Taoiseach and I find that section 42(j) does not apply to them. I will deal with the Department’s application of section 31(1)(c)(ii)(I) to this record later in this decision.

With regard to the application of both sections 42(j) and 31(1)(c)(ii)(I), one of the Investigator’s key questions referred to record 2 on the “Untitled” file by way of an example. The Department says that this is a briefing note given on behalf of the Minister to the Joint Committee on Justice and Equality (the Joint Committee) for the purposes of that Committee’s information in contemplating its own proceedings. It notes that the briefing note itself is marked “confidential” but makes no further arguments in this regard.

It is clear to me from the other released records on this file that the Joint Committee invited the Minister to meet with it in relation to the applicant. For various reasons, the Minister felt that this was not appropriate and instead provided the relevant briefing note. The applicant says that if the Committee can be given this record then she should be given it too. She says that the Committee’s role is to shadow the Department in the public interest. She describes various outcomes that she says arose from the details provided to the Committee and says that she wants to know what it was told. She says that, at the very least, parts of it should be released to her. While I appreciate why the applicant wants to get access to this record, her reasons for seeking it are not relevant to my consideration of section 42(j). If the terms of the provision are met in relation to the record, the FOI Act simply does not apply to it.

I accept that record 2 relates to the Committee’s proceedings. However, section 42(j) requires that it must have been given to the Minister for use before the Committee. This was not the case and I am not satisfied that section 42 applies to the record. The Department has relied on only section 42(j) of the FOI Act in relation to this record. However, noting its contents and the mandatory nature of section 31(1)(c)(ii)(II) of the FOI Act, it is necessary for me to consider if this provision applies to the record.

I will now deal with whether the remaining records are exempt from release under the provisions of the FOI Act.

Legal Professional Privilege (LPP) - section 31(1)(a)

Section 31(1)(a) of the FOI Act must be applied to a record that would be exempt from production in proceedings in a court on the ground of legal professional privilege (LPP). It does not require the consideration of the public interest. LPP enables the client to maintain the confidentiality of two types of communication:

• confidential communications made between the client and a professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege), and
• confidential communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation (litigation privilege).

Advice privilege attaches to confidential communications made between the client and his/her professional legal adviser in a situation where the legal adviser is acting in a professional capacity. Disclosure of a record to a third party generally amounts to a waiver of privilege except where there is "limited disclosure for a particular purpose, or to parties with a common interest", as per the Supreme Court judgment of 4 March 2009 in the case of Redfern Limited v O'Mahony [2009] IESC 18. ] However, the concept of "once privileged always privileged" applies to advice privilege, and thus, unless otherwise lost or waived, lasts indefinitely. The Commissioner also takes the view that privilege attaches to records that form part of a continuum of correspondence that results from an original request for advice.

Where a party is entitled to claim litigation privilege, the privilege does not automatically continue beyond the final determination of the proceedings in which it originally applied. The Commissioner has also accepted that in certain circumstances litigation privilege may attach to internal communications, provided that the dominant purpose for their creation is contemplated or pending litigation.

Having examined the records, I am satisfied that some comprise confidential communications made between Department and its professional legal adviser (the AG and/or AGO) for the purpose of obtaining legal advice and attract advice privilege. I also accept that records summarising legal advice sought and received from the AG and/or AGO attract advice privilege. I am satisfied that advice privilege applies to those records that form part of a continuum of correspondence resulting from an original request for advice. I am also satisfied that some records attract litigation privilege on the basis that they comprise confidential communications made between the Department and the AG/AGO and others, the dominant purpose of which is preparation for ongoing litigation involving the applicant. I find that section 31(1)(a) applies to such records.

As noted above, the Investigator told the applicant on 29 June 2020 that the Department had not sent on copies of record 25 on File 4/500/1/163 Part 1 or a document comprising part of record 6 on the same file, which the Department provided shortly thereafter. To assure the applicant in relation to the records, I am satisfied that the remainder of record 25 is part of a continuum of communications arising from a request for legal advice and that the relevant document in record 6 comprises confidential legal advice. I am satisfied that the remainder of record 25 and all of the relevant document in record 6 attract legal professional privilege and are exempt under section 31(1)(a) of the FOI Act.

The applicant contends that the AG’s approval for a certain record to be provided to her means that LPP cannot apply in this case, particularly in relation to paragraphs 11, 12 and 15 of record 9 on File 4/500/1/163 Part 2 (Submission 00148-18). It may be that she believes that privilege has been waived. However, I do not believe that such circumstances provide me with any basis to find that section 31(1)(a) does not apply or that the Department has waived privilege over any of the records concerned, including paragraphs 11, 12 and 15 of record 9. While the applicant says that she would accept the redaction of names from the paragraphs concerned, this is not relevant in considering whether legal professional privilege applies to the information, as the application of this exemption requires me not to direct its release.

I find that section 31(1)(a) applies to the relevant records and parts of records, including parts of the information withheld from record 22 on File 4/500/1/163 Part 2 (which was also specifically queried by the applicant).

Opinions considered by the Oireachtas - section 31(1)(c)(ii)(I)

Section 31(1)(c)(ii)(I) must be applied to opinions, advice, recommendations, or the results of consultations, considered by either House of the Oireachtas or the Chairman or Deputy Chairman or any other member of either such House or a member of the staff of the Houses of the Oireachtas Service for the purposes of the proceedings of a sitting of either such House.

The Department has relied on this provision as well as section 42(j) in relation to some of the records. I have found section 42(j) to apply to the records concerned other than the first two pages of record 4 of the February 2020 records. The Department has not explained how internal emails relating to the preparation of the briefing for the Taoiseach can be said of themselves to be opinions etc., considered by either House of the Oireachtas etc. for the purposes of the proceedings of a sitting of either such House. I find that these details are not exempt under section 31(1)(c)(ii)(I). I note that the Department did not rely on any other exemptions in relation to this record. However, I note that a name is contained at point 9 on the second page thereof, which is in no way concerned with matters involving the applicant or her son. I will consider this under section 37 (personal information).

Opinions considered by a committee - section 31(1)(c)(ii)(II)

Section 31(1)(c)(ii)(II) must be applied to opinions, advice, recommendations, or the results of consultations, considered by a committee appointed by either such House or jointly by both such Houses and consisting of members of either or both of such Houses or a member of such a committee or a member of the staff of the Houses of the Oireachtas Service for the purposes of the proceedings of a sitting of such a committee.

The Department did not rely on this provision. However, given its mandatory nature, it is appropriate to consider whether it applies to record 2 on the “Untitled” file. As noted above, this is a briefing note given on behalf of the Minister to the Joint Committee on Justice and Equality (the Joint Committee) for the purposes of that Committee’s information in contemplating its own proceedings. I note the applicant’s reasons for wanting to obtain this record, but I cannot have regard to them when assessing the application of this exemption. If the provision’s terms are met in relation to the record, then I am required to find it exempt from release. In my view, the record in its entirety can be seen as the result of a consultation by the Joint Committee with the Minister and it was considered by the Joint Committee for the purposes of its proceedings. I find that section 31(1)(c)(ii)(II) of the FOI Act applies to the record. While I note that the applicant says that at least parts of this record should be released to her, the question of granting partial access to the record does not arise in these circumstances.

Records relating to an inquiry - section 31(2)(b) and other exemptions claimed

Section 31(2)(b) provides that a head may refuse to grant an FOI request if the record concerned relates to the appointment or proposed appointment, or the business or proceedings, of any tribunal or body or individual appointed by the Government or a Minister of the Government to inquire into specified matters at least one member, or the sole member, of which holds or has held judicial office or is a barrister or a solicitor, and the request is made at a time when it is proposed to appoint the tribunal, body or individual or at a time when the performance of the functions of the tribunal, body or individual has not been completed. It does not require consideration of the public interest. However, section 31(3) provides that subsection (2) does not apply to a record in so far as it relates to the general administration of, or of any offices of, a tribunal or other body or an individual specified in that subsection.

As noted earlier, the Department fully withheld an inquiry file containing 26 records. It is relying on section 31(2)(b) as well as sections 29(1) and 30(1)(a) in relation to the records concerned. As also referred to above, both the applicant and the Department say that access has been granted to record 14 on this file. I have decided to consider the record for the sake of completeness although my findings are irrelevant if it is indeed the case that the record has already been released in full to the applicant.

A number of the records on the inquiry file comprise details of legal advice sought from or given by the AG to the Department, or comprise a continuum of communications arising from a request for legal advice. Although the Department did not rely on sections 31(1)(a) or 42(j) in relation to the records concerned, I am satisfied that these provisions apply.

At the time that the applicant made her request, the Minister had appointed a former Judge to examine various matters. This matter is ongoing. The applicant says that the release of the records cannot prejudice the inquiry concerned. She says that a lot of the refused records pre-date the Judge’s appointment by years. She says that it is in the public interest for the records to be released.

Section 31(2) does not contain any harm test and therefore it is not relevant whether the inquiry’s proceedings could be impacted upon by release of the records. As noted above, the provision does not require consideration of the public interest. All that is relevant is whether the applicant’s request was made at a time when it is proposed to appoint the Judge, or when the performance of the Judge’s functions has not been completed. It is also relevant whether the records relate to the appointment or proposed appointment, or the business or proceedings of the inquiry.

The applicant made her request after the Judge had been appointed and before he had completed his inquiry. I am also satisfied that most of the records on this file relate to the appointment or proposed appointment of the Judge or to the business or proceedings of the inquiry concerned. I find that section 31(2)(b) applies to such records. I note the applicant’s comment about the refusal of records that pre-date the Judge’s appointment by years. However, there are no such records on this file. The Department has not relied on section 31(2) in relation to any other of the records it considered in this case.

The Investigator asked the Department to explain why it had refused access to a letter that it had sent to the applicant and to documents relating to that letter (record 5 on the inquiry file). It said that “some time has passed while the records have been reviewed and recollection is that the applicant is already in possession of the letter hence it was not forwarded again”. It did not comment on the related documents. While it would have been open to the Department to release this record outside of FOI, I am satisfied that it relates to the inquiry’s business or proceedings and is exempt under section 31(2). The Investigator also asked the Department to comment specifically on record 9 on this file. Although the Department undertook to review the record and respond to her query, it did not do so. However, having examined the record, I am prepared to accept that it relates to the inquiry’s business or proceedings. I am satisfied that it is exempt under section 31(2).

In inviting the Department’s submissions, the Investigator asked it to explain why section 31(3) does not apply to records that appeared to her to relate to administrative matters concerning the inquiry. She gave some general examples of the matters concerned and also referred the Department to its own description of the matters as contained in one of the records. The Department said that the matter was a deliberative process where the applicant and her family are engaging directly with the Judge and “while the records may relate to administrative [matters] it was our view that they were part of this ongoing process.”

It is clear from the wording of section 31(3) that the Oireachtas did not intend records relating to administrative aspects of an inquiry or tribunal etc. to be exempt from release, regardless of whether the inquiry’s work is ongoing. I also note the Department’s own description of the matters concerned, both in one of the records and in the comment quoted above. I find that the following records on the inquiry file are not exempt under section 31(2)(b) further to the provisions of section 31(3):

Record 6 (except for the third and fourth paragraphs, which the applicant has agreed to exclude from the review); record 14 (from the third paragraph of the cover letter (which starts with “In the meantime”) to end of the cover letter but not the attached schedule, which I consider to relate to the work of the inquiry); record 15 (in full except for attached schedule, which I consider to relate to the work of the inquiry); and record 16 (except for final paragraph, which I consider to relate to the work of the inquiry). The applicant has also agreed to exclude any references to the Judge’s personal postal and email addresses, phone numbers etc. which do not fall to be released from these records.

The Department did not make any submissions as to how sections 29(1) and 30(1)(a) apply to the records on the inquiry file. I will therefore summarily deal with their application to the records listed in the previous paragraph.

Deliberative Processes - section 29

Section 29 provides that an FOI request may be refused if (a) it contains matter relating to the deliberative processes of an FOI body (including opinions, advice, recommendations, and the results of consultations), and (b) the granting of the request would, in the opinion of the head of the FOI body, be contrary to the public interest and, without prejudice to the generality of paragraph (b), the head shall, in determining whether to grant or refuse to grant the request, consider whether the grant thereof would be contrary to the public interest by reason of the fact that the requester concerned would thereby become aware of a significant decision that the body proposes to make.

The requirements of sections 29(1)(a) and (b) are independent and the fact that the first is met carries no presumption that the second is also met. In relation to section 29(1)(b) generally, it would be contrary to the public interest to release a record where a specific harm to the public interest flows from release. While there is nothing in the section 29 exemption itself which requires the deliberative process to be ongoing, the question of whether the process is ongoing or at an end may be relevant.

Section 29(1) is concerned with the deliberative processes of an FOI body. One issue to consider is whether the provision can apply to deliberative processes in which the Judge may engage. There is no need for me to determine this matter, however, because I have no reason to consider that any specific harm to the public interest flows from release of records relating to the administrative aspects of the Judge’s ongoing inquiry. I find that section 29(1)(b) does not apply and, in turn that the records are not exempt under section 29(1) of the FOI Act.

Tests conducted on behalf of an FOI body – section 30(1)(a)

Section 30(1)(a) provides that a request may be refused if granting it could, in the opinion of the head of the FOI body, 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. The provision envisages two potential types of "prejudice" or harm: (i) to the "effectiveness" of the tests, etc. (i.e. the ability of the test, etc. to lead to a result of some kind) or (ii) to the procedures or methods employed for the conduct of such tests, etc. Where an FOI body relies on section 30(1)(a), it should identify the potential harm that might arise from disclosure, show how the "prejudice" or harm might be caused, and consider the reasonableness of any expectation that the harm will occur. 

In the circumstances, I have no reason to consider that any harm could be caused to the effectiveness of the Judge’s ongoing inquiry, or to the procedures or methods employed for its conduct, by release of records relating to its administrative aspects. I find that section 30(1)(a) does not apply to the records concerned.

Personal Information - section 37

Section 37(1)

Section 37(1), subject to other provisions of section 37, requires the refusal of access to a record containing personal information. For the purposes of the FOI Act, personal information is defined as information about an identifiable individual that (a) would ordinarily be known only to the individual or members of the family, or friends, of the individual, or (b) is held by a public body on the understanding that it would be treated by it as confidential. The definition also includes a list of 14 non-exhaustive examples of what must be considered to be personal information. Where information can be classified as one of these 14 examples, there is no need for the requirements at (a) or (b) of the definition to also be met.

Section 25(3) requires this Office to take all reasonable precautions to prevent the disclosure of exempt material in the performance of its functions. I am therefore required to limit the level of detail I can give in describing the relevant parts of the records. However, having examined them I am satisfied that the details contain information of a type that meets the definitions of personal information and also that some of them are captured by one or more of the examples of what comprises personal information about identifiable individuals. The applicant says that names can be redacted from records. However, I am satisfied that even without names, individuals would be identifiable from the context and content of the remaining details. I find that section 37(1) applies, including to the remaining information that was withheld from record 22 on File 4/500/1/163 Part 2 (which the applicant specifically queried) and to the name contained at point 9 on the second page of record 4 of the February 2020 records.

I should say that it is not relevant to my finding that the applicant may be aware of some of the information concerned. Furthermore, I also note that she wishes to obtain contact details of members of the public who made representations on her behalf so that she could thank them. While I do not doubt the applicant’s intentions regarding those who made representations, I cannot have regard to them. This is because, as set out above, release of records under FOI is generally understood to have the same effect as publishing them to the world at large.

Section 37(7) provides that, notwithstanding section 37(2)(a) (see below), access to a record shall be refused where access to it would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester. In many instances, personal information relating to the applicant and her son is inextricably linked with that of other individuals (joint personal information). Even if it were feasible to separate out information relating solely to the applicant and her son, I would not consider it to be in keeping with the Commissioner’s approach to section 18 in this case to grant access to further parts of the records with third party information redacted.

I should also say that Regulations made under section 37(8) of the FOI Act provide for the release of information about deceased persons to certain categories of requester (such as the next of kin) in certain circumstances. This is, presumably, the basis on which the Department released to the applicant personal information about her son. However, the Regulations made under section 37(8) do not entitle the applicant to access to personal information about any other individuals or joint personal information. 

I find that the relevant withheld records and parts of records are exempt under section 37(1) of the FOI Act. This is subject to the consideration of sections 37(2) and (5), however.

Section 37(2) - exceptions to section 37(1)

Section 37(2) of the FOI Act sets out certain circumstances in which 37(1) does not apply. Section 37(2)(a) provides for the grant of access to personal information relating to the requester. Noting the details released by the Department in this case, I am satisfied that no further information falls for release further to this provision of the FOI Act. I have already outlined the provisions of section 37(7). While some of the withheld details comprise joint personal information, as outlined above, I do not consider that personal information relating to the applicant and/or her son can be separated from that of other individuals. The records also contain personal information relating entirely to identifiable individuals other than the applicant and/or her son. I am satisfied that the remaining circumstances set out in section 37(2) do not arise.

Section 37(5)(a) - the public interest

In considering section 37(5), I consider that only section 37(5)(a) is relevant in this case. This section provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of the individuals to whom the information relates should be upheld.

On the matter of whether the public interest in granting access to the information at issue would, on balance, outweigh the privacy rights of the individuals concerned, I have had 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] 1 IR 729, [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.

On the matter of the type of public interest factors that might be considered in support of the release of the information at issue in this case, I have had regard to the findings of the Supreme Court in The Minister for Communications, Energy and Natural Resources v The Information Commissioner & Ors [2020] IESC 5. In her judgment, Baker J. indicated that the public interest in favour of disclosure cannot be the same public interest as that broadly stated in the Act. She said the public interest in disclosure must be something more than the general public interest in disclosure and the reason must be found from the scrutiny of the contents of the record. She said there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure.

While the comments of the Supreme Court in both judgments cited above were made in relation to provisions of the FOI Act other than section 37, I consider them to be relevant to the consideration of public interest tests generally.

Both the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy (which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution). Unlike other public interest tests provided for in the FOI Act, there is also a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. Privacy rights will therefore be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy. It is also relevant to note that the release of records under FOI is, in effect, regarded as release to the world at large given that the Act places no constraints on the uses to which the information contained in those records may be put.

In her submissions to this Office, the applicant describes various matters and circumstances relating to her son’s death. She is very unhappy with the Garda investigation into her son’s death, the resulting prosecution and with how subsequent enquiries into these matters were handled. She is of the view that the State is trying to cover up for its own failings. She says that the February 2020 records should have been identified on foot of her request and were only sent to her because the Judge asked questions about one of them. She believes that the report that was approved for issue to her by both the Minister and the Attorney General was kept from her deliberately. She also refers to legal and other proceedings. As noted earlier, she wishes to thank those who made representations on her behalf.

I appreciate fully why it is so important to the applicant to obtain access to the records. I accept that the disclosure of the remaining records and parts of records would give the applicant some further insight into the handling of various matters relating to or arising from her son’s death.

This does not mean that there should be no protection of privacy rights of other individuals, including the person or persons involved with the applicant's son's death. I do not believe it is  appropriate for me to direct the release in the public interest of third party personal information, effectively to the world at large, on the basis that the applicant is not happy with the actions of the State, various bodies or particular individuals, nor do I have any remit to consider, or make findings on, the adequacy of those actions.

It seems to me the Department’s release of certain records in full and in part attempts to strike a balance between the competing interests. I am satisfied that placing the withheld details in the public domain would significantly breach the rights to privacy of identifiable individuals other than the applicant. Having regard to the nature of the information at issue, I am aware of no public interest factors in favour of the release of the specific redacted information that, on balance, outweigh the right to privacy of the individuals to whom the information relates. I find, therefore, that section 37(5)(a) does not apply.

Findings - electronic records and searches

Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused where the record does not exist or where it cannot be found after all reasonable steps to ascertain its whereabouts have been taken. A review of an FOI body's refusal of records under this provision assesses whether or not it is justified in claiming that it has taken all reasonable steps to locate all records of relevance to a request or that the requested records do not exist. It is not normally the function of this Office to search for records.

Although the applicant’s request extended to electronic records, the Department’s decisions did not decide on such records. Effectively, this amounts to a refusal to grant access to such records. Further to various contacts by this Office regarding the electronic searches, the Department confirmed on 18 September 2020 that it had released various electronic records to the applicant. I note from its letter to this Office of 25 May 2020 that it had identified approximately 3,500 such records.

Although it did not comment on this matter, it is presumably the Department’s position that it has taken all reasonable steps to look for records covered by the applicant’s request such that section 15(1)(a) applies. However, it is a matter of fact that certain records covered by the applicant’s request were not identified until February 2020. The applicant has at various stages in the review referred to further hard-copy records that she says should exist. It is reasonable to assume that the applicant may also be dissatisfied with the Department’s searches for electronic records (that is, in addition to the refusal of any such records in full or in part).

The Investigator told both the Department and the applicant that she intended to recommend that I should not include the above matters in this review. She explained that including them in the overall circumstances would considerably prolong the review. She said that she intended to recommend that I direct the Department to make a fresh decision on the matters concerned. This is in keeping with the approach that the Commissioner normally takes when a substantial number of records covered by a request come to light during a review or when he is not satisfied that section 15(1)(a) applies. Such an outcome also preserves the applicant’s right to pursue the matter.

The applicant is agreeable to this proposal but says that this is without prejudice to her right to appeal the Department’s fresh decision. As the Investigator told the applicant, she will have the normal rights of appeal under the FOI Act in relation to that decision.

While the Department may consider that I should examine the adequacy of its searches in this review given its recent release of electronic records, I have decided to annul the Department’s presumed effective reliance on section 15(1)(a). I direct it to make a fresh decision on this matter in accordance with the provisions of the FOI Act.

In light of the requirement that a public body must take all reasonable steps to ascertain the whereabouts of relevant records, and in light of the requirements of section 13(2), I also direct the Department to provide a detailed explanation of the searches it undertook to locate all relevant records.

In turn, I would ask the applicant to consider the details of the Department’s searches for records and the various electronic and hard copy records released to her to date, and to be as specific as possible in her internal review application about what records she feels are missing. However, I must stress that s15(1)(a) is concerned with reasonable searches for records. This Office does not generally require FOI bodies to account for every gap or perceived gap in records. Furthermore, section 15(1)(a) can be found to apply even where a record that is known to have been created cannot be found.

Finally, the Department’s email of 29 June 2020 suggests that this review should extend to the withheld electronic records. Amongst other issues, it may take considerable time for this Office to form views on those records, which depends on the number involved, the types of exemptions claimed and other matters such as whether additional submissions would need to be sought from the Department or other parties including the applicant. In the circumstances, it seems to me that the most appropriate decision for me to make is to annul the Department’s refusal of any electronic records or parts of such records that it has identified as covered by the applicant’s request and which it did not provide to her in September 2020. I direct it to make a decision on such records in accordance with the provisions of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Department’s decision. I affirm its refusal to release certain hard-copy records either on the basis that they are not covered by the request or are covered by the provisions of sections 31(1)(a), 31(1)(c)(ii)(II), 31(2)(b), 37(1), 42(f) and 42(j) of the FOI Act.

I annul the Department’s refusal to release the remaining records and direct it to grant access to them, as follows:

• Record 4 (February 2020 records): first two pages except for a name at point 9 on the second page.
• Record 6 (inquiry file): except for the third and fourth paragraphs.
• Record 14 (inquiry file): cover letter only, from the third paragraph (which starts with “In the meantime”) to end. The attached schedule is exempt and not to be released.
• Record 15 (inquiry file): cover letter only. The attached schedule is exempt and not to be released.
• Record 16 (inquiry file): except for final paragraph.

Any details of the Judge’s personal postal and email addresses, phone numbers etc. do not fall to be disclosed from the records to be released from the inquiry file. 

I annul the Department’s refusal of access to any electronic records or parts of such records, which it has identified as covered by the applicant’s request and which it did not provide to her in September 2020. I also annul the Department’s presumed reliance on section 15(1)(a) in relation to its searches for hard copy and electronic records covered by the applicant’s request. I direct it to make a fresh decision on these matters in accordance with the provisions of the FOI Act and to inform the applicant of the outcome in accordance with section 13 of the FOI Act. As already set out above, in light of the requirement that a public body must take all reasonable steps to ascertain the whereabouts of relevant records, and in light of the requirements of section 13(2), I also direct the Department to provide a detailed explanation of the searches it undertook to locate all relevant records.

Given the lapse of time since the applicant first made her request, I specify that, subject to sections 24 and 26 of the FOI Act, effect shall be given by the Department to my decision within five working days of the expiration of the 4 week period for the bringing of an appeal to the High Court from this decision as provided for at section 24(4) of the FOI Act. I should remind the Department that it is open to it to commence its fresh decision making processes before expiry of the statutory deadline.

Finally, if the Department has not already released those parts of record 35 on File 4/500/1/163 Part 2 that it has said it is willing to release, it should do so without delay.

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.

 

Deirdre McGoldrick

Senior Investigator