Whether the Department was justified in refusing access to certain records relating to the applicant’s suspension from a named body

23 December 2021

Background

In a request dated 1 January 2020, the applicant sought access to all records from 1 January 2018 to the date of his request concerning his suspension from a named body. In a late decision dated 2 April 2020, the Department part-granted the request. A total of 71 records were identified of which 40 were released in full, 26 were released in part and five were withheld in full. Records were refused in whole or in part under sections 12(1), 31(1), 32, 37(1) and 42(j) of the FOI Act. Parts of some records on the schedule were also identified as being outside the scope of the request.

The applicant sought an internal review of that decision on 3 June 2020.  No internal review decision was issued.  On 26 June 2020, the applicant emailed the Department again wherein he provided details of a number of records he believed ought to exist. As the Department failed to issue an internal review decision within the statutory time-frame, the applicant sought a review by this Office on 11 November 2021 of the deemed refusal of his application for internal review. Following correspondence with this Office, the Department issued a letter outlining its effective position on the request on 1 December 2020, in which it affirmed its original decision.  On 2 December 2020, the applicant confirmed that he wished the review to proceed.

During the course of the review, the Department released a small amount of additional information to the applicant. One record that had been withheld in full was released in part and additional information in three other records was released. The Department also revised its position regarding the exemptions claimed for some records or parts of records.  It prepared and issued revised schedules to the applicant and to this Office. According to the Department some of the information sought does not exist, such that section 15(1)(a) is relevant.

I have now completed my review in accordance with section 22(2) of the FOI Act.  In carrying out my review, I have had regard to the submissions made by the applicant and to the submissions made by the Department in support of its decision. I have also examined the records at issue.  I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

One record was withheld in full and 19 records were granted in part, on the basis that the withheld information was outside the scope of the review. Having examined the records, I am satisfied that the withheld information does not relate to the subject matter of the request and have excluded them from the scope of the review. The Department also withheld certain information from one record under section 12 of the FOI Act and two further records under section 42(j). Having examined those records, I am satisfied that the withheld information does not relate to the subject matter of the request and as such, I have also excluded those three records from the scope of the review. Moreover, during the review, the Investigator informed the applicant that there were a small number of instances where the name of the staff member who accessed the records for the purposes of processing the request and staff mobile phone numbers had been redacted and that she intended to exclude such information from the scope of the review.  The applicant agreed to this.

Accordingly, this review is concerned solely with whether the Department was justified in refusing access, under sections 15(1)(a), 31(1), 32, 37(1) and 42(j) of the Act, to four records in full and parts of four other records relating to the suspension of the applicant from a named body.  Any records or parts of records that were released are not within the scope of this review.  For the sake of clarity, the records remaining in scope are Records 1 (part), 3, 7 (part), 13, and 16 from Schedule 1, Record 36 from Schedule 2, and Records 4 (part) and 8 (part) from schedule 3.

Analysis and Findings

Section 42(j)

The Department originally refused access to Records 3, 13 and 16 under section 31(1). During the course of the review, it also cited section 42(j) in support of its refusal. As I consider section 42(j) to be more relevant, I will consider that provision first.

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.

Proceedings include such proceedings in relation to questions put by members of either House of the Oireachtas to members of the Government or Ministers of State (whether answered orally or in writing).

The records at issue are described as Oireachtas Leaders Questions Briefing notes for specified dates. I am satisfied that these records were given by the Department to the Taoiseach for use by him for "the purposes of any proceedings" in the Dáil i.e. Leaders' Questions. I find that section 42(j) applies, the effect of which is that the Act does not apply to those records. As such, I do not need to consider the applicability of section 31(1) to the records. 

Section 32(1)(a)(iv)

The Department refused access to Record 36 under section 32(1)(a)(iv). The record is described as an E-submission and is a note for information regarding High Court proceedings to which the applicant was a party. Section 32(1)(a)(iv) provides that an FOI body may refuse access to a record if it considers that such access could reasonably be expected to prejudice or impair the fairness of criminal proceedings in a court or of civil proceedings in a court or other tribunal.

It is well settled that mere assertions by an FOI body as to harms that might result from disclosure of a record are not sufficient for the Commissioner to find that a particular exemption applies. Where an FOI body relies on section 32(1)(a), it should identify the potential harm to the matters specified in the relevant sub-paragraph that might arise from disclosure and having identified that harm, consider the reasonableness of any expectation that the harm will occur. It should explain why releasing the particular record could reasonably be expected to cause the harm which it has identified. It should consider whether the matter specified could reasonably be expected to be prejudiced (that is to say, injured or potentially injured) or could reasonably be expected to be impaired (that is to say, damaged or weakened). In interpreting the words “could reasonably be expected to”, the Commissioner’s view is 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.

Where a body wishes to rely on section 32(1)(a)(iv) to refuse access to records, it should be able to refer to proceedings that are either underway or that might reasonably be contemplated. The fact that proceedings are not actually in being does not necessarily mean that the exemption does not apply. If there is a real likelihood, as opposed to a remote possibility, of such proceedings coming into being, this may be sufficient. However, the fact that proceedings may be pending does not, of itself, mean that release of records could reasonably be expected to prejudice the fairness of those proceedings.

The principal purpose of section 32(1)(a)(iv) is to prevent the disclosure of information which could result in unfairness in the conduct of particular court proceedings. There are many instances where the release of information could prejudice or impair the fairness of such proceedings. For example, if the disclosure of information were to result in the manufacture or destruction of evidence, interference with potential witnesses, etc. then clearly the fairness of the court proceedings would be prejudiced or impaired. Furthermore, this Office has previously accepted, as a general point, that the release of material relating to the proposed conduct of a case is likely to prejudice the fairness of future proceedings.

In its submissions to this Office, the Department said the record provides information on a case in the High Court, of which the requester is a party. It argued that release of the information would prejudice the Department’s position with regard to the case and would prejudice the Department’s position in any similar cases in the future. It argued that by providing information on the Department’s consideration of the case as well as an account of legal positions being considered by the Department, the Department would be in a prejudiced position when involved in any similar case in the future.

The Department has not explained how the release of the record would prejudice the Department’s position with regard to the case referenced in the record or how release would prejudice the Department’s position in any similar cases in the future, nor is it apparent to me how such harm might arise. It discloses nothing about the Department’s consideration of the case or of legal positions being considered by the Department. The purpose of the record is simply a note to bring the matter of the proceedings to the Minister’s attention. I find that section 32(1)(a)(iv) does not apply.

For the sake of completeness, I note that the Department originally indicated in the schedule of records provided that it had refused access to Record 36 under sections 29, 31, and 32. However, in its submissions to this Office, it made no reference to sections 29 or 31. Section 22(12)(b) provides that a decision to refuse to grant a request is presumed not to have been justified unless the body can satisfy the Commissioner that its decision was justified. As such, I find that the Department has not justified its refusal of Record 36 under sections 29 or 31. In any event, given the nature and content of the record, it is not apparent to me that either exemption would apply.

Section 37 – Personal Information

The Department redacted certain information from Records 1, 4, 7, and 8 under section 37(1). That section provides, subject to the other provisions of the section, for the mandatory refusal of a request if access to the record concerned would involve the disclosure of personal information. This does not apply where the information involved relates to the requester (subsection (2)(a) refers). However, section 37(7) provides that, notwithstanding subsection (2)(a), an FOI body shall refuse to grant a request if access to the record concerned 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 (commonly known as joint personal information).

In essence, this means that section 37(1) does not provide a basis for refusing access to personal information that relates solely to the requester. However, if that personal information is inextricably linked to personal information relating to parties other than the applicant, then section 37(1) applies.

The Act defines personal information as information about an identifiable individual that either (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual or (b) is held by an FOI body on the understanding that it would be treated by the body as confidential.  The definition also contains a list of 14 specific types of information that is personal information, without prejudice to the foregoing definition, including (iii) information relating to the employment or employment history of the individual. Having examined the information at issue, I am satisfied that its disclosure would involve the disclosure of personal information relating to the individuals other than the applicant and that section 37(1) applies. 

Section 37(2)
There are some circumstances, provided for at section 37(2), in which the exemptions at section 37(1) do not apply. I am satisfied that none of the circumstances identified at section 37(2) arise in this case. That is to say, (a) the information contained in the records does not relate solely to the applicant; (b) the third parties have not consented to the release of their information; (c) the information is not of a kind that is available to the general public; (d) the information at issue does not belong to a class of information which would or might be made available to the general public; and (e) the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual. I find that section 37(2) does not apply to the withheld information.

Section 37(5)
Having found that section 37(1) applies to the withheld information, I must also consider section 37(5). That section provides that a request which would fall to be refused under section 37(1) may still be granted where the FOI body considers that, on balance, (a) the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld, or (b) the grant of the request would benefit the individual concerned.

I see no basis for finding that the grant of the request would benefit the individuals to whom the information relates.  I am satisfied that section 37(5)(b) does not apply in this case. In relation to the public interest test contained in section 37(5)(a), I wish to emphasise that in carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. In sum, section 11(3) recognises the need to enhance public scrutiny and accountability of government and public affairs, particularly the activities and decision making of FOI bodies. However, in a judgment delivered on 25 September 2020 (The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors, available on our website), the Supreme Court held that general principles of openness and transparency do not provide a sufficient basis for directing the release of otherwise exempt information in the public interest. Rather, a “sufficiently specific, cogent and fact-based reason” is required “to tip the balance in favour of disclosure”.

Moreover, while the Court stated that the public interest balancing test involves a “weighing of the respective private and public interests in the analysis of the records in issue”, it did not disturb the guidance that it previously gave 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 Hospital case") in which it drew a distinction between private and public interests. Relevant private interests are those that are recognised by law and, in particular, through the protection afforded by the exemption provisions. Although the Court’s comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.

The FOI Act recognises the public interest in the protection of the right to privacy both in the language of section 37 and the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with the right to privacy). It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. Moreover, unlike other public interest tests provided for in the FOI Act, there is 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.

In considering where the balance of the public interest lies in this case, it is important to note that the release of records under FOI is regarded, in effect, as release to the world at large, given that the Act places no constraints on the uses to which a record released under the Act may be put. Having regard to the nature of the information at issue, I find no relevant public interest in granting access to the information that, on balance, outweighs the public interest in upholding the right to privacy of the third party individuals concerned. I find that section 37(5)(a) does not apply in this case.

Section 15(1)(a)

During the course of the review, the applicant claimed that there should be additional records relevant to his request and he pointed to a number of specific examples of records that in his view should exist. Section 15(1)(a) provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner's role in a case such as this is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision and also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.

The Department was specifically asked about each of these instances, and was asked to provide details of the steps taken to search for relevant records. The Investigator provided the applicant with details of the Departments’ submission as to the steps taken to search for records.  While I do not propose to repeat those details in full here, I can confirm that I have had regard to them for the purposes of this decision. 

In summary, the Department explained that searches of email accounts of relevant staff, including retired staff, in the Policing Division and Criminal Justice – HR and Appointments Division and the Ministerial Liaison Officer were carried out using relevant key words. It said searches were undertaken of the Department’s eDocs system and document libraries, as well as paper files, in both the Policing Division and the Criminal Justice – HR and Appointments Division. According to the Department, while records relating to the applicant were found, none related to the subject matter of the request apart from those already identified.

The Department also pointed out that the subject matter of the request is not a matter which comes within its remit, and that the information it holds can be presumed to have been communicated on the basis that the Minister could be expected to face questions on the matter.

In his response, the applicant commented on two particular items and stated that it is difficult to understand that there are no further records.  Both items had previously been raised specifically with the Department and addressed in its submission to this Office. It important to note that the question of whether or not a particular record ought to exist is not a matter for consideration by this Office. Our role is confined to whether the body has carried out all reasonable steps to ascertain the whereabouts of the records sought. Having considered the information provided by the Department in this case, I am satisfied that it has carried out all reasonable steps in an effort to identify all relevant records coming within the scope of the applicant’s request.  I find that the Department was justified in refusing access, under section 15(1)(a) of the Act, to any further relevant records, apart from those already released or found to be exempt, on the grounds that no further records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken. 

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Department’s decision. I find that the Department was justified in refusing access, in whole or in part, to Records 1, 3, 4, 7, 8, 13, and 16 under sections 42(j) and 37(1). I also find that it was justified in refusing access, under section 15(1)(a), to any further relevant records other than those located and considered for release. I annul the Department’s decision to refuse access, under section 32(1)(a)(iv), to refuse access to Record 36 and I direct its release 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.

Stephen Rafferty

Senior Investigator