Whether the Department was justified in refusing access, under sections 29 and 32 of the FOI Act, to records relating to the so-called “Good Character” requirement in the context of applications for Irish citizenship

20 July 2021

Background

In a request dated 11 January 2021, the applicant made a request to the Department seeking access to:

“a. Any guidance, circulars, internal guidelines or equivalent that relate to how to assess and determine whether an applicant for citizenship meets the “good character” requirement, that were in use before the Talla V Minister for Justice and Equality High Court Judgement.

b. Any guidance, circulars, internal guidelines or equivalent that relate to how to assess and determine whether an applicant for citizenship meets the “good character” requirement, that have been in use since the Talla V Minister for Justice and Equality High Court Judgement.

c. A copy of any review of the good character condition carried out following the Talla V Minister for Justice and Equality High Court Judgement”.

In a decision dated 12 February 2021, the Department refused the applicant’s request under section 29(1) of the FOI Act. On 25 February 2021, the applicant sought an internal review of the Department’s decision. On the 29 March 2021, the Department affirmed its refusal of the request and also cited section 32(1)(a)(i) and (ii) of the Act in support of its decision. On 6 April 2021, the applicant sought a review by this Office of the Department’s decision.

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 correspondence between the Department and the applicant and to the correspondence between this Office and both parties on the matter.  I have also examined the records at issue.  I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

This review is concerned solely with the question of whether the Department was justified in refusing the applicant’s request as set out above, under sections 29 and 32 of the FOI Act.

Analysis and Findings

As I have outlined above, the Department refused the request under sections 29(1), 32(1)(a)(i) and, and 32(1)(a)(ii). The application of each of these exemptions requires the FOI body to consider the nature and contents of the records sought when considering a request. In relation to section 29, the body must consider if the record sought contains matter relating to the deliberative processes of an FOI body and whether granting the request would be contrary to the public interest. In relation to section 32, it must consider if access to the record sought could reasonably be expected to give rise to the harms identified in subsection (1).

It is not clear to me that the Department undertook such an exercise when processing the request in this case. I note that it did not identify any relevant records in its original or internal review decisions but rather, it refused the request under the exemptions cited without providing any further detail as to what records, if any, it had considered for release.

Furthermore, while the Department identified five records as being relevant to the request during the course of this review, it seems to me that none of the records identified fall within the scope of the applicant’s request.

The applicant’s request was clear. She was seeking access to “any guidance, circulars, internal guidelines or equivalent” relating to how to assess and determine whether an applicant for citizenship meets the “good character” requirement, and that have been in use both before and after the Talla judgment. In the first instance, it was incumbent upon the Department to establish what relevant guidance, if any, was in place and in use before the judgement and what relevant guidance, if any, was in place and in use after the judgment and, if any such guidance exists, to determine whether a right of access exists.

The records identified by the Department are as follows:

Record 1: Internal Departmental emails

Record 2: UK Home Office guidance document on the Good Character requirement

Record 3: Letter to the Department from its legal Counsel

Record 4: Draft Departmental guidance for Good Character requirement

Record 5: Previous FOI request on a similar topic from the applicant.

Record 1 comprises a series of email communications between Department staff in relation to the Good Character requirement. While the emails may provide a degree of context in relation to ongoing deliberations within the Department regarding guidance to be put in place in relation to the Good Character requirement, they do constitute guidance in and of themselves. As such, I find that the emails that make up Record 1 do not fall within the scope of the original request.

Record 2 comprises a UK Home Office guidance document on the Good Character requirement (in the context of applications for UK citizenship). It appears to be the case that the Home Office guidance document is being used to inform the formulation of the Department’s guidelines in relation to the Good Character requirement, but it is not the case that the Home Office document is in itself a guideline, circular, etc. as sought by the applicant. As such, I find that Record 2 does not fall within the scope of the request.

Record 3 comprises a letter to the Department from its legal counsel at the Law Library, setting out counsel’s interpretation of the recent jurisprudential history of the Good Character requirement, up to and including the Talla judgment. As above, while this letter may demonstrate the factors informing the ongoing process in the Department to codify guidelines on the Good Character requirement, I do not consider that, in and of itself, it constitutes guidelines, circulars, guidance, etc, as sought in the original request. As such, I find that Record 3 does not fall within the scope of the request.

Record 4 comprises draft guidance for the Good Character requirement. This record is clearly in draft form, with comments and suggested edits from Department staff inserted throughout, and is not currently in use. As such, I find that Record 4 does not fall within the scope of the request.

Record 5 purports to be, according to the Schedule of Records released by the Department, an “FOI Request”. An examination of this record reveals it to constitute a previous FOI request from the same applicant who made the request in this case, along with the Department’s acknowledgment of receipt of same. I find that this record does not fall within the scope of the request.

In summary, therefore, I find that the Department has not identified any record that I can reasonably regard as falling within the scope of the applicant’s request. I understand, from correspondence between this Office and the Department, that the Department’s position is that no such guidance exists. If that is the case, the Department must be in a position to show that it has taken all reasonable steps to ascertain the whereabouts of relevant records. This may include providing the applicant with a detailed explanation as to why such records do not exist, if that is the case.

In circumstances where the records identified do not come within the scope of the request, it is not appropriate for this Office to consider the applicability of the exemptions under the Act cited by the Department as a basis for withholding access to the records. It seems to me that the most appropriate course of action to take in this case is to annul the Department’s decision to refuse the request under sections 29 and 32 of the FOI Act and to direct it to undertake a fresh decision making process on the request. On this point, I would draw the department’s attention to section 13(2)(d)s of the Act which requires public bodies to provide reasons for refusing requests, details of the provisions on which the refusals are based, and findings on any material issues relevant to those decisions.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the Department in this case. I remit the matter for fresh consideration by the Department in line with the requirements of the FOI Act. The decisions made will be subject to the usual rights of review. 

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