Whether the Department was justified in refusing access to records relating to the applicant’s employment under sections 15(1)(a), 29(1), 30(1)(b), 31(1)(a), and 37(1) of the Act

21 December 2021

Background

On 28 August 2020, the applicant made a request to the Department for access to records containing her personal information, from the start of her employment in June 2007 until 28 July 2017, to include an official complaint she made in 2015. The applicant indicated that also wished to receive a copy of the copy of the final report in relation to her complaint, which she stated she had previously been informed she would receive.

On 8 October 2020, the Department issued its decision, indicating that it had identified 13 records (Record Set 1) that fell within the scope of the applicant’s request. Of these, it released 10 records in full, redacting three records released pursuant to section 37(1) of the FOI Act. On 28 October 2020, the Department reverted to indicate that it had located a further 119 records (Record Set 2) relating to the request, of which it released 99 in full and 20 in part, with certain material withheld under various sections of the Act.

On 22 November 2020, the applicant sought an Internal Review of the Department’s decision. It appears that the email was flagged as spam by the Department’s IT systems, with the result that it was not immediately delivered. This resulted in the Department viewing the request for Internal Review as having been received on 1 December 2020, and refusing it on 11 December 2020 on the grounds that it had been submitted outside the relevant statutory timeframe. After intervention by this Office, the Department issued a second Internal Review decision on 22 January 2021, wherein it varied its original decision by releasing in full three records that had originally been only part-released, and citing another exemption under the Act as a further basis on which to partly withhold access to a record that it had already determined was partly exempt from release.

On 5 July 2021, the applicant sought a review by this Office of the Department’s decision in relation to her request.

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 Department and by the applicant in support of their respective positions. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.

Preliminary matters

In its submissions, the Department cited section 30(1)(b) of the Act as a further basis for redacting information from one record in particular. As the applicant had not previously had an opportunity to consider the applicability of that section, this Office notified the applicant of the Department’s claim and invited her to make further submissions on the matter. The applicant subsequently made further submissions, which I have considered fully.

Furthermore, in her application to this Office the applicant identified a number of additional records that she believed ought to exist. This Office raised with the Department the matter of these additional records. Subsequently, the Department indicated that, of the additional records which the applicant asserted ought to exist, it had located one additional email, which it released to the applicant.

It is also important to note that section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request shall be presumed not to have been justified unless the FOI body shows to the satisfaction of the Commissioner that the decision was justified. The onus is therefore on the Department to justify its decision to refuse access to the records concerned.

Scope of the Review

This review is concerned with whether the Department was justified, under sections 37(1), 29(1), 30(1)(b) and 31(1)(a) of the Act, in granting only partial access to the records sought by the applicant. This review will also examine the issue of the additional records that the applicant asserted should exist and which should have been considered for release.

Analysis and Findings

Section 37(1)

The Department cited section 37(1) of the Act as the basis for partially withholding access to a number of records. From Record Set 1, it redacted certain material from Records 1, 9 and 11. From Record Set 2, it made redactions to Records 8, 20, 23, 27 to 28, 30, 32, 39, 41 to 42, 57 to 59, 65 and 100.

Section 37(1) of the Act provides that, subject to the other provisions of the section, an FOI body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information. The effect of section 37 is that, generally speaking, access to a record shall be refused if it would involve the disclosure of personal information relating to individual(s) other than the requester. Under section 37(1), personal information cannot be released unless one of the other relevant provisions of section 37 applies.

Section 2 of the FOI Act defines personal information as information about an identifiable individual that either (a) would ordinarily be known only to the individual or to members of his/her family or to his/her friends, or (b) is held by an FOI body on the understanding that it would be treated by the FOI body as confidential. Furthermore, the Act details fourteen specific categories of information that is personal without prejudice to the generality of the foregoing definition. In addition, section 2 of the Act excludes certain information from the definition of personal information, including "... in a case where the individual holds or held office as a director, or occupies or occupied a position as a member of the staff, of a public body, the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or occupies or occupied that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of the functions aforesaid ...".

The information redacted from the above records comprises, variously, the names, addresses, email addresses and other information of third party individuals who contacted the applicant’s place of work, and of other employees at the applicant’s place of work. Having examined the records, I find that the redacted information comprises personal information for the purposes of the FOI Act, apart from the following:

• At page 1 and 2 of Record 9 (of Record Set 1), the first names of two employees of the Passport Office are redacted. As the Passport Office operates under the aegis of the Department, it is an FOI body. As such, the names of the two employees are not personal information, as per the exclusion outlined above.
• The redaction made to Record 32 (of Record Set 2) does not constitute personal information under the Act, as it is not information about an identifiable individual.

I find that the above three redactions do not fall within the scope of the exemption provided for by section 37(1). On the other hand, I find that the remainder of the information redacted from the records by the Department does constitute personal information for the purposes of the Act, and thus does fall within the scope of section 37(1).

However, that is not the end of the matter as subsection (1) is subject to the other provisions of section 37. I am further satisfied that none of the other provisions of section 37(2) apply in this case.

Section 37(5) provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance, (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the information would be to the benefit of the person to whom the information relates. I am satisfied that the release of the information at issue in this case would not be to the benefit of the individuals to whom the information relates.

In its submissions to this Office, the Department did not address the applicability of section 37(5)(a). This notwithstanding, the public interest factors in favour of, and against, release of the information at issue must be considered in the course of this review.

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. Section 11(3) provides that an FOI body must have regard to the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. It is important to note that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (“the Enet Case”), the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and “there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure”. 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.

In relation to the issue of the public interest, it is also important to have regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner [2011] IESC 26 (“the Rotunda case”). It is noted that a public interest ("a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest.

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.

Having regard to the nature of the information at issue and to fact that the release of information under the FOI Act is, in effect, release to the world at large, I find no relevant public interest in granting access to the information withheld by the Department, which I have determined falls within the scope of section 37(1) of the Act, that on balance outweighs the public interest in upholding the right to privacy of the individuals to whom the information relates. I find that section 37(5)(a) does not apply in this case.

I find, therefore, that the Department was justified in refusing access, under section 37(1), to Records 1 and 11 of Record Set 1, as well as the material redacted from Record 9 of Record Set 1 (aside from the first names of two employees of the Passport Office), as well as Records 8, 20, 23, 27 to 28, 30, 39, 41 to 42, 57 to 59, 65 and 100 of Record Set 2.

Section 31(1)(a)

The Department cited section 31(1)(a) of the Act as a basis for redacting certain material from Record 80 of Record Set 2. As Record 81 also incorporates a copy of Record 80, that same information was redacted under section 31(1)(a)

Section 31(1)(a) is a mandatory exemption which protects records that would be exempt from production in proceedings in a court on the ground of legal professional privilege. Legal professional privilege enables a client to maintain the confidentiality of two types of communication:

a) confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege); and

b) 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).

It is important to note that, provided the prerequisites of advice privilege or litigation privilege are present, the fact that a professional legal adviser is employed as an in-house legal adviser does not prevent the client from asserting privilege over the communications at issue. Furthermore, records which may not, on an individual basis, satisfy the criteria for legal advice privilege may nevertheless qualify for exemption under section 31(1)(a) where they form part of a continuum of correspondence resulting from the original request for advice. Privilege can also apply to communications between non-legal advisory staff which detail legal advice sought or received or are part of a continuum of communications arising from an initial request for legal advice.

The Department argued that legal advice privilege applied to the relevant redactions as the information at issue comprised legal advice given by a legal professional to the Department, regarding a certain aspect of the applicant’s employment.

Having examined the information at issue, I find that section 31(1)(a) applies to the first redacted paragraph of record 80 and to that same information contained in record 81. I am not satisfied that the second redacted paragraph of Record 80 attracts legal advice privilege. The paragraph comprises a request by an official for advice from the HR official. I find that section 31(1)(a) does not apply to that paragraph in either record.

Section 29(1)

The Department cited the exemption provided for by section 29(1) of the Act as a further basis for redacting certain material from Record 81 of Record Set 2. Given the nature of the Department’s arguments, I also consider it appropriate to examine whether section 29(1) applies to the second redacted paragraph of Record 80 (repeated in Record 81) to which I have found section 31(1)(a) not to apply.

Section 29(1) provides that an FOI body may refuse to grant a request (a) if the record concerned contains matter relating to the deliberative processes of an FOI body, and (b) the body considers that granting the request would be contrary to the public interest. These are two separate requirements and the fact that the first is met carries no presumption that the second is also met. It is therefore important for public bodies to demonstrate that both requirements are met. The public interest test at section 29(1)(b) is a strong test, and any arguments against release should be supported by the facts of the case and it should be shown how release of the record(s) would be contrary to the public interest. There is nothing in the exemption itself which requires the deliberative process to be ongoing, although the question of whether the deliberative process is ongoing or at an end may be relevant to the issue of the public interest.

The first requirement which must be met in order for section 29(1) to apply is that the record must contain matter relating to the ‘deliberative processes’ of an FOI body. An FOI body relying on this exemption should identify both the deliberative processes concerned and any matter in particular records which relates to these processes.

A deliberative process may be described as a thinking process which informs decision making in FOI bodies. It involves the gathering of information from a variety of sources and weighing or considering carefully all of the information and facts obtained with a view to making a decision or reflecting upon the reasons for or against a particular choice. Thus, it involves the consideration of various matters with a view to making a decision on a particular matter. It would, for example, include some weighing up or evaluation of competing options or the consideration of proposals or courses of action.

It is important to note that while I am required by section 22(10) of the FOI Act to give reasons for decisions, this is subject to the requirement of section 25(3) that I take all reasonable precautions during the course of a review to prevent disclosure of information contained in an exempt record. This means that the description I can give of the Department’s arguments for redacting record 81 are quite limited. In essence, it argued that the redacted information relates to its deliberations of possible course of action the Department may take in relation to a dispute between the Department and the applicant

While it is a close call, I accept, on balance, that the redacted information at issue relates to the deliberative processes of the Department. However, this is not the end of the matter because, as outlined above, I must also consider whether the release of the redacted text would be contrary to the public interest.

The public interest test at section 29(1)(b) is a stronger public interest test than the public interest test in many other sections of the Act, requiring the FOI body to show that the granting of the request would be contrary to the public interest. This Office has previously held that the Act clearly envisaged that there will be cases in which disclosure of the details of an FOI body’s deliberations – whether before or, in some cases, after a decision based on those deliberations has been made – would be against the public interest. However, this is not to say that such disclosure is always, as a matter of principle, against the public interest. Any arguments against release under section 29 should be substantiated and supported by the facts of the case. An FOI body should show how granting access to the particular record would be contrary to the public interest, e.g. by identifying a specific harm to the public interest flowing from release.

In essence, the Department’s concern is that the release of the information could give rise to a possible course of action being considered by the applicant and would also disclose details of what strategy it might pursue for dealing with that matter. Having carefully considered the Department’s arguments, I find it difficult to accept that the possible action the applicant might pursue would not be already apparent to her without the disclosure of the information of issue. Moreover, I am satisfied that the release of the information would not disclose details of any strategy the Department might pursue in response. In the circumstances, I find that the Department has not shown that the release of the relevant information that was redacted from Records 80 or 81 would be contrary to the public interest. I find, therefore, that section 29(1) does not apply.

Section 30(1)(b)

The Department cited section 30(1)(b) of the Act as a further basis for redacting information from Record 81. Section 30(1)(b) provides that an FOI body may refuse to grant a request if it considers that access to the record concerned could reasonably be expected to have a significant, adverse effect on the performance by an FOI body of any of its functions relating to management (including industrial relations and management of its staff).

Section 30(1)(b) is a ‘harm based’ exemption, i.e. it applies where the granting of access to a record can reasonably be expected to cause a particular prejudice or harm. An FOI body seeking to rely on section 30(1)(b) of the Act must show how the harm anticipated could reasonably be expected to result from the release of the record(s). In particular, the body should identify the potential harm to the performance by an FOI body of any of its functions relating to management that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur.

Furthermore, an FOI body seeking to rely on section 30(1)(b) of the Act should explain how and why, in its opinion, release of the record(s) could reasonably be expected to give rise to the harm envisaged. A claim for exemption under this provision must be made on its merits and in light of the contents of each particular record concerned and the relevant facts and circumstances of the case.

When invoking section 30(1)(b), the FOI body must make an assessment of the degree of importance or significance attaching to the adverse effects claimed. Establishing "significant, adverse effect" requires stronger evidence of damage than, for example, "prejudice" (as per section 30(1)(a) of the Act). In other words, not only must the harm be reasonably expected, but it must also be expected that the harm will be of a significant nature.

The Department argued that the disclosure of the redacted information into the public domain could reasonably be expected to cause difficulties, if taken out of context, by shaping the expectations of current and future employees of the Department. However, the Department did not elaborate on this point. It did not specify what difficulties it reasonably expected could occur from the release of the information, or the manner in which it considered that the release of the information could result in said difficulties. It is also relevant to note that this Office takes the view that the possibility of the public misunderstanding information is, generally speaking, not a good cause for refusing access to the records of public bodies. In the circumstances, I find that the Department has not shown how the release of the record could reasonably be expected to give rise to the harm identified in the exemption, nor is it apparent to me as to how such harm might arise. As such, I find that section 30(1)(b) does not apply.

Additional Records sought by the Applicant

As outlined above, in her application to this Office the applicant set out certain additional records that she believed ought to exist and which ought to have been considered for release to her. In particular, the applicant specified a number of emails and other communications in relation to her that she considered fell within the scope of her request which had not been scheduled by the Department in its response, as well as a logbook relating to her activities in work that she suggested should exist. Furthermore, as outlined at the outset of this decision, she indicated a view that a “final report” into complaints she had made to the Department ought to exist and to have been scheduled by the Department. In its submissions, the Department did not address the emails and logbook specified by the applicant, but indicated that the final report into her complaint did not exist. It stated that it had conducted an exhaustive search of records for same, and that it had found no report or any reference to one having been written.

This Office sought further details from the Department in this regard. In response, it advised that, of the records identified by the applicant, one had already been released to her by way of Record 31 of Record Set 2. As outlined above, it further stated that it had located one additional email identified by the applicant, dated 17 November 2015, which it had released to her. In respect of the remainder of the additional records identified by the applicant, the Department stated that had conducted searches and had not found any such records. The Department outlined details of the locations that were searched, and the manner in which searches were carried out. The Department stated that it was refusing this aspect of the applicant’s request for a review pursuant to section 15(1)(a) of the Act, which provides that an FOI body may refuse a request on administrative grounds, specifically on the basis that the records concerned do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken.

I have considered the information provided by the Department in relation to the searches carried out for the additional records identified by the applicant. Having regard to the Department’s submissions, I am satisfied that it has taken all reasonable steps to ascertain the whereabouts of relevant records. As such, I find that it was justified in refusing access, under section 15(1)(a), to any further relevant records.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of the Department in this case. I direct the release of the redacted material at page 1 and 2 of Record 9, and Record 32, of Record Set 2, as outlined above. I further direct the release of Records 80 and 81 of Record Set 2, apart from the first redacted paragraph of record 80 and that same information contained in record 81. I affirm the decision of the Department in respect of the remainder of the records, including those additional records the applicant stated ought to exist.

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