Whether the Department was justified in refusing access to records relating to the appointment of Katherine Zappone by the Department as a special envoy under section 15(1)(f) of the FOI Act on the basis that it intended to publish all relevant records (with the exception of exempt records) by a given date

11 November 2021

Background

In a request dated 29 July 2021, the applicant sought access to copies of all records referring or relating to the appointment of Ms Katherine Zappone by the Department of Foreign Affairs as a special envoy. In a decision dated 20 August 2021, the Department refused the request under section 15(1)(f) of the FOI Act which provides for the refusal of a request where the body intends to publish the record within six weeks of receipt of the request. It said it intended to publish all records held by it in relation to the appointment of Ms Zappone as a special envoy on freedom of expression, with the exception of records that are exempt from release under various provisions of the Act, by 8 September 2021. 

The applicant sought an internal review of the Department’s decision on 23 August 2021, based on his view that the Department’s decision represented an improper use of the relevant section of the Act. On 6 September 2021, the Department sent an email to the applicant with a link to the FOI section of its website, where it had published records relevant to his FOI request. The Schedule of Records, also published on the website, listed 128 records. 102 records were granted in full, 3 records were refused under sections 33(3)(c)(ii), 28(1)(a) and 28(1)(c) of the FOI Act and the remaining 23 records were part-granted with redactions made under sections 37(1), 33(1)(d), and 33(3)(c)(ii) of the Act. On 14 September 2021, the Department affirmed its refusal of the request under section 15(1)(f). On 15 September 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 the submissions made by the Department and by the applicant and to the correspondence between the parties as outlined above. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

I note that in his application for review to this Office, the applicant argued that records sought as part of his request had been deleted by the Minister for Foreign Affairs from his mobile phone. He said that when the internal review was underway, he sought an assurance from the Department that no further records would be deleted and asked that steps would be taken to recover records that had already been deleted. He said he received no response from the Department when he sought that undertaking. He requested a “full review on the basis that not all records relating to the request have been published, and because some records relating to the request have been deleted”.

In his application for internal review, the applicant sought a review of the decision of the Department to refuse his request under section 15(1)(f). As such, this review cannot be broadened to examine matters that did not form part of the request for internal review. Nevertheless, I note that the Department stated in its submissions to this Office during the review that no records were deleted in relation to the FOI request, or any other FOI request, after the request was submitted and that it had carried out searches for records in accordance with its statutory obligations. It is also important to note that the FOI Act provides for a right of access to records that are actually held by public bodies. It is a matter for each body to determine its own records management practices based on its organisational needs. This Office has no role in directing public bodies to manage their records in a particular manner.

Accordingly, the scope of this review is concerned solely with the question of whether the Department was justified in refusing, under section 15(1)(f) of the FOI Act, the applicant’s request for all records referring or relating to the appointment of Ms Katherine Zappone by the Department as a special envoy. 

 
Analysis and Findings

Section 15(1)(f) of the FOI Act provides that an FOI body may refuse to grant a request where it intends to publish the record sought and such publication is intended to be effected not later than six weeks after the receipt of the request by the body.

In its submission to this Office, the Department said it had received 21 FOI requests for records pertaining to the appointment of the special envoy. It said that while the requests differed, there was considerable overlap in their scope and it was in this context that the decision was made to publish all related records, in order to efficiently satisfy the public interest in the subject. The Department said it decided that the records would be published on its FOI publication scheme on its website, that statutory exemptions would be applied, that these would be explained and that all records would be identified on a schedule. 

I note from the information available on the Department’s website that all 21 FOI requests were refused on 20 August 2021 under section 15(1)(f). The Department argued that section 15(1)(f) does not specify whether records are to be published with redactions or not and that the publication of documents undertaken in accordance section 15(1)(f) would reasonably be done with regard to the exemptions outlined in the Act.

I do not accept the Department’s argument. I appreciate that the Department was dealing with a large volume of similar requests at the time it made its decision. In such circumstances, it is open to a body to consider whether it might be necessary to extend the time-frame for processing such requests, pursuant to section 14(1)(b) of the Act. However, it seems to me that the purpose of section 15(1)(f) is to allow a public body to publish records it intends to publish in an orderly fashion, whilst negating the need for the processing of requests for such records. It is clear that the intention to publish the record is a pre-requisite of section 15(1)(f). I fail to see how the Department can reasonably regard records that it has decided to withhold, either in whole or in part, as records it intends to publish.

While I accept that the Department was entitled to refuse access to those records it intended to publish in full under section 15(1)(f), I find that it was not justified in refusing the entirety of the applicant’s request under section 15(1)(f) in circumstances where it did not intend to publish certain records in full.

However, given the Department’s arguments that the records that were withheld in whole or in part are exempt from release, I do not consider it appropriate to simply direct the release of all of the records. Instead, I direct the Department to conduct a fresh decision-making process on the request, having regard to my findings as set out above. The applicant will have a right to an internal review and a review by this Office if he is not satisfied with the Department’s decision.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of the Department to refuse, under section 15(1)(f), the applicant’s request for all records referring or relating to the appointment of Ms Katherine Zappone by the Department as a special envoy. While I find that it was justified in refusing access to those records it intended to publish in full, I find that it was not justified in refusing access, under section 15(1)(f), to those records it had decided to withhold either in whole or in part. I direct the Department to process the request afresh.

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