Whether the Department was justified in refusing access to records concerning information provided by the Workplace Relations Commission (the WRC) and the Department’s subsequent assessments, inspections and prosecutions on the basis of sections 30(1), 32(1) and 37(1) of the FOI Act

9 July 2021

Background

All references to the applicant in this case shall be taken as referring to the applicant organisation or its solicitor, as appropriate. Following an earlier request and various exchanges with the Department, on 3 June 2020, the applicant sought access to all records and correspondence held by the Department since 1 August 2019 relating to the following:

1. Information provided to the Department by the WRC under the Working Arrangements regarding Maximum Hours and Rest Breaks for Crew covered by the Atypical Worker Scheme for non-EEA crew agreed between the Department and the WRC (the arrangements).
2. Preliminary assessments by the Department of information provided by the WRC under the arrangements.
3. Inspections of Irish flagged fishing vessels on foot of information provided by the WRC under the arrangements.
4. Prosecutions initiated by the Department on foot of information provided by the WRC under the arrangements.

In a decision dated 2 July 2020, the Department part granted the applicant’s request. It relied on sections 30(1) (functions and negotiations), 32(1) (law enforcement and public safety) and 37 (personal information) of the FOI Act to refuse access to records in full or in part. The applicant sought an internal review and the Department varied its original decision on 16 September 2020. The internal reviewer released some records in part and provided some additional information, which was outside the scope of the request.

On 5 November 2020, the applicant applied to this Office for a review of the Department’s decision.

In its submissions to this Office, the Department indicated that it was willing to re-examine the records part released at internal review stage and to consider the release/part release of more of the information/pages of the records. It did not elaborate on this further and no additional records have been released during this review.

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 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

This review is solely concerned with whether the Department was justified in its decision to refuse to grant access to records 1-18 in full or in part on the basis of sections 30, 32 and 37 of the FOI Act.

Preliminary Matters

First, it is important to note that when a record is released under the FOI Act, it effectively amounts to disclosure to the world at large. This is because, with certain limited exceptions, the FOI Act does not provide for the restriction of access to records to particular individuals only.

In its submissions to this Office, the applicant set out the background and context of the records in question. The applicant also explained why it sought the records at issue. On this point, I note that section 13(4) of the FOI Act requires that, subject to the Act, any reasons a requester gives for making a request shall be disregarded. This means that an applicant's motivation cannot be considered except insofar as it might be relevant to the consideration of public interest provisions, which are discussed below.

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 FOI 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).

As a final preliminary point, it is important to note that section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request under section 12 shall be presumed not to have been justified unless the head of the relevant FOI body shows to the Commissioner's satisfaction that its decision was justified. This means that the onus is on the Department to satisfy this Office that its decision to refuse access to the records sought, either in whole or in part, was justified.

Analysis and Findings

The Department refused to grant access to the records sought on the basis of sections 30(1), 32(2) and 37 of the FOI Act. Having carefully examined the records in question, it appears to me that section 37 is of most relevance. Accordingly, I will consider the applicability of section 37 to the information at issue in the first instance.

Section 37

Section 37(1) of the FOI Act 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 relating to an individual or individuals other than the requester.

Section 2 of the FOI Act defines the term “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 FOI Act details fourteen specific categories of information which is personal without prejudice to the generality of the foregoing definition, including the following:

“(iii) information relating to the employment or employment history of the individual, …

(v) information relating to the individual in a record falling within section 11(6)(a), [i.e. a personnel record],

(vi) information relating to any criminal history of, or the commission or alleged commission of any offence by, the individual, …

(viii) information relating to the … racial or ethnic origin,... of, the individual, …

(xi) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to, establish that any personal information held by the FOI body concerned relates to the individual,

(xiii) information relating to property of the individual (including the nature of the

individual's title to any property), and

(xiv) the views or opinions of another person about the individual”

This case concerns a scheme that relates to non-EEA crew on fishing vessels. The Department stated in its submissions that the release of the records concerned would identify the names of some of the vessels with non-EEA crew members on board, who came under the remit of the Scheme. I understand that most of the vessels concerned have a small crew complement (less than 10). The section of the Department that deals with these matters is called the Marine Survey Office (the MSO).

The records concerned comprise email correspondence from the WRC to the Department enclosing WRC referral forms, the Department's responses, and various MSO records concerning the inspection of the vessels concerned. The information withheld from partially released records, other than the details of WRC staff, comprises the name/number of the relevant fishing vessels, the names/details of the relevant owner(s) and master, the place of inspection and issues identified. Some of the records also include details of named fishers, and/or copies of signed hours of rest logs.

From a careful examination of the records at issue in this case, I am satisfied that some of the inspection reports contain the names of individual fishers as well as details of their training or certification status, their employment or employment history details and, in some cases, details of their racial or ethnic origin. I am also satisfied that where owners or operators of the vessels concerned are named in the documents, this can be said to relate to their financial affairs, employment history and/or their property. I am further satisfied that some of the inspector’s comments comprise views or opinions on the various individuals concerned. Furthermore, my understanding is that failure on the part of a master or owner of a fishing vessel to comply with the requirements of the Scheme is an offence under the relevant legislation. I am satisfied that the name of masters and owners of fishing vessels on records relating to reports and investigations of possible breaches of the Scheme comprise the personal information of those individuals.

In the circumstances of this case, I am satisfied that if the records were released in full, they would reveal the personal information of identifiable individuals, including, but not limited to, various details concerning their employment, nationality and education. I am also satisfied that due to the small number of crew members on board each boat, the release of records containing the names of the vessels, place of inspection and/or owners’ details, would reveal that at least one crew member was a non-EEA national. On the same basis, it seems likely to me that it would be possible for anyone familiar with the industry or the vessels concerned to readily identify the individuals at issue, even if their names were withheld. I am therefore satisfied that section 37(1) applies to the majority of the information withheld from release by the Department.

Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. However, I am satisfied that the relevant circumstances do not arise in this case. That is to say, (a) the information does not relate solely to the applicant; (b) the individuals to whom the information relates have not consented to the release of the information; (c) the information is not of a kind that is available to the general public; (d) the information does not belong to a class of information which would or might be made available to the general public; and it has not been argued that the disclosure of the information concerned is necessary to avoid a serious and imminent danger to the life or health of an individual. 

 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. 

No argument has been made that the release of the information concerned would be to the benefit of the third party individuals to whom it relates. I find that section 37(5)(b) does not apply. 

Public Interest

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 summary, 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 www.oic.ie ), 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 terms of section 37(5)(a), the applicant is of the view that there is a “substantial public interest in ensuring that the Department's enforcement of laws intended to protect workers at sea can be monitored and scrutinised”. In its original decision, the Department stated that the public interest factors in favour of releasing the records sought were that: it would go some way to prove that the Department was adhering to the arrangements; it would give an indication of the level of activity of the MSO safety activities; and it would identify the names of some of the vessels that had crew members subject to the Scheme.

While the Department did not address the public interest factors against release in terms of section 37, it made various arguments in relation to the public interest tests contained in sections 30 and 32. I note that the Department was of the view that, on balance, it was not in the public interest to release information that could potentially damage the MSO’s ability to carry out its duties, and which could endanger safety and/or the life of any person.

In this case, a number of records have been released to the applicant in part and it is therefore aware that the WRC made a number of referrals to the Department, some of which were followed up with inspections by the MSO during the timeframe in question. I believe that this has addressed the public interest in seeing that the Department is carrying out its functions under the Scheme to a certain extent. I accept that the release of the records sought in full would address the public interest further. 

From a review of the records concerned, the crew numbers appear to be very small, 6 or 7 in some cases. Simply redacting a crew member’s name would not render comments about their training or details of their complaint anonymous. In the context of the records concerned I do not consider that it would be appropriate in this case to direct their release subject solely to the redaction of the names of individual crew members or owner/operators. I find no relevant public interest in granting access to the redacted names and details of the nationality/ training/ employment history of the fishers, the names of the masters/ owners/ vessels at issue or details of the places of inspection, which, on balance, outweighs the public interest in upholding the right to privacy of the third party individuals concerned. I therefore find this information to be exempt under section 37(1) of the FOI Act

However, I am satisfied that access could be granted to some additional information in the records without revealing the personal information of any third party individual. I find no basis for refusing access to the remainder of the information in the records on the basis of section 37 of the FOI Act, subject to the relevant redactions. 

I will now consider the remaining information contained in the records concerned under sections 30 and 32. 

Section 30(1) - functions and negotiations 

30(1)(a) of the FOI Act provides that a head may refuse to grant an FOI request if access to the records concerned could, in the opinion of the head, 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. 

Section 30(1)(a) is what is known as a harm-based provision. Where an FOI body relies on section 30(1)(a) it should identify the potential harm in relation to the relevant function that might arise from disclosure of the records and having identified that harm, consider the reasonableness of any expectation that the harm will occur. The FOI body should also explain how and why, in its opinion, release of the records at issue could reasonably be expected to give rise to the harm envisaged. A claim for exemption under section 30(1)(a) must be made on its merits and in light of the contents of each particular record and the relevant facts and circumstances of the case. A claim for exemption pursuant to section 30(1)(a) which is class-based is not sustainable e.g. a claim for exemption for ‘any’ draft report. 

The Department refused access to the records concerned on the basis that the release of the records sought would prejudice the effectiveness of surveys and inspections carried out by the MSO. It stated that the release of the records concerned would have a significant adverse effect on its ability to manage and perform its maritime safety function.

By way of background, the Department stated that the MSO does not have a traditional policing role, but rather one that has developed over time from maritime practices. In effect, it said that the MSO carries out its regulatory role based on the co-operation of the sector, rather than by the exercise of powers such as those held by An Garda Síochána. While I note that the MSO has various enforcement powers, in essence, the Department said that it depends on fishers and owners of vessels providing information to it voluntarily so that it can carry out its role effectively. 

The Department stated that since the safety scheme was fully implemented in 2011, safety on fishing vessels in Ireland has improved and the number of fatalities has fallen. It was of the view that trust between the fishers and the MSO is key to this continuing. Essentially, the Department argued that fishers and seafarers would be reluctant to provide MSO surveyors with full and frank information if it was likely to be made public. It stated that this would have a serious impact on maritime safety, as well as the effectiveness of the MSO’s surveys and investigations.

The applicant is of the view that there was no rational connection between the records held by the Department and any alleged harm, which might arise from the release of the records sought. The applicant also submitted that even if there was a reasonable apprehension of potential harm, the Department could release the records concerned subject to appropriate redactions.

I have carefully considered the remaining content of the records concerned, which I have not already found to be exempt under section 37 above, and the arguments of both parties. I accept that the Department has identified a potential harm to its investigations. It is my view that the withholding of identifying information, in line with the above findings on section 37 mitigates this potential harm. Accordingly, I do not accept that the release of the records concerned subject to the redaction of any identifying information is reasonably likely to cause the harm identified. I find that the Department was not justified in refusing to grant access to the remaining information in the records on the basis of section 30(1) of the FOI Act. As I have found section 30(1) not to apply, I am not required to consider the public interest test at section 30(2). 

Section 32 – law enforcement and public safety

The Department also refused access to the records sought on the basis of section 32(1)(a)(ii), which provides for the refusal of an FOI request if, in the opinion of the head of the FOI body, access to the record concerned could reasonably be expected to prejudice or impair the enforcement of, compliance with or administration of any law.

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 that 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. 

The Department made similar arguments to those set out above in relation to section 30 in support of its reliance on section 32. It stated that as well as the Scheme in question, MSO was responsible for the enforcement of, compliance with and the administration of a wide range of secondary legislation for Fishing Vessels and provided a comprehensive list of maritime regulations and legislation.

As noted above, I accept that the Department has identified a potential harm to its enforcement of and administration of various provisions of maritime law. However, I do not accept that the release of the records in part, subject to the redaction of personal or identifying information, is reasonably likely to cause the harm identified.

Therefore, I consider that the Department has not adequately demonstrated that the release of the remaining information contained in the records could reasonably be expected to prejudice or impair the enforcement of, compliance with or the administration of any law. I find that section 32(1)(a)(ii) does not apply to the remaining information at issue. 

Records to be released 

In the interest of clarity, I am directing the partial release of records 1-18, including the following:

• Email correspondence between the WRC and the MSO,
• MSO task management system screenshots,
• Flag State Inspection reports (FSIs),
• Reports of surveys and inspections,
• Deficiencies lists and
• WRC referral reports. 

The records should be released subject to the redaction of the following: the names of individual vessels, crewmembers, owners and masters; any numbers used to identify the vessels concerned; and place names (including place of inspection or registration). I do not direct the release of any signed, scanned hours of rest logs or crew agreements. 

At internal review stage, the Department released FSIs and Reports of Survey/Inspections to the applicant in redacted form. I can confirm, from a careful examination of the documents concerned, that the Department did not release every page in each FSI/Survey report. This has led to some confusion. It appears to me, having the benefit of both the redacted and unredacted versions of these reports, that the missing pages contain prepopulated areas of the report, listing the relevant legislation, or parts of the form which ran into another page when printed, none of which contain vessel-specific information. It also appears to me that the Department did not intend to mislead the applicant in any way. However, I accept that the applicant is not in a position to compare the two versions of the reports and I note that its queries about the discrepancies. Accordingly, I direct the Department to release all pages of the relevant FSI and survey reports, subject to the redactions previously applied.

In coming to these findings, I have taken account of the provisions of section 18 of the FOI Act, as mentioned above. The Commissioner takes the view that neither the definition of a record under section 2 of the Act, nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent and takes the view that, being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records. I am of the view that the release of the records as set out here is in line with this approach.

Decision 

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Department’s decision. I affirm the Department’s decision to refuse to grant access to certain information contained in the records on the basis of section 37(1). I annul the Department’s decision to refuse to grant access to the remaining information in the records on the basis of sections 30 and 32. I direct the release of the records sought in part to the applicant.

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