Whether the CSSO was justified, under sections 42(f) and 15(1)(d) of the FOI Act, in refusing access to certain records that had been previously released under an earlier FOI request

21 December 2022

Background

In an email dated 27 July 2022 to the CSSO, the applicant sought a copy of the data underpinning a particular newspaper article, the text of which he provided. The article, from 7 January 2014, referred to fees paid to barristers between 2002 and 2013 and mentioned that figures had been released to the Irish Times (the newspaper) under the FOI Act. Shortly afterwards, he emailed the CSSO again and said he was also seeking the actual decision letter that issued to the newspaper at the time as part of his request.

In a decision dated 25 July 2022, the CSSO refused the applicant-�s request for the data sought, under section 42(f) of the FOI Act. It said his request for a copy of the decision letter would be issued separately from the Office of the Attorney General. The applicant sought an internal review of the decision to refuse access to the data sought. He argued that as the release of records under FOI is -�release to the world at large-�, the records were therefore in the public domain. He argued that the CSSO could not retrospectively introduce an exemption for records that werede factoalready public.

On 8 August 2022, the CSSO affirmed its refusal of the request. The applicant applied to this Office for a review of the CSSO-�s decision on 10 August 2022.

During the course of the review, it emerged that one of the two records released to the newspaper was embedded in the online version of the article in question. The CSSO revised its position on this record. While it maintained its position that section 42(f) applied, it said that section 15(1)(d) was also relevant. The applicant was informed of this and given an opportunity to respond, which he did.

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 CSSO and by the applicant, and to the correspondence between the parties and with this Office. I have also had regard to the contents of the records concerned.  I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

The article referred to in the applicant-�s FOI request is dated 7 January 2014 and remains available on the newspaper-�s website:https://www.irishtimes.com/news/crime-and-law/barristers-paid-139-million-for-state-work-over-decade-1.1646482.

The CSSO confirmed that two records were released to the newspaper in 2013 further to an FOI request, which it labelled Appendix A and Appendix B. I have adopted this labelling of the records in my decision.

This review is concerned solely with whether the CSSO was justified in refusing access to both records under sections 15(1)(d) and/or 42(f) of the FOI Act.

Preliminary Matters                                                                                                   

Before I address the substantive issues in this case, I wish to make the following preliminary comments.

Firstly, a-� review by the Commissioner under section 22 of the FOI Act is considered to bede novo, which means that it is based on the circumstances and the law as they apply on the date of the decision.

Secondly, I wish to address the applicant-�s arguments concerning the implications of the prior release of a record under the FOI Act. It is the applicant-�s contention that because the records at issue in this case were previously released to another requester further to an earlier FOI request, the CSSO cannot now refuse to release them. He argued that as release under the FOI Act is considered to be release -�to the world at large-�, the records arede factoin the public domain and that public bodies cannot be allowed to retrospectively apply exemptions. The CSSO, on the other hand, did not accept that the previous release of a record put it above further review at a later date subsequent to another request. It said that it cannot be presumed that past decisions set a binding precedent. It also said that every request has to be dealt with on a case by case basis at the time of the request.

InH.(E.) v Information Commissioner[2001] IEHC 58, O-�Neill J. found that:

-�-�neither a head of public body or the Commissioner has any jurisdiction under the Act to impose any conditions on the type or extent of disclosure or the use of the documents after disclosure and hence in permitting disclosure a head of public body and the Commissioner must assume that the disclosure of a record will be to the world at large.-�

In circumstances where no restrictions can be placed on the uses to which a record released under FOI can be put, we take the view that when considering the release of a record, the FOI body must regard release of the record as being effectively, or at least potentially, to the world at large. However, this does not mean, of itself, that the record is actually available to the world at large once it has been released, although the recipient may well choose to make it so, e.g. by publishing the record.

It is not disputed that the records in question in this case were released to the newspaper in 2013 further to an FOI request, and the newspaper remains free to use the records as it sees fit. I note that one of the records is available on its website (discussed under section 15(1)(d) below) but it is not apparent to me that the second record is publicly available.

Notwithstanding that, there is nothing in the FOI Act that would have prevented the CSSO from dealing with the applicant-�s request administratively; section 11(8) refers. However, neither does the Act require it to take such an approach and the CSSO opted to treat the request as a new FOI request which it was entitled to do. I do not accept that records released previously under an FOI request must automatically be released subsequent to a later request. Among other things, the facts or circumstances may have changed in the interim, or indeed the FOI body may later decide that records had been released in error and do not wish to compound a mistake. It may be difficult for an FOI body to sustain a refusal to release a record under one of the harm-based exemptions where that record was released previously, but requesters have access to the usual rights to an internal review and application for review by this Office, as required.

Analysis and Findings

Section 15(1)(d)

Section 15(1)(d) provides that an FOI body may refuse to grant a request where the information is already in the public domain. The newspaper article which underpinned the applicant-�s FOI request remains available on its website and has embedded in it an 88-page document listing fees paid to individual barristers, by year, from 2002 to 2013 (January to August). It is available at:https://www.irishtimes.com/news/crime-and-law/barristers-paid-139-million-for-state-work-over-decade-1.1646482

The CSSO confirmed that this is the same record that was released to the newspaper in 2013, Appendix A. In these circumstances, I am satisfied that Appendix A is already in the public domain and that section 15(1)(d) applies. Accordingly, it is not necessary for me to consider whether the CSSO was also justified in refusing access to the record under section 42(f) of the Act.

I find that section 15(1)(d) does not, however, apply to Appendix B, as no evidence has been presented to me to suggest that the record is in the public domain. As I have explained above, the fact that the record may have been released previously on foot of an FOI request does not, in my view, mean that the record must be regarded as being in the public domain.

Section 42(f)

Section 42(f) of the Act provides that the Act does not apply to a record held or created by the Attorney General or the Director of Public Prosecutions or the Office of the Attorney General or the Office of Director of Public Prosecutions, other than a record relating to general administration. The CSSO is a constituent office of the Office of the Attorney General. 

The effect of section 42(f) is that the only records held by the CSSO to which a potential right of access applies are those that relate to general administration. While the Act is silent on the meaning of general administration, this Office considers that it clearly refers to records which have to do with the management of the Office of the Attorney General such as records relating to personnel, pay matters, recruitment, accounts, information technology, accommodation, internal organisation, office procedures and the like. I am satisfied that it does not refer to records relating to matters concerning the core business of the Office.

It is the CSSO-�s position that the record does not relate to general administration. It referred to three other decisions (OIC-55929,OIC- 180029andOIC-96507) made by this Office which concerned records relating to counsel fees, in support of its position.

The applicant-�s arguments were more focused on record A but I will note them here for completeness. He stated that he found it highly questionable that aggregate figures relating to expenditure by the CSSO comprised records relating to their -�core legal business-� and not simply records relating to how it spent public money. He said that if matters relating to aggregate, or indeed individual expenditure items, were deemed to be outside the scope of the FOI Act for partially included public bodies, then the FOI Act would be rendered almost entirely useless in terms of transparency. He submitted that the legislation relating to partially included public bodies was intended to exclude the activity relating to actual individual legal cases and core day to day work of the office so that such work on individual cases could be protected and not compromised. He said he did not believe that the intent was for public bodies or the OIC to define the meaning of "general administration" as narrowly as humanly possible to exempt all sorts of other material.

Appendix B does not contain details of expenditure by the CSSO. Rather, the record comprises a one-page table which contains details of the number of cases by case type for each of the years 2004 to 2013. While it contains no information about specific cases, it lists the number of cases by case type (e.g. Judicial Review, Asylum, General Legal Services etc), for each year.

It seems to me that while the record contains information that might be of some relevance for certain administrative purposes, such as identifying trends and patterns that might inform future planning in terms of human resources, budgets etc., it contains information relating to the core functions of the CSSO in so far as it details the types of cases dealt with. While it is a close call, it seems to me that such information extends beyond the boundaries of general administration, which is more properly concerned with the running of the Office.

The purpose of section 42(f) is to exclude from the scope of the FOI Act records relating to the core business of the Office of the Attorney General and its constituent Offices. It seems to me that, regardless of the fact that a record might contain information of relevance to general administrative matters, the Act does not apply to the record if it also relates to the core business of that Office.

I must say that I find it difficult to understand why the CSSO would not release the record to the applicant outside of the FOI process in circumstances where the record has already previously been made available to the newspaper. Nevertheless, having regard to the nature of the information contained in the record, I find that the record does not relate to general administration. I find, therefore, that the CSSO was justified in refusing access to Appendix B under section 42(f) of the Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the CSSO to refuse access to Appendix A under section 15(1)(d) of the Act and to refuse access to Appendix B under section 42(f).  

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 not later than four weeks after notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator