Whether the Department was justified in refusing access to two specified records that it had not provided in response to an earlier request from the same applicant, relating to his application for naturalisation in Ireland

7 June 2023

Background

In a request dated 8 July 2021, the applicant sought access to two specified records that had not been provided in response to an earlier FOI request he had made to the Department, in relation his application for naturalisation. The two records at issue were:

1. A 12-page document listed as -�record 20-� in the Department-�s response to the applicant-�s earlier request, and described by the Department as -�information from An Garda Síochana-�, which it withheld on the basis that it was exempt from release;
2. A submission to the Minister (-�the Submission-�) recommending that the applicant-�s first application for naturalisation be refused. This record was purportedly enclosed with the Department-�s decision letter to the applicant in relation to his application for naturalisation in 2004; however, the applicant contended that no such enclosure had been provided to him.

In a decision dated 13 September 2021, the Department refused the applicant-�s request, citing section 32(1)(a) of the FOI Act as the basis for withholding access to record 20 and stating that no copy of the Submission could be found on the applicant-�s file. On 17 December 2021, the applicant sought an internal review of the Department-�s decision. In its internal review decision dated 6 April 2022, the Department affirmed its original decision. On the same date, the applicant applied to this Office for a review of the Department-�s decision.

Section 15(1)(a) of the FOI Act provides for the refusal of a request where the record sought does not exist or cannot be found. Accordingly, in the course of inviting the Department to make submissions on its refusal of the request, we specifically requested that the Department address the applicability of section 15(1)(a) in relation to the Submission sought by the applicant. Following receipt of the Department-�s submissions on the matter, we wrote to the applicant-�s representative to put him on notice of our consideration of section 15(1)(a) and to invite any submissions that the applicant wished to make on the matter. The applicant-�s representative duly made further submissions, which I have considered in full.

Subsequently, following developments in the applicant-�s naturalisation case, the Department released seven pages (including duplicate pages) from record 20, namely pages 2, 3, 4, 5, 8, 9 and 12 of the record, with certain redactions made pursuant to section 37(1) of the FOI Act. We explored with the applicant the possibility of settling the matter on the basis of the additional documents that had been released to him. The applicant indicated via his legal representatives that, notwithstanding the Department-�s release of additional documentation, he wished for a formal decision to issue in the case, examining the remaining material from record 20 that the Department continued to withhold. In addition, as the applicant had not had an opportunity to consider section 37(1) in the context of his request, we also invited him to make any submissions that he wished in relation to the matter. The applicant made additional submissions on section 37(1) via his representative, and again I have considered these in full.

In the course of completing this review, I formed the opinion that certain of the information in record 20 potentially affected the interests of a third party organisation, namely An Garda Síochána (AGS). Accordingly, I contacted AGS to put it on notice of this fact and to invite it to make any submissions that it wished in relation to the matter. Submissions were subsequently received from AGS, and I have also fully considered these.

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, by AGS, and by the applicant-�s legal representative. I have also had regard to the contents of record 20. I have decided to conclude this review by way of a formal, binding decision.

Preliminary Matters

At the outset, I wish to note that section 25(3) of the FOI Act requires the Information Commissioner to take all reasonable precautions in the performance of his functions to prevent the disclosure of information contained in an exempt record or that would cause the record to be exempt if it contained that information. Therefore, the extent to which I can discuss certain information contained in the records at issue is limited.

It is also relevant to note that the release of information under FOI is generally considered to equate to release to the world at large, given that the FOI Act places no restrictions on the further use to which any information so released may be put.

Finally, it is important to note that a review by this Office is considered to be -�de novo", which means that in this case, it is based on the circumstances and the law as they pertain at the time of the decision and is not confined to the basis upon which the FOI body reached its decision.

Scope of Review

This review will focus solely on:

i. whether the Department was justified in making redactions to pages 2, 3, 4, 5, 8, 9 and 12 of record 20 under section 37(1) of the FOI Act;

ii. whether the Department was entitled to withhold the remainder of the record, namely pages 1, 5, 6, 10 and 11, under sections 32(1)(a) of the FOI Act;

iii. whether it was entitled to rely on section 15(1)(a) to refuse access to the submission sought by the applicant.       

Analysis and Findings

Section 37(1)

As outlined above, in the course of carrying out this review, the Department released pages 2, 3, 4, 5, 8, 9 and 12 of record 20, with certain material redacted under section 37(1) of the FOI Act. Section 37(1) 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 relating to third parties. 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, 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 FOI Act details 14 specific categories of information that is personal information without prejudice to the generality of the foregoing definition.

In addition, Paragraph (I) of section 2 of the FOI 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 ...". Similar information is excluded in the case of service providers under Paragraph (II) of section 2.

An examination of the material redacted by the Department reveals that the information withheld from the relevant pages of the record constitutes the names of officials of AGS. As outlined above, I wrote to AGS to put it on notice of the potential release of this information, and to invite it to make any submissions that it wished in relation to the matter. In response, AGS argued that that the exclusion from the definition of -�personal information-� contained in section 2 did not apply, on the basis that Garda members/staff -� although they are public servants or civil servants -� are not members of staff of a public body for FOI purposes in this context. In support of this view, AGS referred to a previous decision of this Office (OIC-120227). In that decision, we referred to section 6(2) of the FOI Act, which provides that an entity specified in Schedule 1, Part 1 of the FOI Act shall, subject to the provisions of that Part, be a public body for the purposes of the Act. Schedule 1, Part 1 contains details of bodies that are partially included for the purposes of the FOI Act and provides details of certain specified records that are excluded. If the records sought by a requester come within the description of the exclusions at Part 1, then the FOI Act does not apply and no right of access to such records exists. The FOI Act provides that AGS is not a public body for the purposes of the FOI Act, other than in relation to administrative records relating to finance, procurement or human resources matters.

In submissions on behalf of the applicant, his legal representative accepted that section 6(2) of the FOI Act served to disapply the exclusion from the definition of personal information to the material redacted from the records by the Department. However, the applicant-�s representative went on to question the Department-�s entitlement to rely on section 37(1), as it had not cited that provision of the FOI Act in its original decision on his FOI request. I must discount this argument because, as outlined above, this review is considered to be -�de Novo-�. This means that in this case, in deciding this review, I am not confined to the basis upon which the FOI body initially reached its decision.

On the basis of the above analysis, I am satisfied that in this instance, the relevant information in the records does not relate to administrative matters concerning human resources, finance or procurement. I am therefore satisfied that the exclusion to the definition of personal information at section 2 does not apply. Given the provisions of Schedule 1 it follows that, in respect of the records in question, AGS is not considered a public body for FOI purposes. It also follows that the name of a member of AGS, where it is contained in a record that is not a relevant administrative record, cannot be regarded as the name of a member of the staff of a public body, for FOI purposes. Accordingly, I find that the withheld information constitutes personal information in accordance with section 37(1) of the FOI Act.

However, that is not the end of the matter as 37(1) is subject to the other provisions of section 37. Section 37(2) provides that section 37(1) does not apply in certain circumstances. I am satisfied that no such circumstances arise in this case and that section 37(2) does not, therefore, apply. 

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 request would benefit the person to whom the information relates. I am satisfied that section 37(5)(b) of the Act does not apply.

In relation to the applicability of section 37(5)(a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the individual or individuals to whom the information relates. 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, which 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 judgment-�), 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 true public interest 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. 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.

Applying the test set down by the Supreme Court in the Enet judgment, I am aware of no specific, cogent and fact-based reason in this instance that would tend to favour the disclosure of the relevant information. 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 that the public interest in granting access to the information at issue does not, on balance, outweigh the right to privacy of the relevant individuals. I find, therefore, that section 37(5)(a) does not apply.

Accordingly, I find that the Department was justified in refusing access, under section 37(1) of the FOI Act, to the names of members of AGS that appear in record 20.

Section 32(1)(a)

As outlined above, the Department cited section 32(1)(a) of the FOI Act as a basis to refuse access to pages 1, 5, 6, 10 and 11 of record 20. In its submissions, it specified that it was relying on subsection (i) of Section 32(1)(a). That subsection provides that an FOI body may refuse to grant an FOI request if access to the record concerned could, in its opinion, reasonably be expected to prejudice or impair the prevention, detection or investigation of offences, the apprehension or prosecution of offenders or the effectiveness of lawful methods, systems, plans or procedures employed for the purposes of such matters.

An FOI body seeking to rely on section 32(1)(a) of the FOI Act should identify the harm(s) it expects could flow from the release of the records, and show how the harm envisaged could reasonably be expected to result from such release. It should also be noted that the exemption provided for by section 32 of the FOI Act is subject to a limited public interest test, which arises only where certain limited circumstances exist (subsection 3).

In its submissions to this Office, the Department argued that its immigration service delivery function, as well as that of AGS, could be impaired by the release of the relevant pages of the record 20. Specifically, it argued that its ability, and the ability of AGS, to identify, investigate and prosecute offences relating to the procurement and use of fraudulent documents, could be impacted by the record-�s release. Furthermore, it stated that the release of the relevant pages -�could be expected to facilitate individuals who wish to circumvent the laws and procedures in place for identifying these documents and investigating their use-�.

Its basis for this argument was that the relevant pages revealed certain standard operating procedures in place for such cases, including the procedure under which prosecutions for submitting fraudulent documents were pursued, and argued that to reveal this information could compromise such prosecutions by allowing parties being investigated to anticipate the processes of AGS. The Department further argued that the relevant pages contained information regarding the circumstances in which such prosecutions were and were not pursued, submitting that to reveal this information might may encourage applicants for naturalisation to submit bogus documents in the expectation of a reduced chance of prosecution.

The Department set out that, following such confirmation, its standard procedure was then to request that the relevant body (AGS at the time in question, and now Forensics Ireland) to carry out an examination. The result of this examination, according to the Department, was to raise serious doubts as to the validity of the document, given it was of such poor quality. The Department indicated that the next step in the process was to refer the document and the report findings to a separate section of AGS in order for an investigation to be carried out into whether a prosecution was viable under section 29(a) of the Irish Nationality and Citizenship Act 1956, as amended. The Department stated that, while in the normal course of events AGS would revert confirming a prosecution was being pursued, in this case it was decided that a prosecution would not be possible, for reasons that it set out, but upon which I am prevented by section 25(3) of the FOI Act from elaborating.

The Department also argued that the relevant pages from the record disclosed certain factors which could affect the viability of such prosecutions, and stated that the release of this information could compromise future investigations by revealing possible limitations in such investigations. Again, I am constrained by the requirements of section 25(3) from discussing in detail these factors.

On the question of how the harms it had identified could reasonably be expected to result from the release of the relevant pages of the record, the Department argued that such release could facilitate the development of methods for circumventing the procedures in place for bringing prosecutions for the procurement and use of fraudulent documents. The Department further argued that the relevant pages also contained information relating to the limitations on the checks that could be conducted in the course of such investigations, which it stated would further allow those who wish to use fraudulent documents to avoid detection. The Department submitted that it was essential to the effective functioning of both its immigration service delivery, and that of AGS, that any limitations in detecting and investigating fraudulent documents did not become known to those who would wish to use them. The Department stated that the use of fraudulent documents was a known issue, and that methods for detecting such documents were essential to the effective functioning of the immigration system. It argued that it was reasonable to expect that, should this information be made public, those who wish to use fraudulent documents would take any further necessary steps established in order to conceal the fraudulent nature of the documents.

In submissions on behalf of the applicant, his legal representative indicated that, in the course of deciding the applicant-�s naturalisation application, the Department had sent a Garda Vetting Request to AGS seeking details of all information held in relation to him. The applicant-�s representative argued that this form had indicated that the applicant had been charged or convicted of an offence, although no details were given in relation to same. The applicant-�s representative stated that the applicant had no knowledge of any such charge or conviction. The applicant-�s representative further submitted he was entitled to know, at least in general and/or anonymised terms, the nature and/or type of adverse information that the Department might hold in relation to him. It was further submitted by the applicant-�s representative that he was entitled to know if he had been charged or convicted of any offence and that, otherwise, he was unable to establish that he met the condition of naturalisation of being of good character.

It should be noted that, in order for a claim for exemption under section 32(1)(a) to succeed, the FOI body relying on that provision need not demonstrate that the harms that it claims could arise from the release of the record will definitely occur. Nor is the harm test concerned with the question of probabilities or possibilities. Rather, it is concerned with whether or not the FOI body-�s expectation is reasonable.

I have examined the relevant pages from record 20 that the Department withheld from release, and have considered the submissions made by both the Department and the applicant-�s representative in full. I am constrained by section 25(3) of the FOI Act in terms of the amount of detail I can give in relation to the precise information contained in the relevant pages. Accordingly, it must suffice for me to state that, on balance, I accept that the Department has identified potential harms that might arise, and that these are harms envisaged by the provisions of section 32(1)(a). I further consider that the Department-�s expectations that such harms might result from the release of the record are reasonable.

Therefore, I find that the Department was justified in withholding access in full to pages 1, 5, 6, 10 and 11 from record 20, pursuant to section 32(1)(a) of the FOI Act.

Section 15(1)(a)

Section 15(1)(a) of the FOI Act provides that access to records may be refused if the records concerned do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. As outlined above, the Department indicated that no copy of the Submission could be located on its file in relation to the applicant, and I took the view that this amounted to an assertion by the Department of section 15(1)(a).

In its submissions, the Department stated that, in attempting to locate the Submission, searches were carried out on files and databases used by its Citizenship Division, as well as on its Immigration Service Delivery electronic database (AISIP). The Department said that a manual search was also conducted on the applicant-�s file with its Citizenship Division, adding that a person-�s Citizenship file would hold all hard copy records relating to their application for naturalisation. The Department advised that the AISIP system was an electronic database which records the applications an individual makes to Immigration Service Delivery. The AISIP database would typically hold soft copy correspondence pertaining to a person-�s application as well as details of their application, such as the date it was made and any relevant personal information to the application. According to the Department, each person had an individual Person ID number corresponding to a unique page for them on AISIP, and any application made by a person to Citizenship division would also be assigned an application number corresponding to a unique page on AISIP. The Department advised that searches for the submission were carried out in the AISIP using the applicant-�s Person ID number and his application number.

The Department further argued that, as every individual had a unique Person ID number, and every application has a unique ID number, it did not believe that the Submission could have been misfiled. It advised that the record in question predated the AISIP system-�s implementation and, while in the normal course of events archived data from the previous system should have transferred over to AISIP, this did not appear to have occurred in this case.

The Department stated in addition that, as the record at issue was specific to the applicant, there was no individual in the Department who would be expected to hold it. It stated that all such records were associated with an applicant-�s physical file, or AISIP entry, both of which had been searched.

Finally, the Department argued that it did not believe that the record in question had been destroyed and rather that, due to the age of the record, which it believed was created in 2004, it appeared that it may not have been correctly transferred to the AISIP when the applicant-�s case was being migrated to that system.

On the basis of the above account by the Department, and in the absence of any information to the contrary, I consider that there is nothing to suggest that all reasonable steps or relevant searches were not carried out in relation to the record at issue. I find that the account from the Department as outlined above constitutes a clear and sufficiently detailed explanation of its systems and processes that accounts for its inability to locate the Submission sought by the applicant. As such, I find that the Department was justified in refusing access to the submission pursuant to section 15(1)(a).

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department-�s decision. I find that the Department was justified in refusing access to pages 1, 5, 6, 9, 10 and 11 of record 20 under section 32(1)(a) of the FOI Act. I further find that the Department was justified in redacting the names of members of AGS from the pages of record 20 (namely pages 2, 3, 4, 7, 8 and 12) that it part-released to the applicant. Finally, I find that the Department was entitled to refuse access, under section 15(1)(a) of the FOI Act, to the Submission sought by 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 not later than four weeks after notice of the decision was given to the person bringing the appeal.

Neill Dougan
Investigator