Whether the FOI body was justified in refusing access to records relating to the applicant-�s Protected Disclosures

10 March 2023

Background

The Protected Disclosures Act 2014 protects workers from retaliation if they speak up about wrongdoing in the workplace, and has been supplemented by the Protected Disclosures (Amendment) Act 2022 (the 2022 Act). The 2022 Act commenced on 1 January 2023.

This review concerns the FOI body-�s refusal of three FOI requests made to it by the applicant. In the circumstances of this case, it is appropriate to summarise the requests and the ensuing decision making process, as follows:

The requests of 28 May 2021, 22 June 2021 and 3 July 2021 sought reasons regarding various aspects of the FOI body-�s handling of the applicant-�s Protected Disclosures (PDs), as well as records relating to those matters and to his PDs generally.

The FOI body-�s decisions, of 25 June 2021, 19 July 2021 and 3 August 2021 respectively, refused the requests under various provisions of the FOI Act.

The applicant sought an internal review of the FOI body-�s decisions on, respectively, 23 July 2021, 1 August 2021 and 5 August 2021. The 5 August 2021 internal review application also sought to extend the relevant request to another FOI body, and sought the amendment of records.

The FOI body-�s internal decision of 27 August 2021 concerned all three requests. It provided the applicant with certain information. It said that it would take some time to review the refusal of the requested records, due to the volume involved. As set out in its letters to the applicant dated 27 October 2021, 5 January 2022 and 3 March 2022, the FOI body ultimately granted full and partial access to some records covered by the three requests. It relied on various provisions of the FOI Act in relation to the remaining fully and partially withheld records.

On 21 September 2022, the applicant applied to this Office for a review of the FOI body-�s decision to fully and partially withhold records covered by his three requests.

I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges and to correspondence between this Office, the FOI body and the applicant. I have also considered the contents of the records at issue and the provisions of the FOI Act.

Scope of Review

The scope of this review is confined to whether the FOI body-�s refusal to fully release all records covered by the three FOI requests was justified under the provisions of the FOI Act. The review is considered to be de novo, i.e. it is based on the circumstances and the law as they pertain at the time of the decision.

The review does not extend to examining or making findings on any other matter, including the FOI body-�s handling of the applicant-�s PDs or FOI requests, or his requests for updates on the PDs. Furthermore, the scope of an FOI request cannot be extended at review stage. Therefore, the review will not consider the additional matters set out in the 5 August 2021 application.

Analysis and Findings

Section 20 of the 2022 Act inserts section 42(ja) into the FOI Act. Generally speaking, section 42(ja) of the FOI Act serves to dis-apply the FOI Act to records relating to PDs. In the circumstances, it is appropriate for me to consider the application of section 42(ja). It is irrelevant that it was not open to the FOI body to rely on the provision when deciding on the applicant-�s requests.

Section 42(ja) of the FOI Act -� restriction of Act to records relating to PDs

Section 42(ja) provides that the FOI Act does not apply to -�a record relating to a report, within the meaning of the Protected Disclosures Act 2014, made under that Act, whether the report was made before or after the date of the passing of the [2022 Act]-�. Section 4 of the 2022 Act defines -�report-� or -�to report-� as -�the oral or written communication of information on relevant wrongdoings-�.

It is the FOI body-�s position that, further to the commencement of the 2022 Act, the FOI Act does not apply to any PD made since 2014, or to any records relating to such a PD.

The applicant says that he is entitled to and has waited patiently for the redacted and withheld documents. He says that they contain information relevant to his disclosures, and are personal to him and his complaint. He says that he has not been updated on his PDs and that he has a material interest in the records. He says that he has highlighted -�false information -� in relation to these documents-�, and that paperwork relating to his FOI requests was mislaid. However, while I invited the applicant-�s comments on the potential relevance of section 42(ja), none have been received.

It is not this Office-�s role to require the FOI body to take particular steps regarding the PD process. I cannot have regard to the applicant-�s views about such matters. Neither the FOI body-�s partial grant of the requests nor its handling of associated paperwork gives me any   basis to disregard section 42(ja). It is not relevant to section 42(ja) whether the records relate or refer to the applicant, or if he has an interest in their contents, or if (as alleged by the applicant) they contain false information.

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. While, accordingly, I must limit my description of the records, I am satisfied that they comprise reports made by the applicant under the Protected Disclosures Act 2014, and other records relating to those reports.

I find that all of the requested records are of a sort that fall under the scope of section 42(ja) of the FOI Act, such that the FOI Act does not apply to them. In the circumstances, there is no need for me to consider the provisions of the Act which the FOI body relied on in its decisions.  

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the FOI body-�s decision, on the basis that the records fall under the scope of section 42(ja) of the FOI Act.

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.
 

Anne Lyons
Investigator