Whether the Department was justified in refusing access, under section 42(ja) of the FOI Act, to all records regarding the applicant-�s protected disclosure (PD) report

8 June 2023

Background

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

In a request dated 30 January 2023, the applicant sought access to all records between the Department and all departments and civil servants regarding his PD, which had been submitted to the Department by a named Senator on his behalf on 11 July 2019. In a decision dated 20 February 2023, the Department refused access to the records sought under section 42(ja) of the FOI Act, on the basis that records relating to PDs -�do not fall [within] the scope of the FOI Act-�.

On 23 February 2023, the applicant requested an internal review of the Department-�s decision. In a decision dated 20 March 2023, the Department affirmed its original decision on the same basis. On 20 March 2023, the applicant made an application to this Office for a review 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 comments in the applicant-�s correspondence with the Department and with this Office. I have also had regard to the submissions made by the Department in support of its decision. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

The scope of this review is solely confined to whether the Department-�s refusal of the applicant-�s request was justified under section 42(ja) of the FOI Act. It does not extend to examining or making findings on any other matter, including the FOI body-�s handling of the applicant-�s PD.

Analysis and Findings

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-�.

This Office-�s role in relation to section 42(ja) of the FOI Act in this case is only to ascertain, based on the evidence, whether the material submitted in July 2019 on the applicant-�s behalf was a report as defined in the 2022 Act.

The Department

In its submissions to this office, the Department said that making a PD -�refers to a situation where a worker discloses information in relation to wrongdoing that the person has acquired in the context of current or past work-related activity; and is disclosed in the manner prescribed in the [2022] Act-�. It also stated that to qualify as relevant information a worker must -�reasonably believe that the information disclosed tends to show one or more -�relevant wrongdoings-� and the wrongdoing must come to the worker-�s attention in connection with his or her employment-�.

The Department further stated that under section 8 of the 2022 Act, subject to certain provisions, a worker may make a PD to a Minister who has functional responsibility over the public body in question. It said that, in circumstances where the Taoiseach received a PD relating to a public body where he did not have functional responsibly, the Department would identify the appropriate person to address the disclosure whilst respecting the confidentiality of the discloser. It stated that as the document received in 2019 related to the IPS, which falls under the responsibility of the Department of Justice, it referred the correspondence in question to the Minister for Justice on 18 September 2019.

The Department argued that the record submitted in July 2019 was entitled -�protected disclosure-�. It stated that the record concerned comprised of various documents wherein the applicant outlined a number of alleged wrongdoings in relation to his time working as a prison officer with the Irish Prison Service (the IPS). The Department-�s position essentially is that the report concerned was evidently a PD and that it was treated by it as such, in line with the provisions of the 2022 Act and its own internal PD policy.

The applicant

The applicant-�s request sought access to records relating to his -�Protected Disclosure-�. It seems clear to me that he is of the view that he made a PD in 2019. I also note that he made no submissions to the Department or this Office in support of his view that the records concerned should be released, other than to state that any records within the scope of his request would contain his personal information.

I note the applicant-�s position. However, it is important to note this Office-�s view that it is not relevant to section 42(ja) whether records concerning a PD relate to or refer to the applicant in question, nor is it considered relevant if the applicant has an interest in their contents.

In the circumstances of this case, I am satisfied that the report submitted in July 2019 on the applicant-�s behalf was intended to be a PD and was treated as such by the Department. Accordingly, 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. I find that the Department was justified in refusing the applicant-�s request on the basis of section 42(ja) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department-�s decision to refuse the applicant-�s request on the basis 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.

Sandra Murdiff
Investigator