Whether the Department was justified in refusing access to records regarding the management of mental health within IPAS accommodation settings under section 37(1) of the FOI Act (personal information)

7 November 2023

Background

The applicant's FOI request of 5 May 2023 sought access to "minutes of meetings/chain of emails/briefings between the Department and senior officials from Department of Health and HSE in relation to management of mental health cases within IPAS accommodation settings from March 2023 up to the present"�. The Department did not issue a decision on the request within the timeframe specified by the FOI Act, which amounts to a deemed refusal thereof.

The applicant sought an internal review of this deemed refusal on 12 June 2023. Again, the Department did not issue an internal review decision within the timeframe required by the FOI Act.

On 1 August 2023, the Department notified the applicant that it was part-granting the request. It said it was withholding details concerning "deliberative processes which have yet to be approved for use by IPAS"� under section 29 (deliberative processes), and "sensitive personal information"� under section 37 (personal information). The accompanying schedule indicated that, of the records it had identified as covered by the request (i.e. records 1-5 and 5a to 5c), the Department was granting full access to records 5a and 5c, withholding record 5b in full under section 29, and withholding parts of the remainder under section 37.

On 3 August 2023, the applicant applied to this Office for a review of the Department's refusal to fully grant the request.

On 18 August 2023, Mr Crowley, Investigator in this Office, issued a notice to the Department's Secretary General under section 23 of the FOI Act. The notice observed that the Department's letter of 1 August 2023 did not give adequate reasons for claiming sections 29 and 37, or address the relevant public interest tests. Mr Crowley required the Department to provide a statement, giving further information about its position on the request to both the applicant and this Office, by 8 September 2023.

The Department's response was received by this Office on 8 September 2023 (the September 2023 letter). This letter said that the Department was no longer relying on section 29 and would release record 5b, but that it was still relying on section 37 regarding details which it said would identify individual IP applicants.

On 17 October 2023, I invited the Department's submissions on the matter by 1 November. I have received no response.

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 correspondence between this Office and the Department and the applicant, (particularly the above contacts), the contents of the records at issue and the provisions of the FOI Act.

Scope of Review

In light of the September 2023 letter, I see no need to consider record 5b further. As I said in my letter to the Department of 17 October 2023, it should release the record without further delay if it has not done so already.

In the circumstances, my review is confined to whether the Department's refusal of the remainder of records 1-5 (which consist of four sets of draft minutes and an email) is justified under the provisions of the FOI Act.

Preliminary Matters

I wish to draw the Department's attention to sections 13(1) and 21(4) of the FOI Act. These provisions require FOI bodies to issue original and internal review decisions within four and three weeks, respectively, after receipt of the request or application.

I would also remind the Department of what must be contained in decisions made under the Act, as provided for by sections 13(2) and 21(5) of the FOI Act. In particular, further to sections 13(2)(d) and 21(5)(c), where an FOI body decides to refuse to grant a request the notification of the decision shall specify:

• the reasons for the refusal;
• any provisions of the FOI Act pursuant to which the request is refused;
• the findings on any material issues relevant to the decision; and
• particulars of any matter relating to the public interest taken into consideration for the purposes of the decision.

As Mr Crowley explained, the Department's letter to the applicant of 1 August 2023 did not comply with the above requirements. I am disappointed to also note that the September 2023 letter did not address all relevant elements of section 37, including the public interest test in section 37(5) of the FOI Act.

The Department may also wish to have regard to theguidance for FOI bodiesthat is available on the website of the Department for Public Expenditure and Reform's Central Policy Unit (CPU). In addition, the Minister for Public Expenditure and Reform has published a Code of Practice (the Code) for public bodies pursuant to section 48 of the Act, which is also available on the CPU's website. The Code includes key details relevant to the processing of requests and the contents of decisions. Under section 48(3) of the FOI Act, public bodies must have regard to the Code in the performance of their functions under the Act.

Section 25(3) of the FOI Act requires me to take all reasonable precautions in the performance of my 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.

The release of records under FOI is, in effect, regarded as release to the world at large given that the FOI Act places no constraints on the uses to which the information contained in those records may be put.

Finally, inThe Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors, [2020] IESC 5 (the eNet judgment), the Supreme Court said that "it is the FOI body that must explain and justify a conclusion that the records are exempt by reference to the relevant provisions of the Act, and equally, it is the FOI body that must explain why the public interest does not justify release in the public interest."� I also note that, in the Supreme Court case ofSheedy v the Information Commissioner([2005] IESC 35) Kearns, J. made it clear that a general prediction without any supporting evidence is not sufficient to satisfy the requirement that access to the record could reasonably be expected to result in the outcome envisaged. He stated that "[a] mere assertion of an expectation of [prejudice] could never constitute sufficient evidence in this regard"�.

However, while FOI bodies must justify their decisions, the eNet judgment in particular also says that a failure by an FOI body to do so does not lead to an inevitable or statutorily mandated outcome. Rather, this Office must adjudicate the merits of the decision to refuse by reason of an analysis of the records and the interests engaged, which might suggest either disclosure or refusal.

Analysis and Findings

Section 37(1) - personal information

Section 37(1), subject to other provisions of section 37, requires the refusal of a request if access to the record concerned would involve the disclosure of personal information (including personal information relating to a deceased individual).

Section 2 of the FOI Act defines personal information as information about an identifiable individual that (a) would ordinarily be known only to the individual or members of the family, or friends, of the individual, or (b) is held by a public body on the understanding that it would be treated by it as confidential.

Section 2 also lists 14 non-exhaustive examples of what must be considered to be personal information. Where information can be classified as one of these 14 examples, there is no need for the requirements at (a) or (b) of the definition to also be met.

Finally, section 2 also provides that certain information about public servants cannot be considered as personal information. Generally speaking, such details include the public servant's name, and anything written or recorded in any form by the individual in the course of and for the purpose of the performance of his or her functions.

Arguments and analysis

The September 2023 letter says that section 37 was applied to information about individual IP applicants whose cases were discussed during the meetings, in order to protect the identities of those individuals. It says also that section 37 was applied to information on meetings (including specific locations and times) which, if disclosed, could jeopardise the privacy and security of the IP applicants who reside in these locations. It says that it is important to keep the location of IP applicants confidential, due to health and safety concerns which may arise should those locations be made public.

I have carefully examined the withheld details. They are quite high level, and largely concern matters relevant to all IP cases generally. The only parties identifiable by name or initials are public servants. As explained earlier, such details cannot be considered as the personal information of the public servants concerned. The small number of references to individual IP applicants are couched in very high level and general terms, and I do not see how it is possible to identify the relevant parties and/or the location(s) where identifiable individuals reside.

On 17 October 2023, I asked the Department to explain how individuals are identifiable from the withheld details in light of the above, and to provide any other relevant information. I did not receive any comments from the Department.

In all of the circumstances, I cannot see how the release of the redacted material would involve the disclosure of personal information. I find that the Department was not justified in relying on section 37(1) of the FOI Act in relation to the details concerned.

Section 32 "� law enforcement and public safety

Section 32(1) of the FOI Act provides for the potential refusal of access to records under a number of provisions that are concerned with ensuring law enforcement and public safety. For instance, it provides for the potential refusal of records where disclosure could reasonably be expected to endanger the life or safety of any person (section 32(1)(b)) or facilitate the commission of an offence (section 32(1)(c)).

In the context of the Department's reliance on section 37, the September letter appeared to assert that disclosure of the details could impact on the security of IP applicants in general, and/or identifiable IP applicants. My letter to the Department of 17 October 2023 invited the Department's submission to address the relevant provisions of section 32, if it considered these relevant. However, I also informed the Department that I did not see how disclosure of any of the withheld details could impact on the security of particular IP applicants or of IP applicants in general.

In particular, I noted the details' general and high level nature, and that they did not appear to identify any individual applicant. I also referred the Department to information in the public domain concerning various accommodation centres (including on the HSE and Oireachtas websites). Finally, I noted that due to the passage of time, the dates of what were then further proposed meetings have now elapsed. I said that I could not see how disclosing such details now could enable anyone to establish the dates and/or locations of further future meetings, such that, for instance, the safety of residents at such locations could be endangered.

I have received no comments or argument from the Department on this matter. In all of the circumstances, I see no basis to find that the withheld details are exempt under any of the provisions of section 32 of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Department's decision. I find that the Department's refusal of the remainder of records 1-5 was not justified under the FOI Act, and I direct it to grant access to the details concerned.

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