Decision
Mr S and Department of Justice
From Office of the Information Commissioner (OIC)
Case number: OIC-136117-F4R7G3
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You are here: BAILII >> Databases >> Irish Information Commissioner's Decisions >> Mr S and Department of Justice [2024] IEIC 136117 (16 December 2024)
URL: http://www.bailii.org/ie/cases/IEIC/2024/136117.html
Cite as: [2024] IEIC 136117
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Whether the Department was justified in refusing access to various records relating to the Department's Immigrant Investor Programme (IIP) in full or in part on the basis of sections 36 and 37 of the FOI Act, and whether it was justified in refusing to release certain additional records under section 15(1)(a) on the ground that the records sought are not held by the Department or do not exist
16 December 2024
The Immigrant Investor Programme (IIP) was first introduced in 2012. The scheme was established as a pathway for non-EEA (European Economic Area) nationals to secure immigration permission to Ireland on the basis of their long-term investment in an approved project. It was introduced to encourage inward investment for the creation of business and employment opportunities in the State. Various issues arose and the Department commissioned Ernst and Young (EY) to carry out a review of the IIP in 2019. EY provided two reports to the Department concerning its findings in 2020. The IIP scheme was closed to new applicants on 14 February 2023, although I understand that a commitment was given at the same time to process all applications on hand, and submitted within a specified time period, and also to allow approved projects to reach their target number of investors. As a consequence of this I understand it will take a number of years to wind down the IIP.
In a request dated 25 November 2022, the applicant sought access to the following records relating to the IIP:
1. The report of the second phase of the external review of the IIP and any recommendations made.
2. Any Departmental advice or observations to the Minister for Justice on the rise in the number of applications to the scheme since the start of 2022.
3. Any submissions to EY from any Government Department, An Garda SÃochána, the National Immigration Bureau, Enterprise Ireland or any educational institution.
4. A list of the nationalities of all applicants to the scheme since its inception.
5. A list of the nationalities of all successful applicants to the scheme since its inception.
6. A list of the identity of each successful applicant to the scheme since its inception.
7. A list of each of the enterprise, investment fund or real estate investment trust beneficiaries of investments made under the programme since the start of 2020 and the amount of money raised in each case.
8. A list of each of the educational, health, arts, sports and cultural beneficiaries of endowments under the scheme since the start of 2020 and the amount of money raised in each case.
In a decision dated 12 January 2023, the Department part-granted the request. It refused access to a copy of the phase 2 review of the IIP (record 1, relating to part 1 of the request), and to records relating to part 3 of the request under section 29 of the FOI Act. It granted access to four records (records 2 to 5) in part, with certain information redacted under sections 36 and 37. It provided tables of information addressing parts 4 and 5 of the request and relied on sections 36 and 37 to refuse access to records relating to parts 7 and 8.
On 18 January 2023, the applicant sought an internal review of that decision, following which the Department affirmed its original decision. On 2 March 2023, the applicant applied to this Office for a review of the Department's decision. Among other things, he argued that any deliberative process had been finalised when the IIP scheme was closed to new applications in February 2023.
During the course of this review, this Office asked the Department to clarify which of the records it considered to relate to various parts of the request. In its response, the Department indicated that it had changed its position on some parts of its decision. The applicant was informed of its new position, as set out below, and was given an opportunity to comment. I have adopted the Department's numbering scheme in referring to the various records.
Part 1 : Two reports (relating to Phase 1 and Phase 2 of the review of the IIP) have been published on www.irishimmigration.ie since the Department's internal review decision. The applicant has confirmed that he is no longer pursuing this part of his request.
Part 2 : The Department initially identified records 2-5, which were released in part, as relevant to part 2. During the review it also located records 3a and 3b. The Department's revised position was that records 2, 4 and 5 fell outside the scope of the request. It released record 3b in part. It relied on sections 36 and/or 37 of the FOI Act to refuse access to records 3 and 3a and the remainder of record 3b. The applicant does not accept that records 2, 4 and 5 are outside scope and seeks records 3, 3a and 3b in full. I shall consider these records further below.
Part 3 : While the Department initially relied on section 29(1) of the FOI Act (deliberative processes) in relation to part 3, it is now instead relying on section 15(1)(a) on the basis that it holds no relevant records. It said that while submissions may have been made to EY by other parties, these were not shared with the Department "either before or after the submission of the final IIP report".
The applicant argued that his request included submissions from the Department itself and its agencies. This Office put the applicant's comments to the Department which said that it had not initially interpreted part 3 as including the Department itself, but that having done so, it had located some additional relevant records (records A-D). These were released to the applicant during the review. It also provided a link to a report related to part 3 of the applicant's request which had been published on its website. The applicant remains of the view that additional records relating to part 3 of his request should exist. I shall consider the Department's reliance on section 15(1)(a) in relation to part 3 further below.
Parts 4 and 5 : The Department stated that the applicant did not include these in his application for internal review and that they should not form part of this review. The applicant agreed that parts 4 and 5 were no longer at issue.
Part 6 : The Department located/exported a list of successful applicants to the IIP scheme during the review (record 6). Its position is that record 6 is exempt under section 37 of the FOI Act. The applicant's position was that he is seeking access to this record in full. I will consider the Department's decision on this record below.
Parts 7 and 8 : The Department located/exported records in relation to parts 7 and 8 (numbered accordingly) which it released in part during the review. It relied on sections 36 and 37 to withhold the identity of individual projects and businesses that were listed in the records but released the columns showing the individual investment/endowment amounts. The applicant indicated that he sought access to records 7 and 8 in full.
Having regard to the contents of the records provided to this Office for the purpose of the review, this Office notified those third party organisations listed as beneficiaries of the IIP scheme of the review and invited them to make submissions.
A number of the responses received from the third parties raised questions as to the accuracy of records 7 and 8. This Office requested clarification from the Department on the matter. In response, the Department indicated that the database used to export the records did not contain a verified list of investments made, following which the Investigator notified the applicant of the Department's amended position and of her view that section 15(1)(a) was relevant to parts 7 and 8. The Department subsequently submitted that while it held records relating to investments made under the scheme, this information was not all held on the relevant database, and that a report could not be simply exported containing the information sought. In essence, its position was that the record sought did not exist and that the requirement in section 17(4) of the FOI Act to take reasonable steps to search for and extract information contained in electronically held records did not apply. The applicant was put on notice of the Department's additional submissions and of the possible relevance of section 17(4). I will consider the Department's submissions and the applicant's response further below.
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 applicant's comments in his application for review and submissions to this Office, to the submissions made by the Department in support of its decision and to the correspondence between this Office and the parties as set out above. I have also had regard to the contents of the records identified, including those located during the course of this review. I have decided to conclude this review by way of a formal, binding decision.
Records 2, 3, 3a, 3b, 4 and 5
As I have outlined above, during the review the Department submitted that records 2, 4 and 5 fell outside the scope of part 2 of the applicant's request. The Investigator notified the applicant of the Department's revised position and she also notified him of her view that that the majority of the information withheld from records 3, 3a and 3b also fell outside the scope of the request. The applicant said he did not agree with that view.
While I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description I can give of the contents of the records at issue is somewhat limited. Records 2, 3, 4 and 5 are Departmental submissions seeking the Minister's approval of immigration permission for IIP applicants associated with projects reviewed by the IIP Independent Evaluation Committee. As set out above, part 2 of the request was for any Departmental advice or observations to the Minister on the rise in the number of applications to the IIP scheme since the start of 2022. Having carefully examined the records, I am satisfied that the information withheld from records 2, 4 and 5 does not relate to the rise in applications to the scheme. I am also satisfied that records 3a and 3b do not contain any information relating to the rise in applications. I am further satisfied that the high level information relating to applications being submitted for approval withheld from records 2, 3, 3a, 4 and 5 and the information relating to specific agents withheld from record 3b does not come within any of the other parts of his request. In the circumstances, I am satisfied that the information withheld from records 2, 3a, 3b, 4 and 5 does not come within the scope of the applicant's request, nor does the majority of the information withheld from record 3. Accordingly, the Department's decision to withhold access to these records or parts of records will not be considered as part of the review.
I am, however, satisfied that record 3 contains information relating to part 2 of the applicant's request. The first part of paragraph 2 under the heading "Executive Summary", which was released to the applicant, references an increase in IIP applications in 2022. The remaining text redacted from that paragraph concerns related actions proposed. For ease of reference, I will refer to this as record 3, paragraph 3, and I will consider the Department's decision to withhold this information as part of this review.
Material provided to EY as part of the commissioning of its review
The applicant sought, at part 3 of his request, any submissions to EY from any Government Department, An Garda SÃochána, the National Immigration Bureau, Enterprise Ireland or any educational institution. During the review, the applicant queried whether the Department provided instructions, guidance notes, background data or information relating to the terms of reference of EY's review when it was first commissioned.
This Office asked the Department to clarify who had commissioned the review, and to provide details of any instructions given to EY for this purpose. The Department said the Irish Naturalisation and Immigration Service, (now renamed as Immigration Service Delivery (ISD)) commissioned the review. It said information relating to requirements and specifications were included as part of the initial request for tender document sent to the Office of Government Procurement (the OGP). It said that the OGP, as operators of the tender process system, sent this information to all registered parties on the tender list, "as per normal practice". The Department's position was that, while ISD gave this information to the OGP, it was the OGP who gave it to EY and as such, the Department had not provided the information to EY itself. It also argued that, in any event, such records did not come within the scope of the applicant's request in this case. Nonetheless, during the course of the review, the Department identified a small number of records relating to information provided to EY before its review, which it subsequently released to the applicant (records A-D refer).
It is important to note that under section 12(1)(b) of the FOI Act, a request for records must contain sufficient particulars in relation to the information concerned to enable the records sought to be identified by the taking of reasonable steps. Having regard to the wording of the relevant part of the applicant's request, I am satisfied that it was reasonably interpreted by the Department to be a request for any substantive submissions made to EY for the purpose of the review being undertaken of the IIP. In the circumstances, I am satisfied that any material that was provided to EY before the commencement of the review does not fall within the scope of part 3 of the request.
Having regard to all of the above, this review is concerned solely with whether the Department was justified in withholding, under sections 36 and/or 37 of the FOI Act, record 3, paragraph 3 and record 6 in full, and whether it was justified in refusing access, under section 15(1)(a) of the Act, to any further records relating to parts 3, 7 and 8 of the request.
In his most recent submissions to this Office, on foot of a notification as to the Department's revised positon in relation to parts 7 and 8 of his request, the applicant raised a number of matters. Among other things, he noted that the Department's approach had changed a number of times during the review. He noted that it had initially refused access to records relating to parts 7 and 8 on the basis that they contained exempt information under sections 36 and 37 of the FOI Act. He also noted that on foot of this Office's correspondence with the Department following the third party consultation process, the Department had essentially relied on section 15(1)(a), i.e. that the records as sought did not exist and that section 17(4) did not apply. His view was that its revised position was one that "strained credibility" and he indicated that he did not accept the Department's argument. Among other things, he appeared to object to the Department "moving the goalposts".
On this point, it is important to note that a review by the Commissioner under section 22 of the FOI Act is considered to be de novo, which means that it is based on the circumstances and the law as they apply on the date of the decision. Accordingly, I am satisfied that it is appropriate to have regard to the Department's amended position. I am also satisfied that the applicant was adequately put on notice of these matters and given a chance to make submissions on the matter
Secondly, it is important to note that under section 22(12)(b) of the FOI Act, a decision to refuse a request is presumed not to have been justified unless the public body shows to the satisfaction of the Information Commissioner that the decision was justified. Therefore, in this case, the onus is on the Department to satisfy this Office that its decision to refuse access to certain information and records was justified.
For convenience, I will consider the Department's position with regard to the relevant parts of the applicant's request, rather than by the exemption relied upon.
Section 36
In its original decision on the request, the Department simply said that certain "commercial" information had been withheld from record 3 under section 36. While it did not identify the specific subsection it deemed to apply, it said that public interest factors it considered in favour of withholding the redacted information included that release would place the Department at a disadvantage in a [then] current contract process that had yet to conclude and would place the Department at a disadvantage when going to tender again on the basis that the records disclose what the Department paid previously. This seems to me to be an argument that sections 36(1)(b) and/or section 36(1)(c) apply. Section 36(1)(b) provides for the mandatory refusal of a request if the record sought contains financial, commercial, scientific or technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation. Section 36(1)(c) provides for the mandatory refusal of a request if the record sought contains information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates.
The harm test in the first part of subsection (1)(b) is whether disclosure of the information "could reasonably be expected to result in material financial loss or gain". The test in this regard is not a question of probabilities or possibilities, but rather whether the FOI body's expectation is reasonable. Thus, a body citing section 36(1)(b) should demonstrate the nature of the harm envisaged and the basis for a claim that such harm could reasonably be expected to result from disclosure of the particular information in the record at issue.
The harm test in the second part of subsection (1)(b) is whether disclosure of the information "could prejudice the competitive position" of the person in the conduct of his or her profession or business or otherwise in his or her occupation. This is a considerably lower standard of proof than that contained in the first part of section 36(1)(b). This being said, in invoking the phrase "prejudice", the damage which could occur as a result of disclosure of the information must be specified with a reasonable degree of clarity.
The standard of proof required to meet the exemption in subsection 1(c) is relatively low in the sense that the test is not whether prejudice or harm is certain to materialise but
whether it might do so. Having said that, this Office expects that a person seeking to rely on this exemption would be able to show that contractual or other negotiations were in train or were reasonably foreseen which might be affected by the disclosure and to explain how exactly the disclosure could prejudice the conduct or the outcome of such negotiations.
It is relevant to note that apart from paragraph 3, the Department made several other redactions to record 3. It is not apparent to me that the public interest factors identified by the Department are of any relevance to paragraph 3, which is the only remaining information at issue in this review. Moreover, the Department's submissions included no arguments as to how the release of paragraph 3 might give rise to any of the harms identified in section 36(1). Rather, it simply stated in its submissions, at relevant part, that section 36 applied to record 3 and that the record included a general update on the IIP. I would add that the submissions received from the third parties contacted by this Office do not concern the particular information at issue here.
As noted above, the information withheld from paragraph 3 immediately follows references to an increase in IIP applications in 2022 and describes related actions proposed by the Department in respect of the IIP scheme. It seems to me that the information does not contain any information whose release could possibly give rise to any of the harms set out in section 36(1). In relation to the public interest factors outlined by the Department in its original decision, namely that release would place the Department at a disadvantage in a [then] current process that had yet to conclude and would place the Department at a disadvantage when going to tender again on the basis that the records disclose what the Department paid previously, paragraph 3 does not contain any references to applicants, beneficiaries, agents or projects, nor does it reveal any details of commercial activities or of contractual or tender arrangements. The information in the paragraph relates solely to steps the Department proposed to take in relation to the IIP scheme at the relevant time, following on from comments concerning the rise in applications.
It is relevant to note here that in the case ofIndustrial Development Agency (Ireland) v the Information Commissioner [2024] IEHC 649, Phelan J. found as follows:
"There is a presumption of disclosure under the framework of the 2014 Act, such that a refusal to disclose must be fully reasoned and sufficiently coherent, fact specific and logically connected to the document or record to demonstrate that the justification is sufficient".
In circumstances where the Department has provided no specific reasons for its decision to withhold paragraph 3 under section 36(1) and where it is simply not apparent to me how the release of the paragraph might possibly give rise to any of the harms outlined in section 36(1), I find that the section does not apply.
For the sake of completeness, I should add that while the Department sought to withhold certain information from record 3 under section 37, its arguments concern other information in the records that I have found to fall outside the scope of the request and do not concern paragraph 3. Accordingly, I find that the Department has not justified its decision to refuse access to record 3, paragraph 3.
Section 37(1)
The Department relied on section 37 in its decision to refuse access to record 6. Section 37(1) provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information (including personal information relating to a deceased individual). For the purposes of the FOI Act, personal information is defined as information about an identifiable individual that either (a) would ordinarily be known only to the individual or members of the family, or friends, of the individual, or (b) is held by an FOI body on the understanding that it would be treated by that body as confidential. The Act details fourteen specific categories of information which are included in the definition without prejudice to the generality of the forgoing definition, including the following:
"-¦(ii) information relating to the financial affairs of the individual,
(iii) information relating to the employment or employment history of the individual, -¦
(viii) information relating to the -¦ racial or ethnic origin-¦ of, -¦ the individual,
(ix) a number, letter, symbol, word, mark or other thing assigned to the individual by an FOI body for the purpose of identification or any mark or other thing used for that purpose, -¦
(xii) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to, establish that any personal information held by the FOI body concerned relates to the individual, and
(xiii) information relating to the property of the individual (including the nature of the individual's title to any property)."
As noted above, record 6 contains a list of individual applicants to the scheme and their personal application reference numbers. The Department's position is that the information in record 6 would only be known to those referenced in the record and that its release would identify the individuals concerned. It said it does not publish the details of individual investors, that such details are held on the understanding that they would be treated by the Department as confidential, and that it did not have the consent of the individuals concerned to release the information in question.
In his application to this Office, the applicant argued, among other things, that the names of certain IIP investors were filed publicly in Companies Registration Office declarations in respect of debt guarantees and mortgage records. He also gave an example of one named company which he stated had named several IIP scheme participants. He contended that he knew of no Government guarantee to maintain a "shroud of secrecy over the beneficiaries of Irish residency". He also stated that it was "not sufficient to wave away a request for important data held by the Department", on the basis that it was inherently personal information.
The release of the information in record 6 would involve the disclosure of the names of individuals who were successful in their applications under the IIP scheme. By its very nature, the release of that information would disclose the fact that those named individuals were deemed to have met the qualifying conditions of the scheme, including that each individual listed came from a non-EEA country, had sought immigration permission in Ireland, had a personal net worth of at least €2 million and who had invested in a project or company in Ireland. Accordingly, I am satisfied that the release of record 6 would involve the disclosure of personal information relating to the individuals concerned and that section 37(1) applies to the record.
As section 37(1) of the FOI Act is subject to the other provisions of the section, I will proceed to consider whether any of those other provisions serve to disapply section 37(1) in this case.
Section 37(2)
Section 37(2) provides that section 37(1) does not apply if;
a) subject to subsection (3), the information concerned relates to the requester concerned,
b) any individual to whom the information relates consents, in writing or such other form as may be determined, to its disclosure to the requester,
c) information of the same kind as that contained in the record in respect of individuals generally, or a class of individuals that is, having regard to all the circumstances, of significant size, is available to the general public,
d) the information was given to the FOI body concerned by the individual to whom it relates and the individual was informed on behalf of the body, before its being so given, that the information belongs to a class of information that would or might be made available to the general public, or
e) disclosure of the information is necessary in order to avoid a serious and imminent danger to the life or health of an individual,"
I am satisfied that subsections (a), (b), (d) and (e) do not apply, nor have any of the parties argued that they do. I am also satisfied that subsection (c) does not apply. While I note the applicant's argument that the names of some individuals who had received immigration permission through the IIP scheme were in the public domain, I do not accept that this means that information of the same kind as that contained in the record in respect of individuals generally, or a class of individuals that is, having regard to all the circumstances, of significant size, is available to the general public. Accordingly, I find that none of the provisions of section 37(2) apply.
Section 37(5) - The public interest
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 information would be to the benefit of the person to whom the information relates. I am satisfied that the release of the information at issue would not be to the benefit of the individuals concerned and that section 37(5)(b) does not apply. In relation to paragraph (a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the right of privacy of the individuals to whom the information relates.
Applicant's submissions
The applicant argued that there was a need for "maximum transparency" over a scheme "reserved for wealthy people" in which the State granted "significant benefits not only to investors and donors but also to private enterprise, charities and public institutions". He said the IIP scheme involved the exchange of a public good only the Government could grant, i.e. residency in Ireland, in return for money. He argued that the need for transparency was even greater in circumstances where only wealthy people could apply to the scheme and "[t]hose without wealth were excluded".
The applicant also contended that the Government had acknowledged that there were concerns about aspects of the scheme, such as "difficulties with due diligence". He referred to concerns relating to people with "no significant links" to Ireland "other than their IIP participation" providing money for cultural, social and economic use. He also argued that such concerns were "sufficiently grave" for the Government to close the IIP scheme to further applications "with only 24 hours' notice" and that the case for releasing the information sought in full was "only strengthened" after the abrupt closure of the scheme.
The applicant stated that this case involved, "an area of legitimate public scrutiny that demands clarity over the residency beneficiaries". He argued, essentially, that the fact that money changed hands in exchange for a State benefit to individuals under the scheme overrode any privacy expectations. He stated that the IIP participants had "purchased Irish residency" which was "a precious commodity". He also argued that the public interest in transparency about the identities of the individuals benefiting from the scheme was "compelling". The applicant further argued that refusing access to the names of the individuals concerned was "contrary to the spirit [of the FOI Act]" and contrary to the "requirement in a democracy for absolute transparency on the interplay between the State, business and wealthy people seeking residency in Ireland".
The Department's submissions
The Department's position was that it had made "considerable efforts" to release as much information as possible to the requestor in this case. Its view was that the public interest in releasing the information sought did not outweigh the "rights and reasonable expectations" of the individuals concerned. In its submissions to this Office, the Department argued that the individuals named in the records sought were protected by the "same rights to privacy enjoyed by all other members of Irish society". The Department concluded that it had not identified any "sufficiently exceptional reasoning" to support a decision that the public interest in releasing the information would outweigh the right to privacy afforded to "all residents of the State".
Analysis
In considering where the balance of the public interest lies in this case, I have had regard to section 11(3) of the FOI Act which provides that in performing any functions under the Act, an FOI body must have regard to, among other things, 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. However, in doing so, I have also had regard to the judgment of the Supreme Court inThe Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (the Enet case). In that case, 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.
The protection afforded to privacy rights in the FOI Act is strong. The Act recognises the public interest in the protection of the right to privacy both in the language of section 37 and in the Long Title to the Act (which makes it 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. Moreover, even where an overriding public interest in granting the request exists, there is a discretionary element to the application of section 37(5)(a). It is also important to note that the release of records under the FOI Act must be regarded, in effect, as release to the world at large, given that the Act places no constraints on the uses to which a record released under the Act can be put.
It seems to me that the applicant's arguments concerning where the balance of the public interest lies are reflective of a public interest in knowing how the Department administered a scheme which grants such a significant benefit to nationals from other states who would not otherwise be able to live and work in Ireland. I accept that there is a strong public interest in the release of records which would reveal whether the Department was appropriately and effectively monitoring and administering the IIP scheme. However, it is important to note that the FOI Act is about enhancing the transparency and accountability of public bodies, and is not intended to deprive individuals of their privacy rights generally.
It seems to me that the disclosure of the identities of the successful applicants under the IIP scheme would provide little insight into how the Department administered the scheme. For example, such disclosure would not include disclosure of the steps taken to vet the applicants concerned or details of how the Independent Evaluation Committee arrived at its decision that the individuals met the relevant criteria. Therefore, it seems to me that there is limited, if any, weight to the public interest in its disclosure. On the other hand, I would regard the consequential breach of the privacy rights of the individuals concerned to be significant. Moreover, I do not accept that the financial circumstances of the individuals concerned means that they are entitled to lesser degree of privacy than others who are less well-off, particularly in circumstances where the qualifying conditions for successful applications under the scheme were already in the public domain.
Having carefully considered the matter, I am not satisfied the public interest would, on balance, outweigh the privacy rights of the individuals listed in record 6. I find, therefore, that section 37(5)(a) does not apply and that the Department was justified in refusing access to record 6 under section 37(1) of the FOI Act.
Part 3 - submissions made to EY as part of its review
As I have outlined above, the Department refused access to submissions made to EY as part of its review on the ground that it holds no such records and that while submissions may have been made to EY by other parties, these were not shared with the Department either before or after the submission of the final IIP report.
Section 15(1)(a) of the FOI Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. Our role in cases such as this is to review the decision of the FOI body and to decide whether the decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision. I must assess the adequacy of the
searches conducted by the FOI body in looking for the relevant records. The evidence in "search" cases generally consists of the steps actually taken to search for the records along with miscellaneous and other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.
The Department's position is not that no submissions were made to EY. Rather, its position is that if they were, they were not provided to the Department and as such, it holds no relevant records. Section 11(1) of the Act provides for a right of access to records held by an FOI body. Under section 11(9), a record in the possession of a service provider shall, if and in so far as it relates to the service, be deemed for the purposes of the Act to be held by the FOI body, and there shall be deemed to be included in the contract for the service a provision that the service provider shall, if so requested by the FOI body for the purposes of the Act, give the record to the FOI body for retention by it for such period as is reasonable in the particular circumstances.
Section 2 of the FOI Act provides that "service provider" means a person who, at the time the request was made, was not an FOI body but was providing a service for an FOI body under a contract for services and contract for services in this definition includes an administrative arrangement between an FOI body and another person. During the course of the review, this Office put it to the Department that EY appeared to have been acting as a service provider to the Department, or an agency thereof, when carrying out its review. Section 11(9) was brought to its attention and the Department was asked if it had asked EY if it held any records relating to part 3 of the applicant's request.
In response the Department confirmed that it had not undertaken any enquiries to establish whether EY held any relevant records that might be captured by section 11(9). Having regard to the requirement under section 15(1)(a) of the FOI Act that an FOI body must have taken all reasonable steps to ascertain the whereabouts of records sought, it seems to me that the Department could reasonably have been expected to engage with EY to determine whether any relevant records exist relating to part 3 of the request that might be deemed to be held by the Department for the purpose of section 11(9). In my view, this is a sufficient ground for me to find that the Department has not taken all reasonable steps to ascertain the whereabouts of further relevant records relating to this part of the applicant's request. I also note that the Department has not indicated to this Office whether it made any submissions to EY itself, outside its provision of background material and terms of reference.
Having regard to the above, I find that the Department was not justified in refusing access to further records relating to part 3 of the request under section 15(1)(a) of the FOI Act. In the circumstances, I consider that the most appropriate course of action to take is to annul the Department's decision on part 3, the effect of which is that it must consider that part of the request afresh and make a new, first instance decision in accordance with the provisions of the FOI Act. The applicant will have a right to an internal review and a review by this Office if he is not satisfied with the Department's fresh decision.
Parts 7 and 8 -“ beneficiaries of investment through the scheme
As I have outlined above, while the Department initially granted partial access to two records it deemed to fall within the scope of parts 7 and 8 of the request, it subsequently revised its position during the course of the review. It said the records sought did not exist and that the requirement in section 17(4) of the FOI Act to take reasonable steps to search for and extract information contained in electronically held records did not apply.
It is important to note that while the purpose of the FOI Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from a public body must make a request for records that contain the information sought. Requests for information, as opposed to requests for records, are not valid requests under the FOI Act, except to the extent that a request for information can reasonably be inferred to be a request for a record containing the information sought. In essence, the FOI Act is concerned with access to records that a public body actually holds. The Act does not require FOI bodies to create records to provide information sought if no record containing that information exists, apart from a specific requirement, under section 17(4), to extract records or existing information held on electronic devices.
Section 17(4) provides that where a request relates to data contained in one or more record held on an electronic device by the FOI body concerned, the body must take reasonable steps to search for and extract the records to which the request relates. Where the reasonable steps result in the creation of a new record, that record is, for the purposes of considering whether or not such a new record should be disclosed in response to the request, deemed to have been created on the date of the receipt of that request. Section 17(4) defines reasonable steps as steps that involve the use of any facility for electronic search or extraction that existed on the date of the request and was ordinarily used by the FOI body.
The essential purpose of section 17(4) of the FOI Act is to ensure that an FOI body cannot refuse a request for information that is contained within a number of electronically held records based solely on the fact that the extracted output would comprise a new record. Nevertheless, for the section to apply, the information sought must be contained within a number of electronically held records and the body must be in a position to search for and extract the records by taking reasonable steps, those steps being steps that involve the use of a pre-existing electronic search or extraction facility that was used ordinarily by the FOI body. If a body does not hold a record containing the information sought and cannot search for and manually extract the electronically held records by taking reasonable steps, it is entitled to refuse the request under section 15(1)(a) on the ground that the record sought does not exist.
The question I must consider in this case, therefore, is whether the Department was justified in its revised position that it does not hold records containing the specific information sought at parts 7 and 8 of the request and/or that it cannot search for and/or extract relevant electronically held records by the taking of reasonable steps.
During its initial processing of the request, the Department provided the applicant with two lists of purported granted applications, including the investment type and monetary amount in each case. It redacted all entries under the heading "Business Name", i.e. the projects or companies that had received funding through the IIP scheme. However, the submissions made by various third parties included in the lists suggested that they should not have been included on the lists as they had not received funding during the period in question for a variety of reasons, including that they had been approved but had not yet received funding; that they had received funding but changed their minds and returned the investment; that they hadn't received funding as the investor had successfully taken up an IIP scheme elsewhere; or that they hadn't participated in the scheme at all.
In response to further queries from this Office on the matter, the Department said the lists were compiled by extracting details from its database, those details having been taken from investor application forms which had been approved. It said that any changes to the projects being invested in or any withdrawals from the scheme by applicants and/or beneficiaries would not necessarily be notified to the Department and that the records reflected projects that were approved by the Evaluation Committee, but did not necessarily represent the recipients of investor funding. It said it maintains an electronic database of immigration applications to the IIP scheme on its case management system (AISIP), but that this was centred on the individual applicants for immigration purposes, rather than on the investments. It said the database is based on data input from initial application forms and includes information on the immigrant investors' nominated investment projects. It said that investors who did not complete their investment, or other projects which subsequently withdrew from the investment process, were still captured in the records provided to this Office. It said it continues to update AISIP as individual investor applications and projects progress through the process.
The Department added that while subsequent changes to, or withdrawal from, investments by the investors are recorded, these changes were not always entered on its AISIP system prior to 2019. It said many of the projects which had been approved in previous years have not yet received their full quota of approved investors "for a variety of reasons" and that the process of approving investor applicants for those projects continues. It said that until such time as a project's last investor applicant was "processed to completion", it would "not be in a position to confirm the full extent of funding received" by each project.
In essence, the Department's revised positon is that while it has information relating to the projects that were actually funded through the scheme, this is not all held on the AISIP system and would require manual intervention to create the records sought. It said records relating to approved projects would need to be cross-checked against each associated individual investor record on AISIP to ascertain the status of each application, (i.e. whether it was completed, withdrawn, pending, or delayed, etc.), and what level of funds had been received to date and/or what remained to be approved. The Department estimated that there were hundreds and "potentially" thousands of records in hardcopy or electronic format, held on multiple systems relating to IIP applications that would need to be examined in order to create the records sought.
The Department stated that it is in the process of verifying all of the information relating to beneficiaries of IIP investment, but that this was going to take "some time". Its position was that, once that exercise is completed, it will be possible to generate a report such as those sought by the applicant in this case. It said its IIP Unit has been issuing questionnaires to the projects concerned for completion on a phased chronological basis. It said that each response would need to be cross checked with AISIP records, and any discrepancies updated or amended. It stated that older records may also have to be manually cross checked against hard copy files held in archives before AISIP records can be updated or amended. The Department also said that in some cases individual investor applicant immigration records on the Garda National Immigration Bureau database may also need to be consulted in order to confirm whether the applicant registered their immigration permission in the Registry Office, as proof of investment was part of the requirements for registration.
In his submissions to this Office on foot of the notification of the Department's revised position on records 7 and 8, the applicant set out his view that this Office should direct the release of certain information contained in the records. In particular, he suggested that we should direct the release of information relating to any third parties which had informed this Office that they had no objection to the release of the information concerned. He was also of the view that any information relating to public bodies, such as hospitals, universities or other such bodies that had received endowment funding through the IIP scheme, should be released, whether they made submissions to this Office or not.
In regard to the Department's revised position that manual intervention would be required to create the records sought, the applicant essentially argued that the "necessary manual cross-checking of electronic and paper files" was "part of the routine work" of public bodies when processing FOI requests and releasing information to requesters. He contended that there were "numerous precedents" for FOI bodies "drawing data from separate internal files when extracting specific information" in order to respond to FOI requests. He stated that he was not asking the Department to create a new record in a way that "transgresses" the FOI Act, but that he wished it to provide the information sought, which it "now" accepted it held. He also suggested that the Department's revised position "seems specifically calculated-¦ to defeat the purpose" of his FOI request.
The applicant further queried whether the Department was saying that it "[could]n't be bothered" to create a list showing the money received by named beneficiaries of investments and endowments because "there [was] nothing in the [FOI] Act to compel it". He considered this to be a "very weak" argument and he noted that many FOI bodies set out the "relevant information in the decision letter instead of releasing individual invoices and receipts for payments". Essentially, he appeared to be of the view that the Department could simply collate the information sought and "set it out in a letter". He finished by saying that nothing in the Department's amended response overrode the "urgent public interest case for release" of the records concerned.
While I have some sympathy for the applicant's position, and I note his arguments, the sole issue I must consider is whether the Department holds the lists of beneficiaries as sought by the applicant at parts 7 and 8 of his request or whether it can create the lists the taking of reasonable steps, pursuant to section 17(4).
Having regard to the submissions received from a number of third parties and the Department's subsequent clarification, I accept that while the records released in part to date may well contain details of some beneficiaries, they simply cannot be regarded as lists of the actual investment/endowment beneficiaries under the IIP scheme since the start of 2020 and "the amount of money raised in each case" as some of the purported beneficiaries were not, in fact beneficiaries. As such, I am satisfied that it does not currently hold a record that contains the information sought at parts 7 and 8 of the request.
On the matter of whether it can create the lists by the taking of reasonable steps, pursuant to section 17(4), while I have considered the applicant's arguments, I do not accept, based on the Department's submissions, that it is simply a matter of setting out the information sought in a letter rather than creating a new record. Records 7 and 8 between them contain approximately 1,500 entries. In the circumstances of this case, I accept that each line item would need to be verified and cross-checked by the Department for accuracy in order to compile a list of actual enterprise and endowment investment beneficiaries as sought.
In the circumstances of this case, I am satisfied that the requirement to take reasonable steps under section 17(4) does not require the Department to manually collate and crosscheck relevant information held in different systems or held in hardcopy and electronic format in order to create a record containing the information sought. I am satisfied that while the information sought by the applicant may exist on individual records or separate systems, the information is filed in various formats which do not facilitate the use of an electronic search or extraction facility that was used ordinarily by the Department.
Furthermore, while I note the Department's intention to review and verify the information held, I am satisfied thatat this time , there is no way to identify and remove the incorrect or out of date information contained in the database such that only the specific requested information could be exported and considered for release by the taking of reasonable steps as required under section 17(4).
Having regard to the above, I accept that the Department does not hold the records sought and that it is not required to create those records pursuant to section 17(4) of the Act. Accordingly, I find that the Department was justified in refusing to grant access to records containing the information sought at parts 7 and 8 of the applicant's request under section 15(1)(a) of the Act on the basis that the records sought do not exist.
Summary of findings
In the interests of clarity, I am directing the Department to release paragraph 3, record 3 in full and to carry out a new decision-making process on part 3 of the applicant's request.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Department's decision. I affirm its decision to refuse access, under section 37(1) of the FOI Act, to record 6 and to refuse access, under section 15(1)(a) of the FOI Act, to records relating to parts 7 and 8 of the request on the basis that the records sought do not exist. I annul the Department's decision to refuse access, under sections 36 and/or 37, to record 3, paragraph 3 and I direct its release. I also annul its decision to refuse access, under section 15(1)(a), to records relating to part 3 of the applicant's request and I direct it to carry out a new decision-making process on that part of the request.
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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.
Stephen Rafferty
Senior Investigator