Decision
Mr I and Department of Justice
From Office of the Information Commissioner (OIC)
Case number: OIC-143174-G5N5Q2
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URL: http://www.bailii.org/ie/cases/IEIC/2024/143174.html
Cite as: [2024] IEIC 143174
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Whether the Department was justified, under sections 29, 30(1)(c) and 37 of the FOI Act, in refusing access to certain records relating to staffing and resources in the Coroner Service
21 June 2024
In a request dated 28 June 2023, the applicant sought access to correspondence between Coroners and the Department in relation to staffing and resources from 1 July 2022 to date, and any Departmental memos on the issue of staffing and resources within the Coroner Service across Ireland. On 30 June 2023, the applicant clarified that he should have said staffing and other resources, e.g. funding and access to other services like pathology. In a decision dated 3 August 2023, the Department part-granted the request. It identified 10 records which it released in part, citing sections 29, 30, 36 and 37 of the FOI Act as the basis for refusing to release the records in full. The applicant sought an internal review of this decision on 24 August 2023. He submitted that correspondence sent from Coroners to the Department should ordinarily not be subject to restrictions under section 29 and that the Department must be satisfied that the content of such material relates to a deliberative process rather than the administration and management of the Coroner Service. In relation to section 30(1)(b), he said that he was not satisfied that sufficient levels of significant adverse harm, or the reasonableness of such harm, had been identified to justify the refusal. The Department issued an internal review decision on 11 September 2023, in which it varied the original decision. A small amount of additional information was released and the specific basis for refusal was altered in respect of some of the records. On 18 October 2023, the applicant applied to this Office for a review of the Department's decision in respect of five of the records: 3.2, 4, 6, 7.2 and 8.2.
In the course of the review, the Department changed its position in respect of some of the records and released further records to the applicant, including those which it had initially refused on the basis that they contained information beyond the scope of the request. Having received these records, the applicant confirmed that he wished the review to continue on the outstanding redactions in records 3.2, 4, 6 and 7.2.
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, the applicant's comments in his application for review, the correspondence outlined above, and all communications between the parties and this Office. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.
In the course of the review, the Department said that in respect of record 6, it was no longer relying on either section 29 or section 36(1)(b). Similarly, its position altered such that it was no longer relying on section 30(1)(b) in respect of record 3.2 or 7.2.
In its submissions, the Department said that in relation to the final bullet point on the third page of record 6, it was satisfied that this redaction could be removed on the basis that the information is already in the public domain. If the Department has not already done so, it should now release this to the applicant.
The outstanding issues for determination in this review are whether the Department was justified in refusing to release:
● Records 3.2, 4, 6 and 7.2, in part, under section 37(1),
● Record 4, in part, under section 29, and
● Record 6, in part, under section 30(1)(c).
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.
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.
As section 37 is a mandatory exemption, I will examine it first.
The Department refused access to parts of each of the four records under section 37(1), specifically:
● All redactions in records 3.2 and 7.2;
● The redacted paragraphs from the end of page 1 to the middle of page 2 in record 4 (starting "There are currently-¦" to the end of the paragraph that precedes the one that begins "This current-¦");
● Two redactions in the fifth bullet point on the first page of record 6.
Section 37(1)
Section 37(1) provides, subject to the other provisions of the section, for the mandatory refusal of a request where access to the record concerned would involve the disclosure of personal information, including personal information relating to a deceased individual. This does not apply where the information relates solely to the requester (section 37(2)(a) refers).
Section 2 of the FOI Act defines personal information as information about an identifiable individual that, either (a) would, in the ordinary course of events, 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. Section 2 goes on to specify 14 categories of information which, without prejudice to the generality of the foregoing definition, constitute personal information, including, but not limited to: (i) information relating to the educational, medical, psychiatric or psychological history of the individual, (ii) information relating to the financial affairs of the individual, and (iii) information relating to the employment or employment history of the individual.
Certain information is excluded from the definition of personal information. The Act provides that personal information does not include:
"(I) in a case where the individual holds or held-”
(A) office as a director of,
(B) a position as a member of the staff of, or
(C) any other office, or any other position, remunerated from public funds in,
an FOI 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. "
The exclusion at Paragraph I does not exclude all information relating to staff members. Rather, it is essentially intended to ensure that section 37 cannot be used to exempt the identity of a public servant in the context of the particular position held or any records created by the staff member while carrying out his or her official functions, or information relating to the terms, conditions or functions of positions. It does not deprive public servants of the right to privacy generally.
As stated above, under section 25(3) of the FOI Act, I am required to take all reasonable precautions during a review to prevent the disclosure of exempt information. I believe I am not in breach of section 25(3) in providing the following high level descriptions of the parts of the records that have been refused under section 37(1).
Record 3.2 is a letter from a Coroner to the Department of Justice in which she sets out the circumstances surrounding an inquest carried out into the death of a named individual and raises concerns about staffing and training in the Dublin District Coroner's Office in that context. Record 7.2 is the Department's response to that letter. Having regard to the definition of personal information at section 2 of the FOI Act, I am satisfied that releasing the redacted parts of records 3.2 and 7.2 would disclose personal information about an identifiable individual and that section 37(1) applies.
The relevant redactions in records 4 and 6 contain information relating to individuals either employed as staff members of FOI bodies or office holders remunerated from public funds. Having carefully considered this information, I am satisfied that it falls within the definition of personal information at section 2, and that the exclusion at (I) does not apply.
Furthermore, I find that some other information in record 4, that was refused by the Department under section 29, also relates to identifiable staff members/office holders and their employment/employment history, and that the exclusion at (I) does not apply. Given that section 37(1) is a mandatory exemption for the protection of the personal information of third parties, and that this is a de novo review, I am satisfied that I can find that section 37(1) also applies to this information. The relevant parts of record 4 are:
● Page 3: the two paragraphs starting with "In respect of -¦" until "-¦necessary";
● Page 3: the last paragraph (beginning "Until the-¦") as far as the end of the third paragraph on page 4 (ending with "-¦changes.");
● Page 4: the third line of the first paragraph under "Conclusion" (beginning with "and discussions-¦"),
● Page 5: comment dated 14/02/2023, after "can you look".
However, that is not the end of the matter as section 37(1) is subject to the other provisions of section 37, which I will examine below.
Section 37(2)
Section 37(2) provides that section 37(1) does not apply in certain circumstances. I am satisfied that sub-sections (a), (b), (d) and (e) do not apply.
Section 37(2)(c) provides that section 37(1) does not apply if "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". In his application for review by this Office, the applicant said that records 3.2 and 7.2 contain matters relating to an inquest that was held in public and cannot disclose any information that would not already have been publicly available. It seems to me that this is essentially a section 37(2)(c) argument. I do not dispute that inquests are held in public, however having regard to the specific information at issue, I do not accept that it is information of the same kind that is generally available to the public. I find that section 37(2)(c) does not apply to any of the information refused under section 37(1).
Section 37(5)
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. No arguments have been made by the parties in relation to section 37(5)(b) and is not evident to me from the records that release of the information could benefit the persons to whom it relates. I find that section 37(5)(b) does not apply.
In considering whether a right of access exists to records under section 37(5)(a) of the Act, any decision to grant access would be on the basis that there is an overriding public interest in the release of the records effectively to the world at large that outweighs the privacy rights of the third party individuals concerned.
In considering where the balance of the public interest lies in this case, I have had regard to section 11(3) of the 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 in The 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.
On the other hand, 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. 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).
The Department said that in its view the right to privacy of the individuals to whom the information relates outweighs any public interest in such information being made public. It did not elaborate on what public interests it considered in favour of release. The applicant made no specific arguments as to why it would be in the public interest to release these particular records. From the wording of his request howerver, it seems to me that he has effectively expressed a public interest in the Coroner Service having the adequate resources required to carry out its role.
Having regard to the records to which I have found section 37(1) to apply, it seems to me that their release might somewhat enhance transparency in general terms around the operation of the Coroner Service, and whether it is adequately and effectively resourced to carry out its role. However, I believe that the additional transparency would be quite limited and, on balance, it is not evident to me that there is any specific public interest in favour of disclosure of this personal information that outweighs the public interest that the right to privacy of the individuals to whom the information relates should be upheld. I find, therefore, that section 37(5)(a) does not apply.
The Department refused parts of record 4 under section 29(1). As noted above, I have found that some of this information is exempt under section 37, therefore I will not consider section 29 in relation to this part of the record.
Section 29(1) provides that an FOI body may refuse to grant access to a record if (a) the record concerned contains matter relating to the deliberative processes of an FOI body (including opinions, advice, recommendations, and the results of consultations, considered by the body, the head of the body, or a member of the body or of the staff of the body for the purpose of those processes), and (b) the granting of the request would, in the opinion of the body, be contrary to the public interest. Without prejudice to the generality of paragraph (b), the FOI body is required, in determining whether to grant or refuse to grant the request, to consider whether the grant thereof would be contrary to the public interest by reason of the fact that the requester concerned would thereby become aware of a significant decision that the body proposes to make.
Thus, the exemption at section 29(1) has two requirements: the record must contain matter relating to the deliberative process, and its disclosure must be contrary to the public interest. These are two independent requirements and the fact that the first is met carries no presumption that the second is also met. It is therefore important for FOI bodies to show to the satisfaction of this Office that both requirements have been met.
Section 29(2) provides that section 29(1) does not apply to a record insofar as it contains certain categories of information (a) to (e).
Submissions
In its submissions to this Office, the Department said that it has operational and funding responsibility for the Dublin District Coroner's Office and overall responsibility for the development of policy and legislation for Coroners nationally. It said that it is committed to bringing forward proposals for the reform of the Coroner Service nationally, and undertaking a modernisation process in respect of the Dublin District office. It said that the record relates to a deliberative process in respect of proposals to inform the change to the recruitment and remuneration of Coroners to the Dublin District, which would input into the policy and strategy on the wider reform of the coronial service. It noted that the wider reform of the service was the subject of a public consultation, which concluded in January, and that proposals for reform are now being worked on by the Department.
The Department said that it considered a number of public interest factors in favour of release: openness and transparency, accountability of public bodies, that information will contribute to public debate, demonstrating the thinking behind decisions of public bodies.
In terms of why it considered release to be contrary to the public interest, the Department said that deliberations were ongoing between the Department and the Department of Public Expenditure, NDP Delivery and Reform in respect of Coroner salary scales and terms and conditions of employment. It said that it was in the public interest for the records not to be released at the time of the request as it could have distracted from the work of the Dublin District Coroner's Office and the Stardust Inquest which was of significant public interest. It said that release of the record would have had the effect of informing the applicant of policy proposals before such actions were agreed, or were known to the Coroners themselves. It noted that after the proposal discussed in record 4, a substantive deliberative process continued, to the effect that in February 2024 the Coroners (Amendment) Bill 2024 was passed providing for the re-categorisation of the Dublin District Coroners as civil servants with fixed term appointments. It said that the deliberations are linked to the development of proposals on the reform of the Coroner Service nationally which is ongoing work of a deliberative nature, and that release of the records would impair the integrity of the Department's process of reform of the Coroner Service, in Dublin and nationally, without any significant benefit to the public.
The applicant, in his application for review, said that any material withheld under section 29 must relate to a deliberative process rather than the administration and management of the Coroner's service.
Analysis
Section 29(1)(a)
A deliberative process may be described as a thinking process which informs decision making in FOI bodies. It involves the gathering of information from a variety of sources and weighing or considering carefully all of the information and facts obtained with a view to making a decision or reflecting upon the reasons for or against a particular choice. Thus, it involves the consideration of various matters with a view to making a decision on a particular matter. It would, for example, include some weighing up or evaluation of competing options or the consideration of proposals or courses of action.
Record 4 is a submission prepared for the Minister for Justice dated 6 June 2023 on the subject of the Dublin District Coroner's Office. Having regard to the content of the record, as well as the submissions made by the Department, I accept that the record contains matter relating to a deliberative process i.e. opinions, advice and recommendations in the context of asking the Minister to approve a change to the Dublin District Coroner's Office. I am satisfied that this goes beyond simply administration and management, as suggested by the applicant, and relates rather to a decision-making process on a proposed significant change to the way in which the service is administered and managed. I also accept that while much of the record relates to proposed changes to the Dublin District Coroner's Office, the record also contains information connected to the broader, nationwide review of the Coroner Service which is also a deliberative process. On this basis, I accept that section 29(1)(a) applies to the record. I must then consider whether section 29(1)(b) also applies.
Section 29(1)(b)
The public interest test at section 29(1)(b) is a stronger public interest test than the public interest balancing test in many other sections of the Act, requiring the FOI body to show that the granting of the request would be contrary to the public interest. This Office has previously held that the Act clearly envisaged that there will be cases in which disclosure of the details of an FOI body's deliberations - whether before or, in some cases, after a decision based on those deliberations has been made - would be against the public interest. However, this is not to say that such disclosure is always, as a matter of principle, against the public interest. Any arguments against release under section 29 should be substantiated and supported by the facts of the case. An FOI body should show how granting access to the particular record would be contrary to the public interest, e.g. by identifying a specific harm to the public interest flowing from release.
As noted previously, a review by this Office is de novo and I must consider the circumstances at this time. While I acknowledge the Department's arguments that, at the time of the FOI request, the proposed change to the appointment of Coroners in the Dublin district was not in the public domain or indeed necessarily known to the Coroners themselves, and that it had concerns that release of the information would distract from the work of the Coroners, including the Stardust inquest, I must take into account that, in the intervening period, the proposal has been legislated for in the Coroners (Amendment) Act 2024, and the Stardust inquest has been completed. In this context, I do not accept that the Department has demonstrated that release of information contained in the record that relates solely to these proposed changes to the appointment of Coroners in the Dublin district, would, at this point in time, be contrary to the public interest. In order for a record to be exempt under section 29(1), both section 29(1)(a) and (b) must apply. As I found section 29(1)(b) not to apply to this part of the record, I find that the following is not exempt under section 29(1):
● Page 1: all redactions under section 29;
● Page 3: first paragraph under Next Steps (starts "Assuming-¦"), and the second last paragraph (starts "To-¦");
● Page 4: the first two lines of the first paragraph under "Conclusion" on page 4 (from "The Minister-¦" until "-¦Reform");
● Page 5: First redacted comment (dated 09/01/2023) and last redacted comment (dated 25/04/2023).
Having examined the other information redacted under section 29(1), it seems to me that it relates to the broader question of reform of the Coroner Service beyond Dublin, a process which I accept is ongoing, as well as deliberations in respect of salary scales and terms and conditions of employment which the Department has said are ongoing with the Department of Public Expenditure, NDP Delivery and Reform. I note the consultation process set up by the Department of Justice closed for submissions on 19 January 2024 and it appears that the submissions received are being considered by the Department. The relevant information in record 4 sets out various opinions and issues for consideration by the Department of Justice in the context of wider reform of the service, including relating to terms and conditions. I acknowledge the importance of the Coroner Service to bereaved families during challenging and difficult times in their lives, and it seems to me that there is a significant public interest in the Department making appropriate and well informed decisions on what reforms, if any, should be implemented. I accept that the Department must have the necessary time and space to engage in deliberative processes that enable proper consideration of all relevant issues in order to achieve such an outcome. It seems to me that release of the record at this time could give rise to undue speculation and interference by stakeholders, and could interfere with negotiations around potential changes, and that this would be contrary to the public interest. On balance, I accept the Department's position, in respect of this information, that release could impair the integrity of the reform process. For these reasons, I find that section 29(1)(b) applies to this part of the record, and that therefore section 29(1) also applies.
Section 29(2)
Section 29(2) provides that section 29(1) does not apply if and in so far as the record contains any or all of the following:
(a) matter such as rules, procedures, guidelines, interpretations and precedents used, or intended to be used, by an FOI body for the purpose of making decisions, determinations or recommendations;
(b) Factual Information;
(c) the reasons for the making of a decision by an FOI body;
(d) a report of an investigation or analysis of the performance, efficiency or effectiveness of an FOI body in relation to the functions generally or a particular function of the body;
(e) a report, study or analysis of a scientific or technical expert relating to the subject of his or her expertise or a report containing opinions or advice of such an expert and not being a report used or commissioned for the purposes of a decision of an FOI body made pursuant to any enactment or scheme.
I am satisfied that none of the information that I have found section 29(1) to apply to, falls within any of the categories of section 29(2).
Conclusion
I find that the Department was justified, under section 29(1), in refusing to release parts of record 4, except for the information set out in the four bullet points above.
The outstanding information in record 6 was refused for release by the Department under section 30(1)(c) of the FOI Act.
Section 30(1)(c) provides for the refusal of a request where the FOI body considers that access to the record concerned could reasonably be expected to disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations carried on or being, or to be, carried on by or on behalf of the Government or an FOI body. It is important to note that this exemption does not contain a harm test (unlike section 30(1)(a) and 30(1)(b)). It is sufficient that access to the record concerned could reasonably be expected to disclose such negotiation positions, plans etc.
This Office takes the view that an FOI body seeking to refuse access to information under section 30(1)(c) should identify the relevant negotiations at issue. Relevant factors in considering whether there is or was a negotiation include whether the FOI body was trying to reach some compromise or some mutual agreement. The Commissioner also accepts that, generally speaking, proposal-type information relating to a public body's negotiations would also be exempt under section 30(1)(c).
The Department said that the negotiations at issue related to the securing of pathology services for Coroners. It provided further details of the nature of the negotiations, the parties involved, and the current stage. Conscious of the requirements of section 25(3), I will not provide further detail here, however I confirm that I have had regard to the additional information provided and I am satisfied that Department has identified a relevant negotiation that it is involved in.
Having considered the information contained in each of the relevant parts of the record, I am satisfied that release could reasonably be expected to disclose positions taken by the Department in respect of these negotiations. I am satisfied that section 30(1)(c) applies.
Section 30(2) provides that section 30(1) shall not apply where the FOI body considers that the public interest would, on balance, be better served by granting than by refusing to grant the request. The Department did not make submissions on the public interest as it applies to section 30(2) or to record 6. Neither did the applicant make any arguments in this regard.
In considering where the balance of the public interest lies in this case, I have had regard to section 11(3) of the 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 in the Enet case. As referenced earlier in relation to section 37, 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".
As noted under section 37(5), while the applicant made no submissions on the public interest, I think it is reasonable to conclude from the wording of his FOI request that he effectively expressed a public interest in the Coroner Service having the adequate resources required to carry out its role, one of these resources being access to pathology services. In circumstances where there may be concerns about the adequacy of such resources, it seems to me that there is a public interest in knowing how the Department is responding to these concerns and the actions that it is taking in this regard. I accept that the release of the information at issue would add to the transparency around this issue.
On the other hand, it seems to me that there is also a public interest in the Department being able to successfully carry out relevant negotiations for the purposes of securing access to the required resources. This public interest, it appears to me, is reflective of the wording of the exemption at section 30(1)(c). As noted above, there is no harm test in section 30(1)(c). The wording of the exemption makes no distinction between disclosures which have the potential to prejudice negotiations, or to cause some other harm, and disclosures which do not. However, this Office has previously found that such a distinction should be made in applying the public interest test in section 30(2). The Department has set out its rationale as to the harms that could arise from release of the record at this time. Again, section 25(3) prevents me from describing this in further detail without inadvertently disclosing material that the Department has claimed is exempt. However, having considered the submissions and the contact of the record, I accept that release could disclose information that is not currently publicly known and that could negatively impact the Department's ability to bring the negotiations to a successful conclusion.
On balance, and in light of the ongoing negotiations, it seems to be that the public interest in transparency around the Department's approach, is outweighed by the public interest in the Department being able to carry on these negotiations in order to secure adequate pathology services for Coroners. I find that section 30(2) does not apply.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Department's decision. I find that it was not justified in refusing access, under section 29, to certain specified information contained in record 4. I find that it was justified, under sections 29, 30(1)(c) and 37, in refusing access to the remaining information at issue.
I direct release of the following information in record 4:
● Page 1: all redactions under section 29;
● Page 3: first paragraph under Next Steps (starts "Assuming-¦"), and the second last paragraph (starts "To-¦");
● Page 4: the first two lines of the first paragraph under Conclusion on page 4 (from "The Minister-¦" until "-¦Reform");
● Page 5: First redacted comment (dated 09/01/2023) and last redacted comment (dated 25/04/2023).
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.
Emer Butler
Investigator