Decision
Mr X and Standards in Public Office Commission
From Office of the Information Commissioner (OIC)
Case number: OIC-144216-B7Y4W1
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Cite as: [2024] IEIC 144216
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Whether SIPO was justified in refusing access to records relating to complaints made to the body about a former Minister for Justice and Equality, and to SIPO's investigation of the complaints
25 November 2024
In a request dated 28 March 2023, the applicant sought access to records relating to three complaints made to SIPO in 2013 regarding statements made by the then-Minister for Justice and Equality, Mr. Alan Shatter TD ("the Minister"), on an episode of RTΓ's Primetime programme, broadcast on 16 June 2013, and to SIPO's investigation of the complaints.
In a decision dated 25 April 2023, SIPO part-granted the request, identifying 111 relevant records and granting access to six (namely records 7, 29, 69, 70, 77 and 110). SIPO cited sections 15(1)(d), 30(1)(a) and 31(1)(a) of the FOI Act as grounds on which to refuse access to the remaining records. On 18 May 2023, the applicant sought an internal review of SIPO's decision. In its internal review decision of 9 June 2023, SIPO affirmed its original decision. On 27 November 2023, the applicant applied to this Office for a review of SIPO's decision.
In the course of this review, following engagement with this Office, SIPO released to the applicant three additional records (records 5, 6 and 53) that it had initially withheld. Furthermore, in the course of carrying out the review, I formed the view that I was required to consider two additional provision of the FOI Act, namely sections 29(1) and 37(1). As the applicant had not had an opportunity to consider either provision in the context of this review, I wrote to him to put him on notice of same and to invite him to make any additional submissions that he wished. I also invited further submissions from SIPO. I also put the applicant on notice of my preliminary view that significant parts of the records fell outside the scope of the FOI request, and thus of the review. The applicant did not make any further submissions. SIPO subsequently made further submissions on sections 29(1) and 37(1) and I have considered these fully. I also contacted two individuals whose interests I considered may possibly be affected by the release of information to which section 37(1) potentially applied, and invited both to make submissions. No submissions were received.
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 to the submissions made by SIPO. I have also had regard to the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision.
This review is solely concerned with whether SIPO's refusal of access to the records sought was justified under sections 15(1)(d), 29(1), 30(1)(a), 31(1)(a) and 37(1) of the FOI Act.
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 SIPO reached its decision.
Parts of the records deemed out of scope
As outlined above, in the course of conducting this review I formed the opinion that significant parts of certain of the records fall outside the scope of the FOI request, and thus of this review. In particular, my view is that large parts of the records comprising briefing notes for, and reports of the meetings of, the SIPO Commission (SiPOC) relate to entirely separate matters to those raised in the FOI request. I consider that I am only required to examine the parts of the records that relate to the subject matter of the FOI request. The parts of the records that I deem outside the scope of this review are as follows:
-’ record 10 - briefing note dated 22 May 2013: material relating to a separate complaint, in particular the information under the heading beginning "Complaint about the-¦" at paragraph 2 of page 3; and the sentence beginning "Similar considerations apply-¦" on page 5
-’ record 12 - internal SIPO email dated 24 May 2013: reference to a separate SIPO investigation in the final paragraph of the email
-’ record 24 - briefing note dated 2 July 2013: as above, in particular the text beginning "-¦and on a further-¦" under the heading "Summary" on page 1; the material under the heading "Complaint about the-¦" at paragraphs 3 and 4 of page 2; the first two paragraphs of page 3; and all of the material from the heading beginning "Analysis of the-¦" at page 6 of the record to the heading "Recommendation" at page 7
-’ record 25 - report of SIPO meeting dated 10 June 2013: entire record from paragraph 1, except paragraph 2.4
-’ record 32 - briefing note dated 2 September 2013: material relating to a separate complaint, in particular the text beginning "-¦and about the-¦" under the heading "Summary" on page 1; the sentence beginning "It is further recommended-¦", also under the same heading on page 1; the information under the heading beginning "Complaint about the-¦" at the bottom of page 2 and comprising all the text on pages 3 and 4; all of the text on page 5 down to the heading ""Specified Act""; the three paragraphs under the heading beginning "Analysis of the-¦" on page 8; and the final sentence of the record, under the heading "Recommendation", at the bottom of page 8 and continuing onto page 9
-’ record 33 - report of SIPO meeting dated 9 July 2013: entire record from paragraph 1, except paragraph 2.4
-’ record 34 - Inquiry Officer Appointment form dated 9 September 2013: the seven words after "-¦the complaint dated 22 May 2013-¦" on page 1
-’ record 37 - letter from SIPO to the then-Garda Commissioner dated 18 September 2013: material relating to a separate complaint, in particular the reference to a complainant in the unrelated complaint in paragraph 1 of page 1; the last two sentences of page 1; and the first paragraph of page 2
-’ record 41- letter from SIPO to the then-Garda Commissioner dated 25 September 2013: all the material relating to a separate complaint at point B of the record at pages 4 and 5
-’ record 43 - report of SIPO meeting dated 9 September 2013: entire from paragraph 1, except paragraph 2.4
-’ record 47 - letter to the Minister from SIPO dated 22 October 2013: reference to a separate complaint on page 1
-’ record 45 - letter to SIPO from the then-Garda Commissioner dated 21 October 2013: material relating to a separate complaint at pages 3-5
-’ record 50 - report of SIPO meeting dated 14 October 2013: entire record from paragraph 1 except paragraph 2.3
-’ record 52 - letter from the Minister to SIPO dated 20 November 2013: references on pages 1 and 2 to a complainant in a separate complaint, and details of the separate complaint on pages 2 and 3
-’ record 57 - report of SIPO meeting dated 11 November 2013: entire record from paragraph 1 except paragraph 2.3
-’ record 59 - email to SIPO Commissioners dated 7 January 2014: penultimate sentence in the header section of the email under the heading "Files originally attached to this record can be found in the following locations:", as well as the last three words on page 1 and the first word of page 2, all of which relate to a separate complaint
-’ record 61 - draft letter to the Minister from SIPO: reference to a separate complaint in the final paragraph
-’ record 63 - letter to the Minister from SIPO dated 14 January 204: reference to a separate complaint in the final paragraph
-’ record 72 - report of SIPO meeting dated 10 December 2013: entire record from paragraph 1 except paragraph 2.2
-’ record 87 - report of SIPO meeting dated 19 February 2014: entire record from paragraph 1 except paragraph 5.7(c)
-’ record 100 - report of SIPO meeting dated 14 March 2014: entire record from paragraph 1 except item 5.7(c), as discussed under paragraph 1
-’ record 109 - report of SIPO meeting dated 4 April 2014: entire record from paragraph 1 except the fifth paragraph under paragraph 1
-’ record 111 - report of SIPO meeting dated 19 May 2014: entire record from paragraph 1 except paragraph 2.8.
I consider it appropriate to consider section 31(1)(a) of the FOI Act first of all, as it is a mandatory exemption (ie. the FOI body must withhold access to a record to which it applies). SIPO relied on section 31(1)(a) to withhold records 71, 73-76, 78-82, 84-86, 88, 93, 95-99 and 101-108, which comprise correspondence between SIPO and its external solicitors, and between SIPO and its in-house legal advisors.
Section 31(1)(a) provides that an FOI body shall refuse access to a record where it would be exempt from production in proceedings in a court on the ground of legal professional privilege (LPP). There are two types of LPP: legal advice privilege, which attaches to confidential communications made between a client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice, and litigation privilege, which protects confidential communications made between a client and a professional legal adviser or the professional legal adviser and a third party or between the client and
a third party, the dominant purpose of which is the preparation for contemplated/pending litigation. In its submissions, SIPO argued that section 31(1)(a) applied to the relevant records on the basis that each comprised correspondence with its legal advisers for the purpose of obtaining or giving legal advice, in circumstances where the solicitors for a party to the complaint had put SIPO on notice that their client was considering legal proceedings against it on foot of the outcome of its consideration of the complaint. I am satisfied on this basis that both types of LPP potentially apply to the records.
On the question of whether the records are in fact privileged, I have examined each relevant record in light of SIPO's arguments and, firstly, note that certain records - namely, records 73, 75-76, 78-82, 84-86, 88, 95-98, 102-106 and 108 - very clearly comprise confidential communications between SIPO and its legal adviser, for the purposes of obtaining legal advice. While some of the records contain explicit requests for legal advice, others form part of a series of communications which was for the purpose of giving or receiving legal advice. It is the well-established position of this Office is that privilege attaches to records that form part of a continuum of correspondence resulting from the original request for advice. In my view these records are subject to legal advice privilege, as they show SIPO seeking the professional opinion of its legal adviser, on a confidential basis, on a number of matters besides contemplated litigation.
One the other hand, I note that records 71, 74, 99, 101 and 107, comprise correspondence exchanged between SIPO and the solicitors for the relevant individual who indicated his intention to bring legal proceedings. These are not confidential communications between a client and his legal adviser, as by definition they were created for the intention of corresponding with the other party to potential legal proceedings, and were in fact shared with that party. As such, legal advice privilege does not apply. In order for the records to enjoy litigation privilege, they must comprise confidential communications made between the client and a professional legal adviser, or the professional legal adviser and a third party, or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation. While it is relatively straightforward to show that litigation is pending (in other words, where legal proceedings have in fact been instituted), the question of contemplated litigation, which is at issue here, is more difficult to demonstrate. The view of this Office is that the mere possibility of legal proceedings is insufficient to engage litigation privilege. Generally, our approach is that, in order for litigation privilege to attach to a record, there must be a definite prospect, apprehension or threat of litigation, as opposed to a mere anticipation of same.
Applying this reasoning to the relevant records, I would accept that, when the records were created, legislation was contemplated. I note that the letter comprising record 71, for example, states that SIPO's failure to provide certain information "-¦will leave us with no option but to institute legal proceedings on behalf of our client and we will use this correspondence as a basis for seeking our client's costs". However, the matter does not end there, because litigation privilege is not of indefinite duration, and may fall away once legal proceedings are no longer contemplated. In his submissions, the applicant argued that LPP should not apply as the matter is over ten years old and no longer subject to legal proceedings. It is a fact that no legal proceedings arose from the matters raised in record 71 and addressed further in records 74, 99, 101 and 107. In my view, there is no realistic possibility of legal proceedings being brought in relation to the substantive issue and while, at the time of their creation, the records may have benefitted from litigation privilege, this is no longer the case. It follows that they are not exempt under section 31(1)(a).
On the basis of the above analysis, I am satisfied that records 73, 75-76, 78-82, 84-86, 88, 95-98, 102-106 and 108 are legally privileged and exempt from release under section 31(1)(a). I am therefore not required to consider whether they might also be subject to other exemptions cited by SIPO. It remains for me to examine whether records 71, 74, 99, 101 and 107, to which I have found section 31(1)(a) does not apply, are exempt under the other relevant provisions of the FOI Act.
SIPO relied on section 30(1)(a) of the FOI Act to withhold access to the following records:
-’ records 1-4, 8-9, 11-12, 14-17, 23, 31, 36, 38-40 55, 58, 60, 62, 64-68, 89-94 - the relevant complaints, and associated correspondence exchanged between SIPO and the complainants and between SIPO and members of SiPOC
-’ records 13, 18-22, 26-28, 35, 47-49, 51-53, 61, 63 - correspondence exchanged between SIPO and the Minister
-’ records 10, 24-25, 32-34, 43, 50, 57, 59, 72, 83, 87, 100, 109, 111 - briefing notes for, and reports of, SiPOC meetings, and related internal SIPO correspondence
-’ records 71, 99, 101 and 107 - as described above, correspondence between SIPO and the legal representatives of a third party
-’ records 37, 41-42, 44-46 - correspondence exchanged between SIPO and relevant third parties in relation to the subject matter of the complaints
-’ records 54 and 56 - the report of the Inquiry Officer appointed by SIPO to examine the complaints, in draft and finalised form respectively.
Section 30(1)(a) provides that an FOI body may refuse access to a record where, in its opinion, access to the record could reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct thereof. Section 30(1)(a) is as a harm-based provision - in other words, an FOI body relying on section 30(1)(a) should, firstly, identify the potential harm in relation to the relevant function specified in paragraph (a) that might arise from disclosure, and having identified that harm, consider the reasonableness of any expectation that the harm will occur. The body should explain how and why, in its opinion, release of the record(s) could reasonably be expected to give rise to the harm envisaged. In examining the merits of an FOI body's view that the harm could reasonably be expected, the Commissioner does not have to be satisfied that such an outcome will definitely occur. The test is not concerned with the question of probabilities or possibilities, but rather with whether or not the expectation of harm is reasonable. It is sufficient for the FOI body to show that it expects an outcome and that its expectations are justifiable, in that there are adequate grounds for the expectations.
In its submissions, SIPO argued that the release of the records could reasonably be expected to prejudice the effectiveness of its examinations of complaints under the Standards in Public Office Act 2001 (the 2001 Act). SIPO stated that complaints it receives are assessed against the requirements of the 2001 Act, as well as relevant guidelines and codes of conduct, and argued that individuals may not co-operate in providing information, or may be less frank in their engagement, if records containing that information were to be released. SIPO also noted that certain records demonstrated it seeking and receiving legal advice on the potential release of the inquiry officer report into the matter at hand. It noted that the legal advice it had received was to the effect that there was no legal basis for the release of the report, noting that that the inquiry process is confidential, and arguing such confidentiality should be maintained in circumstances where SIPO had made a decision that the relevant complaints did not warrant investigation. SIPO also stated that its legal advice was to the effect that the Oireachtas had considered it appropriate to impose certain publication obligations where SIPO had decided not to carry out an investigation, or to discontinue an existing investigation, where it was of the opinion that evidence sufficient to sustain a complaint was not and will not be available. In such circumstances, SIPO outlined that its only obligation was to keep a "record of the decision", and that even this minimal publication obligation did not apply to decisions, such as in this case, that there was insufficient evidence to establish a prima facie case in relation to the alleged specified act.
I find as follows in relation to the above. Firstly, regarding SIPO's arguments based on the legal advice it received on its statutory publication obligations, I take the view that this is only of potential relevance to one record (record 56, the report of SIPO's preliminary inquiry into the complaints against the Minister, which contains SIPO's decision in relation to the complaints). I consider that there is a distinction between, on the one hand, SIPO complying with its publishing obligations under the 2001 Act and, on the other, the potential release of a record, which might contain a decision of SIPO, under FOI. I do not consider that the publishing requirements contained in the 2001 Act preclude the potential release of a record under FOI. Secondly, I am of the view that SIPO has not tied its arguments to the contents of the individual records and instead appears to me to effectively seek to assert that section 30(1)(a) applies to any record that relates to the complaint. This position is not valid. A claim for exemption under section 30(1)(a) must be made on its merits and in light of the contents of each particular record concerned. A claim for exemption pursuant to section 30(1)(a) which is class-based is not sustainable, e.g. a claim for exemption for 'any' draft report. I consider that SIPO's submissions in this case effectively amount to an assertion of a class-based exemption.
This being said, I would accept SIPO's arguments regarding the harms it expects to flow from the release of the relevant records in the case of some - but not all - of the records. Given the contents of certain relevant records, I accept SIPO's argument that individuals might not co-operate in providing information, or might be less frank in their engagement, if the records were released, and that this could prejudice the effectiveness of SIPO's investigation of complaints. I make this finding in respect of the following records, or parts of records:
-’ records 1, 4, 10, 11, 15, 16, 21, 26, 27, 39, 45, 52, 54, 56 and 58 in full
-’ the part of records 2 and 16 that reproduce record 1 in full
-’ the information in the first paragraph of page 2 of record 24
-’ the within-scope information in records 25, 33 and 87
-’ all of the within-scope information on page 2, and the information under the heading "Analysis of the Primetime Complaint" at page 7 and 8, of record 32.
However, I make a different finding in relation to the other records at issue. A number of the records comprise letters or emails from SIPO simply acknowledging receipt of correspondence. These are nothing more than routine administrative communications and there is nothing about their contents that I can envisage might result in individuals not co-operating in providing information to, or being less frank in their engagement with, SIPO. I take this view in relation to records 8, 9, 12, 14, 17, 22, 28, 46, 49, as well as the first page (except the last two lines) of record 2. I make a similar finding in relation to records 3, 19, 44, 48 and 51 which, although they contain correspondence from relevant parties to SIPO, again comprise either simple acknowledgements of receipt of correspondence (record 19 contains a small amount of additional information, but it appears to be unrelated to the subject matter of the complaint) or merely state that certain additional correspondence is attached (in the case of records 44 and 51).
Records 13, 18, 31, 35, 36, 37, 38, 41, 42, 55, and the within-scope parts of record 47, are letters from SIPO to relevant parties in connection with the complaint. While I would accept, as a general principle, that the disclosure of complaint-related correspondence sent to SIPO by relevant parties could (depending on circumstances) give rise to the harms set out in section 30(1)(a), it is not clear to me how such harms could arise from the contents of the specific records. This is particularly so where, as is the case here, the correspondence contains only very basic information. The letters comprising records 13, 35, 36, 37, 38 and 55, for example, set out in relatively straightforward terms SIPO's procedure for handling the complaint and/or possible next steps. I cannot see how the release of this information could result in the harms envisaged. Record 18 is merely a reminder from SIPO seeking a substantive response from a relevant party, while the letters comprising records 41 and 47 show SIPO requesting more detailed information from the recipient, but again do not reveal any information that any party provided to SIPO in relation to the complaint. While the email comprising record 46 does contain a reference to certain information provided to SIPO, it is to my mind relatively inconsequential. In relation to the within-scope parts of records 43, 50, 57, 72, 83 100, 109 and 111, I take the view that the relevant material simply records SIPO taking certain relevant administrative steps, and/or noting in very basic terms certain developments. Again, I cannot foresee how the release of any this information would result in individuals not cooperating or being less frank in their dealings with SIPO.
Records 20 and 40 are notes of phone calls made to SIPO by or on behalf of relevant parties and, again, there is nothing about the contents of either that suggests to me that the harms identified by SIPO under section 30(1)(a) could be expected to result from their release. I make the same finding in respect of record 23, which is internal SIPO email correspondence that reveals a minimal amount of information about the subject matter of the complaint, and record 34, which is an internal SIPO document relating to the appointment of an Inquiry Officer for the purposes of investigating the complaint.
I consider that records 71, 74, 99, 101 and 107, which I have found above not to be exempt under section 31(1)(a), arose from a quite specific and particular set of circumstances and their contents do not seem, to me, to be likely to result in complainants (or other parties) in general being less forthcoming in their dealings with SIPO. The same applies to the within-scope material in records 59, 61 and 63, and to records 60, 62, 64, and 67-68 in full, which comprise correspondence to and from a complainant expressing dissatisfaction with the progress and, ultimately, outcome of SIPO's investigation. I consider that these records are concerned with the specific facts of the individual investigation and that their release is unlikely to result in parties involved in future investigations being less frank. I make the same finding, on the same basis, in relation to records 65 and 66, which are letters to two complainants setting out SIPO's findings. Record 89, meanwhile, is internal SIPO correspondence attaching a draft response to a legal letter and, while it contains a small amount of detail regarding the substance of the attachment, is essentially a cover letter which, moreover, is again specific to the facts of the particular investigation. In my view, it does not contain information that, if released, could reasonably be expected to lead to the harms anticipated by SIPO.
In respect of the records to which I have found section 30(1)(a) to apply, the matter does not end there as section 30(1) is subject to section 30(2), which provides that subsection 1 of section 30 shall not apply where, in the opinion of the FOI body concerned, the public interest would, on balance, be better served by granting than by refusing to grant the FOI request. Thus, I must weigh up the relevant public interest factors for and against release of the records that I have found to be subject to section 30(1)(a) to determine where the correct balance of the public interest lies.
In SIPO's submissions on section 30(2), while it did not identify public interest factors for and against releasing the records, it argued that the public interest would not be served if it was not in a position to effectively comply with its obligations to properly examine complaints under the Ethics Acts. In his application to this Office for a review, the applicant made a number of public interest-related arguments as to why he believed the records should be released, in particular arguing that the public had a legitimate interest in the details of the substance of the complaints against the Minister as an elected official, and an equal interest in the details of how SIPO dealt with the complaints. He argued that there was a public interest in ensuring that the complaint process was carried out fairly and effectively, and that this could only be achieved by the release of the records. He stated that the records should be released so that the public could assess whether or not the examination of the complaints had been carried out in a fair and correct manner.
I have carefully considered the arguments of both SIPO and the applicant in relation to the public interest test in section 30(2), and find as follows. Firstly, I consider that the applicant has correctly identified a number of factors in favour of releasing the records in the public interest, and I concur with his general argument that there is a public interest in ensuring that SIPO carries out its examination of complaints in a fair and correct manner. More broadly, I consider that there is a public interest in enhancing the transparency and accountability of FOI bodies such as SIPO in their allocation of resources approved by the Department of Public Expenditure, National Development Plan Delivery and Reform and paid for by the taxpayer. Indeed, section 11(3) of the FOI Act requires FOI bodies to have regard to, among other things, the need to achieve greater openness in their activities and the need to strengthen their accountability and to improve their decision-making.
This being said, I note that there is a large amount of information publically available on this matter already. The complaints against the Minister and the outcome of SIPO's examination of same were both covered widely in the national print and broadcast media at the time. Noting the contents of the records to which I have found section 30(1)(a) to apply, I am of the view that there is also a public interest in affording SIPO the space to effectively deliberate on complaints without undue interference. While this particular matter is over ten years old, I consider that there are potential impacts on SIPO's future examination of complaints, should inquiry reports and associated records be released. On balance, having considered the arguments of the parties, the contents of the records and the relevant public interest factors, I find that the public interest would not be better served by granting access to the records to which I have found section 30(1)(a) to apply.
Accordingly, I find that records 1, 4, 10, 11, 15, 16, 21, 26, 27, 31, 36, 38, 39, 45, 52, 54, 56, 58 are exempt from release in full under section 30(1)(a) of the FOI Act. I also find that section 30(1)(a) exempts from release the information in the first paragraph of page 2 of record 24, the within-scope information in records 25, 33, and 87 and, in record 32, all of the within-scope information on page 2, and the information under the heading "Analysis of the Primetime Complaint", at page 7 and 8. I find that the parts of record 2 and 16 that reproduce record 1 in full are similarly exempt.
As outlined above, in the course of conducting this review I formed the opinion that I was required to consider the potential applicability of section 29(1) of the FOI Act to a number of the records at issue, namely records 89-94.
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. 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 important, therefore, that FOI bodies demonstrate that both requirements are met. It should also be noted that the exemption does not apply in so far as the record(s) contain any of the information or matter referred to in section 29(2). Thus, where an FOI body cites section 29(1), it must also consider whether section 29(2) applies.
In SIPO's submissions, it argued that the relevant records showed detailed consideration by SiPOC members of the text of a draft reply to a legal letter received from the representative of a party to the complaint. Accordingly, it argued, the records contained matter relating to its deliberative processes, in satisfaction of section 29(1)(a).
The records at issue deal with SiPOC's discussions of a draft reply to a letter of 11 February 2014 from the solicitor for a complainant. That letter concerned SiPO's decision not to initiate an Investigation into the complaint, and sought a review of that decision along with a copy of the preliminary inquiry report. It also threatened to bring legal proceedings against SIPO. The records show SiPOC members considering a range of options regarding how best to respond to the letter. In my view, this information is material relating to SIPO's deliberative processes, and the records are thus within the scope of section 29(1)(a).
However, the matter does not end there because, as outlined above, I must also go on to consider the public interest test in section 29(1)(b). In its submissions, while SIPO accepted that there was a public interest in ensuring transparency regarding its decision-making functions, and in ensuring that it exercised these functions fairly, it said there was a greater public interest in ensuring its ability to engage in frank and unfettered discussion, in the context of its decision-making processes, without inhibition in dealing with complaints. SIPO argued that it was in the public interest to ensure that appropriate decisions were made by SiPOC in the exercise of its statutory functions under the 2001 Act. It argued that the release of the records would inhibit SiPOC in terms of its ability to fully discussing the details of such matters that came before it in future cases.
I have carefully considered SIPO's arguments above, and the contents of the records at issue. I would note, firstly, that this Office has accepted that, in exceptional cases, arguments about frankness and candour may be sustainable in the context of section 29(1)(b). However, we have also emphasised that arguments about inhibiting frankness and candour must be supported by the facts of the case, and the specific harm to the public interest flowing from that inhibition must be identified. In this case, the records show members of SiPOC considering the best manner in which to respond to a solicitor's letter. It is not clear to me that to release this material - in essence, discussion within SIPO regarding suggested amendments to a draft response to the letter - would in any way inhibit the frankness and candour SiPOC members in any future deliberations. In my view, the suggestions and discussions revealed by the records are entirely routine and uncontroversial, and there is nothing about them that, if disclosed, would cause SiPOC members to be more circumspect in future. As outlined above, the public interest test in section 29(1)(b) is a strong one, and tends to weigh more heaving in favour of the release of records. On this basis, I do not accept that the release of the material in the records that I have found to be subject to section 29(1)(a) would be contrary to the public interest for the purposes of section 29(1)(b). I find that records 89-94 are not exempt under section 29(1).
As outlined above, in the course of conducting this review I formed the view that I was required to consider section 37(1) of the FOI Act. The basis for this view is that there is material in the records that I have found not to be exempt from release which potentially comprises the personal information of individuals. Section 37(1) provides that, subject to the other provisions of the section, an FOI body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information relating to third parties. The effect of section 37 is that, generally speaking, access to a record shall be refused if it would involve the disclosure of personal information relating to individual(s) other than the requester, unless one of the other relevant provisions of section 37 applies.
Section 2 of the FOI Act defines personal information as information about an identifiable individual that either (a) would ordinarily be known only to the individual or to members of his/her family or to his/her friends, or (b) is held by an FOI body on the understanding that it would be treated by the FOI body as confidential. Furthermore, the FOI Act details 14 specific categories of information that is personal information without prejudice to the generality of the foregoing definition.
In the course of conducting this review I formed the opinion that the following information, in the records that I have found not to be exempt under the other relevant provisions of the FOI Act, contain information that is personal for the purposes of section 2:
-’ records 2, 3, 9, 14, 17, 34, 36, 38, 40, 47, 59, 62, 65, 66 - names and/or contact details (email addresses and postal addresses) of complainants
-’ records 12, 23, 59, 89, 92, 94 - personal email addresses of recipients of internal SIPO emails
-’ records 71, 74, 101 and 107 - names, contact details and information relating to the employment history of individuals.
It should be noted that there is other material in the records relating to individuals that I do not consider is subject to section 37(1), namely information relating to the Minister and a former elected representative who was one of the complainants to SIPO. While, at first glance, this information may appear to be personal to the two individuals, it is also the case that the details of the complaint, including its background and origin, as well as the Minister's position in relation to the complaint, and the outcome of the complaint, was covered extensively in the national print and broadcast media. Moreover, this coverage took place in the context of both individuals being elected officials and public figures with relatively high profiles. It therefore seems to me that the relevant information is in the public domain, and is thus not subject to section 37(1). In this regard, I am informed by the judgment of the High Court in the recent case of Industrial Development Agency (Ireland) v The Information Commissioner [2024] IEHC 649, in which Phelan J. stated as follows:
"-¦[E]ven if information was considered to constitute personal information within the meaning of s. 37(1) by disclosing the identity of a natural person as opposed to a company, the fact that the information is publicly available triggers the operation of s. 37(2) to permit disclosure of the information in question. I do not read ss. 2 and 37 of the 2014 Act as precluding the disclosure of information already in the public domain and a matter of public record".
The material to which this finding applies is information relating to the Minister and/or the relevant complainant in records 8, 13 ,18-20, 22, 28, 31, 40, 42, 44, 46, 48-49, 51, 55, 60-64, 67-68, 71, 74, 83, 89-92, 94, 99, 101 and 107; and the same information in the within-scope parts of records 35, 37, 41, 43, 47, 50, 57, 72, 100, 109 and 111.
In relation to the material in the records that I have found comprises personal information, the matter does not end there as section 37(1) is subject to the other provisions of section 37. I am satisfied in the circumstances that neither section 37(2) nor section 35(5)(b) operate to disapply section 37(1). In relation to section 37(5)(a) - which provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance, the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates - while I am generally precluded by section 13(4) of the FOI Act in taking into account any reason that the requester gives for a request, I can have regard to the applicant's motives for seeking access to the records in so far as those motives reflect, or overlap with, what might be regarded as true public interest factors in favour of release of the records. In this case, the applicant has identified valid public interest factors, which I have outlined previously, in favour of the release of the information. This being said, there are a number of equally valid factors that weigh in favour of withholding the information. For one thing, the release of records under FOI must be regarded, in effect, as release to the world at large, as the FOI Act places no constraints on the uses to which a record so released can be put. With certain limited exceptions provided for by the FOI Act, such as under sections 37(2)(a) and 37(8), FOI is not about granting access to information to particular individuals only and as noted above, a requester's reasons for making a request are generally not of relevance. Thus, records are not released under FOI for any limited or restricted purpose. All of this means that, in considering section 37(5)(a), 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 determining where the balance of the public interest lies, I have considered section 11(3) which, as outlined above, provides that FOI bodies must have regard to the need to achieve greater openness in their activities and to promote adherence by them to the principles of transparency in government and public affairs, and the need to strengthen the accountability and the quality of decision making of FOI bodies. However, I must also have regard to the findings 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 which the Court noted that, while there is an onus on the FOI body to justify the refusal of access to records, that does not mean that the conclusion is always that disclosure is to be ordered. The Commissioner 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. While 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.
In addition, when considering the public interest, it is important to have regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner [2011] IESC 26 ("the Rotunda case"). It is noted that a true public interest should be distinguished from a private interest. In the case at hand, while the applicant has put forward what I consider to be a valid public interest argument that would be served by the records' release, in my view the benefit to the public interest in releasing the specific information would be limited.
I also note that the FOI Act recognises the public interest in the protection of the right to privacy both its Long Title (which makes clear that the release of records under FOI must be consistent with the right to privacy) and in the language of section 37. 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).
I do not consider that the release of the personal information I have identified in the records would enhance significantly - if at all - the transparency around SIPO's examination of the relevant complaints. While not inherently sensitive or private, it is nonetheless the personal information of individuals and I must view its release as being, at least potentially, to the world at large. In the circumstances, I do not accept that the public interest in releasing the relevant information outweighs, on balance, the privacy rights of the relevant individuals, and therefore section 37(5)(a) does not apply. I find that the personal information that I have identified above in the records is exempt from release under section 37(1).
Section 15(1)(d) of the FOI Act provides that an FOI body may refuse to grant an FOI request where the information is already in the public domain. SIPO cited section 15(1)(d) as a basis to withhold record 30 and, in its submissions, noted that record 30 is an article published by the Irish Daily Mail on 21 August 2013. Subsequently, SIPO provided a live link to the article online. I am satisfied that it is in the public domain and, accordingly, SIPO was justified in withholding the record under section 15(1)(d).
Having carried out a review under section 22(2) of the FOI Act, I hereby vary SIPO's decision. I find that SIPO was entitled under section 30(1)(a) to withhold records 1, 4, 10-11, 15, 16, 21, 26, 27, 31, 36, 38, 39, 45, 52, 54, 56 and 58 in full, as well as the parts of records 2, 16, 24, 25, 32, 33, and 87 that I have identified above. Moreover, I find that SIPO was entitled under section 31(1)(a) to refuse access to records 73, 75-76, 78-82, 84-86, 88, 95-98, 102-106 and 108. Furthermore, I find that SIPO was entitled to withhold record 30 under section 15(1)(d). I also find that the personal information I have identified above in the records is exempt from release under section 37(1). Additionally, the information in the records which I have identified above as outside the scope of the FOI request is not subject to release. However, I find that the remaining records, or parts of records, are not exempt from release, and I direct the release of the information in these records.
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.
Neill Dougan
Investigator