Decision
Ms X and Department of Defence
From Office of the Information Commissioner (OIC)
Case number: OIC-154845-X0S3Y5
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-154845-X0S3Y5
Published on
Whether the Department was justified in refusing access, under section 42(ja) of the FOI Act, to records relating to two specified Protected Disclosures on the ground that the records are excluded from the scope of the FOI Act
6 March 2025
In a request dated 12 September 2024, the applicant sought access to all records pertaining to two Protected Disclosures made on specified dates. The applicant provided the reference numbers for both Protected Disclosures. In a decision dated 9 October 2024, the Department refused the applicant’s request under section 42(ja) of the FOI Act on the ground that the records sought arise from and relate to protected disclosures made under the Protected Disclosures Act 2014 as amended and are therefore excluded from the scope of the FOI Act. The applicant sought an internal review of the Department’s decision, following which the Department affirmed its original decision. On 19 December 2024, the applicant applied to this Office for a review of the Department’s decision.
I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the correspondence referred to above and to the submissions made to this Office. I have also had regard to the nature of the records sought. I have decided to conclude this review by way of a formal, binding decision.
This review is solely concerned with whether the Department was justified in refusing the applicant’s request for access to records relating to two specified Protected Disclosures under section 42(ja) of the FOI Act on the ground that the FOI Act does not apply to the records at issue.
Section 42 of the FOI Act provides that the FOI Act does not apply to certain records.
A protected disclosure is a disclosure by a worker of relevant information that came to the attention of the worker in a work-related context and the worker reasonably believes that the relevant information tends to show relevant wrongdoing. The Protected Disclosures Act 2014 (the PD Act) provides certain protections to those who made protected disclosures. That Act has been supplemented by the Protected Disclosures (Amendment) Act 2022, which came into operation on 1 January 2023. Section 20 of the Protected Disclosures (Amendment) Act 2022 amends the FOI Act by inserting a new sub-section, namely section 42(ja).
Section 42(ja) of the FOI Act
Section 42(ja) provides that the FOI Act does not apply to “a record relating to a report, within the meaning of the Protected Disclosures Act 2014, made under that Act, whether the report was made before or after the date of the passing of the Protected Disclosures (Amendment) Act 2022”. If a record sought relates to a report made under the PD Act, then the FOI Act does not apply to that record and no right of access to the record exists.
In considering whether the records sought in this case are records “relating to” a report made under the PD Act, I have adopted the reasoning in the case ofEH v The Information Commissioner [2001] IEHC 182. In that case, the High Court considered the question of whether records “related to” the requester’s personal information. The Court found that the test to be applied to determine whether a record “relates to” the personal information was “whether there is a sufficiently substantial link” between the requester’s personal information and the record in question. Accordingly, in considering whether the records sought in this case relate to a report made under the PD Act, I have considered whether there is a sufficiently substantial link between the records and a report made under the PD Act.
Submissions of the Department
In its submissions to this Office, the Department said that the request itself indicated that the applicant was seeking access to records relating to a protected disclosure i.e. a report within the meaning of the PD Act, and she had provided dates and reference numbers to enable identification of the relevant records.
It said that the records at issue relate only to the reports made under the PD Act, and that all records associated with the protected disclosure case files clearly relate to the respective original submissions. It said that all of the relevant records were created in relation to and on foot of a report within the meaning of the PD Act. It said the records sought exist only because of the submission of a protected disclosure, and the documentation would not have been created otherwise.
The Department said that the two specified Protected Disclosures referred to in the applicant’s request were treated as reports within the meaning of the PD Act and therefore the relevant records are excluded from the scope of the FOI Act under section 42(ja).
My Analysis
The question I must consider is whether the records at issue relate to a report made under the PD Act. If they do, then section 42(ja) applies and no right of access exists to such records under the FOI Act. There is no public interest provision in section 42 of the FOI Act. If a record is captured by one or more of the categories of records described in section 42, that is the end of the matter.
Applying the test outlined in the EH case, I have considered whether there is a sufficiently substantial link between the relevant reports made under the PD Act and the records in question. I am satisfied there is. The records in question clearly relate and refer to the Protected Disclosures referenced in the applicant’s request. Indeed, I note that the applicant’s request itself indicates that she was seeking records relating to two Protected Disclosures, which are reports within the meaning of the PD Act.
In conclusion, therefore, I find that the records sought in this case comprise records relating to a report within the meaning of the PD Act and that the FOI Act does not, therefore, apply to those records pursuant to section 42(ja) of the Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department’s decision to refuse the applicant’s request. I find that section 42(ja) applies and that the FOI Act does not apply to the records sought.
Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.
Richard Crowley
Investigator