Decision
Mr X and Horse Racing Ireland
From Office of the Information Commissioner (OIC)
Case number: OIC-149706-L4R1Y0
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-149706-L4R1Y0
Published on
Whether HRI was justified in refusing access to records concerning a previous FOI request made to HRI by a named individual and records concerning the applicant under sections 29(1), 30(1)(a), 31(1)(a), 35(1)(a) and 37(1) of the FOI Act
The applicant in this matter is a past employee of Horse Racing Ireland (HRI). He states that, along with others, he is the subject of a complaint made by a named individual (Mr. X) to the Standards in Public Office Commission (SIPO) in relation to his involvement in historical FOI requests made to HRI by Mr. X. The applicant states that in order to allow him to deal with the complaint to SIPO, he made an FOI request to HRI for records associated with the FOI request made to HRI by Mr. X and records which concern the applicant associated with this complaint.
In a request dated 9 February 2024, the applicant sought access to the following records concerning the complaint made to SIPO:
1. All records associated with any FOI application(s) made by (Mr. X) – including but not limited to, applications made by this individual, all records released by HRI, all other records concerning the applications, all communications with this individual, all internal HRI records concerning the applications, all records created by myself concerning the applications.
2. All records concerning myself associated with this complaint.
3. Any records concerning myself created since 1 January 2023.
In its decision of 24 April 2024, HRI attached two schedules listing the records it identified as falling within the scope of the applicant’s request. It said the first schedule lists the records in respect of parts 1 and 2 of the request and the second schedule lists the records in respect of part 3 of the request. HRI stated that material outside the scope of the request has been redacted. It also said a number of records have been redacted or not released due to the inclusion of personal data or other exemptions including the deliberations of an body, functions of a body, legally privileged information and information provided in confidence.
On 17 May 2024, the applicant requested an internal review of HRI’s decision. He said HRI failed to comply with the statutory timeframe set out in the FOI Act for processing FOI requests. He said HRI provided a range of records which relate to matters outside the scope of the complaint made to SIPO and that these maybe disregarded for the purposes of his application. The applicant stated that he is familiar with, or created, many of the records and they do not meet the criteria for refusal under sections 29, 30, 31, 35 or 37 of the FOI Act. The applicant listed 50 records on which internal review is sought. He also listed a further seven records which appear to contain attachments which he says were not provided by HRI and he requested that these attachments would also be addressed in the internal review.
On 11 June 2024, HRI issued its internal review decision. HRI affirmed its original decision in full in relation to the 50 records which the applicant sought to have reviewed in his internal review request. HRI also identified the relevant record numbers on its schedules for each of the attachments to the seven records listed by the applicant in his internal review request and it outlined its decision in relation to each attachment. On 12 June 2024, the applicant applied to this Office for a review of HRI’s decision.
On 17 July 2024, this Office issued a notice under section 23 of the FOI Act to the Chief Executive of HRI requiring HRI to provide the applicant and this Office with a statement of reasons for its decision in relation to the applicant’s FOI request. The Investigator stated that while HRI’s decisions referred to certain sections of the Act, no reasons were given as to how those exemptions apply to the particular information that was refused. The Investigator also stated that the decisions do not show any consideration of public interest factors for or against release of the information at issue in the case. On 31 July 2024, HRI provided the applicant and this Office with a statement of reasons for its decision.
This Office wrote to the applicant and HRI to provide the parties with an opportunity to provide submissions and both parties provided submissions during the course of the review. HRI stated that it had again reviewed the records highlighted by the applicant in his internal review request. It said following this review, it had decided to release an additional 27 records to the applicant. Following communications with this Office, HRI provided the applicant with copies of these records together with an updated schedule of records.
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 to date. 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.
The applicant limited the scope of his request at internal review to the following 50 records: (1, 2, 3, 5, 7, 8, 9, 15, 16, 19, 20, 21, 25, 26, 27, 33, 34, 43, 46, 50, 51, 53, 54, 59, 63, 64, 66, 67, 68, 69, 70, 71, 72, 75, 76, 77, 78, 79, 80, 81, 83, 84, 85, 86, 87, 88, 89, 92, 95, 96.) During the course of this review, HRI released 27 of those records to the applicant: (1, 2, 3, 5, 7, 8, 25, 26, 27, 54, 59, 67, 68, 69, 72, 75, 76, 77, 78, 79, 80, 81, 87, 88, 89, 92, 95). The records released to the applicant will be excluded from the scope of this review.
The applicant also listed seven records in his internal review request that he said appear to contain attachments that are missing. HRI addressed the issue of the missing attachments in its internal review decision and identified these records on the schedules provided to the applicant. The applicant did not request a review of HRI’s decision in relation to these attachments in his application to this Office. Accordingly, these attachments will be excluded from the scope of this review.
In its submissions to this Office, HRI stated that following further review it believes records 15, 16 and 86 fall outside the scope of the request. Records 15 and 16 contain an email regarding a DTTF report. These records concern a variety of governance matters but do not concern the matter which gave rise to the complaint to SIPO. Record 86 relates to an incident which occurred at a racecourse and again this record does not concern the matter which gave rise to the complaint to SIPO. I am satisfied that records 15, 16 and 86 fall outside the scope of the request and these records will excluded from the scope of this review.
The scope of this review is confined to the issue of whether HRI was justified in refusing access, under sections 29(1)(a), 30(1)(a), 31(1)(a), 35(1)(a) or 37(1) of the FOI Act, to the following records: 9, 19, 20, 21, 33, 34, 43, 46, 50, 51, 53, 63, 64, 66, 70, 71, 83, 84, 85, 96.
Before I address the substantive matters arising in this case, I wish to make a number of preliminary comments. Firstly, HRI did not issue its original or internal review decisions within the timeframes set down in the FOI Act. Sections 13(1) and 21(4) of the FOI Act require FOI bodies to issue original and internal review decisions within four and three weeks, respectively, after receipt of the request or application for review. It is incumbent on me to emphasise to HRI that the requirement to issue decisions on FOI requests within the periods set out in the FOI Act is clear and unequivocal. HRI should take steps to ensure that its decisions on FOI requests issue within the relevant statutory timeframes.
Secondly, although I am obliged to give reasons for my decision, section 25(3) requires that I take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the records at issue and the material that I can refer to in the analysis is limited.
Finally, I wish to explain that a review by this office is regarded as “de novo” which essentially means that the review is based on the circumstances and the law as they pertain at the time of my decision and is not confined to the basis upon which the FOI body reached its decision. In light of the “de novo” nature of our reviews, I consider it appropriate to consider the applicability of sections 35 and 37 of the FOI Act to a number of the records notwithstanding the fact that HRI did not rely on those provisions as a ground for refusing the particular records concerned.
HRI refused access to records 70 and 71 under section 31(1)(a) of the FOI Act. Section 31(1)(a) provides for the mandatory refusal of a request if the record sought would be exempt from production in proceedings in a court on the ground of legal professional privilege (LPP). LPP enables the client to maintain the confidentiality of two types of communication:
(a) confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege); and
(b) 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 or pending litigation (litigation privilege).
It is important to note that records which may not, on an individual basis, satisfy the criteria for legal advice privilege may nevertheless qualify for exemption under section 31(1)(a) of the FOI Act where they form part of a continuum of correspondence resulting from the original request for advice.
In his submissions to this Office, the applicant states that some of the records may be related to a series of events which occurred many years ago and which culminated in a set of legal proceedings involving other horse racing industry third parties. He states that it is important to note that HRI was not a party to the legal proceedings which did not relate to any HRI functions. He states that the legal proceedings were heard in open court, reported on in the media and extensive judgments were published. The applicant states that these proceedings have been concluded for some time with no appeals in place. The applicant states that he is not seeking any records created for the purposes of seeking or providing legal advice which are privileged. He says however, any pre-existing records not created for the purposes of seeking or providing legal advice are not privileged.
HRI states that records 70 and 71 relate to confidential communications made between HRI and its professional legal adviser for the purpose of obtaining and/or giving legal advice (legal advice privilege) in relation to an FOI request from Mr X’s solicitor.
As the applicant states, the background to these records relates to a set of legal proceedings involving horse racing industry third parties and HRI was not a party to those proceedings. However, one of the party to the proceedings (Mr. X) did submit an FOI request to HRI for any records it held which relate to the series of events which gave rise to those proceedings. Mr. X’s solicitors wrote to HRI in relation to this FOI request. Records 70 and 71 contain emails in which HRI provides its solicitor with certain documents including correspondence it had received from Mr. X’s solicitor in advance of a call with their solicitor. There is also an email from HRI’s solicitor after the call has taken place in which the solicitor says he has reviewed the documentation provided and drafted a proposed response which HRI should issue to Mr. X’s solicitors. There is also further correspondence from HRI querying an aspect of the proposed response and a reply from the solicitor with a revised response for consideration.
I am satisfied that these records contain requests for or the provision of legal advice or form part of a continuum of communications for the purpose of obtaining and/or giving legal advice. I find, therefore, that HRI was justified in refusing access to records 70 and 71 under section 31(1)(a) of the FOI Act on the grounds that they would be exempt from production in proceedings in a court on the ground of legal professional privilege.
HRI refused access to records 19, 64 and 66 under section 35(1)(a) of the FOI Act. In submissions to this Office, HRI confirmed that records 20 and 21 are the same as record 66 therefore I will also consider these records under section 35 of the Act.
For section 35(1)(a) to apply, it is necessary to show the following:
• that the information was given to an FOI body in confidence,
• that the information was given on the understanding that it would be treated by the FOI body as confidential,
• that disclosure of the information would be likely to prejudice the giving to the body of further similar information from the same person or other persons, and
• that it is of importance to the body that such further similar information should continue to be given to it.
All four of these requirements must be satisfied in order for a record to be considered exempt from release under section 35(1)(a) of the Act. It is the circumstances in which information was imparted and received that is important in determining whether the first two requirements are met. In determining whether information was given in confidence, a number of factors may be relevant, including, for example;
• the expectations of the person giving the information to the FOI body,
• any assurances sought regarding the information,
• the purpose for which the information was provided, and
• any other action that the person giving the information to the FOI body may have taken with regard to the information e.g. whether s/he has provided copies to other parties and, if so, to whom and on what basis.
In his submissions to this Office, the applicant states that based on their descriptions, some of the records appear to relate to day of day reporting and operational matters, and may be internal rather than provided to HRI and some records appear unlikely to satisfy all four conditions for exemption.
HRI states that the records may be summarised as correspondence from other horse racing industry bodies in relation to legal proceedings. HRI states that as part of the review process it consulted with its former CEO who was the recipient of the correspondence. It states that the former CEO asserted that this information was provided in confidence, and it was the understanding that it would remain confidential and not be disclosed. HRI states that it is critical to its operations that bodies within the industry can share information with HRI on a confidential basis and this remains the case should a similar issue arise at any point in future.
I am limited in the description of the records at issue that I can provide as a result of section 25(3) of the Act. I can say that they relate to legal proceedings involving parties involved in the horse racing industry. The records include, statements and correspondence from solicitors acting for parties to the dispute. I accept that the parties who provided HRI with this information had an expectation that it would be treated as confidential. The information concerning the dispute and the issues that gave rise to the dispute are of a sensitive nature and were provided to the HRI in its role as the semi-state body responsible for the overall administration and governance of the horseracing industry in Ireland. It is clear that the information in these records was provided for HRI’s information only. Having regard to the circumstances in which information was imparted and received in this case, I accept that the first two requirements for section 35(1)(a) to apply have been met.
I have considered whether the release of these records would be likely to prejudice the giving to HRI of further similar information from the parties and whether it is of importance to HRI that such further similar information should continue to be given to it.
I note that these records are all more than four years old and relate to a legal dispute which the applicant says has been heard by the courts. HRI however states that this dispute was recently before the Courts again. These records contain detailed information in relation to this dispute and its origins. The records include inspection reports, draft statements and draft legal correspondence. The records concern sensitive matters and in my view the parties who provided these records to HRI had a reasonable expectation of confidentiality. I accept in the circumstances that disclosure would be likely to prejudice the giving to HRI of further similar information from the parties in the future. I also accept that it is of importance to HRI that further similar information should continue to be given to it. It seems to me that if there is a dispute in the Horse Racing Industry, it is important that parties to the dispute can provide HRI with relevant information so that it can carry out its function in relation to governance of the industry and so that it can ensure smooth administration and operations. In the circumstances, I am satisfied that all four requirements for section 35(1)(a) to apply are met in this case. However, that is not the end of the matter. I will now go on to consider the other provisions of section 35.
Section 35(2) provides that subsection (1) shall not apply to a record which is prepared by a head or any other person (being a director, or member of the staff of, an FOI body or a service provider) in the course of the performance of his or her functions unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than an FOI body or head or a director, or member of the staff of, an FOI body or of such a service provider. Having regard to the content of the records at issue, I am satisfied that section 35(2) does not serve to dis-apply 35(1).
Section 35(3) provides that section 35(1)(a) does not apply where the FOI body considers that the public interest would, on balance, be better served by granting the FOI request.
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 (a) 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, (b) the need to strengthen the accountability and improve the quality of decision making of FOI bodies and (c) the need to inform scrutiny, discussion, comment and review by the public of the activities of FOI bodies and facilitate more effective participation by the public in consultations relating to the role, responsibilities and performance of FOI bodies.
I have also had regard to the findings of the Supreme Court inThe Minister for Communications, Energy and Natural Resources v The Information Commissioner & Ors [2020] IESC 5. In her judgment, Baker J. indicated that the public interest in favour of disclosure cannot be the same public interest as that broadly stated in the Act. She said the public interest in disclosure must be something more than the general public interest in disclosure and the reason must be found from the scrutiny of the contents of the record. She said there must be a “sufficiently specific, cogent and fact-based reason” in order “to tip the balance in favour of disclosure”.
Moreover, while the Court stated that the public interest balancing test involves a “weighing of the respective private and public interests in the analysis of the records in issue”, it did not disturb the guidance that it previously gave inThe Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner [2011] IESC 26 ("the Rotunda Hospital case") in which it drew a distinction between private and public interests. I therefore consider that, if I am to direct the release of the records at issue, I am required to identify a specific public interest, identifiable following an analysis of the records at issue, which is sufficiently strong as to outweigh the interests of protecting information that was given in confidence.
In its submissions to this Office, HRI said disclosure of the records could constitute a breach of trust and would seriously damage HRI’s relationships externally. It said this could impair future sources of important information and cause damage to the workings of the public body.
It seems to me, that there is a significant public interest in HRI being in a position to carry out its functions in relation to the overall administration and governance of the Horse Racing Industry in Ireland. It also seems to me that in order to carry out its functions, it must be able to obtain and then review and assess relevant information received from horse racing industry third parties including information that the parties consider to be highly confidential and sensitive and that they would not otherwise make available externally. I accept HRI’s argument that to release records containing information given to it in confidence risks undermining its effectiveness in terms of obtaining information that it needs when working with the relevant parties in the industry. It is not apparent to me, having carefully considered the content of each record, that there is any sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure of the information in this case. I consider that the public interest would, on balance, be better served by refusing to release the records at issue. I find therefore that records 19, 20, 21, 64 and 66 are exempt from release under section 35(1)(a) of the FOI Act
HRI refused access to records 9, 33, 34, 43, 46, 50, 51, 53, 63, 83, 84, 85 and 96 under sections 29(1) and 30(1)(a) of the Act. Records 43, 46, 50, 51, 53 concern HRI’s processing of an FOI request and I will consider these records under sections 29(1) and 30(1)(a) of the Act below. Records 9, 33, 34, 63, 83, 84, 85 and 96 concern a dispute which arose in the context of Mr. X carrying out his employment duties and which gave rise to a court case between Mr X and a third party. Having regard to the content of the records, it is in my view appropriate to consider whether they are exempt under section 37(1) of the Act.
Section 37 is a mandatory exemption provision and it provides for the refusal of a request where access to the record sought would involve the disclosure of personal information relating to an individual other than the requester. For the purposes of the 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.
Section 2 of Act details fourteen specific categories of information that is personal without prejudice to the generality of the foregoing definition. These categories include (iii) information relating to the employment or employment history of the individual; (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, (xiv) the views or opinions of another person about the individual.
As outlined above, the records concern a dispute which arose in the context of Mr. X carrying out his employment duties which gave rise to a court case between Mr X and the third party. The records contain information which is relevant to Mr. X employment and how he carried out his role, views or opinions of another person about Mr. X in the context of how he carried out his role and information about Mr. X instituting proceedings arising from this work related dispute. I find that these records contain the personal information of an identifiable individual and that section 37(1) therefore applies. However, section 37(1) is subject to the other provisions of section 37, which I will examine below.
Section 37(2) of the FOI Act sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances in section 37(2) apply in this case. That is to say, (a) the information contained in the records does not relate solely to the applicant; (b) the third parties have not consented to the release of their information; (c) the information is not of a kind that is available to the general public; (d) the information at issue does not belong to a class of information which would or might be made available to the general public; and (e) the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.
In the circumstances of the case, I am satisfied that none of the provisions of section 37(2) serve to dis-apply section 37(1) in this case.
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 evidence has been put forward, and it is not evident to me from the content of the records, that section 37(5)(b) applies.
Before I consider the applicability of section 37(5)(a), there are a number of important points to note. First, section 13(4) provides that, subject to the Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. In relation to the question of the public interest, this means that I cannot have regard to the applicant’s motives for seeking access to the records at issue, except insofar as those motives reflect, or overlap with, what might be regarded as true public interest factors in favour of release of the records, i.e. insofar as the concerns raised in relation to the request could also be matters of general concern to the wider public.
Secondly, it is 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. With certain limited exceptions provided for under the Act, 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 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 individual 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 Enet case as outlined above. 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 applicant states that the rationale for his application was known to HRI and this was his ability to deal with an ongoing SIPO investigation. He states that for whatever reason, HRI while aware of the ongoing SIPO investigation, adopted an approach inconsistent with the spirit of the FOI regime in relation to timings and use of exemption provisions which was inconsistent with their stated FOI policy.
HRI says in carrying out its functions to administer the racing industry it also considers the position of the participants of that industry including Mr. X and his right to privacy. It states that this is of ongoing importance given that it understands Mr X made a complaint to SIPO regarding the behaviour and conduct of officers of HRI in relation to his personal and business affairs. In considering the claim for exemptions, HRI says it has taken these factors into account and weighed them against the public interest. It says its decision is that the public interest is not best served by the release of these records at this time given the current and ongoing nature of the investigation.
The applicant appears to have made the FOI request for reasons that essentially reflect a private interest i.e. his ability to deal with an ongoing investigation that concerns him. I accept however that his request reflects relevant public interest concerns relating to principles of openness, transparency and natural justice.
Any public interest that might serve to support the release of the information must however be balanced against the privacy rights of the individual concerned. 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 it clear that the release of records under Freedom of Information must be consistent with the right to privacy. It is also worth noting that the right to privacy has a constitutional dimension, as an unenumerated personal right. 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).
Having regard to the nature of the information at issue and to the fact that the release of the records must be regarded as being effectively, or at least potentially, to the world at large, it seems to me that the public interest in releasing the records should not be at the expense of the privacy rights of the individual concerned. Accordingly, I do not accept that the public interest in releasing the records outweighs, on balance, the privacy rights of the third party individual concerned. I find, therefore, that section 37(5)(a) does not apply. In conclusion, therefore, I find that records 9, 33, 34, 63, 83, 84, 85 and 96 are exempt under section 37(1) of the FOI Act.
HRI refused access to records 43, 46, 50, 51, 53 under sections 29(1) of the FOI Act. Section 29 provides for the discretionary refusal of a request 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 for the purpose of those processes, and (b) the body considers that the granting of the request would be contrary to the public interest. Section 29 also provides that, without prejudice to the generality of paragraph (b), the FOI body shall, in determining whether to grant or refuse to grant the request, 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. Subsections (a) and (b) are two independent requirements and the fact that the first is met carries no presumption that the second is also met.
In order for section 29(1) to apply, the records must contain matter relating to the ‘deliberative process’ of an FOI body. An FOI body relying on this exemption should identify both the deliberative process concerned and any matter in particular records which relates to these processes. 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.
In his submissions to this Office, the applicant questions whether any deliberative processes occurred at all, he says if so, they occurred at a time which is long since past. He states that such deliberations by HRI were in relation to matters concerning third parties and were not in respect of HRI functions, rules or processes.
HRI states that these records relate to its deliberations in relation to the handling of the FOI request from Mr X. It states that the records contain material that is sensitive to HRI and also to the parties referenced within and in particular those records that were provided to Mr X. as part of his request.
Records 43, 46, 50, 51, 53 are emails between HRI to and Solicitors representing Mr. X and they concern the processing of his FOI request and in particular replies from HRI to queries regarding its decision to redact or withholding certain records. The records include HRI’s responses to these queries and internal HRI emails in relation to locating certain requested records and emails from HRI to Mr X’s solicitors listing documents to be release. In my view, these records involve the gathering of information and the examination of this information with a view to making a decision on whether or not to release records under FOI. I accept that HRI was involved in a deliberative process in relation to how to address the FOI request made by Mr. X and records 43, 46, 50, 51, 53 were created as part of this deliberative process. I find, therefore, that section 29(1) applies to records 43, 46, 50, 51, 53.
As I have found section 29(1)(a) to apply to records 43, 46, 50, 51, 53, I must go on to consider section 29(1)(b). The public interest test at section 29(1)(b) is a stronger public interest test than the public interest 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 records would be contrary to the public interest, e.g. by identifying a specific harm to the public interest flowing from release.
In his submissions to this Office, the applicant says that based on the description of the records that were refused under section 29, disclosure of these records would not be contrary to the public interest.
In its submissions to this Office, HRI says that the information in these records was created for a specific purpose in relation to Mr. X’s FOI request and not for the purpose of release to the general public. It says that Mr. X has a right to privacy and confidentiality in his dealings with HRI and release of these records could impair future sources of important information and damage the workings of the public body.
I have found above that certain of the records at issue contain information provided in confidence to HRI or contain the personal information of Mr. X. However, I am not satisfied that these records contain personal information, information provided in confidence or that release of these records could impair future sources of important information or damage the workings of HRI. The records at issue here concern the processing of an FOI request, the gathering of information and replies to queries in relation to records located. In my view, these records concern administrative matters and I am not satisfied that HRI has satisfactorily shown that the release of records 43, 46, 50, 51, 53 would be contrary to the public interest. I find, therefore, that section 29(1) does not apply to these records.
HRI has also refused access to records 43, 46, 50, 51, 53 under and 30(1)(a) of the Act.
Section 30(1)(a) provides that a head may refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, 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(2) provides that the exemption does not apply where the public interest would, on balance, be better served by granting than by refusing to grant the FOI request.
When invoking section 30(1)(a), the FOI body should 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. 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. It is sufficient for the FOI body to show that it expects an outcome and that its expectations are justifiable in the sense that there are adequate grounds for the expectations.
The applicant states that no explanations have been provided by HRI as to how release of these records could reasonably be expected to give rise to prejudice to the effectiveness of tests, examinations, investigations etc.
HRI states that the matters to which these records relate are not fully closed. It states that there is an ongoing SIPO investigation into conduct and these records may be required as evidence. HRI says it does not wish to interfere, manipulate or be seen in any way to influence or potentially prejudice this investigation.
I understand that Mr. X has made a complaint to SIPO in relation to the manner in which HRI processed his FOI request and there is an ongoing investigation into that matter. The records at issue relate to HRI’s processing of Mr X’s FOI request and include correspondence with Mr X’s solicitor in relation to the FOI request. The applicant states that he is familiar with or created many of the records. I note from the records that the applicant was heavily involved in processing Mr X’s FOI request as part of his role as a member of staff of HRI. I also note that HRI has stated to this Office that the records requested by the applicant under FOI have already been provided to him via a HRI appointed solicitor for the express purpose of dealing with the SIPO complaint. It seems to me that both Mr. X and the applicant are very familiar with how this FOI request was processed. While I understand that HRI does not wish to prejudice the SIPO investigation in any way, it is not clear to me nor has HRI adequately explained how release of these records could reasonably be expected to prejudice that investigation. I find therefore that records 43, 46, 50, 51, 53 are not exempt from release under section 30(1)(a) of the FOI Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary HRI’s decision. I find that HRI was justified under sections 31(1)(a), 35(1)(a) or 37(1) in refusing access to records 9, 19, 20, 21, 33, 34, 63, 64, 66, 70, 71, 83, 84, 85 and 96. I find however that HRI was not justified under sections 29(1) and 30(1)(a) in refusing access to records 43, 46, 50, 51, 53 and I direct their release to the applicant.
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.
Jim Stokes
Investigator