Decision
Mr H and Department of Housing, Local Government and Heritage
From Office of the Information Commissioner (OIC)
Case number: OIC-146345-F2H8M1
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-146345-F2H8M1
Published on
Whether the Department was justified in refusing access to a request for records relating to a protected disclosures report made by the applicant during his employment with Kerry County Council (‘the Council’)
11 June 2024
In a request dated 29 September 2023, the applicant submitted an FOI request to the Department of Housing, Local Government and Heritage (‘the Department’) for (i) an explanation as to how the Department arrived at its decision in connection with allegations he made in a protected disclosures report against what was then Kerry Town Council (‘the Council’), (ii) a transcript of the investigation undertaken, and (iii) and a list of the names of the Department and Council individuals who engaged with the investigation. In its decision dated 31 October 2023, the Department refused the request under section 15(1)(a) of the Act on the ground that the records sought were not created in the course of the investigation related to his protected disclosures report and do not therefore exist. It said, however, that in order to assist the applicant, it had decided to provide him with every record relating to the protected disclosures report since it was assigned to the Department by the Office of the Protected Disclosures Commissioner.
On 9 November 2023, the applicant sought an internal review of the Department’s decision. On 13 December 2023, the Department affirmed its refusal of the request under section 15(1)(a). By letter dated 2 February 2024, the applicant applied to this Office for a review of the Department’s decision.
During the course of the review, the Investigator informed the applicant of the potential relevance of section 42(ja) of the Act which provides that the Act does not apply to records relating to protected disclosures reports. I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the submissions made by the applicant and the Department. I have decided to conclude this review by way of a formal, binding decision.
The Department’s position is that the records sought do not exist and that section 15(1)(a) of the Act applies. I am satisfied that section 42(ja) of the Act is also of relevance in this case. It is important to note that a review by this Office is considered to be ‘de novo’, which means here 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.
Section 42 of the Act excludes certain records from the scope of the FOI Act. Accordingly, in light of the ‘de novo’ nature of our reviews, I consider it appropriate to consider the applicability of section 42(ja) notwithstanding the fact that the provision was not initially relied upon by the Department as a ground for refusing the request. I consider this approach to be consistent with what the Courts accept to be the inquisitorial nature of the role of this Office. I also consider this approach to be appropriate, notwithstanding that under section 22(12)(b) of the Act, a decision to refuse to grant a request is presumed not to have been justified unless the FOI body satisfies the Commissioner that the refusal was justified. In The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors, [2020] IESC 5, the Supreme Court said that a failure by an FOI body to justify its refusal of a request does not lead to an inevitable or statutorily mandated outcome. Rather, I 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.
Accordingly, this review is concerned with whether the Department was justified in refusing the applicant’s request for certain records relating to a protected disclosures report he made, under sections 15(1)(a)
It is apparent from the submissions the applicant made to this Office and from the details of representations made on his behalf that the applicant was under the impression that a review by this Office would involve a review of the Department’s handling of the substantive protected disclosure made in relation to the filling of a post within the Council and/or the actions of the Council itself. The applicant is mistaken. This Office has no role in investigating the substantive administrative actions of public bodies or in examining complaints about how they have carried out their administrative functions, nor do we have any role in the investigation of complaints made about public bodies by way of protected disclosure. Our role is confined to a review of the decisions taken by FOI bodies on requests made under the FOI Act. As I have explained above, the scope of the review is confined to a consideration of whether the Department was justified in refusing the applicant’s request for certain records relating to the protected disclosures report he made.
Having regard to the description of the records sought in this case, I am satisfied that section 42(ja) is the most appropriate provision of the Act to consider in the first instance.
Section 42(ja)
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 provides certain protections to those who make protected disclosures. The Act has recently been supplemented by the Protected Disclosures (Amendment) Act 2022 (‘the 2022 Amendment Act’), which came into operation on 1 January 2023. Section 20 of the 2022 Amendment Act amends the FOI Act by inserting a new subsection, namely section 42(ja).
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’. Section 4 of the 2022 Amendment Act defines ‘report’ or ‘to report’ as ‘the oral or written communication of information on relevant wrongdoings’. In sum, the FOI Act does not apply to records relating to a protected disclosures report and no right of access exists to such records.
I fully accept that the Department’s position is that it does not hold the specific records sought by the applicant in his request. Nevertheless, having regard to the request made and to the applicant’s submissions to this Office, I am satisfied that the records he has sought, even if they did exist, would relate to the protected disclosures report the applicant made. Indeed, I note that in his telephone conversation with this Office’s Investigator during the course of the review, the applicant confirmed that the records sought relate to his protected disclosures report. As such, even if the records sought did exist, I am satisfied that section 42(ja) would apply to them.
I find, therefore, that the Department was justified in refusing the applicant’s request, under section 42(ja) of the Act. Having so found, I do not need to consider if the Department was justified in relying on section 15(1)(a) to refuse the request.
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 the records sought relate to a protected disclosures report made and that the Act does not apply to the records sought, pursuant to section 42(ja) of the FOI Act.
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.
Stephen Rafferty
Senior Investigator