Decision
Ms C and Department of Housing, Local Government and Heritage
From Office of the Information Commissioner (OIC)
Case number: OIC-143960-K7Z7V4
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-143960-K7Z7V4
Published on
Whether the Department was justified in refusing access under sections 35, 37, and or 42(ja) of the FOI Act, to correspondence and a report provided by named individuals to the Department.
21 October 2024
All references in this decision should be read as references to the applicant or to her legal representative as appropriate. By way of background, this case relates to a report into allegations made by an employee of an external third party organisation (Organisation X) to their employer about the applicant. Organisation X commissioned an independent third party to carry out an investigation into the allegations. The investigation was finalised and I understand that the final report by the independent third party (the Report) was circulated to a limited number of individuals in 2023. The applicant maintains that an individual or individuals in Organisation X forwarded a copy of the report to the Department. For clarity Organisation X is not an FOI body.
In a request dated 20 June 2023, the applicant first applied to the Department for access to records relating to the above matter. Following engagement between the applicant and the Department, the request was refined on 12 July 2023 to the following:
1. A copy of the third party report, dated 21 January 2022, carried out on behalf of Organisation X.
2. All correspondence/documentation received from a named individual in relation to the report.
3. All correspondence/documentation received from a second named individual in relation to the report.
In a decision dated 10 August 2023, the Department refused the applicant’s request under sections 35(1)(a) and 37(1) of the FOI Act. On 22 August 2023, the applicant submitted a request for an internal review of the Department’s decision. Among other things the applicant argued that her privacy rights had been breached by the unauthorised leaking of this confidential report to the Department and that no further breach of those rights could occur by providing her with the documentation requested. She said she required the documentation in order to determine the extent to which her rights had been breached. On 21 September 2023, the Department issued its internal review decision, wherein it affirmed the refusal of the request under sections 35(1)(a) and 37(1). On 15 November 2023, the applicant applied to this Office for a review of the Department’s decision.
During the course of the review, the Investigator formed the view that the original complaint, made by a staff member of Organisation X appeared to meet the criteria for a protected disclosure under the Protected Disclosures Act 2014. That Act provides certain protections to those who make protected disclosures. That Act has recently 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). For ease of reference, I will refer to the Protected Disclosures Act 2014 as amended as the PD Act. The Investigator contacted the Department and the applicant and notified them of her view that section 42(ja) may be applicable. She invited submissions on the matter, which were duly made by both parties.
I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the submissions made by the Department and the applicant as set out above. 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.
It is important to note that a review by this Office is considered to be de novo, which means that in this case, 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 originally reached its decision. Section 42 of the FOI Act provides that the FOI Act does not apply to certain records. Accordingly, in light of the de novo nature of our reviews, I consider it appropriate to consider the applicability of section 42(ja) to the applicant’s request, notwithstanding the fact that the provision was not initially relied upon by the Department as a ground for refusing the request.
Accordingly, this review is concerned with whether the Department was justified in refusing the applicant’s request for certain records relating to the Report under sections 35, 37 and/or section 42(ja) of the FOI Act.
Before I consider the substantive issues arising, I would like to make a number of preliminary comments. First, in her application for review and subsequent submissions to this Office, the applicant indicated that she was seeking access to the records sought in order to determine the full extent of a “damaging unauthorised leak” of the report to third parties and so that she could “protect her reputation and her right to privacy”. It is important to note that section 13(4) of the FOI Act 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. Therefore, while certain provisions of the Act implicitly render the motive of the requester relevant, as a general rule the actual or perceived reasons for a request must be disregarded in deciding whether to grant or refuse an access request under the FOI Act.
Secondly, while I am required, under section 22(10) of the FOI Act, to give reasons for my decision, section 25(3) requires me to take all reasonable precautions during a review to prevent the disclosure of information contained in an exempt record or matter that, if it were included in a record, would cause the record to be an exempt record. This means that the extent to which I can discuss the matters arising in this case and/or give reasons for my decision is somewhat limited. However, I can confirm that I have carefully considered all submissions made.
Although I am constrained by the obligation not to disclosure exempt information under section 25(3), I do not consider that I would be in breach of section 25(3), by describing the records as a report of an independent investigation carried out by a third party on behalf of Organisation X and a covering letter under which the Report was sent to the Department. The Report was commissioned on foot of a number of allegations made against the applicant as an employee of Organisation X by a whistle-blower within the organisation.
As stated above, the Department refused the applicant’s request under section 35(1)(a) and 37(1) of the FOI Act 2014. Having regard to the records sought, I am satisfied that section 42(ja) is the most appropriate provision of the FOI Act to consider in the first instance.
A protected disclosure is a disclosure of 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.
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” 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 relate to a report made under the PD Act, I have considered whether there is a sufficiently substantial link between such records and a report made under the PD Act 2014.
During the review, the Investigator notified the applicant and the Department of her view that section 42(ja) applied and that the records sought seemed to her to relate to the initial complaint made to Organisation X, which would also fall under section 42(ja). The applicant disputed the assertion that a protected disclosure was made in this case and she presented a number of arguments in support of her position.
Submissions
Upon consultation with the Department in relation to the applicability of section 42(ja), the Department said that it was in agreement that the records in questions were created following a protected disclosure made to Organisation X, and that accordingly the records would be exempt from release under section 42(ja).
In her submissions provided, the applicant stated her firm position that the complaint made by the Organisation X employee, which preceded the report, was not a protected disclosure for the purposes of the PD Act. The applicant noted that section 5 of the PD Act outlines that a protected disclosure is a disclosure by a worker of “relevant information” related to “relevant wrongdoings” which came to the attention of the worker in the course of their employment. In particular, she noted that section 5(5) of the PD Act states that “A matter is not a relevant wrongdoing if it is a matter which it is the function of the worker or the worker’s employer to detect, investigate or prosecute and does not consist of or involve an act or omission on the part of the employer”. The applicant argued that in this instance, in relation to the matters raised in the complaint (which she disputes), it is the function of the complainant’s employer (Organisation X) to “detect, investigate or prosecute”. The applicant maintained that in these circumstances, it is apparent that the said complaint cannot be considered a protected disclosure for the purposes of the PD Act.
The applicant also stated that the complaint to Organisation X was considered by its own in-house legal advisors who confirmed that the complaint did not constitute a protected disclosure. The applicant also noted that any correspondence relating to the leaking of the report to the Department from Organisation X, relates to the Report and not the complaint which preceded the Report, and that accordingly, this correspondence could not be said to relate to a protected disclosure, even if the preceding complaint was considered a protected disclosure.
My Analysis
In essence, the applicant argued that the complaint made against her by the employee of Organisation X, could not be considered a Protected Disclosure, as the subject of the complaint or alleged “relevant wrongdoing” is a matter for the Organisation to detect, investigate or prosecute, and further that the organisation itself did not consider the matter a protected disclosure. Her second argument relates to the “leaking of the report,” as not related to the complaint which preceded the report. The applicant maintains that this is not a protected disclosure.
The question I must consider is whether the records at issue relate to a report made under the PD Act, which in this case would be the complaint made to Organisation X. If they do, then section 42(ja) applies and no right of access exists to such records under the FOI Act.
The PD Act defines “report” or “to report” as “the oral or written communication of information on relevant wrongdoings”, while a reporting person is defined as “a worker who makes a report in accordance with this Act”. The definition of a worker is quite broad. It is defined as “an individual working in the private or public sector who acquired information on relevant wrongdoings in a work-related context” and includes a broad range of individuals. I note that the broad definition of “worker” includes “an individual who is or was a volunteer”.
The Report at issue explains that the independent third party that prepared the Report was commissioned to conduct its investigation in relation to “whistleblower allegations made”. Section 5 of the PD Act broadly provides that a “protected disclosure” is a disclosure of relevant information made by a worker through designated procedures, or in the manner specified, to the worker’s employer. The range of matters deemed to be “wrongdoings” for the purposes of the Act is quite broad. Moreover, I note that section 5(8) of the PD Act provides that “in proceedings involving an issue as to whether a disclosure is a protected disclosure it shall be presumed, until the contrary is proved, that it is”.
In relation to whether the “relevant wrongdoing” is a matter for the organisation to detect, investigate or prosecute, I note from guidance on the website of the Office of the Protected Disclosures Commissioner that certain complaints are not usually considered “relevant wrongdoings” for the purposes of the Act, including “when it is your job to uncover the wrongdoing, for example a police officer investigating a crime or an environmental officer investigating an oil spill”. I am satisfied that the complaint in question does not comprise such a matter. It is not apparent to me that it was part of the role of the complainant, or indeed, the organisation, to detect, investigate or prosecute the matters complained of. While Organisation X may well be responsible for following up on the issues raised in the complaint in so far as they relate to the actions of the organisation, it is not the ordinary day-to-day function of the organisation to deal with such matters generally. It is also noteworthy that the organisation sought to engage the services of an independent third party to conduct the investigation. I am satisfied on that basis, that the first requirement for section 5(5) to apply is not met.
In relation to whether Organisation X itself considered the matter to be a protected disclosure, I have considered the judgement inClarke v CGI Food Services Limited [2020] IEHC 368. In that case, the Court considered whether the plaintiff was trying to retrospectively characterise matters as a protected disclosure. The Court found that one can make a protected disclosure without invoking the language of the PD Act, or without using the language of “protected disclosure”. It was noted that it is often only after the potential adverse consequence that one has to retrospectively figure out what happened and analyse it in statutory language. I also note that section 5(8) of the PD Act provides that “in proceedings involving an issue as to whether a disclosure is a protected disclosure it shall be presumed, until the contrary is proved, that it is”.
Having considered the matter, and the contents of the records at issue, I am satisfied that there is sufficient evidence before me to support a finding that the complaint made comprised a report made under PD Act 2014, regardless of whether or not it was treated as such by Organisation X. I would add that the applicant will be aware of my findings in Case OIC-143468 (Ms C and An Bord Pleanála) wherein I found that the giving of a copy of the same Report to An Bord Pleanála comprised a report made under the DP Act.
In relation to the applicant’s argument that any correspondence relating to the leaking of the report to the Department relates to the Report and not to the complaint which preceded the Report, I do not accept that argument. The Report clearly relates to the original complaint. Moreover, I am satisfied that the covering letter to the Report also relates to the original complaint in so far as its purpose was to bring the contents of Report of the investigation of the complaint to the attention of the Department. I am satisfied that there is a sufficiently substantial link between the covering letter and the original complaint.
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.
As I have found section 42(ja) to apply to the records sought, I do not need to consider the Department’s reliance on sections 35 or 37 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.
Stephen Rafferty
Senior Investigator