Decision
Mr Y and Department of Justice
From Office of the Information Commissioner (OIC)
Case number: OIC-150725-G1X7Y6
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-150725-G1X7Y6
Published on
Whether the Department was justified in refusing access to various records relating to a decision to reject the applicant’s citizenship application
This case has its background in the Department’s refusal of the applicant’s request for naturalisation under the Irish Nationality and Citizenship Act 1956. In a request dated 20 January 2024, the applicant submitted a request for information which also stated that under section 10 of the FOI Act he was seeking a statement of reasons on certain elements of the Department’s refusal of his request.
The applicant set out six categories of information which he was seeking, two of which sought statements of reasons, and the remaining four sought records/information in relation to Department’s adjudication process on citizenship applications.
“(a) In relation to appraising the “strength of connections to the state” any tests or variables based on either policy, jurisprudence and/or the decision makers’ judgement, that were used in evaluating such connections, over and above those cited in section 16(2)(a) of the Irish Nationality and Citizenship Act (1956, as amended).
(b) Any data/information, including from previous applications refused/granted, that was used in the calibration process of concluding that “the strength of these connections are weak.”
(c) A full statement of reasons for concluding that “the strength of these connections are weak.”
(d) In relation to appraising "...exceptional or compelling circumstances that raises the application above the norm" any tests or variables, based on either policy, jurisprudence and/or the decision makers' judgement, that were used in evaluating this.
(e) Any data/information, including from previous applications refused/granted, that was used in the calibration process of concluding that: "There is no evidence submitted with this application of exceptional or compelling circumstances that raises the application above the norm.”
(f) A full statement list of reasons for concluding that: There is no evidence submitted with this application of exceptional or compelling circumstances that raises the application above the norm”
In a decision dated 16 April 2024, the Department refused access to parts (a), (c), (d) and (f) of the request under section 15(1)(i). The decision stated that the basic test with regard to Irish Association is establishing the blood link and the Minister has absolute discretion in accordance with the citizenship legislation. The information in parts (b) and (e) were refused in accordance with section 37(1), although the Department did not identify or schedule any records, it maintained that given the relatively low numbers involved, any information provided may inadvertently lead to the identity of the individual applicants. On 20 April 2024, the applicant submitted his request for internal review. The applicant argued that under section 10 he was entitled to a statement of reasons, and further that the information he was seeking is beyond what was written in the reference document and was used in the deliberative process in terms of the Minister arriving at his decision. The applicant also stated that in terms of the information sought under sections (b) and (e) he would be happy to receive this information in summary or anonymised form.
On 20 May 2024, the Department issued its internal review decision, which affirmed the original decision. On 23 July 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 submissions made by the Department, communications with the applicant, and to the above correspondence between the parties. I have decided to conclude this review by way of binding decision.
Upon receipt of the applicant’s application to this Office, the request was split in two parts. Parts (c) and (f) of the applicant’s request sought a statement of reasons from the Department on two parts of its refusal to grant the applicant’s citizenship application, these will be considered as part of a separate review undertaken by this Office.
During the course of the review, the Department changed its position on its refusal of parts (b) and (e) of the request, the Department also refused the release of any records in question under section 15(1)(c), i.e. on the basis that the request was too voluminous. Accordingly, this decision is solely concerned with whether the Department was justified in refusing parts (a), (b), (d) and (e) of the applicant’s request under sections 37(1), 15(1)(i) and 15(1)(c) of the FOI Act.
Section 22(12)(b) of the FOI Act provides that when the Commissioner reviews a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore, in this case, the onus is on the Department to satisfy the Commissioner that its decision to refuse access to certain records, either in whole or in part, was justified.
The applicant has set out that where personal information such as in an applications of other requests for naturalisation arise, that he is seeking this information in extract/summary form. For the benefit of the applicant, I wish to note that while the purpose of the Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from a public body must make a request for records that contain the information sought. Requests for information, or for answers to questions, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information can reasonably be inferred to be a request for a record containing the information sought. Furthermore, the FOI Act does not require FOI bodies to create records if none exist, apart from a specific requirement under section 17(4) of the Act to extract records or existing information held on electronic devices.
Section 15(1)(i) of the FOI Act provides for the discretionary refusal of a request where the request relates to records already released, either to the same or a previous requester and where the records are available to the requester concerned. For the section to apply, the FOI body should be in a position to show that (i) the records sought were already released and (ii) they are available to the requester.
The Department refused the following information under section 15(1)(i):
“(a) In relation to appraising the “strength of connections to the state” any tests or variables based on either policy, jurisprudence and/or the decision makers’ judgement, that were used in evaluating such connections, over and above those cited in section 16(2)(a) of the Irish Nationality and Citizenship Act (1956, as amended).
(d) In relation to appraising "...exceptional or compelling circumstances that raises the application above the norm" any tests or variables, based on either policy, jurisprudence and/or the decision makers' judgement, that were used in evaluating this.
In the Department’s submissions, it stated that the information in question was contained in the submission and decision letter which issued to the applicant from the Citizenship Unit in Immigration Service Delivery in the Department. It states that the refusal submission contains a full statement of reasons for the refusal recommendation and therefore the refusal decision. It states that the submission also contains a comprehensive index of the documentation considered by the decision maker in coming to the decision. It states that all refusal decisions for naturalisation applications are constructed with a view to ensuring absolute transparency as to the reasoning behind the decision and reassuring the applicant that all supporting documentation and other relevant circumstances have been fully considered.
The Department has also set out that the test with regard to Irish Association is establishing the blood link and the Minister’s absolute discretion under Section 16. It states that the assessment is made, on the basis of information provided by the applicant, to evaluate the relevant strengths of the applicant’s relationship to the State beyond the establishment of the blood link. The Department also stated that it is drafting guidelines which will provide further clarification and transparency around the decision making process relating to these types of citizenship applications.
For reference, section 15 of the Irish Nationality and Citizenship Act 1956 provides for Ministerial discretion in granting an application of a certificate for naturalisation, if satisfied that the applicant complies with certain conditions, such as continuous residence in the state for a year before the date of the application, and during the eight years proceeding has a total residence in the state for four years. Section 16 of the of the Irish Nationality and Citizenship Act 1956 provides that the Minister may grant an application for a certificate of naturalisation in certain specific circumstances, although the conditions of naturalisation are not complied with, again at his/her own discretion.
The Department has stated that there is no record or records which set out the tests and variables, but that there is a holistic approach to handling the section 16(1)(a) applications, based on knowledge, experience of application of Ministerial policy, jurisprudence or court outcomes influencing staff and policy in assessing applications.
The applicant has argued that the decision makers are refusing to specify what tests and factors were used in arriving at the conclusions above, which he argues presents a profound deficiency of reasons. The applicant has also made it clear to the Department that he is not seeking the submission or decision letter which issued to him. The applicant’s request did not identify a specific record, but it seems to me that he is seeking any record which provides information on how the Department/Minister adjudicates on different citizenship applications, and more specifically any records which sets out any tests or variables which the Minister takes into consideration upon her consideration of naturalisation requests, either set out in policy or jurisprudence, similar to how this Office may apply a public interest test. The Department’s response seems to me to indicate that an explanation of all factors which were taken into consideration are included in the Minister’s decision as part of the reasoning, which in the circumstances I accept.
However, it also seems to me that the more appropriate course of action for the Department based on its submissions would have been to engage with the applicant further to either refine his request, or to consider the applicability of section 15(1)(a) to the request, if it is the case that this information is not contained in other records. The applicant has made it clear to the Department that the record in question is not the one he is seeking. He has argued that the Department’s FOI responses repeatedly refer back to the original decision letter which lacks the key information he is seeking. He has further argued that the decision makers are refusing to specify what tests and the factors were used in arriving at this conclusion, and that in his view the Department did not consider his request appropriately. On that basis, I am not satisfied that the Department has considered this matter appropriately and on that basis, I am annulling this part of the Department’s decision to refuse the request under section 15(1)(i), on the basis that the record scheduled is not the record the applicant requested.
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 Act details 14 specific categories of information that is personal information without prejudice to the generality of the foregoing definition, including (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.
As outlined above the Department utilised section 37(1), and later during the course of this review section 15(1)(c) to refuse access to parts (b) and (e) of the request. The Department has stated that the records in question relate to Irish Association applications, and that there are 200 records. The Department says of these 200, the majority would be refused. In terms of personal information, the Department has argued that all Irish Associations applications are the subject of a comprehensive submission to the Minister, it stated that the submission details the name, address, DOB and departmental reference number for the applicant, along with a very detailed account of their personal circumstances.
Based on the wording of the applicants’ request it does not appear that he was directly seeking copies of other applications, but rather was seeking information on any data/information used in the calibration of certain decisions, which may have included data from applications in summary or anonymised form. It is worth mentioning for the applicant’s benefit that there is no obligation on the Department to extract information from records except in circumstances where section 17(4) is applicable, as set out above.
It seems to me, that there may not have been any specific records which contain all of this information, however that is a matter for the Department to clarify with the applicant when processing the request. Upon its application of section 37(1), the Department at original decision and internal review stage did not schedule any records, nor did it provide any records for this Office to review. It has stated that there are more records that come within the scope of this request which have not been scheduled due to the volume of records involved. It does not appear to me that the Department has adequately reviewed the records based on its arguments, it is also not clear to me whether there are records which could’ve been provided to the applicant with redactions. This Office is not in a position to act as a first instance decision maker, nor can I find that records are exempt under this section without having viewed the records myself. From my review of the decision records and the Department’s submissions, it also appears that the Department has interpreted this part of the applicant’s request to only mean he is seeking copies of other applications for naturalisation. I believe this to be a narrow interpretation of the request. The Department did not seek to clarify this with the applicant, nor did it schedule any records, but rather blanket refused him on the basis that other applications for naturalisation contain third party personal information.
Accordingly, I am not satisfied that the Department was justified in refusing this part of the applicants request under section 37(1).
Section 15(1)(c) provides for the refusal of a request where the FOI body considers that granting the request would, by reason of the number or nature of the records concerned or the nature of the information concerned, require the retrieval and examination of such number of records or an examination of such kind of records concerned as to cause a substantial and unreasonable interference with, or disruption of, work of the body (including disruption of work in a particular functional area).
However, section 15(4) provides that a request cannot be refused under section 15(1)(c) unless the body has first assisted, or offered to assist, the requester in amending the request so that it no longer falls to be refused under that section. Accordingly, before I consider whether the Department was justified in refusing the request under section 15(1)(c), I must first consider whether it complied with the provisions of section 15(4) before doing so.
The FOI Act is silent on the precise nature or level of the assistance to be offered under section 15(4). This Office takes the view that before a body can refuse a request under section 15(1)(c), the body must first have provided reasonable assistance to the requester in amending the request, or have offered to provide assistance in cases where the requester is not willing to amend the original request, in order to comply with the requirements of section 15(4). On the question of what constitutes reasonable assistance, this Office considers that the level or nature of the assistance to be provided can vary significantly from case to case and will depend on the particular facts and circumstances of the case. It will often also depend on the willingness of the parties to engage in meaningful discussion on what might be acceptable in the circumstances.
As the Department applied section 15(1)(c) during this Office’s adjudication of the Department’s decision, it is evident that the Department made no offer of assistance to the applicant to refine his request. The terms of section 15(4) are clear. The FOI body must assist, or offer to assist, the requester in amending the request before it can be refused under section 15(1)(c). I find, therefore, that the Department did not comply with the provisions of section 15(4) in this case. My finding that the Department did not comply with the provisions of section 15(4) is, of itself, sufficient for me to find that it was not justified in refusing the applicant’s request under section 15(1)(c) of the FOI Act, and I find accordingly. In the circumstances, I am satisfied that the most appropriate course of action is to annul the decision of the Department and to direct it to undertake a fresh consideration of the request.
I understand that this may be frustrating for the applicant. However, I do not consider it appropriate to simply direct the release of the records which I have not seen, or in circumstances where the Department has indicated that it considers that processing the request, as it is currently worded, would cause a substantial and unreasonable interference with, or disruption of, its work. I strongly recommend engagement between both parties before the Department considers the request afresh with a view to clarifying any ambiguity the Department may have in relation to the applicant’s request.
I would add that if the Department remains of the view that the request is voluminous, it must first comply with section 15(4) if it is minded to once again consider refusal of the request under section 15(1)(c). If the applicant is not satisfied with the new decision made by the Department, the usual rights of review will apply.
Decision
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Department’s decision. I find that the Department was not justified in refusing the applicant’s request under section 15(1)(i), 15(1)(c) and 37(1), I direct the Department to carry out a fresh decision making process on the applicant’s request.
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.
Rachael Lord
Investigator