Decision
Mr X and Department of Agriculture, Food and the Marine
From Office of the Information Commissioner (OIC)
Case number: OIC-153333-X4K7P1
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-153333-X4K7P1
Published on
Whether the Department was justified in refusing access to communications between various Department staff and others regarding the applicant’s business
20 August 2025
On 20 August 2024, the applicant made an FOI request for access to “all communications, e-mail and otherwise to and from [staff member A] and others concerning my hatchery and poultry business both within the DAFM and otherwise Since January 2022. I similarly request access to all communication, e-mail and otherwise to and from [staff member B] and all others concerning my poultry business especially since January 2022.”
The Department’s decision of 18 September 2024 refused the request in full under section 30(1)(a) of the FOI Act (prejudice to investigations or investigation procedures). It did not provide the applicant with a schedule of the records concerned.
On 30 September 2024, the applicant sought an internal review of the Department’s decision.
The Department’s internal review decision of 24 October 2024 affirmed its refusal of the request under section 30(1)(a) of the FOI Act.
On 31 October 2024, the applicant applied to this Office for a review of the Department’s decision.
In response to my request for submissions, the Department says that it no longer relies on section 30(1)(a) of the FOI Act. Instead, it now seeks to rely on sections 15(1)(i) of the FOI Act (records already released to the applicant), 31(1)(a) (legal professional privilege), 37(1) (personal information) in relation to the records at issue.
I subsequently informed the applicant of the Department’s changed position. I note from his response that he is not looking for copies of his correspondence with the Department. He confirms also that the second part of the request seeks records from 2022 onwards only. Furthermore, he appears to suggest that, without having been given a schedule, he cannot be sure that the Department has identified all relevant records. In this respect, he says that the Department corresponds with parties such as the Food Safety Authority of Ireland, the National Disease Control Centre, the Local Authority Veterinary Services, the Department of Health, and State Laboratories, such as Backweston. He refers also to the Department’s Special Investigation Unit and Investigations Division.
I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges, to correspondence between this Office, the Department and the applicant, to the contents of the records at issue and to the provisions of the FOI Act.
The scope of this review is confined to the sole issue of whether the Department was justified under the FOI Act in refusing to grant the applicant’s request.
I note from the material supplied to this Office that the Department’s decisions covered 101 records (containing over 430 pages). A small number of these concern the processing of the FOI request. The records also include considerable amounts of correspondence with the applicant. For instance, some records consist of email threads containing emails with the applicant, which are then sent on to other Department officials for discussion, response, etc. As the applicant has now confirmed, he does not seek access to his correspondence with the Department.
My request for submissions drew the Department’s attention to the requirements of sections 13(2)(d) and 21(5)(c) of the FOI Act. These provisions require that refusal decisions shall specify:
• the reasons for the refusal;
• any provisions of the FOI Act pursuant to which the request is refused;
• the findings on any material issues relevant to the decision; and
• particulars of any matter relating to the public interest taken into consideration for the purposes of the decision.
The Department’s original decision says only that section 30(1)(a) of the FOI Act applies on the basis that disclosure of the records “would impede ongoing … investigations”. It does not explain how such an outcome could result from disclosure, or deal with the public interest at section 30(2) of the FOI Act.
Similarly, the Department’s internal review decision says that section 30(1)(a) applies because there was an ongoing investigation into the matter and that it was “not in a position to make comment or release any information”. It says also that details on ongoing investigations are not released under the FOI Act until the investigations are complete. Again, the Department did not explain how disclosure of the records could impede the ongoing investigation or address the public interest.
The Department has been subject to FOI since 1998 and should be very familiar with the requirements of the FOI Act. Its decisions fall well short of what is specified by sections 13(2)(d) and 21(5)(c). In future, it should ensure that its decisions meet all relevant requirements. Furthermore, while the FOI Act does not require the production of a schedule, it is nonetheless good practice for FOI bodies to do so and to provide a copy to the requester.
The applicant has contended that a particular Department official involved in the FOI decision making “would have a conflict of interests or is acting on behalf of others who would have conflict of interests in releasing that information.” He says also that he needs the records.
This review is carried out under section 22 of the FOI Act. While it does not examine the Department’s performance of its functions under the FOI Act, this Office has previously accepted that it is appropriate for subject matter experts to be designated FOI Officers. Furthermore, section 13(4) of the Act provides that, subject to the Act, in deciding whether to grant or refuse a request, any reason that a requester gives for the request shall be disregarded. This means that my review I cannot have regard to any motives that the applicant may have for making the request, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest.
It is important to note that section 25(3) of the FOI Act requires me to take all reasonable precautions in the performance of my functions to prevent the disclosure of information contained in an exempt record or that would cause the record to be exempt if it contained that information. Furthermore, section 25(3) also requires me to limit the description I can give of the Department’s submission.
Release of records under FOI is generally understood to have the same effect as publishing them to the world at large, given that the Act places no constraints on the uses to which the information contained in those records may be put.
I also wish to highlight section 22(12)(b) of the FOI Act which, as the Department is aware, provides that a decision to refuse to grant an FOI request shall be presumed not to have been justified unless the FOI body satisfies the Commissioner that the decision was justified. This means that the onus is on the Department of satisfying this Office that its decision to refuse the request was justified in this case. In the case ofThe Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57, the Supreme Court found that the head of the FOI body dealing with the request must be conscious at all stages of the process that the overriding presumption is one of disclosure, with the result that any refusal to disclose must be fully reasoned and sufficiently coherent, fact specific, and logically connected to the document or record such that the justification is sufficient.
As noted above, my request for submissions drew the Department’s attention to the requirements of sections 13(2)(d) and 21(5)(c) of the FOI Act. I noted that its decisions do not specify findings on any relevant material issues, or particulars of any matter relating to the public interest taken into consideration. I said that it appeared to have refused access to the records as a class and that it did not, as required by the FOI Act, make its decisions by having regard to the content of each individual record. I asked the Department to address such matters in its submission. I said that, if seeking to rely on other FOI exemption provisions, the submission should show how the requirements of such exemptions are met in this case, addressing the public interest where relevant. I also referred the Department to various material on the OIC website that would assist it in making its submission.
The Department’s two-page submission replies to questions I had asked and gives other information. It contains no details of any exemptions being relied on or of why they are considered to apply, and does not deal with the public interest test in section 37. Rather, it refers to columns H and I of an associated Excel spreadsheet, which it says cite the FOI provisions applicable to each record and detail the reasons for applying them. Column I of the spreadsheet lists sections 15(1)(i), 31(1)(a) and/or 37(1) of the FOI Act, as appropriate. While I am constrained in how I can describe the contents of Column H, it is fair to say that it gives extremely brief details of why the Department considers the provisions to apply.
While I note the applicant’s views on the Department’s claim for new exemptions, it is open to FOI bodies to seek to rely on new exemptions during a review by this Office. In this instance, however, the Department has adopted an entirely new basis for withholding access to the records. Essentially, applying its arguments to the substance of each of the records at issue would require me to act as a first instance decision maker rather than as a reviewer.
Furthermore, the Department’s submission falls very short of the kind of detailed and reasoned argument that this Office expects. Even if it were appropriate for me to consider whether the content of each record qualifies for exemption under the new provisions claimed, as set out below this would, in my view, require extensive further engagement between this Office, the Department and the applicant, particularly in relation to the Department’s claims under sections 15(1)(i) and 31(1)(a).
In relevant part, section 15(1)(i) of the FOI Act provides that a head may refuse to grant a request where it relates to records already released to the same requester where the records are available to the requester concerned. According to its schedule, the Department claims that section 15(1)(i) applies to records in full and in part, on the basis that they are “already available to requester”. However, where claiming section 15(1)(i) over parts of records, the Department does not identify the relevant excerpts. In addition, it gives no details of why it contends any of the relevant records/parts of records have been released to the applicant and are available to him.
I presume that the Department is claiming section 15(1)(i) over copies of correspondence with the applicant which, as noted above, he has since confirmed that he is not seeking to obtain. However, a brief overview of the records suggests that other types of record may have been provided to the applicant, to which section 15(1)(i) may be relevant. My request for submissions referred very generally to such material. Without specific comment from the Department on the matter, it would not be appropriate for me to assume that particular records have, in fact, been provided to the applicant, however.
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). Where a claim for exemption is made on the basis that the records are covered by legal professional privilege, each record should be considered in its own right. LPP enables the client to maintain the confidentiality of two types of communication:
• 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
• 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/pending litigation (litigation privilege).
The Department says that section 31(1)(a) applies to various excerpts of the records. The applicant says that while he did appeal a compliance notice, the matter was not heard for reasons which he outlines. He says that there is no litigation or legal actions pending.
Again, the Department does not identify the particular details over which it is now claiming section 31(1)(a). It gives a very limited reason for relying on the provision, which does not specify whether the Department is claiming that advice privilege or litigation privilege applies (or both). Neither does it provide any arguments, or relevant facts or other information, as to why it considers the relevant details to attract the privilege concerned. In my view, the Department is seeking to rely on section 31(1)(a) in a class-based way, rather than by having regard to the particular content of each of the relevant records. However, this does not preclude the possibility that some of the records may, in their own right, attract legal professional privilege. Without relevant detailed argument and information, it is not possible for me to assess the matter, however.
Speaking very generally, section 37(1) must be applied to personal information, except for certain limited details relating to public servants that are set out in section 2 of the FOI Act. Again, the Department does not identify the excerpts that it considers to comprise personal information, or explain why they qualify under section 37(1), or deal with the other provisions of section 37 including the public interest test. Nonetheless, it is possible that some excerpts of the records may be exempt under section 37(1) of the FOI Act.
Further to the above, I am not satisfied that the Department’s submission justifies its refusal of the applicant’s request. However, while I do not intend to invite further arguments from the Department on the matter and act as a first-instance decision-maker, neither do I consider it appropriate to direct it to grant the request, particularly given the mandatory nature of sections 31(1)(a) and 37(1) of the FOI Act.
In all of the circumstances, I consider that the most appropriate course of action is to annul the Department’s decision on the applicant’s request. Taking account of the material excluded by the applicant (and if necessary, having obtained clarification from the applicant on the matter), I direct the Department to make a new decision on the request in accordance with the provisions of the FOI Act. I urge the Department to provide the applicant with a schedule of the records it considers to be covered by the request. Amongst other uses, a schedule will enable the applicant to assess whether the Department’s searches appear reasonable.
I appreciate that the applicant may be frustrated with this outcome. The OIC will endeavour to prioritise any application for review that he may make to us in relation to the Department's fresh decision.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Department’s decision. I direct it to make a fresh decision on the applicant’s request in accordance with the provisions 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.
Anne Lyons
Investigator