Decision
Mr X and Department of Defence
From Office of the Information Commissioner (OIC)
Case number: OIC-123569-J5J5P2
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-123569-J5J5P2
Published on
Whether the Department was justified in refusing access to records relating to the applicant as held by the Minister’s Office on the basis of a number of provisions of the FOI Act, and in refusing access to any further records on the basis that they did not exist or could not be found
15 August 2023
On 14 January 2022, the applicant, a retired member of the Air Corps, sought access to all records held by the Minister’s Office, from 1 January 2013 to the date of his request, relating to him and to claims he made.
On 18 February 2022, the Department part-granted the request. It refused access to a number of records, in whole or in part, under sections 31(1)(a), 35(1)(a) and 37(1) of the Act and it also cited section 10(1) of the Ombudsman (Defence Forces) Act 2004 in support of its refusal of two records (records 52 and 53) in the schedule of records provided. On 21 February 2022, the applicant sought an internal review of that decision. He said he believed there to be a significant number of documents missing and noted that he had been provided with no records for the period 1 January 2013 to 10 April 2016.
In its internal review decision of 5 May 2022, the Department affirmed the original decision in respect of the 53 identified records. However, the internal reviewer noted that the Minister’s Office held additional records that were not originally considered. He said that as he was reviewing the decision made in relation to the records originally considered, he had made no decision in relation to the additional records.
On 17 May 2022, the applicant sought a review by this Office of the Department’s decision. Among other things, he said he had not received records relating to a case of penalisation of a whistle blower he had submitted to the Minister on 13 January 2015, or the Minister’s response advising him to submit the case of penalisation to the Ombudsman for the Defence Forces.
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 applicant’s comments in his application for review and to the submissions made by the Department in support of its decision. I have also had regard to the contents of the records at issue. I have decided to conclude this review by way of a formal, binding decision.
Following our notification to the Department that we had accepted the application for review, the Department informed this Office that 20 further records had, in fact, been considered for release. I understand that records 9, 10, 11, 15, 16 and 17 of this group of 20 records were released to the applicant. The Department said the remainder of the records were refused under section 35 of the FOI Act and pursuant to section 10(1) of the Ombudsman (Defence Forces) Act 2004.
The Department also explained that following receipt of a copy of the applicant’s application for review, it had succeeded in locating a third group of 12 records in the Minister’s Office. This third group included the letter the applicant had sent to the Minister in 2015 and the Minister’s response as outlined in his application for review. Records 1, 2, 5, 6, 7, and 9 of this group were released in full to the applicant while records 3 and 12 were refused, and records 8, 10, and 11 were part-granted, under sections 35 and 37 of the FOI Act.
Moreover, during the course of the review, the Department informed the applicant that a fourth tranche of 38 records had been identified. These additional records were broken down into two separate schedules. The first schedule contained details of eight records to which the Department granted access with the exception of certain information in record 7 which it refused under section 37. The second schedule contained details of 30 records, all of which the Department withheld under section 41.
For the purposes of this review, I will refer to the various groups of records as follows:
In addition, during the course of the review, the Department argued that Part 1 records 52 and 53 that were refused pursuant to section 10(1) of the Ombudsman (Defence Forces) Act 2004 were exempt from release under section 41, along with Part 2 records 1 to 8, 12 to 14, and 18 to 20. Moreover, following correspondence with this Office, the Department clarified that the Part 1 record referred to as record 43 that had been released to the applicant was in fact the record listed as record 48 in the schedule. It clarified that the correct record 43 had been refused under section 31(1)(a).
It is also relevant to note that during the review, the Protected Disclosures (Amendment) Act 2022 (the 2022 Act) came into operation on 1 January 2023. Section 20 of that Act amended the FOI Act by the insertion of 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 [2022 Act]”. The Investigator informed the applicant of her view that section 42(ja) was of relevance in this case. In response, the applicant argued that at the time of the original decision by the Department, section 42(ja) had not yet come into force. He argued that this Office must base its decision on the law that was in force at the time of the Department’s decision as to do otherwise would breach the fundamental principles of natural justice and fair procedures.
It is important to note that a review by this Office is considered to be “de novo”, which means that in this case, it is based on the circumstances and the law as they pertain at the time of the decision and is not confined to the circumstances and the law as they pertained at the time of the original decision by the Department. Moreover, section 42(ja) specifically provides that the FOI Act does not apply to a record relating to a report made under the Protected Disclosures Act 2014, regardless of whether the report was made before or after the date of the passing of the 2022 Act.
Therefore, while the Department did not rely on section 42(ja) to withhold any records, it seems to me that the section is of potential relevance to at least some of the records and as such, I deem it appropriate to consider the applicability of this new provision to the records at issue.
Accordingly, this review is concerned with whether the Department was justified in refusing access, in whole or in part, to various records under sections 31(1)(a), 35(1)(a), 37(1), 41 and 42(ja) of the FOI Act, and whether it was justified in refusing access, under section 15(1)(a) of the Act, to any other records apart from those already identified as described above on the ground that no further relevant records exist or can be found.
Before I address the substantive issues arising, I would like to make a number of preliminary comments. First, as has previously been explained to the applicants, this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.
Secondly, 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. Thus, 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.
Thirdly, it is important to note that when a record is released under the FOI Act, it effectively amounts to disclosure to the world at large, as the Act places no restrictions on the type or extent of the subsequent use to which a record may be put.
Fourthly, section 22(12)(b) of the FOI Act provides that in a review by the Commissioner, a decision to refuse a request is presumed not to have been justified unless the public body shows to the satisfaction of the Commissioner that the decision was justified. In this case, therefore, the onus is on the Department to satisfy this Office that its decision to refuse to grant access to the records at issue was justified.
Finally, section 18(1) of the Act provides that if it is practicable to do so, access to an otherwise exempt record shall be granted by preparing a copy, in such form as the body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). This Office takes the view that the provisions of section 18 do not envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, this Office is not in favour of the cutting or 'dissecting' of records to such an extent. Being 'practicable' necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.
Section 15(1)(a)
Section 15(1)(a) of the FOI Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. In such cases, the role of this Office is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision and I must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.
During the course of the review, the Department provided submissions to this Office in which it provided details of the searches carried out for relevant records and of its explanation as to why no further relevant records could be found. As this Office has already provided the applicant with those details, I do not propose to repeat them in full here. In summary, it is the Department’s position that in light of the searches undertaken, it is satisfied that all records falling within the scope of the applicant’s request have, at this stage, been identified.
The Department indicated that the following is the procedure adopted with the Minister’s Office receives an FOI request:
In the current case, the Department has said that while the above procedure was followed, due to a number of staff changes in the Minister’s office certain records were missed. In particular, with regard to the 38 Part 4 records that were identified during the review, the Department explained that due to their confidential nature, they had been stored separately in the Minister’s Office and due to the passage of time and staff changes, the current staff of the Office were initially unaware of their existence.
Following receipt of the Department’s submissions, the Investigator forwarded details of the searches undertaken to the applicant and informed him of her view that the Department had, at that stage taken all reasonable steps to ascertain the whereabouts of relevant records. She invited the applicant to make further submissions if he remained of the view that further relevant records should exist. In response, while the applicant understandably criticised the way the Department “drip-fed” him the information and queried how he could believe the Department going forward, he did not provide any further evidence to suggest that additional relevant records should exist or that additional searches for relevant records might be warranted.
In sum, it is the Department’s position that all reasonable steps have, at this stage, been taken to ascertain the whereabouts of records coming within the scope of the applicant’s request and that no further relevant records exist or can be found. It is important to note that it is possible, and it is clearly envisaged by the Act, that records may exist, but still may not be found after all reasonable steps have been taken to ascertain their whereabouts. In certain cases, and depending on the circumstances, an FOI body may not be a position to state definitively what happened to the records or why they cannot be found. However, this Office takes the view that, in acknowledgement of the fact that situations can arise where records cannot be found, the FOI Act does not require such certainty. Rather, it requires the body to take all reasonable steps to ascertain their whereabouts. Moreover, the FOI Act does not require an FOI body to continue searching indefinitely for records that cannot be found. We may conclude that an FOI body has conducted reasonable searches even where records were known to have existed but cannot be found.
The question I must consider in this case is whether the Department has, at this stage, taken all reasonable steps to ascertain the whereabouts of relevant records. Having considered the details of the searches undertaken and its explanation as to why no further records exist or can be found, and in the absence of further supporting evidence to suggest that specific additional searches may be warranted, I am satisfied that it now has. The piecemeal manner in which the Department released records in this case is unfortunate and clearly gave good cause for the applicant to have concerns as to the completeness of the information released. However, having regard to the Department's description of all of the searches undertaken, I am satisfied that it has now taken all reasonable steps to locate relevant records.
I also acknowledge that in its submission to this Office, the Department indicated in light of the regrettable delays in identifying all records relevant to the applicant’s request in a timely manner, that the search and retrieval processes in the Minister’s Office are currently being reviewed. I expect that this will ensure that future requests for records will be processed in a more streamline manner.
Accordingly, I find that the Department was justified in relying on section 15(1)(a) of the FOI Act to refuse access to any additional records on the ground that no further relevant records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.
Section 42(ja)
As I have explained out above, section 42(ja) of the Act 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 [2022 Act]”. Section 4 of the 2022 Act defines “report” or “to report” as “the oral or written communication of information on relevant wrongdoings.
The applicant said the Department had previously provided access to information relating to protected disclosures made by him. He further argued that it is not in the public interest to refuse access to the information requested as such disclosures were made in the public interest and, in the absence of any updates from the Department, the applicant considers that the FOI Act is the sole method by which he can obtain information about any action taken by the Department on foot of such disclosures.
As I have explained above, section 42(ja) provides that the FOI Act does not apply to a relevant record regardless of whether the report was made before or after the date of the passing of the 2022 Act. Moreover, as I have also explained the de novo nature of our reviews means that the Commissioner’s decision is based on the circumstances and the law as they pertain at the time of the decision. Previous decisions of the superior courts support our position on the matter (see the comments of Quirke J. in The National Maternity Hospital and The Information Commissioner [2007] 3 IR 643, [2007] IEHC 113). I would add that section 42(ja) is not subject to a public interest balancing test. If the section applies to a record, then the Act does not apply and no right of access exists to the record.
In considering whether the records are records “relating to” a report made under the Protected Disclosures Act, I have adopted the reasoning in the case of EH 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” the personal information was “whether there is a sufficiently substantial link” between the requester’s personal information and the record in question.
Although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. Accordingly, I believe I am prohibited from describing the relevant records. Nevertheless, having examined them, I am satisfied, in light of the sufficiently substantial link between the records at issue and relevant reports made under the Protected Disclosures Act 2014, that section 42(ja) applies to the following records:
As I have found section 42(ja) to apply to those records, it is not necessary to consider whether any or all of sections 35(1)(a), 37(1) or 41 also apply to these records.
Section 31(1)(a)
The Department refused access to Part 1 records 43 to 47 under section 31(1)(a). That section provides for the mandatory refusal of a request if the record concerned would be exempt from production in proceedings in a court on the ground of legal professional privilege. Legal professional privilege enables the client to maintain the confidentiality of two types of communication:
In relation to litigation privilege, in the case of Silver Hill Duckling v Minister for Agriculture [1987] 1 I.R. 289, [1987] I.L.R.M. 516 (Silver Hill), O' Hanlon J. held:
"once litigation is apprehended or threatened, a party to such litigation is entitled to prepare his case, whether by means of communications passing between him and his legal advisers, or by means of communications passing between him and third parties, and to do so under the cloak of privilege."
For litigation privilege to apply, the records must have been created for the dominant purpose of contemplated / pending litigation. The dominant purpose test was expressly adopted in Ireland by O'Hanlon J. in Silver Hill. In the judgment of the High Court in University College Cork – National University of Ireland v The Electricity Supply Board [2014] IEHC 135, Finlay Geoghegan J. stated:
"The document must have been created for the dominant purpose of the apprehended or threatened litigation; it is not sufficient that the document has two equal purposes, one of which is apprehended or threatened litigation."
Part 1 records 43 to 47 comprise briefing notes and updates for the Minister’s information relating to judicial proceedings taken by the applicant with the Minister as the respondent. The notes were prepared by the litigation branch of the Department. In its submission to this Office, the Department said the documents were created for the dominant purposes of litigation. It said the Minister was the respondent in the litigation referred to in the documents. It said that while they are internal documents and not direct communication between the Department and the legal advisers, they did, however, contain material which would disclose the substance of such communications.
This Office considers that the onus is on the party asserting privilege to show, on the balance of probabilities, that the dominant purpose of the creation of the record was pending or contemplated litigation. We also consider that it is not sufficient that the record has two equal purposes, one of which is apprehended or threatened litigation.
Having examined the records, I am not satisfied that these records were created for the dominant purpose of litigation within the meaning of section 31(1)(a). In my view, the records were created for the purpose of providing updates for the Minister on various court proceedings, as opposed to being for the purpose of preparing for the litigation in question. I find, therefore, that the Department has not justified its refusal to grant access to Part 1 records 43 to 47 under section 31(1)(a).
Section 35(1)(a) – information provided in confidence
Following my findings on the applicability of section 42(ja) to certain records, the only remaining records that I must consider under section 35(1)(a) are Part 1 records 1 and 2 and Part 2 records 5, 6, 7, 12, 13 and 14.
Section 35(1)(a) provides for the mandatory refusal of a request where the record concerned contains information given to an FOI body in confidence, and on the understanding that it would be treated by it as confidential and the body considers that its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and it is of importance to the body that such further similar information as aforesaid should continue to be given to the body.
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.
In its submissions to this Office, the Department argued that the information to which access has been refused in the relevant records comprises information given to it in confidence. It stated that the information relates to correspondence from a third party and the information was given on the understanding that it would be treated as confidential. It further stated that the receipt of future information would be jeopardised if information was subsequently released under FOI.
Part 1 record 1 comprises correspondence from a third party which was forwarded to the Minister for Defence as the appropriate party to respond, while Part 1 record 2 comprises the response of the Minister’s Private Secretary to the third party. Part 2 records 7, 13 and 14 comprise correspondence from the third party, while Part 2 records 5, 6, and 12 comprise the response of the Minister’s Private Secretary to the third party as contained in Part 1 record 2.
In order for section 35(1)(a) to apply, it is necessary to show the following:
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. The correspondence in question concerns a request made by the third party that the applicant, a former colleague, should be awarded a distinguished service medal, and the Minister’s response to that request. Given its subject matter, this Office deemed it appropriate to contact the third party to ascertain his views on the possible release of the records. In response, the third party said that he was agreeable to the release of the records on the understanding that they were to the specific applicant in this case.
I take this to mean that the applicant has no concerns about the release of the substance of the records to the applicant in so far as it relates to the applicant, and that the third party did not understand that his request that the applicant should be awarded a distinguished service medal would be treated by the Department as confidential. However, the third party also included personal information in his correspondence relating to him alone and I am not satisfied that his consent to the release of the records extends to the release of that information. I accept that the third party gave such information on the understanding that it would be treated by the Department as confidential and that disclosure of the information would be likely to prejudice the giving to the Department of further similar information from the same person or other persons in the future. As to whether it is of importance to the Department that such further similar information should continue to be given to it, I accept that it is as it provides context to the request made, notwithstanding the fact that the Minister apparently has no role in nominating individuals for the award of distinguished service medals.
I am therefore satisfied that the four requirements in section 35(1)(a) have been met with regard to the following information only:
However, that is not the end of the matter as section 35(1)(a) does not apply if the public interest would, on balance, be better served by granting rather than by refusing to grant the FOI request concerned (section 35(3) refers). I must therefore consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the information to which I have found section 35(1)(a) to apply.
Having regard to the nature of the information to which I have found section 35(1)(a) to apply, I am satisfied that the public interest would be better served by withholding that information. Its disclosure would disclose nothing about the substance of the correspondence between the parties. I find that section 35(3) does not apply in this case. I find therefore that the Council was justified in refusing access to the information outlined above on the basis of section 35(1)(a) of the FOI Act.
Part 1 record 2 and Part 2 records 6 and 12 are all essentially copies of an email response prepared by a member of the staff of the Department in the course of the performance of his functions, while Part 2 record 5 is an acknowledgment issued to the third party. Section 35(2) provides that section 35(1) cannot apply to those records 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. A duty of confidence provided for “otherwise by law” is generally accepted to include a duty of confidence arising in equity.
Given that the third party has consented to the release of the relevant information relating to the applicant, I find that the release of the records to the applicant would not constitute a breach of a duty of confidence owed to the third party, apart from his email address. I find, therefore, that section 35(1) does not apply to the records at issue, apart from the third party’s email address in the records
Section 37 – personal information
Following my decision with regard to the applicability of section 42(ja) to certain records, the sole remaining information for which I need to consider the applicability of section 37(1) is part of Part 4 record 7.
Section 37(1) provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information relating to an individual or individuals 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. The Act details fourteen specific categories of information which are included in the definition without prejudice to the generality of the forgoing definition, including ‘(iii) information relating to the employment or employment history of the individual’, ‘(v) information relating to the individual in a record falling within section 11(6)(a)’ (personnel record) and ‘(xiv) the views or opinions of another person about the individual’.
Having examined the information to which access has been refused in record 7 of the part 4 records, I am satisfied that the release of the information would involve the disclosure of personal information relating to individuals other than the requester and that section 37 applies. I find, therefore, that section 37(1) applies to the withheld information in record 7 of the part 4 records.
Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. I am satisfied that none of those circumstances arise in this case.
Section 37(5) of the FOI Act 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 information would be to the benefit of the person to whom the information relates. I am satisfied that the release of the information at issue would not be to the benefit of the individuals concerned and that section 37(5)(b) does not apply.
In relation to paragraph (a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the right of privacy of the individuals to whom the information relates.
On the matter of the applicability of section 37(5)(a), 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 clear that the release of records under FOI must be consistent with the right to privacy). It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. Moreover, unlike other public interest tests provided for in the FOI Act, there is a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. 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
Having examined the records at issue, and having regard to the fact that the release of records under FOI is, in effect, regarded as release 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 find no relevant public interest in granting access to the records at issue that, on balance, outweighs the right to privacy of the individual to whom the information in question relates.
I find, therefore, that the Department was justified in refusing access, under section 37(1) of the Act, to the information in record 7 of the part 4 records.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Department’s decision. I affirm its decision to refuse access, under section 15(1)(a) of the Act, to any further records other than those identified by the Department for the purposes of this review. I affirm its decision to refuse access, under section 42(ja), to;
I affirm its decision to refuse access, under section 35(1), to the following information;
I affirm its decision to refuse access, under section 37(1), to the information redacted from Part 4 record 7.
I annul its decision in respect of the remaining information at issue and direct its release.
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.
Stephen Rafferty, Senior Investigator