Decision
Mr. P and Department of Agriculture, Food and the Marine
From Office of the Information Commissioner (OIC)
Case number: OIC-148434-R9P4G8
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-148434-R9P4G8
Published on
Whether the Department was justified in refusing, pursuant to section 42(ja) of the FOI Act, the applicant’s request for records relating to a protected disclosures report he made
13 June 2024
In a request dated 26 July 2023, the applicant sought access to records of communications from five listed officials in the Department of Agriculture, Food and Marine (‘the Department’) referencing him. On 8 August 2023, the applicant narrowed the scope of his request to records relating to a protected disclosures report made by him in 2017/2018.
In its decision dated 2 October 2023, the Department noted that the request related to a protected disclosure the applicant had made. It refused the request on the ground that the FOI Act does not apply to such records pursuant to section 42(ja).
There is no requirement to seek an internal review in cases where an FOI body has refused a request solely under section 42. On 23 April 2024, the applicant applied to this Office for a review of the Department’s refusal of his request. In his application for review, he said he took issue with the Department’s reliance on section 42(ja) in circumstances where he was the whistleblower in the case.
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 correspondence between the applicant and the Department as outlined above and to the communications between this Office and both parties on the matter. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether the Department was justified in refusing, under section 42(ja) of the FOI Act, the applicant’s request for certain records relating to a protected disclosures report he made.
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, as amended, provides certain protections to those who make protected disclosures. That Act has been amended 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 summary, the FOI Act does not apply to records relating to a protected disclosures report and no right of access exists to such records, regardless of when the report was made.
During the course of the review, the applicant confirmed in a telephone conversation with this Office’s Investigator that the records sought by him relate to his protected disclosures report. While the applicant is unhappy that his request should be refused in circumstances where he was the person who made the protected disclosures report, the Act makes no distinction in respect of the identity of a requester. If the records sought relate to a protected disclosures report then no right of access exists to such records, regardless of who might wish to access them.
I find, therefore, that the Department was justified in refusing the applicant’s request, under section 42(ja) 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, pursuant to section 42(ja) of the FOI Act, the applicant’s request for records relating to a protected disclosures report he made.
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