Decision
Mr X and Department of Transport, Tourism and Sport
From Office of the Information Commissioner (OIC)
Case number: 160187
Published on
From Office of the Information Commissioner (OIC)
Case number: 160187
Published on
Whether the Department was justified in deciding to refuse access to witness statements in relation to an aviation accident on the ground that the records are exempt from release under section 35(1) or 41(1)(a) of the FOI Act
Conducted in accordance with section 22(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review
29 November 2016
The records in this case concern the crash of an Aer Lingus Viscount plane (St. Phelim) in 1968 near Tuskar Rock, Co. Wexford, in which 61 passengers and crew lost their lives.
By email dated 16 October 2015, the applicant made an FOI request to the Department for "the various witness statements taken at the time of the Tuskar Rock air crash in the period 1968 - 1970, during the preparation of the Review carried out in 2000, and during the International Team investigation carried out in 2002". On 10 November 2015, the Department refused access to the information sought on the ground that it was exempt from release under section 41(1)(a) of the FOI Act. By letter dated 17 November 2015, the applicant applied for an internal review. In that letter he stated that he accepted that the witness statements relating to the 1968-1970 and the 2000 report were not available to him, but said that he was entitled to the witness statements relating to the 2002 report. On 8 December 2015, the Department issued its internal review decision, in which it affirmed its original decision. On 27 April 2016 the applicant applied to this Office for a review of the Department's decision.
In reviewing this case, I have had regard to the Department's decision on the matter; the Department's communications with this Office; the applicant's communications with this Office; communications between the applicant and the Department; the provisions of the FOI Act and the content of the withheld records provided to this Office by the Department for the purposes of this review.
Before considering the relevant exemptions, I wish to note the following.
First, 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 me that its decision is justified.
Secondly, section 18 of the FOI Act provides that if it is practicable, records may be granted in part, by excluding the exempt material. Section 18 shall not apply if the copy of the record provided would be misleading. I take the view that neither the definition of a record under section 2 nor the provisions of section 18 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, I am not in favour of the cutting or "dissecting" of records to such an extent.
Thirdly, the FOI Act does not provide for the limiting of records to particular individuals only. When a record is released under the FOI Act, it effectively amounts to disclosure to "the world at large" (H.(E.) v Information Commissioner [2001] IEHC 58). The FOI Act places no restrictions on the type or extent of disclosure or the subsequent use to which the record may be put.
Finally, in his submissions, the applicant emphasises that he is seeking access to the records for the purpose of original research which he is conducting into the Tuskar Rock air crash. I accept this, but must emphasise that subject to the other provisions of the FOI Act, section 13(4) of the FOI Act requires FOI bodies and this Office to disregard an applicant's reasons for an FOI request.
During this review, the investigator contacted the applicant to clarify the scope of his internal review request, as it appeared that he had narrowed his original FOI request. The applicant explained that in the first instance, he sought access to all the witness statements in relation to the air crash. However, he said that he did not wish to "shoot himself in the foot" and that if this Office considered that older witness statements were excluded, he only sought access to the witness statements taken by the international study team. In saying this and in his internal review request, the applicant seems to have assumed that if records relating to the 1968 investigation were excluded, records relating to the 2000 review would be also. However, this is not necessarily the case. I have decided to take the scope of the applicant's FOI request to include all the records which he originally sought, although he accepts that some may be found to be prohibited from disclosure.
Secondly, the Department submits that some of the records do not constitute "witness statements"; for example, because they are memos of conversations with witnesses. However, I believe that a proper interpretation of the applicant's FOI request is that he seeks records containing witnesses' accounts of what they saw or heard of the air crash, irrespective of whether they are formally described as "witness statements". Furthermore, certain witness statements do not contain first-hand testimony as such. It may be questionable whether such records fall within the scope of the applicant's request, but I am prepared to proceed on the basis that they do.
Thirdly, the majority of the records were created before the commencement of the FOI Act in relation to the Department (pre-commencement records).
Before I can further refine the scope of this review, I believe that it is necessary for me to address the following points: (i) whether section 11(5) of the FOI Act applies to the pre-commencement records; and (ii) whether section 41(1)(a) applies to the remaining records.
Section 11(5) - Pre-Commencement Records
Where records were created before the commencement of the FOI Act in relation to an FOI body (pre-commencement records), they are excluded from the FOI Act unless section 11(5) of the FOI Act applies. Section 11(5) provides that access to pre-commencement records may be granted if it is necessary or expedient to understand records created after the commencement of the FOI Act, or if the records relate to personal information about the requester.
During this review, the investigator invited the applicant to make submissions on section 11(5). The applicant submits that the cause of the Tuskar Rock crash has never been resolved and it is in the public interest that further research into it is facilitated through a successful FOI appeal. He states that it is necessary to have access to all witness statements taken before 1998 in order to understand properly and clearly the statements taken after that date. He says that some witnesses gave evidence before and after 1998; that comparison of those statements is critically important; and that all the witness statements have to be read together as they refer to one event, the cause of which is still unknown.
The applicant does not argue that the records relate to personal information about him. Accordingly, the sole question for me under section 11(5)(a) is whether access to the pre-commencement records is necessary or expedient in order to understand the witness statements created after 21 April 1998. In considering this question, I see no reason to depart from the approach set out by a former Commissioner in Case 98117 (Mr ABE & the Department of the Marine and Natural Resources). There, the former Commissioner stated that section 6(5) (now section 11(5) of the FOI Act) was directed towards whether the substance or gist or subject matter of a record could be understood. He said that the fact that an earlier record might shed new light on a record or enable a requester to extend or analyse information in a later record does not mean that the earlier record is necessary or expedient to understand the later record. He further found that the release of a pre-commencement record is justified only to the extent that such access is a suitable means to achieving the end of understanding the substance of the post-commencement record.
Having reviewed the pre-commencement records, I see that they are witness statements from various people as to what they heard or saw on the day of the Tuskar Rock air crash. It is true that some of them were given by people who also gave witness statements in later years. However, I do not believe that the test under section 11(5)(a) is met. I accept that access to the older witness statements could help the applicant to analyse the later witness statements and could conceivably shed new light on them. However, I believe that the substance of the witness statements created after the commencement date can be understood independently of, and without reference to, the pre-commencement records. I therefore find that there is no right of access to the pre-commencement records under section 11 of the FOI Act and the Department is justified in refusing access to records 1-43, 45, 55 (second page), 62 and 63 on that basis.
I will now consider the remaining records under section 41(1)(a) of the FOI Act. These consist of records relating to the subsequent reviews in 1998 - 2000 (2000 review) and 2000 - 2002 (2002 review).
Section 41(1)(a) - Disclosure Prohibited
Section 41(1)(a) of the FOI Act provides that a head shall refuse to grant an FOI request if the disclosure of the record concerned is prohibited by law of the European Union or any enactment (other than a provision specified in column (3) of Part 1 or 2 of Schedule 3 of an enactment specified in that schedule). The provisions on which the Department relies on are not in Schedule 3.
Before I can find that section 41(1)(a) applies, I must be satisfied that the provisions relied on by the FOI body clearly prohibit disclosing the information in question.
Submissions
The Department submits that disclosing the records is prohibited by Regulation (EU) No. 996/2010 on the investigation and prevention of accidents and incidents in civil aviation (EU Regulation) and the Air Navigation (Notification and Investigation of Accidents, Serious Incidents and Incidents) Regulations 2009 SI No. 460/2009 (2009 SI). It says that these pieces of legislation apply to the 2000 review and the 2002 review. It further argues that the 2000 review came within the relevant legislation in force at that time, i.e. the Air Navigation (Notification and Investigation of Accidents and Incidents) Regulations SI No. 205/1997 and Council Directive 94/56/EC establishing the fundamental principles governing the investigation of civil aviation accidents and incidents.
The applicant submits that since the international study team was not the Air Accident Investigation Unit (AAIU), it was not the investigation authority for Ireland and therefore the EU Regulation does not apply to witness statements in that review.
Article 14(1) of the EU Regulation provides that "all statements taken from persons by the safety investigation authority in the course of the safety investigation" shall not be made available or used for purposes other than the safety investigation.
Article 20(1) of the 2009 SI provides that:
"the Minister, the Chief Inspector, the investigator in charge, or any other person concerned with the conduct of an investigation of an occurrence (wherever occurring) shall not make any of the following records available to any person for purposes other than such an investigation unless the High Court, on application to it, determines that the benefits resulting from disclosure of the records outweighs the adverse domestic and international impact that the disclosure may have on that or any future investigation: (a) statements taken from persons by the investigation authorities in the course of their investigation...".
Article 2 of the 2009 SI defines "investigation" as a "process conducted by the AAIU under these Regulations etc...".
The Department has advised this Office that the AAIU "is the established Safety Investigation Authority for the State of Ireland". Accordingly, I believe that in order to decide whether the EU Regulation and/or the 2009 SI applies to the records, I must establish whether the statements were taken by the AAIU in the course of a safety investigation for the purposes of either of these pieces of legislation. I accept that if they were, the provisions cited above prohibit disclosing them for any purpose other than a safety investigation.
The 2000 report states: "it was jointly agreed that Irish and U.K. officials would review all files held relating to the accident to see if the cause of the accident could be established. The following is a report of that review. As such, it does not follow the format set out in International and National Regulations for the reports of formal aircraft accident investigations".
It appears to me that the Department's submissions on the 2002 report contain discrepancies. On the one hand, its submissions dated 10 June 2016 say that the international study team did not conduct an "annex 13 investigation nor a re-opening of the original investigation" and was independent of the AAIU, which had no input into it. Furthermore, the Department's letter to the international study team at the outset of that process said that "the Minister has set no limits or restrictions on the nature or scope of this study" and did not, for example, refer the team to the EU Regulation or relevant Irish legislation. On the other hand, its submissions dated 26 July 2016 say that the international study team was part of the safety investigation authority and "functioned under the aegis of the AAIU" and that the international study team constituted a "qualified person" to assist the "investigator in charge" for the purposes of the legislation.
Importantly in my view, the Department's submissions dated 4 July 2016 state that "the original investigation remained the only formal investigation".
Having regard to the discrepancies identified above and to consideration of the relevant records and the circumstances of their creation, as well as the statutory provisions, I am not satisfied that the witness statements taken in the 2000 or 2002 reviews were taken by the AAIU in the course of a safety investigation under the EU and Irish legislation cited. I do not believe that the evidence before me supports the Department's assertion that the 2000 and 2002 review teams were conducting investigations under the EU Regulation or the 2009 SI (or indeed, the equivalent legislation then in force). Accordingly, I find that the Department is not justified in refusing access to the remaining records under section 41(1)(a) of the FOI Act.
I must now decide which of the remaining records fall within the scope of my review. Having regard to their content, the question is whether the Department is justified in refusing access to the following records: 44, 46, 47, 48, 49, 50, 51, 52 (not the first or last page), 53, 54, 55 (first and last pages), 57, 58, 59, 60, 61 (second and last pages), 64, 65, 66, 67, 68 and 70. I will refer to these as "the records".
Section 35 - Confidentiality
The Department did not refer to section 35 of the FOI Act in its original or internal review decisions, but claimed it in submissions to this Office during this review. This Office then put the Department's position to the applicant, who made submissions on section 35.
Section 35(1) and (2) of the FOI Act provides:
"(1) Subject to this section, a head shall refuse to grant an FOI request if -
(a) the record concerned contains information given to an FOI body, in confidence and on the understanding that it would be treated as confidential (including such information as aforesaid that a person was required by law, or could have been required by the body pursuant to law, to give to the body) and, in the opinion of the head, 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, or
(b) disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment (other than a provision specified in column (3) in Part 1 or 2 of Schedule 3 of an enactment specified in that Schedule) or otherwise by law.
(2) 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.".
Submissions
The Department submits that investigations into aviation accidents are confidential and held in private. It says that statements obtained in connection with an investigation into an aviation accident are obtained "on the basis that they would only be used for a safety investigation, it would not be publicly released, it would not be used to apportion blame or liability and that the identity of the originators would not be disclosed. Undertakings to these effects are given by investigators when acquiring statements and evidence". It says that "the witnesses would have had a reasonable expectation that the extant confidentiality protections would apply to their submissions to the International Study Team". It further submits that "the protection of witnesses and the maintenance of confidentially (sic) are regarded internationally as essential requirements in ensuring that witnesses are willing to come forward without any fear of the consequences for themselves...the protection of witnesses is key to the ultimate objective of the investigation of accidents in order to improve air travel safety in the future".
The applicant submits that the reports do not refer to witnesses by name and that releasing witness statements without names would not in any way breach the confidentiality of witness submissions made to the investigations. He further submits that there is absolutely no evidence that witness statements were given by any individuals on a confidential basis. He says that some of those involved would now be deceased.
Section 35(2) and records prepared by an FOI body
As section 35(1) does not apply where the records fall within the terms of section 35(2), I will consider this exclusion at the outset. The following records were prepared by a member of staff of an FOI body: 46, 48 (first page), 49, 52 (second and third pages), 53, 54 and 66. Accordingly, section 35(1) cannot apply to them unless disclosing them would constitute a breach of a duty of confidence owed to a person other than an FOI body/service provider etc. under an agreement or statute or otherwise by law.
The Department submits that people providing statements were entitled to rely on the confidentiality protections in the EU Regulation and SI 2009 and that the records are protected under those pieces of legislation. However, as stated above, I do not believe that either of these laws applies to the 2000 or 2002 reviews. Neither has the Department pointed me to an agreement or basis on which a duty of confidence would arise "otherwise by law".
Accordingly, I find that the Department is not justified in refusing access to these records under section 35(1) of the FOI Act. I consider them separately below, under section 37 of the FOI Act. I will now consider section 35(1) in relation to the remaining records.
Section 35(1)(a)
All four requirements as outlined in section 35(1)(a) cited above must be satisfied in order for a record to be considered exempt from release under section 35(1)(a) of the FOI Act.
The first two requirements to be met are that the information in the record must be given to the FOI body in confidence and on the understanding that it would be treated as confidential. There may be a question as to whether the records relating to the 2002 review could meet the first requirement, since strictly speaking, the information was given to the international study team rather than the Department. However, the Department's correspondence with the international study team indicates that the Department directed the carrying out of the review. For the purposes of this review, I am prepared to accept the information was given to an FOI body.
It is the circumstances in which the information was imparted and received that is important in determining whether the requirements are met. I consider the following points to be relevant to consideration of those circumstances. On the one hand, the Department submits that investigations into aviation accidents are held in private and that undertakings are given to witnesses in investigations into aviation accidents. I also note that a letter from a member of the 2002 review team states "your statement will be kept in confidence" (record 52). On the other hand, the various witness statements do not refer to confidentiality and the press advertisement seeking further witnesses for the 2002 review does not refer to confidentiality. Further, both the 2000 and 2002 reports contain extracts from certain witness statements.
The purpose of the 2000 review was to see if the cause of the accident could be established. The purpose of the 2002 review was to shed further light, if possible, on the cause of the accident. As stated earlier, I do not believe that the EU Regulation or SI 2009 applies to either review. Nevertheless, the fact is that both reviews flow from, and are inextricably linked to, the original investigation. The original investigation was held under SI 19/1957 Air Navigation (Investigation of Accidents) Regulations 1957, article 8 of which required investigations to be held in private. I accept the Department's submissions that this is the way in which aviation accidents are investigated and I further accept its submissions that there was an understanding that the information given by witnesses would be treated as confidential.
As both the 2000 and 2002 reports quote from certain witness statements, I have considered whether this means that the content of the witness statements at issue (as opposed to the identities of the witnesses) cannot be said to be given in confidence. However, I have concluded that a mutual expectation of confidentiality did extend to the witness statements taken in the 2000 and 2002 reviews and that it is for experts in aviation safety and investigations to select which parts of such statements are appropriate for citation in their reports, given that they all relate to an original investigation of an aviation accident.
As regards the third requirement for the exemption to apply, I accept the Department's submission that disclosing detailed witness statements would be likely to prejudice other people from coming forward in investigations of aviation accidents. The content of such witness statements could be used for other purposes and I note that release under FOI must be treated as "release to the world" and no limitation can be placed on the use of the statements. It is not necessary that disclosure would definitely prejudice the future supply of similar information; rather what is required is that disclosure would be likely to prejudice such supply. I note that there is no obligation on individuals to come forward in circumstances where they might or might not have seen or heard anything of relevance and it is hard to see how they may stand to benefit in some way from providing information.
Finally, in regard to the fourth requirement, I do not doubt that it is important to the Department for the investigation of air accidents and aviation safety that witness statements continue to be given. In this regard, I consider that the purpose of section 35(1) is to protect the flow of information which relates to the exercise of statutory powers and functions by an FOI body.
I am therefore satisfied that the requirements of section 35(1)(a) are met and that section 35(1)(a) applies to the remaining records, i.e. those prepared by persons other than the FOI body. In view of this finding, I am required to apply the public interest balancing test under section 35(3) of the FOI Act.
Section 35(3) - The Public Interest
On the one hand, section 35(1)(a) itself reflects the public interest in the proper preservation of confidence. On the other hand, section 11(3) of the FOI Act requires public bodies to have regard to the need to achieve greater openness in their activities and inform scrutiny, discussion, comment and review by the public of their activities. I consider this to be relevant here, in that it is a public interest which equates with "a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law " as referred to by Macken J. in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner 1 I.R. 729, [2011] IESC 26 - known as "the Rotunda case".
After careful consideration, I believe that the public interest would not be better served by granting this FOI request. I recognise that there is a public interest in openness and transparency around the Department's activities, but believe that this has been served to some extent by the publication of the 2000 and 2002 reports. I understand that the original 1970 accident report and its appendices, the 2000 Review and the 2002 Review have all been published on the Department's website. I accept that there is a public interest in the confidentiality of witness statements regarding aviation accidents, which underpins the efficacy of investigations into such occurrences. On balance, I believe that in the circumstances of this case, which concerns the investigation of an extremely serious aviation accident, the public interest in such confidentiality outweighs any remaining public interest in openness and transparency around the Department's activities.
Accordingly, I find that the Department is justified in refusing access to the remaining records under section 35(1)(a) of the FOI Act.
Section 37(1)
Clearly, the applicant in this case is not claiming that any of his own personal information appears in the records that he seeks. The Department does not specifically claim that section 37 of the Act applies to parts of the records which disclose the personal information of persons who made or were referred to in the witness statements. However, in its submissions to this Office, it stresses the protection of the confidentiality of the information given by and about witnesses - albeit in the context of the section 35 exemption dealt with above. The applicant refers in his submissions to the fact that parts of the witness statements are in the public domain and says that while ideally he would like to have the names and full statements, he would accept statements without name identification. This would, he says, "preserve the same level of witness anonymity as in the published International Team Study. " He also specifies that he wishes to have actual copies of all statements and not transcriptions.
Thus, it seems to me that there is some overlap between the provisions of section 35 (confidentiality) and section 37 (personal information) in the circumstances of this case. This is because personal information includes information about an identifiable individual that is held by an FOI body on the understanding that it would be treated by that body as confidential. Arguably, section 37 could apply to the records as a whole. However, given the reliance by the Department on section 35 and my finding above that section 35 applies to the bulk of the records, it is necessary for me to make a finding under section 37 only in relation to the remaining records, i.e. those identified as having been prepared by the staff of an FOI body but which contain references to certain witnesses and their statements. These are records 46, 48 (first page), 49, 52 (second and third pages), 53, 54 and 66.
Section 37(1) of the FOI Act provides that access to a record shall be refused if it would involve the disclosure of personal information. Section 2 of the FOI Act defines the term "personal information" as information about an identifiable individual that would (a) in the ordinary course of events, be known only to the individual or his/her family or friends, or (b) information about the individual that is held by a public body on the understanding that it would be treated as confidential. The FOI Act details fourteen specific categories of information which is personal without prejudice to the generality of the foregoing definition. Following the Supreme Court's decision in the Rotunda case referred to above, I must proceed on the basis that information about an identifiable individual can qualify as personal information where it comes within the scope of either (a) or (b) of the definition or where it comes within one or more of the categories (i) to (xiv), which are non-exhaustive.
Amongst the categories in the definition that I consider relevant to the context of the records in this case are: (i) information relating to the educational, medical, psychiatric or psychological history of the individual; (iii) information relating to the employment or employment history of the individual; (viii) information relating to the religion, age, racial or ethnic origin, sexual orientation or civil status, any disability or political opinions or religious or philosophical views of the individual; (xiii) information relating to the property of the individual; and (xiv) the views and opinions of another person about the individual. Given the information concerned, the location of the accident and the level of public interest and public comment on the matter over the years, I consider that even where individuals' names could be redacted, in all probability some individuals would still be identifiable. In addition, it seems to me that it would not be feasible to redact information about location/address, property, employment etc. from each of the records without causing the remainder of the record to be misleading (section 18 of the FOI Act refers).
Neither the 2000 nor the 2002 report gives the names of the witnesses in the records. Furthermore, the 2000 report states that witnesses "sought no publicity and do not wish any contact with the media". Having regard to the circumstances and to my finding above that the witnesses gave the information in confidence, I believe that the Department holds the information about the witnesses on the understanding that it would be treated as confidential.
Accordingly, I find that the information which records 46, 48 (first page), 49, 52 (second and third pages), 53, 54 and 66 contain is personal information for the purposes of section 37(1) and is exempt for release under that section. This finding is subject to the provisions of sections 37(2) and 37(5), which I examine below.
Section 37(2)
Section 37(2) of the FOI Act sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances in section 37(2) apply to the information which I have found to be exempt under sections 37(1). That is to say, (a) the information does not relate solely to the applicant; (b) the individuals to whom the information relates have not consented to the release of the information; (c) the information is not of a kind that is available to the general public; (d) the information does not belong to a class of information which would or might be made available to the general public; and (e) the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.
I am then required to consider section 37(5) as it applies to the records.
Section 37(5) - The Public Interest
Section 37(5) of the FOI Act provides that access to the personal information of a third party may be granted where:
(a) the public interest that the request should be granted outweighs the public interest in the right to privacy of the individual to whom the information relates, or
(b) the grant of the request would benefit the person to whom the information relates.
The Supreme Court judgment in the Rotunda case outlined the approach that the Commissioner should take when balancing the public interest in granting access to personal information with the public interest in upholding the right to privacy of the individual(s) to whom that information relates. Therefore in considering section 37(5)(a), I must distinguish private interests from "true public interest[s] recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law. "
The FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies. On the other hand, however, the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy, which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution. Accordingly, when considering section 37(5)(a), privacy rights will 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.
The applicant expresses the view that since part of the witness statements are already in the public domain (included in the published reports), "there is no logical reason" why the remainder cannot be released. However, the fact that information about identifiable individuals might be in the public domain does not, of itself, mean that similar information about others falls to be released under FOI without reference to their privacy rights.
On balance, I do not believe that there is a public interest which overrides the Constitutional rights to privacy of the witnesses. I therefore find that section 37(5)(a) does not apply in the circumstances. It might be argued that any invasion of privacy is not significant, but this would depend on the individual. I would be slow to direct the release of the personal information of identifiable people without their consent. I do not consider it feasible or appropriate for this Office to attempt to contact the individuals involved. Indeed, the applicant accepts that some of the witnesses may be deceased. As regards the public interest in openness and transparency in the Department's involvement in the investigations, I believe, as I have found above in relation to section 35(3), that the publication of the reports has to some extent served the public interest.
It has not been argued that releasing the records would benefit the people to whom the information relates and I find that section 37(5)(b) does not apply in the circumstances.
I find that the Department is justified in withholding access to these records, under section 37(1) of the FOI Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department's decision to refuse access to the records.
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.
Elizabeth Dolan
Senior Investigator