Decision
Mr Ken Foxe, Right to Know CLG and Cavan County Council
From Office of the Information Commissioner (OIC)
Case number: OIC-123006-K3B7Q6
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-123006-K3B7Q6
Published on
Whether the Council was justified in refusing access to records relating to an investigation carried out in respect of alleged financial misconduct
24 March 2023
In a request dated 20 January 2022, the applicant sought access to records relating to an investigation into alleged financial misconduct. Specifically, he sought “a copy of the investigation report from the inquiry carried out by [a named individual] into certain allegations of financial misconduct”. He also sought copies of any FOI requests seeking the same report or associated documents in 2020, 2021 or 2022 and the decision letters that issued in each case. In a decision dated 21 March 2022, the Council part-granted the request. It refused the first part of the request under section 32(1)(a)(i) of the Act and part-granted access to a number of records relating to the second part, redacting certain information on the same basis. Section 32 protects certain records relating to law enforcement and public safety.
On 23 March 2022, the applicant sought an internal review of the Council’s decision, following which the Council affirmed its original decision. It also relied on section 37(1) of the FOI Act as a ground for refusing the request in part. On 4 May 2022, the applicant applied to this Office for a review of the Council’s decision. This Office engaged with the applicant in respect of the scope of the review. He confirmed that he was seeking a review of the decision in respect of the first part of his request only.
During the course of the review, and following engagements with this Office and submissions from a third party, the Council withdrew its reliance on section 32(1)(a)(i) of the FOI Act. Instead, it indicated that it wished to rely on sections 30(1)(b), 31(1)(a), 36(1)(b) and 36(1)(c) of the FOI Act to refuse access to the relevant records. It also sought to maintain its reliance on section 37(1). The applicant was notified by this Office of the Council’s revised position and a submission was received in respect of same. In light of the Council’s revised position, this Office also notified a number of third parties of the review and provided them with an opportunity to make submissions. To date, no substantive submissions have been received.
During a later stage of the review, the potential application of section 42(ja) of the FOI Act became relevant. The applicant was notified by this Office of that fact and was invited to make submissions. The applicant indicated in response that he wished the review to proceed to a 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 applicant’s comments in his application for review and subsequent submissions. I have also had regard to submissions made by the Council in support of its decision. Finally, I have had regard to the specific contents of the records at issue. I have decided to conclude this review by way of a formal, binding decision.
During the review, the Council provided this Office with a file entitled “Investigation Overall Report”. This file comprises a number of records. In further submissions, the Council said that the file contains 5 separate records (A to E) and only records A and B come within the scope of the applicant’s request and this review. Having examined the records, I am satisfied that only records A and B fall within the scope of this review. The Council refused access to both records in full. Accordingly, this review is concerned solely with whether the Council was justified in refusing access to records A and B under the provisions of the FOI Act.
It is important to note that a review by this Office is considered to be “de novo”, which means that it is based on the circumstances and the law as they pertain at the time of the decision. Accordingly, in light of the “de novo” nature of our reviews, I consider it appropriate to consider the applicability of additional mandatory exemptions, notwithstanding the fact that the provisions were not initially relied upon as a ground for refusing access to the records in the FOI body’s decisions on the request.
The records at issue
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. This means that the extent to which I can describe the contents of the records at issue is limited. In its submissions, the Council provided what it said was confidential contextual information in respect of the records at issue. As such, the extent to which I can refer to this context is also quite limited. Nevertheless, I do not consider myself to be in breach of section 25(3) by describing record A as a 2018 report of an independent investigation relating to potential breaches of financial procedures in a named municipal district. Record B is a follow-up 2020 report.
In addition, I consider it necessary to note that Record A explains that a named individual was appointed to investigate certain matters in February 2017 in accordance with agreed terms of reference. It further explains that following receipt by the Council of notification of a protected disclosure, the terms of reference of the investigation was extended to include the subject of the protected disclosure.
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 provides certain protections to those who make protected disclosures. The Act has recently been supplemented 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 sub-section, namely section 42(ja). Given the de novo nature of the review, and given that the effect of section 42 of the FOI Act is to exclude certain records from the scope of the Act, I deem it appropriate to consider the application of section 42(ja) to the records at issue at the outset.
Section 42(ja) - restriction of Act
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 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.
As I have outlined above, the terms of reference of the investigation in question was extended to include the subject of a protected disclosure made. The records at issue comprise a report on the outcome of the investigation and a follow up report. As such, I am satisfied that there is a sufficiently substantial link between the records at issue and the relevant report made under the Protected Disclosures Act and I find that the records relate to a report made under the Protected Disclosures Act 2014 Act. As outlined above, section 42(ja) applies even if the report was made before the 2022 Amendment Act. Accordingly, I find that section 42(ja) applies and that the records at issue are excluded from the scope of the FOI Act. In the circumstances, there is no need for me to consider the provisions relied upon by the Council in support of its decision.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Council’s decision to refuse access to the relevant records on the basis that they fall outside the scope of the FOI Act by virtue of section 42(ja).
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