Decision
Mr Ken Foxe, Right to Know CLG and Department of Justice
From Office of the Information Commissioner (OIC)
Case number: OIC-120227-H0Z1Z4
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-120227-H0Z1Z4
Published on
Whether the Department was justified in refusing access to records relating to an immigration detention facility on the basis of sections 15(1)(i), 29(1), 32(1)(a) and 37(1) of the FOI Act
11 October 2022
In a request dated 28 November 2021, the applicant sought access to records relating to a named immigration detention facility, Transaer House, and difficulties in opening it fully, covering the period from 1 January 2021 to the date of the request. In correspondence dated 15 December 2021, the Department wrote to the applicant and applied an extension to the processing of the request on the basis of section 14 of the FOI Act. In a decision dated 20 January 2022, the Department part-granted the applicant’s request on the basis of sections 15(1)(i), 29(1) and 37. On the same day, the applicant sought an internal review of the decision. On 21 February 2022, the Department issued an internal review decision varying the original decision. In addition to the sections above, the Department also relied on section 32(1)(a) of the FOI Act. On 2 March 2022, the applicant applied to this Office for a review of the Department’s 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, to submissions made by a relevant third party and to the submissions made by the Department in support of its decision. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.
The Department identified 10 records which it says come within the scope of the applicant’s request. These records span two divisions within the Department; the “Border Management Unit, Immigration Service Delivery” division and the “Criminal Justice, Legislative Function” division. Nine records were identified by the Border Management division (records BM1, BM2, BM3, BM3a, BM4, BM4a, BM5, BM6 and BM7) and one record was identified by the Criminal Justice division (record CJ1). Two records were refused and eight were part-granted on the basis of sections 15(1)(i), 29(1)(a), 32(1)(a)(i), 32(1)(a)(ii), 32(1)(a)(iii) and 37(1) of the FOI Act.
In its submissions to this Office, the Department says that record BM3 had been included within the scope of the request in error; the document is an email thread which makes no reference to the named immigration facility referenced in the FOI request. Having reviewed the record, I am satisfied that same is outside the scope of the review. Additionally, having reviewed the records and the schedules provided by the Department, I am satisfied that record BM3a is a duplicate of record BM1 and that the same exemptions have been applied to the duplicate. Accordingly, I will not consider record BM3a further.
Following communications with this Office, the Department clarified that sections of records BM1 and BM2 are outside the scope of the FOI request. Having reviewed the records and the explanations provided, I am satisfied with same except in respect of the names of meeting participants in BM2. Given that such individuals participated in discussions regarding the matter which is the subject of the request, I do not agree that their names are outside the scope of this review and will consider same below.
Accordingly, this review is concerned solely with whether the Department was justified in refusing to release relevant information in records BM1, BM2, BM4, BM4a, BM5, BM6, BM7 and CJ1 on the basis of sections 15(1)(i), 29(1)(a), 32(1)(a) and 37(1) of the FOI Act.
As noted above, on 15 December 2021, the Department informed the applicant that it was necessary to extend the period for consideration of his request under section 14 of the FOI Act. The applicant did not apply to this Office for a review of the Department’s decision to extend the decision making period. He did, however, seek clarification from the Department in respect of which subsection was being relied on; 14(1)(a) or 14(1)(b). While the Department acknowledged this request and informed the applicant that it would revert as soon as possible, it does not appear that an answer was provided. The applicant raised this matter in his application to this Office for review.
This Office asked the Department to explain the reasons for the extension applied. The Department’s position is that the request spanned a “significant period of time” and necessitated searches by two separate divisions. It said a significant numbers of records needed to be considered to determine whether they fell within the scope of the request. It said section 14(1)(a) was the applicable provision. It said that while the above ten records were ultimately identified, “this does not reflect the number of records which needed to be searched in order to determine their relevance to the request”. The Department did not specify exactly how many records were initially located. It also said staff dealing with the FOI request are based in Dublin airport and were involved in implementing additional COVID-19 travel-related health measures.
In order to apply the extension at section 14(1)(a), the request must relate to such number of records that compliance with the four-week period is not reasonably possible. The Act provides no guidance on the number of records that might be involved before an extension can be appropriately applied. As such, each case must be considered on its merits based on the particular facts and circumstances. Nevertheless, the provision is clear that a decision to extend the period must be based on the number of records to which the request relates. While I acknowledge the challenge of balancing competing priorities, the provisions of section 14 are very specific and do not allow for the extension of the period for consideration of a request because of other work priorities or logistical arrangements.
In my view, the Department has provided insufficient evidence to support its claim that the request related to such number of records that compliance with the four-week period was not reasonably possible. It has not outlined the size or specific nature of the records it had to review. While the matter is moot given the fact that a decision has subsequently issued, I would urge the Department to consider its application of section 14 extensions and the specific provisions of the FOI Act in the future.
Finally, 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 is limited.
Section 15(1)(i)
Section 15(1)(i) provides for the discretionary refusal of a request where the request relates to records already released, either to the same or a previous requester, where the records are available to the requester concerned. For the section to apply, the public body should be able to show that (i) the records sought were already released and (ii) they are available to the requester.
The Department refused access to record BM4a on the basis of section 15(1)(i). The record is a response from the Department to a previous FOI request by the applicant, dated 23 October 2020. It includes the original decision, a schedule, and a copy of the records as provided to the applicant. Given the nature of the documents, I am satisfied that it was reasonable for the Department to assume that the applicant was in possession of the record. I note that the applicant has not argued that the record is not available to him. I find, therefore, that the Department was justified in refusing access to record BM4a under section 15(1)(i).
Section 29(1) – Deliberations of FOI bodies
Section 29(1) provides that a request may be refused if (a) the record concerned contains matter relating to the deliberative processes of an FOI body (including opinions, advice, recommendations, and the results of consultations), and (b) the body considers that granting the request would be contrary to the public interest. These two requirements are independent. The fact that the first is met carries no presumption that the second is also met. It is therefore important for FOI bodies to satisfy this Office that both requirements have been met.
A deliberative process may be described as a thinking process which informs decision making in FOI bodies. It involves the gathering of information from a variety of sources and weighing or considering carefully all of the information and facts obtained with a view to making a decision or reflecting upon the reasons for or against a particular choice. Thus, it involves the consideration of various matters with a view to making a decision on a particular matter. It would, for example, include some weighing up or evaluation of competing options or the consideration of proposals or courses of action.
The Department cited section 29(1) in support of its refusal of two records, BM1 and BM2. It identified to this Office the specific sections of both records to which it argued that section 29(1) applies. This includes the names of meeting participants in record BM2 as referenced earlier in this decision. In its submissions, it said that a review of immigration detention policy is currently underway. The records in question comprise a draft report and meeting minutes of the relevant review group. The Department said the functions of the group include the “gathering of information from a variety of sources and weighing and considering carefully all of the information and facts obtained with a view to making a decision or reflecting upon the reasons for or against a particular choice”. It said the group considers various matters with a view to making decisions in respect of alternatives to detention for persons refused entry to the State.
I accept that the records contain matter relating to a deliberative process and that section 29(1)(a) applies. Accordingly, I must consider whether release of the report would be contrary to the public interest as required by section 29(1)(b). For release to be contrary to the public interest, this Office would generally expect the FOI body to identify a specific harm to the public interest flowing from release. Furthermore, a mere assertion of harm without supporting evidence is not sufficient to satisfy the requirement that granting access to the record would be contrary to the public interest.
In his application to this Office, the applicant argued that the Department has misapplied a balancing test to the release of the records and had not evidenced why release would be contrary to the public interest in its decision-making records.
In respect of the ongoing review, the Department said no final recommendations have been made or approved. It argued that the release of withheld information could be “misleading to the public and could prejudice the outcome of the ongoing deliberations”. It argued that release would place the Department at a disadvantage in the process and impair the integrity and viability of the decision-making process.
While the Act clearly envisages that there will be cases in which disclosure of the details of an FOI body’s deliberations before a decision based on those deliberations has been made would be contrary to the public interest that is not to say that such disclosure is always, as a matter of principle, contrary to the public interest. I am not satisfied that the Department has provided sufficient evidence to support its claim that release of the withheld information would be contrary to the public interest in this case. It has not explained how release of the record could place the Department at a disadvantage in respect of the review process. Moreover, this Office has previously found that the possibility of the public misunderstanding information is, generally speaking, not a good cause for refusing access to the records of public bodies. In Case 98078 (available at www.oic.ie ) the then Commissioner considered that, apart from anything else, such an argument seems to be based on an assumption, which he did not accept, that public bodies are incapable of explaining their records to the public and are unable to present information to the public in a way which will allow any objective observer to draw accurate and balanced conclusions.
Additionally, the Department has not demonstrated how release could impair the integrity and viability of decision-making. It has provided no evidence to support this position, nor is it apparent from the contents of the withheld information.
In conclusion, I find that the Department has not shown that the release of the withheld information would be contrary to the public interest. I find, therefore, that section 29(1) does not apply to records BM1 and BM2. I direct the release of the relevant sections of the records as identified by the Department in its correspondence to this Office dated 22 July 2022, namely, information withheld from pages 12 and 13 of BM1 and from page 1 of BM2 other than the name of a member of An Garda Síochána (AGS), which I will consider under section 37(1), below.
Section 32(1)(a) – Law enforcement and public safety
Section 32(1)(a) is a harm based exemption. It applies where access to the record concerned could reasonably be expected to prejudice or impair specific matters including:
Where an FOI body relies on section 32(1)(a) it should identify the potential harm to the matters in the relevant sub-paragraph that might arise from disclosure and then consider the reasonableness of any expectation that the harm will occur.
The Department argued that subsections (i), (ii) and (iii) of section 32(1)(a) apply to records BM1 and BM2. The Department identified to this Office the specific sections of both records to which it claimed the relevant subsections apply. It argued that the withheld information in the records contains reference to possible plans and procedures in respect of alternatives to detention where a person is refused leave to land in the State. It argued that “allowing the release of these possible plans could compromise the operations should one of the options be agreed”. It further argued that release “could reveal sensitive information regarding the security aspects of a dedicated immigration facility” as well as specific procedures.
The Department made the following submissions in respect of each specific sub-section.
Section 32(1)(a)(i)
The Department said that section 32(1)(a)(i) has been applied to “information regarding plans and procedures which could be implemented as alternatives to detention”.
Section 32(1)(a)(ii)
The Department said that section 32(1)(a)(ii) applies to information the release of which would prejudice “the enforcement of the Immigration Act 2003 and requirement of Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Síochána stations) Regulations 1987.”
Section 32(1)(a)(iii)
The Department said that section 32(1)(a)(iii) has been applied to information the release of which would prejudice operational procedures of AGS.
In respect of how the release of the withheld information would be expected to cause the harms identified, the Department provided limited information. It argued that release would disclose operational issues and impair the ability of AGS to enforce legal requirements. In respect of why it considers such harm could reasonably be expected to occur, it again referenced the operational nature of the information.
Given the nature of the records and the reference by the Department to AGS operational matters, this Office notified AGS of the review and provided it with an opportunity to make submissions in respect of the Department’s decision. Submissions were received by email dated 31 August 2022. In its submissions, AGS supported the decision of the Department to refuse access to the information in question and cited sections 32(1)(a)(iii) and (ix). Subsection (ix) applies where access to the record concerned could reasonably be expected to prejudice or impair the security of a building or other structure or a vehicle, ship, boat or aircraft. While the Department has not sought to rely on subsection (ix), given the de novo nature of this appeal, I will consider its application to the records in question.
The position of AGS is that release of the information would provide details of security measures and facilities present at a particular location. It says that the allocation of AGS resources is “based on operational needs and the security and safety of the public and their property”. It says that “it is realistic and reasonable to expect that the release of information pertaining to the level of security and facilities at this particular Garda location will confirm current operational capabilities at a specific location thus actively providing information that could reasonably be expected to assist criminal organisations and likeminded individuals”. It further says that release of the information has the potential to “hinder the ability” of AGS personnel to effectively carry out their lawful duties by alerting “nefarious actors” to operational capabilities.
When applying section 32(1)(a), an FOI body is expected to show how release of the particular record could reasonably be expected to result in that harm. A mere assertion of an expectation of harm is not sufficient. While limited information has been provided by the Department, the actual content of the records is also important and I have considered same.
Given the nature of submissions received, I propose considering the four relevant sub-sections simultaneously. A limited amount of information has been refused in records BM1 and BM2 on the basis of section 32(1)(a) of the FOI Act. Having reviewed the information in question, and taking into account submissions made by the Department and AGS, I consider that the Department has failed to provide sufficient evidence to support the assertion that the relevant harms outlined in subsections (i), (ii), (iii) or (ix) would flow from release of the information.
While both the Department and AGS have outlined particular harms, neither have demonstrated how such harms could reasonably be expected to occur following release of the specific information at issue. The information is high-level in nature. The fact that the records may relate to matters specified in sub-paragraphs (i), (ii), (iii) and (ix) does not, in and of itself, establish a link between their release and the harms envisaged in section 32. If this was the intention behind the legislation, the FOI Act would provide for a class-based exemption for such records, which it does not. In the context that neither the Department nor AGS have sufficiently addressed the likelihood of a particular harm occurring, I find that the Department was not justified in relying on sections 32(1)(a)(i), (ii), (iii) or (ix) to refuse release of relevant information in records BM1 and BM2 and I direct the release of same.
Section 37(1) – Personal Information
Section 37(1) of the Act provides that, subject to the other provisions of the section, an FOI body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information relating to third parties. Under section 37(1), such personal information cannot be released unless one or more of the other relevant provisions of section 37 apply.
Section 2 of the FOI Act defines personal information as information about an identifiable individual that either (a) would ordinarily be known only to the individual or to members of his/her family or to his/her friends, or (b) is held by an FOI body on the understanding that it would be treated by the FOI body as confidential. The Act details fourteen specific categories of information that is personal without prejudice to the generality of the foregoing definition, including at paragraph (iii) information relating to an individual’s employment or employment history.
Certain information is excluded from the definition of personal information, as set out in section 2 of the FOI Act. Paragraph (I) provides that where the individual is or was a staff member of an FOI body, the definition does not include the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or occupies or occupied that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of those functions.
Paragraph (I) does not provide for the exclusion of all information relating to staff of an FOI body. The Commissioner takes the view that the exclusion is intended to ensure that section 37 will not be used to exempt the identity of a public servant in the context of the particular position held or any records created by the public servant while carrying out his or her functions. The exclusion to the definition of personal information at Paragraph (I) does not deprive staff members in FOI bodies of the right to privacy generally.
The Department is seeking to apply section 37(1) to five records: BM4, BM5, BM6, BM7 and CJ1. Having reviewed the records in question, it seems to me that four categories of information are being withheld:
In respect of the first category, in its submission to this Office, the Department says that its position has changed in respect of the withholding of staff email addresses. It says that it is now willing to provide an updated copy of the relevant records with this information included. I accept same and direct the Department to act accordingly, providing such information to the applicant as soon as practicable.
In respect of the second and third categories, having reviewed the records in question and the explanations provided by the Department, I am satisfied that the information constitutes personal information such that section 37(1) applies.
In respect of the fourth category of information, that relating to members of AGS, the Department’s position relates to the fact that AGS is a partially included agency under the FOI Act. In addition to the records referenced above, the name of a member of AGS is included on page 1 of record BM2 and I will also consider this as part of this fourth category of potentially personal information. For the avoidance of doubt, I am satisfied that the names of staff members of other FOI bodies included in the records does not comprise personal information relating to those individuals, having regard to the exclusion at Paragraph (I).
Schedule 1 Part 1(n)
Section 6(2) of the FOI Act provides that an entity specified in Schedule 1, Part 1 of the Act shall, subject to the provisions of that Part, be a public body for the purposes of the Act. Schedule 1, Part 1 contains details of bodies that are partially included for the purposes of the Act as well as details of the certain specified records that are excluded. If the records sought come within the description of the exclusions in Part 1, then the Act does not apply and no right of access exists to such records held by the body.
Schedule 1, Part 1(n) provides that AGS is not a public body for the purposes of the FOI Act other than in relation to administrative records relating to human resources, or finance or procurement matters. In other words, the only records held by AGS that are subject to the FOI Act are those that relate to administrative matters concerning human resources, finance, or procurement. In accordance with Part 1(n), all other records held by AGS are excluded. This Office considers that the effect of Part 1(n) is to restrict the right of access to those functions or processes of AGS that relate to the administration or management of the organisation, and only in relation to matters concerning human resources, or finance or procurement matters.
The Department says that the information withheld in the records does not appear in the context of activities which are covered by the FOI Act and therefore such information is not covered by the exclusion at section 2. It says that it considers such information to constitute personal information such that it is exempt from disclosure under section 37(1). The applicant disputes this reasoning. His position is that the partially included status of AGS is irrelevant.
Having considered the nature of the records, as well as the submissions made by both parties and the specific wording of the FOI Act, I am satisfied that the exclusion to the definition of personal information at section 2 does not apply. I am satisfied that the records containing the names of members of AGS do not relate to administrative matters concerning human resources, finance or procurement. Given the provisions of schedule 1, it follows that in respect of the records in question, AGS is not considered a public body for FOI purposes. It also follows that the name of a member of AGS, where it is contained in a record that is not a relevant administrative record, cannot be regarded as the name of a member of the staff of a public body, for FOI purposes. Accordingly, I find that the withheld information constitutes personal information in accordance with section 37(1) of the FOI Act.
Sections 37(2) and 37(5)
However, that is not the end of the matter as section 37(1) is subject to the other provisions of section 37. In particular, 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) applies in this case.
Section 37(5) 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 in this case would not be to the benefit of the individuals to whom the information relates.
In relation to the applicability of section 37(5)(a), in carrying out any review this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. Section 11(3) provides that an FOI body must have regard to the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. It is important to note that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (“the Enet Case”), the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and “there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure”. Moreover, the Court found that the exemption provision recognises that there is a public interest in ensuring the protection afforded by provision and that this may normally be served by the operation of the exemption itself. Although the Court’s comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.
In relation to the issue of the public interest, it is also important to note, having regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner [2011] IESC 26 (“the Rotunda case”) that a public interest should be distinguished from a private interest.
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. It is also important to note at this stage that the release of information under the FOI Act is, in effect, release to the world at large given that the Act imposes no constraints on the uses to which information released under FOI may be put.
Bearing in mind the foregoing, I can identify no specific public interest in favour of releasing the information to which I have found section 37(1) to apply that would, on balance, outweigh the right to privacy of the individuals identified in the records. I find, therefore, that section 37(5)(a) does not apply. Accordingly, I find that the Department was justified in refusing access to information comprising categories 2, 3 and 4 in records BM4, BM5, BM6, BM7 and CJ1 as well as to the name of a member of AGS on page 1 of record BM2.
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 to certain information in the records concerned on the basis of sections 15(1)(i) and 37(1) of the FOI Act. I annul its decision to refuse access to information in records BM1 and BM2 on the basis of sections 29(1) and 32(1)(a). I direct the release of the remaining information in the records as set out above.
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 requester 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