Decision
Ms. Y & The Department of Justice (the Department)
From Office of the Information Commissioner (OIC)
Case number: OIC-153195-G9R8G1
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-153195-G9R8G1
Published on
Whether the Department was justified in refusing access, under sections 31(1)(a), 37(1) and 42(f) of the FOI Act, to information refused in previous FOI requests due to an ongoing scoping exercise
12 November 2025
As the circumstances surrounding this case are sensitive, I will not set them out in this
decision in order to avoid the inadvertent disclosure of the applicant’s identity. In a request dated 28 August 2023, the applicant sought access to all of the records that had been withheld from previous FOI requests she had made to the Department between 2019 and 2023 under sections 29 and 31(2)(b) of the FOI Act due to an ongoing scoping exercise, which has since concluded. On 1 September 2023 the Department informed the applicant that her request may be refused on the ground that it did not provide sufficient particulars to identify the records sought or on the ground that it was, in essence, a voluminous request. It asked her to refine the scope of the request to clearly define the records being sought. On 18 September 2023 the applicant wrote to the Department refining her request. While she referenced 11 previous requests, she identified specific records in respect of the following nine requests:
1. FOI-2019-0643 – 1 June 2015 – 20 September 2019 – 10 records
2. FOI-2020-0636 – 20 September 2019 – 12 November 2020 -14 records
3. FOI-2021-0222 – 20 September 2020 – 26 March 2021 – 3 records
4. FOI-2022-0001 – 13 August 2021 – 31 December 2021 – 12 records
5. FOI-2022-0321 – 31 December 2021 – 16 May 2022 – 1 record
6. FOI-2022-0484 – 16 May 2022 – 31 August 2022 – 10 records
7. FOI-2023-0001 – 31 August 2022 – 3 January 2023 – 14 records
8. FOI-2023-0500 – 16 March 2023 – 13 July 2023 – 1 record
9. FOI-2023-0017 – 27 March 2021 – 13 August 2021 – 2 records
On 25 September 2023, the Department asked the applicant to consider reducing the time-frame of the request to cover requests from 2021 onwards due to the number of records that would have to be examined in order to locate the records sought. On 5 October 2023 the applicant declined to do so.
On 18 October 2023, the Department issued an acknowledgement of the applicant’s FOI request, wherein it incorrectly referenced the request as having been received on 5 October 2023 rather than 28 August 2023 when the applicant submitted her refined request. On 1 November 2023, the Department informed the applicant that it was extending the time-frame for processing the request by four additional weeks. It did not explain why it had decided to do so. It said it would make every effort to respond to the request no later than 1 December 2023. On 14 February 2024, the Department issued a decision letter to the applicant. The accompanying schedule indicated that 19 records, some with attachments, had been identified in respect of requests 1 and 2 that the applicant had identified. Of the nineteen records identified, nine were released in full, nine were released in part with information redacted under section 37(1) of the Act and two were withheld in full under section 30(1)(a).
On 19 March 2024 the Department wrote to the applicant to inform her that the incorrect decision letter had issued to her on 14 February 2024 and it provided the correct decision letter. The Department did not issue a decision in respect of the records sought relating to the remaining seven requests the applicant had identified in her correspondence of 18 September 2023, which effectively amounts to a refusal of access to the relevant records sought. The applicant sought an internal review of the Department’s decision on 17 April 2024, following which the Department affirmed the original decision. On 29 October 2024, the applicant applied to this Office for a review of the Department’s decision.
During the course of this review the Department granted and part-granted further records to the applicant in respect of requests 2, 3, 6 and 8. It informed her that this was as a result of the passage of time and other factors where the exemptions relied on were no longer applicable.
In submissions, the Department said it had part-granted certain records in respect of requests 2, 3, 6 and 8, refused certain records in respect of requests 2 and 5 and considered certain records to be outside scope in respect of requests 2 and 6. It said it was now relying on sections 15(1)(d), 28(1)(a), 30(1)(a), 37, 42(f) and 42(j) of the Act in respect of the withheld and refused records. The Department did not make the applicant aware that it was relying on these exemptions.
The Department said that certain records were the subject of previous decisions of this Office wherein the Department had informed this Office that it was no longer relying on section 29 of the Act in respect of request 7 and that the records sought in respect of request 9 had been part-granted to the applicant during the OIC review process. The applicant was contacted in respect of these records and agreed that they be removed from scope. I will give no further consideration to these records.
The Department also said that the records requested in request 4 do not exist or were granted or refused under section 42(j) or section 28(1)(a) and are therefore outside the scope of the original request. It said that it was possible that the applicant provided the incorrect reference number in this case. The Department provided a schedule of the records at issue in this request and this Office is satisfied that the description of the records requested by the applicant do not match the existing records. This Office contacted the applicant in this regard and informed her that it will be necessary for her to make a new request for the records from request 4, which she has now done. I will give no further consideration to these records.
In her correspondence of 22 January 2025 with this Office, the applicant said that she is no longer seeking access to any records in respect of request 1. I will also give no further consideration to these records.
In the correspondence of 22 January 2025 and in respect of the other FOI requests, the applicant said she is now only seeking record 38 from SG & DSG and record 63 from Criminal Governance Part 12 from request 2, schedule 7 records 5 and 50 from request 3, record 7 from request 5, records 13(d), 18(d), 19(d), 22(f), 30(f), 39(f) and 41(f) from request 6 and record 67 from request 8.
This means that the following records have been removed from the scope of this review -records 34 and 35 from SG & DSG, Criminal Governance, records 21, 35 and 62 from request 2, schedule 2 record 2.22 from request 3 and records 23(f), 27(f) and 31(f) from request 6.
Certain records were requested by the applicant in this correspondence which had not formed part of her refined request to the Department of 18 September 2023. These were schedule 5 record 21 in request 3 and records 72, 74, 75, 76, 77, 81, 88, 119, 149 and 14(a) in request 6. Because these records were not included in the applicant’s refined request to the Department they will not be considered as part of this review. The applicant has been informed of this.
Of the records remaining in scope, the Department released SG & DSG record 38 from request 2 and record 39(f) from request 6 in full to the applicant during the course of this review. I will give no further consideration to these records.
During the course of this review and previous reviews the applicant confirmed that she is not seeking the personal information of third parties. The information redacted from record 63 Criminal Governance Part 12 from request 2, schedule 7 record 50 from request 3, record 22(f) and record 41(f) from request 6 and record 67 from request 8 comprise mobile phone numbers, a personal email address and personal information concerning a third party. The contents of record 7 from request 5 are outside the scope of the applicant’s FOI request except for one sentence which contains personal information concerning third parties to which section 37(1) applies. Accordingly, I will give no further consideration to these records.
During the course of the review the Investigator took the view that section 31(1)(a) was relevant with respect to record 30(f) from request 6. Because this was a new material issue the applicant was invited to make submissions on the applicability of section 31(1)(a) which she duly did.
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 submissions made by the relevant parties. I have also had regard to the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned with whether the Department was justified in refusing access to;
(i) the attachment to schedule 7 record 5 from request 3 pursuant to section 37(1) of the FOI Act,
(ii) records 13(d), 18(d) and 19(d) from request 6 on the basis that they fall outside the scope of the applicant’s refined request, and
(iii) record 30(f) from request 6, pursuant to sections 42(f) and/or 31(1)(a).
Before I address the substantive issues arising, I wish to make some preliminary comments. Firstly, section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request under section 12 shall be presumed not to have been justified unless the relevant FOI body shows to the Commissioner's satisfaction that its decision was justified. This means that the onus is on the Department to satisfy this Office that its decision to refuse access to the records sought was justified.
Secondly, I note that the Department’s decision on the applicant’s request was not issued within the timeframe set down in the FOI Act. There was a significant delay in processing the applicant’s request and the original decision which issued to her was incorrect. The Department should be well aware of its obligations in this regard. It is incumbent on me to emphasise to the Department that the requirement to issue decisions on FOI requests within the periods set out in the FOI Act is clear and unequivocal. The Department should take steps to ensure that its decisions on FOI requests issue within the relevant statutory timeframes.
Thirdly, 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 basis on which the FOI body reached its decision. Accordingly, in light of the ‘de novo’ nature of our reviews, I consider it appropriate to consider the applicability of certain provisions, notwithstanding the fact that the Department did not rely on such provisions in its decision on the applicant’s request.
Request 6 - records 13(d), 18(d) and 19(d)
The Department said these records are considered to be outside the scope of the request as they did not relate to the applicant or her son. Having considered the original FOI request made in relation to these records I note that, among other things, it requests access to all records and documents referencing the scoping exercise, inquiry, investigation. It also requests all correspondence to and from the Department and within the Department and any communication with all States bodies/agencies including any reference to the scoping exercise, scoping investigation, inquiry.
The three records in question comprise emails between Department officials and emails between Department officials and the Courts Service concerning an issue raised by the Judge conducting the scoping exercise. For this reason, I do not accept that the emails are outside the scope of the FOI request.
In the circumstances, I consider the most appropriate course of action is to annul that part of the Department’s decision, the effect of which is that it must consider the applicant’s request for those records afresh and make a new, first instance, decision in accordance with the provisions of the FOI Act. The applicant will have a right to an internal review and a review by this Office if she is not satisfied with the Department’s decision.
Section 42(f)
Section 42 provides that the FOI Act does not apply to the various categories of records described in the section. In other words, such records are excluded from the scope of the Act. There is no public interest provision in section 42. If the record is captured by one or more of the categories of records described in section 42, that is the end of the matter.
Section 42(f) provides that the FOI Act does not apply to records held or created by, in particular, the Attorney General or the Office of the Attorney General (AGO), other than a record relating to general administration. While the Act is silent on the meaning of general administration, this Office considers that it refers to records which have to do with the management of the AGO such as records relating to personnel, pay matters, recruitment, accounts, information technology, accommodation, internal organisation, office procedures and the like. It does not refer to records relating to matters concerning the core business of the Office, which includes, but is not limited to, advising on legislation and litigation.
This Office does not accept that section 42(f) applies to a record held by an FOI body simply because it is a copy of a record held by the AGO. Where the record/records were created by the Department of Justice and copied or issued to the AG, the fact that the AG may also hold exact copies, does not mean that copies held by the Department are deemed to be exempt. This is based on High Court Case, DPP v OIC [2021] IEHC 752. The judgement in that case set out that a second FOI body cannot refuse to disclose a record in its lawful possession by reference to the statutory exclusion in favour of the DPP, or in this case, the applicable AG. The judgement found that the two bodies do not hold the self-same records within the meaning of section 42(f). This is notwithstanding that the information contained within the records is identical. On the basis of the judgement above, I do not consider section 42(f) to be applicable to any record which was not clearly created by the AG’s office.
From my review, the record which the Department has sought to exclude on the basis of section 42(f) was not, it seems to me, created by the AGO. Neither has any argument been made and nor is it apparent to me, that it is held by the AGO. In any event, as I have explained, this Office does not accept that the fact that a copy of a record might also be held by the AGO, as well as the Department, means that section 42(f) serves to put the record outside the scope of the FOI Act. On that basis, I consider that record 30(f) does not clearly contain any communication with a member of the AGO. It refers to advices from the AGs Office, but these have not been scheduled with the record.
Section 31(1)(a): Legal Professional Privilege
Section 31(1)(a) provides for the mandatory refusal of a request if the record sought would be exempt from proceedings in a court on the ground of legal professional privilege. The exemption does not require a consideration of the public interest. Legal professional privilege enables the client to maintain the confidentiality of two types of communication:
• Confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege), and
• Confidential communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation (litigation privilege).
Provided the prerequisites of advice privilege or litigation privilege are present, the fact that a professional legal adviser is employed as an in-house legal adviser does not prevent the client from asserting privilege over the communications at issue. Moreover, the Commissioner takes the view that advice privilege attaches to records that form part of a continuum of correspondence that results from the original request for advice.
One sentence was redacted from record 30(f) which is an email from an official in the Department to the Minister. In her submissions, among other things, the applicant queried how such correspondence could be legally privileged. Having examined the record, while I accept that it does not contain direct communication between a client and legal advisor for the purposes of requesting or providing legal advice, I am satisfied that it discloses legal advice provided by the AGO to the Department and that it attracts legal advice privilege on the basis that it forms part of a continuum of correspondence originating from that advice. Having considered the contents of the record at issue, I am satisfied that the part of record 30(f) refused under section 42(f) is subject to legal advice privilege and that section 31(1)(a) applies. I find that release of this part of the record would disclose confidential legal advice requested by, or given to, the Department, either because it contains confidential communication between client and legal advisor for the purpose of requesting or providing legal advice, or it forms part of a continuum of communication originating from that advice.
Section 37(1)
Section 37(1) of the FOI Act 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 third party personal information. Section 2 of the FOI Act defines personal information as information about an identifiable individual that, either (a) would, in the ordinary course of events, 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.
Certain information is excluded from the definition of personal information. Paragraph (I) provides that where an individual is or was a member of staff of an FOI body, personal information does not include the name of the individual, or information relating to the position held or its functions, or the terms upon and subject to which the individual 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 the functions of the position. The exclusion at paragraph (I) does not provide for the exclusion of all information relating to such staff members. This Office considers that the exclusion is intended to ensure that section 37 will not be used to exempt the identity of a staff of an FOI body in the context of the particular position held or any records created by the staff member while carrying out his or her official functions. The exclusion does not deprive such individuals of the right to privacy generally.
The attachment to this record comprises the names of certain members of staff of the Department and the designations given to them by the Judge in a draft of a section of the scoping exercise report. The Department made no argument as to why the information in the attachment was personal information, simply stating that it was refused in accordance with section 37. Having considered the information in the record, I am satisfied that the references to the officials in the draft section of the report concern actions carried out in the performance of their official functions. Accordingly, I find that the information in the attachment is not personal information for the purposes of the FOI Act, pursuant to Paragraph I of the definition and that section 37(1) does not, therefore, apply. I direct the release of the attachment to schedule 7 record 5 in request 3.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Department’s decision. I find that the Department was not justified in its refusal of access to records 13(d), 18(d) and 19(d) in request 6 due to being outside scope and that it must consider the applicant’s request with respect to these records afresh and make a new, first instance, decision. I find that it was not justified in its refusal of part of record 30(f) under section 42(f) but the part of the record is subject to legal advice privilege and that section 31(1)(a) applies. I annul its decision to refuse access, under section 37(1), to the attachment to schedule 7 record 5 in request 3 and direct release of same.
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