Decision
Mr Y and An Bord Pleanála
From Office of the Information Commissioner (OIC)
Case number: OIC-147452-Y7Y7J7
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-147452-Y7Y7J7
Published on
Whether ABP was justified in refusing access, under sections 35 and/or 42(ja) of the FOI Act to records relating to a specified Report
5 November 2024
By way of background, this case relates to allegations made by an employee of an external third party organisation (organisation X) to their employer and a subsequent Report prepared by an independent third party following an investigation into the allegations. While organisation X is not an FOI body it would appear that it has close ties to ABP and the applicant, a member of staff of organisation X, would appear to be of the view that the Report was forwarded to ABP. The applicant, in a request to ABP dated 20 November 2023, therefore sought access to this Report and all correspondence relating to it to/from five named individuals connected with organisation X.
In its original decision dated 20 December 2023, ABP confirmed that it had received a copy of the Report referred to but it refused access to this Report and three pieces of correspondence relating to it on the basis of section 35(1)(b) and 35(4) of the FOI Act; saying that granting the applicant’s request would comprise a breach of a duty of confidence owed under the Protected Disclosures Act 2014, as amended. The applicant sought an internal review of this decision and on 7 February 2024 the internal reviewer affirmed the original decision.
On 19 March 2024 the applicant applied to this Office for a review of ABP’s decision.
During the course of the review, ABP indicated that, in addition to the exemptions cited above, it also wished to rely on section 42(ja) of the FOI Act to refuse access to the records at issue. The applicant was notified by this Office of the ABP’s revised position and was invited to make submissions. No response was received from the applicant.
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. I have also had regard to submissions made by ABP 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.
It is important to note that a review by this Office is considered to be de novo, which means that in this case, the review is based on the circumstances and the law as they pertain at the time of my decision and is not confined to the basis upon which the FOI body reached its decision.
Section 42 of the FOI Act provides that the FOI Act does not apply to certain records. Accordingly, in light of the de novo nature of our reviews, I consider it appropriate to consider the applicability of section 42(ja) to the applicant’s request as it has now been relied upon by ABP as a ground for refusing the request.
Having regard to the above, this review is concerned with whether ABP was justified in refusing the applicant’s request for certain records relating to the Report on the basis of section 35 and/or section 42(ja) of the FOI Act.
While I am required, under section 22(10) of the FOI Act, to give reasons for my decision, section 25(3) requires me to take all reasonable precautions during a review to prevent the disclosure of information contained in an exempt record or matter that, if it were included in a record, would cause the record to be an exempt record. This means that the extent to which I can discuss the matters arising in this case and/or give reasons for my decision is somewhat limited. However, I can confirm that I have carefully considered all submissions made.
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.
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. That 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).
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”. If a record sought relates to a report made under the Protected Disclosures Act 2014, then the FOI Act does not apply to that record and no right of access to the record exists.
In considering whether the records sought in this case are records “relating to” a report made under the PD Act 2014, 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. Accordingly, in considering whether the records sought relate to a report made under the Protected Disclosures Act 2014, I have considered whether there is a sufficiently substantial link between such records and a report made under the Protected Disclosures Act 2014.
Submissions
During the review, I notified the applicant of my view that section 42(ja) applied and that the records sought seemed to me to relate to the initial complaint made to organisation X, which would also fall under section 42(ja). I invited the applicant to make any submissions he considered appropriate with respect to the applicability of this provision in this case. As set out above, I received no response to this correspondence.
I am constrained by the provisions of section 25(3) from describing to any significant extent the details of ABP’s submissions to this Office. I can say, however, that it considered the receipt of the Report on 4 January 2023 to be a protected disclosure made to it. This Report comprises record 2 in the accompanying schedule. In addition, it said that the three other records identified; comprising records 1, 3 and 4, are clearly connected to the report made under the Protected Disclosures Act as there is a substantial link between these records and the disclosure at issue.
My Analysis
The question I must consider is whether the records at issue relate to a report made under the Protected Disclosures Act, which in this case would be the complaint made to organisation X. If they do, then section 42(ja) applies and no right of access exists to such records under the FOI Act.
The Protected Disclosures Act 2014, as amended, defines “report” or “to report” as “the oral or written communication of information on relevant wrongdoings”, while a reporting person is defined as “a worker who makes a report in accordance with this Act”. The definition of a worker is quite broad. It is defined as “an individual working in the private or public sector who acquired information on relevant wrongdoings in a work-related context” and includes a broad range of individuals. The range of matters deemed to be “wrongdoings” for the purposes of the Act is also quite broad. Moreover, I note that section 5(8) of the Protected Disclosures Act 2014, as amended, provides that “in proceedings involving an issue as to whether a disclosure is a protected disclosure it shall be presumed, until the contrary is proved, that it is”.
The Report comprising record 2 explains that the independent third party which prepared the Report was commissioned to conduct its investigation in relation to “whistleblower allegations made”.
As I have outlined above, ABP said it regarded receipt of the Report comprising record 2 that was prepared on foot of the original complaint to be a protected disclosure made to it. While I am constrained by section 25(3) from explaining my finding in detail, I can say that I am satisfied, having regard to the nature and contents of the Report at issue and to the circumstances under which it was forwarded to ABP, that the giving of the Report to ABP comprises a report made under the Protected Disclosures Act 2014.
In addition, with regard to records 1, 3 and 4, comprising correspondence in relation to the Report, I am satisfied that there is a sufficiently substantial link between these records and the relevant report made under the Protected Disclosures Act and I find that records 1, 3 and 4 relate to a report made under the Protected Disclosures Act 2014. 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.
As I have found section 42(ja) to apply to the records sought, I do not need to consider ABP’s reliance on section 35 of the FOI Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm ABP’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.
Mary Connery
Investigator