Decision
Ms. Z and The Department of Justice
From Office of the Information Commissioner (OIC)
Case number: OIC-151302-X7Z9K5
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-151302-X7Z9K5
Published on
Whether the Department was justified in refusing certain correspondence between the Minister for Justice and/or their private office staff where the applicant and/or another named person and/or a named judge was mentioned, under sections 15(1)(d), 15(1)(i), 31(1)(a), 37(1) and 42(f) of the FOI Act
22 May 2025
On 12 June 2024, the applicant made an FOI request for all correspondence between the then Minister for Justice and her predecessor, and/or their private office staff, where the applicant and/or a named third party (Person X) and/or a named judge (the Judge) was mentioned, from 2016 to the date of the request. In a decision dated 10 July 2024, the request was refused. The decision noted that the applicant had made a previous similar FOI request and that therefore the Department was considering records for the period 28 May 2021 to the date of the request only. It identified 46 records as falling within the scope of the request and they were all refused under, variously, sections 15(1)(d), 31(1)(b), 35(1)(a), 37(1) and 42(f) of the FOI Act. On 10 July 2024, the applicant sought an internal review of this decision. On 15 August 2024, the Department affirmed its decision. On the same day, the applicant applied to this Office for a review of the Department’s decision.
During the review, the Department altered its position. It released 16 records, in full or in part, to the applicant and changed the exemptions relied upon in respect of some of the records refused. It withdrew its reliance on section 35 as a basis for refusing any of the records. It altered the basis for the refusal of certain records from section 31(1)(b)(contempt of court) to section 31(1)(a)(legal professional privilege). It also cited section 15(1)(i) in respect of other records. In response to the applicant’s contention that the earlier FOI request referred to in the decision was not the same as the current request, because that earlier request did not reference Person X, the Department cited section 37(6) in respect of records containing references to Person X. This is a “neither confirm nor deny ” provision for records that would otherwise be exempt under section 37(1). The Department also prepared an updated schedule which reflected the revised position and clarified where there was duplication among the records. The applicant was invited to comment or provide further submissions to this Office in response to the Department’s revised position, which she 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 Department and by the applicant, and I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.
In submissions to this Office, the applicant raised concerns that the Department had not conducted adequate searches and that more relevant records may be held. This is essentially a question under section 15(1)(a) of the FOI Act. As this was not raised at internal review stage or in the application for review by this Office, as I stated to the applicant, I cannot at this stage expand the scope of the review to include a search issue.
The scope of this review is therefore limited to the question of whether the Department was justified in refusing access to the records listed on the revised schedule under sections 15(1)(d), 15(1)(i), 31(1)(a), 37(1) and 42(f) of the FOI Act, and to records referencing Person X under section 37(6).
As indicated on the revised schedule prepared by the Department, there is a significant amount of duplication and overlap in the records. I have examined the records and am satisfied that the revised schedule accurately reflects where duplication occurs. In the circumstances, I will consider each record only once, with my findings also applying to any duplicates of the same record.
In submissions to this Office, the applicant raised various concerns and questions about the processing of her request by the Department and the approach it took. While I will not refer to every point she made in the decision, I confirm that I have had regard to them all. I should note that this Office has no role in investigating complaints regarding the manner in which FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.
One specific issue raised by the applicant was in relation to section 38 of the FOI Act and the steps that FOI bodies are required to follow in certain cases relating to third parties. Section 38 applies to cases where, at some stage in the decision-making process, the public body has formed the view that the records in question qualify for exemption under one or more of the relevant exemptions in the FOI Act (i.e. sections 35, 36 and 37) but that the records should be released in the public interest. Where section 38 applies, the public body is required to notify an affected third party and give them an opportunity to comment before making a final decision on whether or not to release the record(s). I am satisfied that the Department was not required to consult any third parties pursuant to section 38 in this case as there is nothing to suggest that it formed the view that certain records should be released in the public interest notwithstanding that it considered section 35(1), 36(1) or 37(1) to apply to them.
Section 15: Refusal on administrative grounds to grant FOI requests
The Department refused records 37 and 39 under section 15(1)(d), and parts of records 1, 11, 30, and 31 under section 15(1)(i).
Section 15(1)(d) provides that an FOI body may refuse to grant a request where the information is already in the public domain. Records 37 and 39 are both scanned newspaper articles. On the revised schedule, the Department provided links to where these articles can be found on the relevant newspapers’ websites. I am satisfied that these online articles correspond to the scanned versions held by the Department, and that the information at issue is already in the public domain. I am satisfied that the Department was justified in refusing to release these records under section 15(1)(d).
Section 15(1)(i) provides that an FOI body may refuse to grant a request where the request relates to records already released, to the same or a previous requester, where the records are available to the requester concerned, or it appears that the requester is acting in concert with a previous requester. The Department said that the applicant already had these records, either because they were released to her in an earlier FOI request, or because they consist of correspondence from the applicant’s solicitor which it said she should already have access to.
The parts of records 11, 30 and 31 refused under section 15(1)(i) all contain the same decision letter on an earlier FOI request made by the applicant to the Department, and records released further to that request. The letter is dated 3 August 2021, and the Department’s reference number is DOJ-FOI-2021-0363. I am satisfied that these parts of records 11, 30 and 31 were already released to the applicant and she has not argued that these records are not available to her. I find, therefore, that the Department was justified in refusing to release them under section 15(1)(i).
The parts of records 1 and 2 that were refused under section 15(1)(i) both contain the same letter, sent by the applicant’s solicitor. The letter is dated 24 September 2021. The Department submitted that as this letter was submitted by the applicant’s solicitor, it was reasonable to expect that she had access to it. While I accept that this is a reasonable assumption, for section 15(1)(i) to apply it must also be shown that the record was previously released to the requester. The Department has not argued that this letter was previously released to the applicant and nor is it apparent to me from an examination of the records as a whole. I find that the Department was not justified in refusing to release this record under section 15(1)(i) and I direct its release.
Section 31(1)(a): Legal professional privilege
The Department refused to release the following records under section 31(1)(a):
• 4, 10, 32, 33, 34, 35, 38, 42, 45, and 46 in full
• 1, 7, 9, 13, 16, 28, 29, 30, 31, and 41 in part
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.
In submissions, the Department noted that the applicant is involved in ongoing legal proceedings against it. It said that the records refused under section 31(1)(a) contain discussions between the legal advisors in the Department’s Legal Unit and various sections in the Department discussing the case and the Department’s position in relation to this case. It said that it was satisfied that the release of these records would disclose confidential communications between the Department, its legal advisor and relevant third parties.
I have carefully considered each of the records, or parts of records, which the Department has claimed are exempt under section 31(1)(a). I am satisfied, in respect of each of these records, that their release would disclose confidential communications between staff members of the Department and its Legal Unit for the purposes of giving or receiving legal advice, or that they would disclose confidential communications within the Department, or between the Department and a third party, or its legal advisors and a third party, the dominant purpose of which is preparation for litigation i.e. the legal proceedings taken by the applicant. I am satisfied that each record is subject to legal advice privilege, or litigation privilege, or in some cases both. I find that section 31(1)(a) applies to each of these records and that the Department was therefore justified in refusing to release them.
Section 37: Personal information
The Department refused to release certain information under section 37(1).
In some of the records released to the applicant, the only redactions under section 37(1) were mobile phone numbers of staff members of the Department. In correspondence with the applicant, I stated that I thought it was unlikely that such information would of interest to her and that I did not intend to examine it, and instead I would concentrate on the more substantive information refused on this basis. The applicant in subsequent correspondence made no reference to these phone numbers and I will give them no further consideration.
The Department also refused more substantive parts of records 9, 28, 29, 32, 33, 34, 35 and 38 under section 37(1). While I have found some of these records to be legally privileged, for completeness I have also considered whether their release would disclose personal information of a person other than the applicant.
In respect of other specified records that the applicant requested, that reference Person X, the Department refused this part of the request under section 37(1) and did not disclose whether such records did or did not exist, in accordance with section 37(6).
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, in the opinion of the head, access to the record concerned would involve the disclosure of personal information. The applicant in her submissions emphasised the reference to “in the opinion of the head ” contained in section 37(1) and said that in her view it was a discretionary power and asked that the Department’s refusal of records under section 37(1) be examined further by this Office. She also said that section 37 is not an “absolute prohibition ” [on release of records] and that it is “qualified”. She said that a qualified exemption had been applied by the Department by way of a subjective opinion and asked that it be reviewed by this Office.
This Office considers section 37(1) to be a mandatory exemption; it provides that an FOI body “shall refuse ” an FOI request in the circumstances that are then outlined. In reviewing whether an FOI body was justified in refusing to release records under section 37(1), this Office takes into account the nature and/or contents of the records at issue, as well as the definition of personal information for the purposes of the FOI Act. Having done so, it makes a determination as to whether or not it believes that releasing the records would disclose personal information. If it accepts that release would disclose personal information, it seems to me that it is, in effect, accepting that the “opinion of the head ” in this instance was reasonable in also reaching this conclusion. However, this is not the end of the matter as section 37(1) is subject to the other parts of section 37, including a public interest test at section 37(5) and certain exclusions at section 37(2). The relevant sub-sections will always be considered by this Office before a decision is made on the case.
In assessing whether access to a record would involve the disclosure of personal information, we must consider the definition of personal information at section 2 of the FOI Act. It 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. Section 2 goes on to specify 14 categories of information which, without prejudice to the generality of the above definition, constitute personal information.
The FOI request in this instance was for certain records containing references to the applicant herself and/or to Person X and/or to the Judge i.e. she specifically sought records containing both information relating to herself and information relating to identifiable individuals other than herself. Section 37(1) does not apply where the information involved relates to the requester only (section 37(2)(a) refers). Section 37(7), however, provides that, notwithstanding section 37(2)(a), an FOI body shall refuse to grant a request if access to the record concerned would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester (commonly known as joint personal information).
In its submissions, the Department said that the records contain personal information of third parties including, names, address, contact information, and other information.
Having carefully examined records 9, 28, 29, 32, 33, 34, 35 and 38, and having regard to the definition of personal information at section 2 of the FOI Act, I am satisfied that release of these records would disclose the personal information of identifiable individuals other than the applicant i.e. the Judge.
In respect of records falling within the scope of the request and relating to Person X, while the Department has not confirmed whether or not such records exist, I am similarly satisfied that if they did exist, they would disclose personal information relating to Person X
I find therefore that section 37(1) applies to records 9, 28, 29, 32, 33, 34, 35 and 38 and records relating to Person X, if they existed.
As the applicant noted in her submissions, section 37(1) is not “an absolute prohibition ” on release of records as it is subject to the other provisions of section 37. Section 37(2) provides that section 37(1) does not apply in certain circumstances:
(a) “subject to subsection (3), the information concerned relates to the requester concerned,
(b) any individual to whom the information relates consents, in writing or such other form as may be determined, to its disclosure to the requester,
(c) information of the same kind as that contained in the record in respect of individuals generally, or a class of individuals that is, having regard to all the circumstances, of significant size, is available to the general public,
(d) the information was given to the FOI body concerned by the individual to whom it relates and the individual was informed on behalf of the body, before its being so given, that the information belongs to a class of information that would or might be made available to the general public, or
(e) disclosure of the information is necessary in order to avoid a serious and imminent danger to the life or health of an individual”
I am satisfied that none of the above circumstances arise in this case and that section 37(2) does not, therefore, apply.
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 considering where the balance of the public interest lies in this case, I have had regard to section 11(3) of the Act which provides that in performing any functions under the Act, an FOI body must have regard to, among other things, 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. However, in doing so, I have also had regard to the judgment of the Supreme Court in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (“the Enet case ”). In that 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 ”. 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.
On the other hand, 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. 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. Moreover, even where an overriding public interest in granting the request exists, there is a discretionary element to the application of section 37(5)(a).
In this case, while the applicant requested that the records be considered in terms of a public interest balancing test, she did not put forward any factors that she considered to be in favour of release. Neither did the Department. Having examined the contents of the records at issue that are listed in the schedule, as well as considering the nature of the records that the Department did not confirm whether or not they existed, and having regard to the fact that the release of information under the FOI Act is, in effect, release to the world at large, I find no sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure in this case. I find that, on balance, the public interest in granting the request does not outweigh the strong public interest in upholding the right to privacy of the individuals to whom the information relates. I find that section 37(5)(a) does not apply.
Section 37(6) is referred to as a ‘neither confirm nor deny ’ provision. It provides for the refusal of a request for access to a record under section 37(1) without disclosing whether or not such a record actually exists, if the FOI body is of the opinion that confirming the existence or non-existence of the record would in and of itself have the effect specified in section 37(1) i.e. that it would involve the disclosure of personal information.
In this instance, the Department refused the part of the request that sought correspondence to the Minister’s office referencing Person X. No records were listed on the schedule in respect of this part of the request and the Department did not indicate whether it did or did not hold such records.
I have carefully considered the matter. As set out in the sections above, I have accepted that if these records existed, they would be exempt from release under section 37(1), and that sections 37(2) or 37(5) do not apply. It seems to me that the overall purpose of section 37(6) is to protect the personal information of a third party in situations where knowledge of the existence, or non-existence, of particular records would have the effect of disclosing that third party’s personal information. Given the specific wording of the request, and the broader circumstances of the case, I accept that for the Department to confirm that it held relevant records relating to Person X would disclose personal information about her. Equally, it seems to me that for the Department to refuse this part of the request on the basis that it does not hold such records, could also disclose personal information as inferences and conclusions could be drawn from the broader circumstances arising. I am satisfied that the Department was justified in refusing this part of the request under section 37(1) without disclosing whether or not the records exist, as provided for in section 37(6).
For completeness, I note that the applicant queried whether these records could be released by way of redaction or “following a process of disaggregation ”. Section 18(1) provides, that "if it is practicable to do so " access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the public body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading.
In this case where the applicant sought records containing references to named individuals, simply redacting these names or other identifying information would not, in my view, render the individual(s) unidentifiable. It seems to me that the applicant could easily infer what name(s) were redacted such that the personal information of an identifiable individual would be disclosed. I am satisfied that this is not a situation in which it would be appropriate to consider directing partial release of the relevant records further to section 18.
Section 42: Restriction of Act
The Department refused part of record 9 and record 44 in full under section 42(f).
Section 42 provides that the FOI Act does not apply to various specified categories of records. 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, with the exception of a record relating to general administration, the FOI Act does not apply to a record held or created by the Attorney General or the Office of the Attorney General (AGO). 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. I am satisfied that it does not refer to records relating to matters concerning the core business of the AGO, which includes, but is not limited to, advising on legislation and litigation.
I have examined the two attachments to the email at record 9, and record 44 in its entirety which consists of an email from the Office of the Attorney General with three attachments that was sent to the Department of Justice for the attention of the Minister, and then forwarded internally. I am satisfied that each of these records was created by the Attorney General or the Office of the Attorney General and that they do not relate to general administration. I find therefore that section 42(f) applies and that the FOI Act does not apply to these records. I find that the Department was justified in refusing to release them under section 42(f).
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Department’s decision. I find that it was not justified in refusing to release an attachment to records 1 and 2 under section 15(1)(i) and I direct its release. However, I find that it was justified in refusing to release the other records under, variously, sections 15(1)(d), 15(1)(i), 31(1)(a), 37(1) and 42(f) of the FOI Act and that it was justified in refusing to confirm or deny the existence of certain records under section 37(6).
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 applicant 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.
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Emer Butler
Investigator