Decision
Mr. Foxe, Right to Know CLG & Department of Children, Disability and Equality
From Office of the Information Commissioner (OIC)
Case number: OIC-152394-B3H4L9
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-152394-B3H4L9
Published on
Whether the Department was justified in refusing access to correspondence between the International Protection Accommodation Services (IPAS) and the Health Information and Quality Authority (HIQA) on the basis of sections 32(1)(b), 36(1)(c) and 37(1) of the FOI Act
24 June 2025
In a request dated 31 May 2025, the applicant sought access to a copy of correspondence between IPAS and HIQA during the period from 1 January 2024 to the date of the application. On 28 June 2025, the Department wrote to the applicant and said that in its current format the request would have to be refused under section 15(1)(c) of the FOI Act due to the large volume of records involved and pressure on the division. It said that initial searches had returned over 900 pages of records which may fall within the scope of the request. The Department asked the applicant to refine his request, suggesting that it be limited to correspondence on a specific topic. On the same day, the applicant refined his request to the period between 1 May 2025 and 31 May 2025. No original decision issued. On 31 July 2024, the applicant sought an internal review on the basis of a deemed refusal. No internal review decision issued. The applicant applied to this Office for a review on the basis of that non-reply.
On 27 September 2024, and on foot of a direction from this Office, the Department issued an effective position to the applicant. The Department part-granted the request. It refused access to certain records on the basis of sections 32(1)(b), 36(1)(c) and 37(1) of the FOI Act. On 30 September 2024, the applicant confirmed that he wished the review before this Office to proceed in respect of the Department’s refusal to release certain information and records.
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 to correspondence received from the applicant. 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 six records as coming within the scope of the applicant’s request. All were part granted on the basis of sections 32(1)(b), 36(1)(c) and 37(1) of the FOI Act.
Upon review, I noted that a number of the records referenced attachments, namely inspection reports, which were not identified as relevant records or provided to this Office. The Department said that these reports are published on HIQA’s website and are publicly available. It said that, as such, it did not schedule them or consider them as part of the request. It said that, on review, it accepts that the records should have been scheduled and refused under section 15(1)(d) which provides for the refusal of a request where the information sought is already in the public domain. The applicant was notified of the matter and the Department’s revised position. He confirmed that he is happy to remove the referenced inspection reports from the scope of the review. As such, I will not consider the records further.
The Department originally relied on section 36(1)(c) in respect of one record. I sought focused submissions in respect of the application of the exemption provision. In response, the Department said that the information redacted from record 6 relates to discussions between the Department and an accommodation provider around the nature of services provided and directly refers to a potential change of contractual terms. It said that it decided at the time that release of this information would be contrary to the purposes of the negotiations. However, it said that given the passage of time in the interim, it does not believe that this risk still exists and is no longer opposed to the release of the information on page 17 of the records. For the avoidance of doubt, information which discloses the same detail has also been redacted from page 18. In light of the Department’s revised position, I will not consider the information further as part of this review. I expect the Department to release the information to the applicant if it has not done so already. The Department has not applied section 36 to any other information in the records so I do not need to consider the application of the exemption.
I also notified the applicant of certain submissions made by the Department in respect of the application of section 37(1). In response the applicant said that he was happy for certain information to be removed from the scope of this review. However, given his position and the specific nature of the information and records, I must still consider the application of section 37(1). I will address the question of scope further in that section of my analysis.
Accordingly, this review is concerned solely with whether the Department was justified in its decision to withhold information from the records on the basis of sections 32(1)(b) and 37(1) of the FOI Act.
Before I address the substantive matters arising, I wish to make a number of preliminary comments. As evidenced above, the manner in which the Department processed the applicant’s request fell far short of expectations. The Department did not issue decisions in line with the statutory requirements of the FOI Act and the applicant had to bring a review before this Office in order to obtain an effective position. While I fully accept that FOI bodies have to make difficult decisions in terms of the allocation of scarce resources, as this Office has stated on many occasions, the administration of the FOI Act is a statutory function which should be afforded as much weight as any other such function. Non-responses of the nature experienced in this case serve to undermine the entire FOI process and are unacceptable. I expect the Department to have regard to my comments and to ensure that the FOI function is adequately resourced to ensure compliance with the relevant statutory requirements set out in the Act.
Separately, 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 the 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 32(1)(b)
Section 32(1)(b) provides for the refusal of a request where the FOI body considers that access to the record sought could reasonably be expected to endanger the life or safety of any person.
Section 32(1)(b) is not a commonly used exemption. This Office takes the view that the exemption should not be applied without careful consideration having been given as to whether the expectation set out in the subsection is a reasonable one in all the circumstances. It should only be invoked in circumstances of the most serious nature. An assessment of the expected consequences of releasing particular records in terms of endangering life or safety is required. It is not necessary, or indeed possible, to establish that such harm will occur but there must be a reasonable expectation of such harm arising.
The Department applied section 32(1)(b) to each of the six part-granted records. The records comprise copies of email correspondence and internal messaging and the withheld information comprises staff names and details. This includes staff of the Department and of HIQA. In its submissions, the Department said that section 32(1)(b) allows for the refusal of a record where access could reasonably be expected to endanger the life or safety of any person. It said that in this case, it is of the opinion that releasing the personal details of staff in the division at present could reasonably be expected to endanger their safety. It said that this opinion is based on careful consideration of the environment in which it operates and a trend of incidents that have occurred relating to its facilities and employees over recent years.
The Department said that the work carried out by staff in the division in procuring, developing and providing accommodation services for people applying for international protection has been a matter of public interest and has prompted much discussion at times. It said that this has also included notable and multiple instances of protest and criminality associated with IPAS facilities. It said that in addition to welcome discourse and peaceful protests, the international protection accommodation sector has also had to contend with arson attacks, threats to staff and facilities including threats of fire, animal cruelty incidents, intimidation of people at work, and damage to facilities and staff property. It referenced the number of recorded arson attacks on current, potential or rumoured international protection accommodation centres between August 2023 and August 2024. It said that others have been subject to protest including criminal damage.
The Department said that protests have taken place outside IPAS centres where Department and provider staff are working. It said that it takes every precaution to protect the identity of residents and it believes that the same protections should be afforded to staff. It referred to incidents over the past two years where staff members in the division were threatened and an incident where a more junior member of staff had their personal information shared on social media. The Department said that given this trend, it considers that the safety of staff members could be at risk if their names and contact details are released. It said that in the present day, one can easily be tracked through social media using details such as name and profession and that, as such, it believes that releasing the names of staff members at this time under FOI poses a tangible risk to them. It said that it is aware of an instance where the name of an international protection and integration division staff member was released publicly under FOI by another public body.
I noted that the details of HIQA staff have also been withheld, including staff who appear to be publicly associated with a relevant monitoring programme. I asked the Department to explain why it believes the relevant harms would flow from the release of such information. In response, the Department said that in the case of external public officials, a risk also arises from being named on the record and associated with IPAS services and decisions. It said that there have been several instances of officials from various public bodies having their names, images and job titles shared on social media due to their association with the work of IPAS, not because they in fact work in IPAS. It said that as release under FOI effectively constitutes release to the world at large and given instances of information being shared online, it does not consider it appropriate to publish the names of officials in any records that associate them with the work of the division at this time. It said that while certain official’s names may be available online in other contexts, the publication of this material directly linking them with the work of IPAS will increase the likelihood of the aforementioned harms occurring.
I note that in its effective position letter, the Department said that in redacting staff information, it made every effort to ensure that it is clear which organisation the correspondence originated from and who it was to.
I have carefully considered the submissions made by the Department. As noted above, this particular exemption is not commonly used. The question I must consider is whether the expectation set out by the Department is a reasonable one in all the circumstances. In order for the exemption to be upheld, it should be possible to clearly link the expectation of serious harm arising to the content and context of the records. I am conscious that the FOI Act generally envisages the release of the names of staff members of FOI bodies where they appear in relevant records. For example, the names of staff members are generally not considered to be personal information by virtue of the exception to the definition of such information in section 2 of the Act. This Office considers that the exclusion is intended to ensure that section 37 will not be used to exempt the identity of a staff member while carrying out his or her official functions. However, that is not to say that other provisions of the Act cannot apply to exempt such information. The Department’s position is that releasing staff names in the current environment could reasonably be expected to endanger the safety of those individuals. I note that it has referenced certain incidents which have occurred including staff members being threatened and having their information shared online.
As noted above, in claiming section 32(1)(b) it is not necessary, or indeed possible, for an FOI body to establish that relevant harm will occur. What I must consider is whether the Department has shown that there is a reasonable expectation of this. I acknowledge that in the current climate the international protection process is a matter of significant public interest and debate, with strongly held views on all sides. I also appreciate that there have been instances of serious criminality which have occurred during protests at IPAS facilities. I note that the Department has also referenced incidents in which staff members have had their information shared on social media due to their association with the work of IPAS. I am generally satisfied that serious incidents have occurred and that such incidents have raised concerns for the Department in respect of the release of staff information. It seems to me that valid concerns currently exist in respect of the behaviour of a cohort of individuals strongly opposed to the State’s approach to international protection applicants and the manner in which they are accommodated. While noting that certain information about HIQA’s monitoring programme and the staff involved is available on its website, I also accept that the records at issue disclose more detailed information about the specific activities of the body and its staff in respect of particular accommodation. In the specific context and circumstances, I accept that the FOI body has shown that its expectation that the release of staff information, whether staff of the Department or of HIQA, could endanger the life and safety of such individuals is reasonable. I am satisfied that it has justified its decision-making. Accordingly, I find that section 32(1)(b) applies to exempt the release of the names and details of staff contained in the records.
Under section 32(3), section 32(1)(b) does not apply to a record in certain limited circumstances and where the body considers that the public interest would, on balance, be better served by granting the request. I am satisfied that none of the limited circumstances arise in this case. I find, therefore, that the Department was justified in refusing the information concerned under section 32(1)(b).
For the avoidance of doubt, the above finding does not preclude this Office from arriving at a different conclusion in respect of similar arguments advanced in future reviews. Each case will be considered on its merits based on the particular facts and circumstances.
Section 37(1)
Section 37(1) provides for the mandatory refusal of a request where access to the record sought would involve the disclosure of personal information relating to an individual other than the requester. For the purposes of the Act, personal information is defined as information about an identifiable individual that either (a) would ordinarily 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 of the Act details fourteen specific categories of information that is personal without prejudice to the generality of the foregoing definition.
The Department applied section 37(1) to records 1 and 6. It said that it redacted the details of staff working for a service provider from record 1 and the locations of own-door international protection accommodation from record 6.
In respect of record 1, the Department has withheld a notification form in its entirety on the basis of section 37(1). When asked to explain its reasoning, it said that each heading or section on the form contained personally identifying information relating to the individual in question, who is an individual working for a service provider. It said that as each piece of information was personally identifying and would be redacted under section 37, it considered that there was no actual information remaining in the form and it was refused on that basis as it said it saw no value in releasing a form with almost all of the information redacted.
In respect of record 6, the information redacted is contained in a table on page 14. The Department said that the addresses contained in that table differ from other addresses contained in the records in that they refer to smaller, own-door accommodation where individuals or families are residing. It said that they are individual properties and to release this information would be entirely inappropriate. It said that this approach is mirrored by HIQA, which publishes most addresses where inspections are carried out, but recognises that it would not be appropriate to do so in respect of this class of property. The Department said that the redaction is in keeping with section 37, but also with its obligations under the International Protection Act to ensure the privacy of international protection applicants living in Ireland. The Department also said that releasing the information would be likely to compromise the safety of the individuals living in the relevant addresses and it said that its arguments in respect of section 32(1)(b) also apply to such information. It said that in the context of frequent protests and arson attacks at accommodation centres, the utmost care should be taken with these addresses. It said that it strongly opposes their release.
In light of the submissions received, I contacted the applicant to enquire as to whether he was seeking access to this particular information. I noted that the Department’s position is that the information withheld consists of the names of third-party staff working in an accommodation centre and the addresses of own-door international protection accommodation. In response, the applicant said that he was happy for the information referenced to be removed from consideration. However, he said that in respect of the own-door accommodation, some form of identifier would need to be provided, for example a county location. He said that, otherwise, the records could lack important context.
Taking into account the applicant’s submissions, I am satisfied that the name and details of the third-party staff member contained in record 1 is information which falls outside the scope of this review. However, I do not accept that the entirety of the relevant notification form should be withheld on that basis. I consider that the relevant information can easily be extracted from the record. I find that the individual’s name, phone number, and email address should be withheld as information outside scope (contained on pages 3 and 4 of the records) but that the remaining information in the notification form should be released. I am not satisfied that section 37(1) serves to exempt the remaining information, nor have any arguments to that effect been advanced by the Department.
In respect of record 6, the applicant has indicated that he is happy for the substantive addresses to be withheld but has sought the release of county locations. I am satisfied that such information, which is contained in the table on page 14 of the records, could be released without disclosing personal information pertaining to any third parties. I do not accept that releasing the county locations of own-door accommodation could identify the properties in question. I find that the remaining information contained in the table should be withheld as outside scope but that the names of the relevant counties contained in each row should be released. Again, I am not satisfied that section 37(1) serves to exempt such limited information. For the avoidance of doubt, nor am I satisfied that release of a county location could result in any relevant harms under section 32(1)(b).
Finally, while submissions were not received in respect of the information, I am satisfied that section 37(1) applies to exempt the release of the name of an individual staff member of a third party contained in record 6 at page 18. I am satisfied that the public interest does not weigh in favour of the release of that limited information.
In summary, I find that the Department was justified in refusing access to the information withheld on the basis of section 32(1)(b). I find that certain information refused on the basis of section 37(1) should be withheld as outside the scope of the review. I find that section 37(1) applies to limited information contained in one record but that it does not apply to the remaining information withheld and I direct the release of same.
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 justified in refusing access to certain information on the basis of sections 32(1)(b) and 37(1). I find that it was not justified in refusing access to other information on the basis of section 37(1), with the exception of information which the applicant agreed to remove from the scope of the review. I direct the release of certain information from records 1 and 6 subject to the redaction of the out-of-scope information.
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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Alison Connolly
Investigator