Decision
Ken Foxe, Right to Know and Standards in Public Office Commission
From Office of the Information Commissioner (OIC)
Case number: OIC-141137-N8P7Q8
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-141137-N8P7Q8
Published on
Whether the Commission was justified in refusing access, under sections 29(1) and/or 35(1)(a) of the FOI Act, to certain records regarding the decision not to proceed with an investigation into a complaint made about Minister Paschal Donohoe and his election expenses and/or declaration of donations
3 September 2024
In a request dated 29 May 2023, the applicant sought access to copies of any records held by the members of the Commission regarding the decision not to proceed with an investigation into a complaint made about Minister Paschal Donohoe and his election expenses and/or declaration of donations.
On 29 June 2023, the Commission issued its decision. It identified six records as falling within the scope of the request. It refused access to records 1 and 4 under sections 29(1)(a) and 35(1)(a) of the Act. It refused access to parts of records 2 and 5 under sections 29(1)(a) (record 5 only), 35(1)(a) and 37(1) of the Act and it refused access to parts of records 3 and 6 on the basis that the information concerned falls outside the scope of the request. On 12 July 2023, the applicant sought an internal review of that decision, following which the Commission affirmed its original decision. It also said it had located three additional records which it released to the applicant. On 2 August 2023, the applicant sought a review by this Office of the Commission’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 submissions made by the parties to date. 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.
During the course of the review, the Commission clarified a number of matters relating to the records at issue.
Record 1 is a Briefing Note for a Commission Meeting on 30 January 2023 regarding the complaint made about Minister Donohoe. This record refers to appendices and record 2 contains the set of appendices for record 1 (appendices 1-17). The Commission confirmed that appendices 2, 5, 6, 7, 8, 10, 11, 12, 14, 15, 16 and 17 were released to the applicant and appendices 1, 3, 4, and 13 were withheld. The Commission stated that there is no appendix 9 and this appears to have been an error in the naming convention applied. In reply to a query from the Office, the Commission clarified that appendix 13 was in fact released at internal review as record 8 and it was withheld in error. As appendix 13 has already been released to the applicant, it will not be considered in this review.
Record 4 is a Briefing Note for a Commission Meeting on 8 May 2023. This record also refers to appendices and record 5 contains these appendices (appendices 1, 1.1-1.19, 2, 3). The Commission confirmed that appendices 1.2 (pages 9-12) 1.4 (pages 29-30) 1.6, 1.7, 1.8, 1.9, 1.10, 1.11, 1.12, 1.13, 1.14, 1.16, 1.17, 1.18, and 1.19 were released to the applicant and appendices 1, 1.1, 1.2 (pages 13-23), 1.3, 1.4 (page 28), 1.5, 1.15, 2, and 3 were withheld. As appendices 1, 1.1, 1.2 (pages 13-23), 1.3, 1.4 (page 28) are copies of records which were refused under record 1 or 2 above, it is not necessary to consider them separately under record 5 nor is it necessary to consider appendix 1.15 as this record was released to the applicant at internal review as record 8. The Commission also confirmed that insofar as it relied on section 29(1) in refusing access to parts of record 5, that this relates only to appendix 1 which is a copy of the Briefing Note of 30 January 2023. As the application of section 29 to this Briefing Note will be considered under record 1, it is not necessary to consider section 29(1) in relation to any of the other appendices refused under record 5.
Records 3 and 6 contain Draft Minutes of Commission Meetings of 30 January 2023 and 8 May 2023. The Commission says it released parts of each record which relate to the complaints against Minister Donohoe and it refused access to parts of each record which concern unrelated complaints. I have examined both records and I am satisfied that the information withheld from records 3 and 6 falls outside the scope of the applicant’s request.
Finally, the Commission relied on section 37 of the Act in refusing access to personal email addresses contained in records 2 and 5. Following communications with this Office, the applicant agreed to exclude this information from the scope of the review. Therefore, it is not necessary to consider the Commission’s reliance on section 37 of the Act in this review.
In light of the above, the scope of this review is confined to the following questions:
Section 25(3) of the Act provides that this Office must take all reasonable precautions in the performance of its functions to prevent the disclosure of exempt information. Therefore, while I am limited in the extent to which I can describe the contents of the records at issue, I believe it would be useful to provide a brief overview of the records.
Record 1 is a Briefing Note which contains a summary of the complaints received, details of election expenses declarations made, statements made by Minister Donohoe, correspondence from the Commission to relevant parties, and legislative provisions for the Commission to consider.
Record 2 contains the appendices referenced in record 1. Appendix 1 contains the original complaint made to the Commission on 29 November 2022. Appendix 3 contains an updated complaint made on 17 January 2023 and it includes emails from the complainant to Minister Donohoe, his special adviser and a third party. Appendix 4 contain a supplemental complaint to the Commission dated 17 January 2023.
Record 4 is a Briefing Note which contains the background to the complaint, details of replies to the Commission from Minister Donohoe, his special adviser and a third party, and analysis and details of the relevant legislative provisions for the Commission to consider.
Record 5 contains the appendices for record 4. Appendix 1.5 contains a new complaint made to the Commission on 24 January 2023. Appendix 2 contains Minister Donohoe’s reply to the Commission’s correspondence and also contains a copy of a letter from a third party. Appendix 3 contains the reply of the Minister’s election agent to the Commission and it contains a copy of the same letter contained in appendix 2.
The Commission relied on section 29(1)(a) in refusing access to records 1 and 4. Section 29(1) provides for the discretionary refusal of a request 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 considered by the body for the purpose of those processes, and (b) the body considers that the granting of the request would be contrary to the public interest.
These are two independent requirements and the fact that the first is met carries no presumption that the second is also met. Furthermore, the public interest test at section 29(1)(b) is a strong test. Any arguments against release should be supported by the facts of the case and it should be shown how release of the record(s) would be contrary to the public interest.
Section 29(2) provides that subsection (1) does not apply to a record if and in so far as it contains any or all of the following:
a) matter such as rules, procedures, guidelines, interpretations and precedents used, or intended to be used, by an FOI body for the purpose of making decisions, determinations or recommendations;
b) factual information;
c) the reasons for the making of a decision by an FOI body;
d) a report of an investigation or analysis of the performance, efficiency or effectiveness of an FOI body in relation to the functions generally or a particular function of the body;
e) a report, study or analysis of a scientific or technical expert relating to the subject of his or her expertise or a report containing opinions or advice of such an expert and not being a report used or commissioned for the purposes of a decision of an FOI body made pursuant to any enactment or scheme.
Section 29(1)(a)
The first requirement which must be met in order for section 29(1) to apply is that the record must contain matter relating to the ‘deliberative processes’ of an FOI body. An FOI body relying on this exemption should identify both the deliberative processes concerned and any matter in particular records which relates to these processes.
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 fact that a deliberative process exists and is ongoing does not mean that the exemption automatically applies without consideration of all the provisions of section 29. Equally, the fact that a deliberative process is at an end does not mean that the exemption automatically does not apply.
In its submission to this Office, the Commission said that a complaint briefing note contains the opinions and Electoral/Ethics Acts analysis of a Commission caseworker. It said that record 1 comprises matter for use by members of the Commission in deciding whether an investigation under the Electoral Act or an investigation under the Ethics in Public Office Act into the matters complained of about Minister Donohoe are warranted. It said the last two sections of the briefing note, which concern the legislative provisions to consider, set out the rules in the legislation and the procedures followed by the Commission in considering whether an investigation is warranted. It said it accepts that section 29(2) applies in respect of those two sections of the briefing note. The Commission said record 4 sets out the enquiries made, considers the amended election expenses statements submitted, sets out a summary of the requirements of the legislation, provides an analysis of the matters under consideration and sets out the legislative provisions to consider. It again said it accepts that section 29(2) applies in respect of the last two sections of the briefing note.
It seems to me that following receipt of the complaints made in relation to Minister Donohoe, the Commission’s caseworker gathered information from a variety of sources including the complaints themselves, election expenses declarations and statements made by Minister Donohoe. The caseworker also wrote to the Minister and other relevant parties and the briefing notes contain details of this correspondence. In my view records 1 and 4 contain the caseworker’s analysis of the matters under scrutiny and the relevant legislation to be considered. I accept that the Commission was involved in a deliberative process in relation to how to address the complaints made and records 1 and 4 were created as part of this deliberative process. I find, therefore, that section 29(1) applies.
Section 29(1)(b)
As I have found section 29(1)(a) to apply to records 1 and 4, I must go on to consider section 29(1)(b). The public interest test at section 29(1)(b) is a stronger public interest test than the public interest test in many other sections of the Act, requiring the FOI body to show that the granting of the request would be contrary to the public interest. This Office has previously held that the Act clearly envisaged that there will be cases in which disclosure of the details of an FOI body’s deliberations – whether before or, in some cases, after a decision based on those deliberations has been made – would be against the public interest. However, this is not to say that such disclosure is always, as a matter of principle, against the public interest. Any arguments against release under section 29 should be substantiated and supported by the facts of the case. An FOI body should show how granting access to the particular record would be contrary to the public interest, e.g. by identifying a specific harm to the public interest flowing from release.
This Office asked the Commission to explain how the release of these record would be contrary to the public interest. The Commission said that when a complaint has been made a consistent approach is taken across the board to protect the anonymity of complainants. The Commission said it considers it appropriate to protect the information obtained in confidence and included in deliberations as in the event that it is released it might discourage complainants from approaching it in the future. In addition to this, it said complaints against respondents which do not warrant any further investigation would be important to protect as individuals under the constitution have a right to their good name.
The Commission is, in essence, arguing for the protection of records of its deliberations on complaints received as a class, without having due regard to the particular contents of the records at issue in this case or the relevant background circumstances. Individuals make complaints to the Commission in the expectation that their complaints will be investigated by the Commission. In doing so, they can have no expectation that the details of the complaint made or their identities will remain confidential. They must reasonably expect that the details of their complaint and their identity will, at the very least, be made known to the individual against whom the complaint is made in compliance with the principles of fair procedures and natural justice. Indeed, on its website, www.sipo.ie, the Commission explains that it cannot accept anonymous complaints and that the subject of a complaint will be provided with the complainant’s full name. Moreover, Commission hearings are often held in public. It is also relevant to note that the details of the complaint made in this case and the identity of the complainant are already in the public domain. Accordingly, I do not accept the Commission’s argument that the release of the records at issue in this case might more generally discourage complainants from approaching it in the future.
Nor do I accept the argument that it would be contrary to the public interest to release the records at issue in this case on the basis that records concerning complaints against respondents which do not warrant any further investigation should be protected in order to protect the right of respondents to their good name. Again, this is an argument that such records should be exempt as a class, regardless of the contents of the records at issue or the related background circumstances. In this case, there are a large number of newspaper articles available online that refer to details of the complaint to the Commission, the Minister’s reply to the complaint and statements made by the Minister in relation to the complaint. In all the circumstances, I am not satisfied that the Commission has satisfactorily shown that the release of records 1 and 4 would be contrary to the public interest. I find, therefore, that section 29(1) does not apply to these records.
Section 35(1) – information obtained in confidence
The Commission also relied on section 35(1)(a) in refusing access to records 1 and 4 and in refusing access to records 2 and 5 which are the appendices to these briefing notes.
Section 35(1)(a) of the Act provides that an FOI body shall refuse to grant an FOI request if
the record concerned contains information given to an FOI body in confidence and on the understanding that it would be treated by it as confidential and the body considers that its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and it is of importance to the body that such further similar information as aforesaid should continue to be given to the body.
Section 35(2) provides that subsection (1) shall not apply to a record which is prepared by a head or any other person (being a director, or member of the staff of, an FOI body or a service provider) in the course of the performance of his or her functions unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than an FOI body or head or a director, or member of the staff of, an FOI body or of such a service provider.
Section 35(2)
As section 35(1) does not apply where the records fall within the terms of section 35(2), it is appropriate to consider the applicability of 35(2) at the outset. I am satisfied that records 1 and 4 were created by a staff member of the Commission’s Secretariat in the course of the performance of her functions. Accordingly, pursuant to section 35(2), section 35(1)(a) cannot apply unless the release of these records would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than an FOI body or its staff.
The Commission did not identify any agreement or statute that might provide for a duty of confidence in this case. Nevertheless, a duty of confidence provided for “otherwise by law” is generally accepted to include a duty of confidence arising in equity. This Office accepts that breach of an equitable duty of confidence is comprehended by section 35(1)(b). The Commission said it has a duty to protect the anonymity of complainants and the good name of respondents where the complaint does not warrant further investigation.
In the Supreme Court decision in the case of Mahon v Post Publications Ltd [2007] 3 I.R. 338 Fennelly J. confirmed that the requirements for a successful action based on a breach of an equitable duty of confidence, at least in a commercial setting, are found in the judgment of Megarry J. in Coco v. A. N. Clark (Engineers) Ltd. [1969] R.P.C. 41, at 47: “Three elements are normally required if, apart from contract, a case of breach of confidence is to succeed. First, the information itself ... must 'have the necessary quality of confidence about it'. Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it."
Fennelly J summarised or restated the requirements of what he called “the contours”
of the equitable doctrine of confidence as follows:
1. “the information must in fact be confidential or secret: it must ... “have the necessary quality of confidence about it”;
2. it must have been communicated by the possessor of the information in circumstances which impose an obligation of confidence or trust on the person receiving it;
3. it must be wrongfully communicated by the person receiving it or by another person who is aware of the obligation of confidence.”
It seems to me that the vast majority of the information at issue in this case does not have the necessary quality of confidence about it, given the significant amount of information about the matter that is already in the public domain. Extensive information in relation to the complaint, the complainant, the Commission writing to the relevant parties, the replies of the relevant parties, and the Commission’s decision not to carry out an inquiry are covered in newspaper articles which are available online. Moreover, in the particular circumstances of this case, I am satisfied that neither the details of the complaint or the complainant’s identity, nor Minister Donohoe’s response to the complaint, were communicated by either party in circumstances which impose an obligation of confidence on the Commission, given the fact that all of this information was placed into the public domain. Indeed, in his correspondence with this Office, the complainant expressed his view that his identity should be made available.
For these reasons alone, I am satisfied that the release of records 1 and 4 would not constitute a breach of an equitable duty of confidence and that section 35(1) cannot therefore apply to those records 1 and 4, pursuant to section 35(2).
Section 35(1)(a)
As record 2 (appendices 1, 3 and 4) and record 5 (appendices 1.5, 2, and 3) were not created by a staff member of the Commission’s Secretariat, I will consider the applicability of section 35(1)(a) to those records. As outlined above, the Commission said that when a complaint has been made to it, a consistent approach is taken across the board to protect the anonymity of complainants and it is appropriate to protect the information obtained in confidence as release might discourage complainants from approaching it in the future.
Record 2 appendices 1, 3 and 4 contain the original complaint of 29 November 2022, an updated complaint of 17 January 2023 which includes copies of correspondence from the complainant to the Minister, his special adviser and a third party, and a supplemental complaint of 17 January 2023. I note that the applicant has stated that he does not consider that these records were provided to the Commission in confidence. I am not satisfied that the information in record 2 appendices 1, 3 and 4 was provided on the understanding that it would be treated as confidential. In any event, as I have outlined above and for the reasons outlined above, I consider that complainants can have no expectation that the details of the complaint made or their identities will remain confidential. I find that these records are not exempt from release on the basis of section 35(1)(a) of the FOI Act.
Record 5 appendices 1.5, 2, and 3 contain the complainant’s new complaint of 24 January 2023, a letter from Minister Donohue with replies to the Commission’s queries and attaching a letter from a third party in relation to the matter, and a letter from the Minister’s election agent with replies to the Commissions queries and attaching the same letter. I find that the complainant’s new complaint contained in appendix 1.5 was not provided in confidence or on the understanding that it would be treated as confidential.
As outlined above, one of the requirements for section 35(1)(a) to apply is that disclosure of the information would be likely to prejudice the giving to the body of further similar information from the same person or other persons. A number of factors may be relevant in determining whether the giving of further similar information is likely to be prejudiced. Factors to be considered may include, for example, the nature of the relationship between the provider of the information and the FOI body and the implications of any relevant statutory provisions.
I note that the Commission’s briefing note addresses prosecution of offences under the Electoral Act 1997 and it states that section 25(1)(d)(i) provides that certain persons, including a member of either House of the Oireachtas, shall be guilty of an offence if he or she knowingly furnishes a donation statement or makes a statutory declaration referred to in section 24 which is false or misleading in any material respect. It also states that S.43(2)(d)) provides that the national agent of a political party or the election agent of a candidate, shall be guilty of an offence if at an election, the agent, furnishes to the Commission a statement of election expenses which, to the agent's knowledge, is false or misleading in a material respect. It seems to me, that given the statutory powers of the Commission, it is in the interests of elected official and election agents to provide replies to queries raised by the Commission. The Commission has the power to carry out a criminal investigation under the Electoral Act or an ethics investigation under the Ethics in Public Office Act 1995. I am not satisfied that release of appendices 2 and 3 would be likely to prejudice the giving to the FOI body of further similar information from the same person or other persons and I find that they that appendices 2 and 3 are not exempt from release on the basis of section 35(1)(a) of the Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Commission’s decision. I find that the Commission was not justified in refusing access, under sections 29(1)(a) and/or 35(1)(a) of the Act, to record 1, record 2 (appendices 1, 3 and 4), record 4, or record 5 appendices (1.5, 2 and 3). I direct release of these records with the exception of any personal email addresses contained in records 2 and 5.
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