Decision
Ms. Y and Department of Social Protection
From Office of the Information Commissioner (OIC)
Case number: OIC-149491-C7X9C4
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-149491-C7X9C4
Published on
This review has its background in a hand-written letter the Department received that was purportedly written by the applicant concerning her living arrangements. Following receipt of the letter, the Department suspended the applicant’s social welfare payment. The relevant staff member of the Department identified certain discrepancies in the letter and contacted the applicant to determine if she had written the letter. The applicant denied both having written the letter and the allegations contained in the letter, following which the payment suspension was lifted. The Department said no payments were delayed due to those actions. It said that, as is standard practice, the matter was assigned to a Social Welfare Inspector (SWI) for investigation. Following an interview with the applicant, the SWI determined that no further action was required and the investigation was closed.
In the meantime, on 13 March 2024, the applicant sought access to a copy of the hand-written letter. In a decision dated 16 April 2024, the Department refused the request under section 30(1) of the Act on the ground that the record related to the investigation which was, at that time, ongoing. On 13 May 2024, the applicant sought an internal review of that decision. On 29 May 2024, at which stage the investigation was complete, the Department varied the basis on which it was refusing the request. It said it was no longer relying on section 30(1) and was instead relying on section 37(1) of the Act as a basis for refusal. On 31 May 2024, the applicant applied to this Office for a review of the Department’s decision.
During the course the review, the Investigator notified both parties of the potential relevance of section 42(m)(i) of the Act to the record and invited further submissions. Both parties subsequently made further submissions which I have considered in full.
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 communications between this Office and both parties on the matter. I have also had regard to the nature and contents of the record at issue. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether the Department was justified in refusing the applicant’s request for a copy of the hand-written letter at issue under sections 37(1) and/or 42(m)(i) of the FOI Act.
Before I address the substantive issues arising in this case, I wish to explain that a review by this office is regarded as “de novo” which essentially means that 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 Act provides that the 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(m)(i), notwithstanding the fact that the Department did not rely on the provision as a ground for refusing the request.
As section 42 restricts the applicability of the FOI Act in certain circumstances, I consider it appropriate to consider the applicability of section 42(m)(i) first. That section provides that the Act does not apply to a record relating to information whose disclosure could reasonably be expected to reveal or lead to the revelation of the identity of a person who has provided information in confidence in relation to the enforcement or administration of the law to an FOI body, or where such information is otherwise in its possession.
Essentially, this section provides for the protection of the identity of persons who have given information to FOI bodies in confidence in relation to the enforcement or administration of the law to ensure that members of the public are not discouraged from co-operating with such bodies. Section 42(m)(i) is not subject to a public interest test. If this section is found to apply to the record, that it is the end of the matter and there is no right of access to the record under the FOI Act.
In response to our invitation to comment on the applicability of section 42(m)(i) to the record, the applicant merely said that she did not write the letter and that she should have a right to see it.
For section 42(m)(i) to apply there are three requirements that must be met:
1. Disclosure of the withheld information could reasonably be expected to reveal or lead to the revelation of the identity of the supplier of the information,
2. The information supplied must have been given in confidence, and
3. The information supplied must relate to the enforcement or administration of the law.
The record in question is a hand written letter to the Department. In its submissions to this Office, the Department said that the level of detail contained in the handwritten letter, even with inconsistencies would likely reveal or lead to the revelation of the identity of the author without necessarily naming them. It said it was also satisfied that the handwriting comprises personal information relating to individuals other than the applicant and may identify the author without necessarily naming them. I note that the applicant was already provided with the substantive details of the allegations contained in the letter. Notwithstanding this, it seems to me that in light of its contents and the fact that the letter is handwritten, it is reasonable to assume, in my view, that the author may be known to the applicant and that its release could reasonably be expected to reveal or lead to the revelation of the identity of the author. I accept, therefore, that the fist requirement is met.
The second requirement for the applicability of section 42(m)(i) is that the information must have been given in confidence. It is accepted by the Department that the applicant was not the author of the letter in question and instead sought to impersonate the applicant. It is reasonable to assume, therefore, that while the author expected the Department to act on the information provided, he/she did not want to disclose his/her identity. As such, while I do not accept that the author can reasonably have expected that the information provided concerning the applicant would remain confidential, I do accept that the author wished to have his/her identity to remain confidential. However, the effect of my finding that the release of the handwritten letter could reasonably be expected to reveal or lead to the revelation of the identity of the author means that I must regard the entire record as having been given in confidence.
I have considered whether a duty of confidence can apply in circumstances where the author has attempted to impersonate the applicant. In my view, it can. The fact that the author sought to protect his/her identity does not mean that the intention to draw the Department’s attention to the matter was not genuine, even if mistaken or unfounded. The purpose of section 42(m)(i) is to protect the flow of information from the public which FOI bodies require to carry out their functions relating to the enforcement or the administration of law. This Office accepts that the disclosure of the identity of informants could prejudice the flow of information from the public. Thus section 42(m)(i) may still apply to information which was given in confidence but is subsequently found to be mistaken or unfounded.
Moreover, even if I was satisfied that the information was provided for malicious purposes, this Office gives significant weight to safeguarding the flow of information to FOI bodies. We accept that the disclosure of the identity of informants, even where the evidence suggests that the provision of the information was maliciously motivated, could prejudice the flow of information from the public. In many situations the FOI body acts on the information provided in good faith. When the situation of the person who, in good faith, supplies information which is subsequently found on investigation to be inaccurate or mistaken is considered, the difficulty for the FOI body in handling such information in any other manner becomes apparent.
Accordingly, I am satisfied that the information was provided in confidence to the Department and that the second requirement is met.
The third requirement is that the information provided must relate to the enforcement of administration of the law. The record at issue concerns a social welfare payment. The Social Welfare Consolidation Act 2005 is the legislative basis that governs the social welfare code including Social Insurance based benefit and assistance schemes. The legislation also details offences and penalties and provides for legal proceedings under the social welfare code, the mechanisms for governing decisions and appeals in relation to social welfare. On this basis I am satisfied that the third requirement has been met.
In conclusion, therefore, having found that each of the three requirements of section 42(m)(i) have been met, I find that section 42(m)(i) applies and that the FO Act does not apply to the record sought. Having found section 42(m)(i) to apply, I do not need to consider the applicability of section 37(1) to the record.
Having carried out a review under section 22(2) of the FOI Act, I affirm the Department’s refusal of the request under section 42(m)(i).
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