Decision
Mr B and the Department of Agriculture, Food & the Marine (FOI Act 2014)
From Office of the Information Commissioner (OIC)
Case number: 170066
Published on
From Office of the Information Commissioner (OIC)
Case number: 170066
Published on
Whether the Department was justified in withholding records relating to a) complaints made about the applicant and b) the Steering Group of the Department's Investigations Unit, in full or in part on the basis of sections 30(1)(a), 30(1)(b), 31(1)(a), 32(1)(a)(i), 36(1)(b) and 37(1) of the FOI Act and in refusing to release further records under section 15(1)(a)
Conducted in accordance with section 22(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review
29 November 2017
The applicant is employed by the Department. On 29 January 2016, he sought a copy of all records relating to complaints made about him, as well as all records related to the Steering Group of the Department's Investigations Division.
Three separate decisions issued from different sections of the Department relating to his request, all of which he appealed. The Department issued three internal review decisions and the applicant applied to this Office for a review of all three (Case No. 160333 refers). During the course of that review this Office informed the Department of its view that it had possibly misinterpreted the scope of the applicant's request relating to the Steering Group.
ubsequently, further searches were conducted and additional records were released in full or in part by two sections of the Department. The applicant was informed of his right to request an internal review or review by this Office of the Department's decisions relating to the additional records and the case was closed.
On 16 December the applicant requested an internal review of both decisions. Subsequently, the Department issued internal review decisions on 6 January 2017 (from the Corporate Affairs Division) and 3 February 2017 (from the Veterinary Internal Audit, Medicines, Ethics and Training Division). The applicant applied to this Office on 17 February 2017 for a review of both decisions.
The applicant is of the view that the redactions in the records released in part are excessive and that more relevant records, including email attachments, should exist. The Department maintains its position that all relevant records have been considered, and released where appropriate. Accordingly, I have decided to bring this review to a close by way of a formal, binding decision.
In conducting this review, I have had regard to the correspondence between the Department and the applicant as set out above. I have also had regard to the communications between this Office and both the applicant and the Department, as well as the contents of the records concerned.
During the course of this review the applicant confirmed to Ms Sandra Murdiff, Investigator in this Office, that he is not seeking various classes of records/information. He clarified that he was solely seeking access to records relating to a specific company (the Company) who had made a complaint about him, and submissions made on the Company's behalf to the Department. Accordingly, the Department's decision dated 6 January 2017 concerning records relating to the Steering Group held by the Corporate Affairs Division is not within the scope of this review.
The decision dated 3 February 2017 identified 177 records as coming within the scope of the applicant's request. Three of these records were released in full (Records No. 24, 25 and 72).
The Department granted access to 40 records in part and refused access to the remaining 134 records in full, on the basis of sections 30(1)(a), 30(1)(b), 31(1)(a), 32(1)(a)(i), 36(1)(b) and 37(1) of the FOI Act. I am satisfied, having regard to the applicant's clarification of the records sought, that Record 165 is not within the scope of this review, as it relates to another company and its dealings with the Department. During the course of this review, the Department located another record falling within the scope of the applicant's request. For ease of reference, I shall refer to this as Record 178. It refused to grant access to this record.
During the course of the review the applicant also confirmed that he is not seeking the personal information of third parties (section 37 refers). While the Department did not rely on this section in respect of all of the following files, I am satisfied that the following records contain such personal information: Records 2, 3, 6, 10, 11, 14, 16, 19, 20, 26, 29, 31, 32, 44, 51, 52, 53, 54, 56, 57, 58, 59, 61, 62, 63, 64, 65, 66, 70, 77 and 80 in part and Record 60 in full, which is not within the scope of this review.
Therefore, this review is solely concerned with whether the Department was justified in withholding the remaining records relating to applicant and the Company and any submissions made on its behalf, in full or in part on the basis of sections 30(1)(a), 30(1)(b), 31(1)(a), 32(1)(a)(i) and 36(1)(b) of the FOI Act. It is also concerned with whether it was justified in refusing to release additional relevant records to the applicant on the basis of section 15(1)(a) of the FOI Act.
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 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.
It is important to note that when a record is released under the FOI Act, it effectively amounts to disclosure to the world at large, as the Act places no restrictions on the type or extent of the subsequent use to which a record may be put.
The records at issue in this case comprise correspondence between the Company and the Department; the applicant and the Department; the Department and its in-house legal advisers, and internal Departmental correspondence/reports relating to the subject matter. In many instances, the same content is contained in several email "strings".
The Department’s position is that it has located and considered for release all records relating to the applicant's request that it holds and is, effectively, relying on section 15(1)(a) in refusing to release further such records.
Section 15(1)(a) of the FOI Act provides that a request for access to records may be refused if the records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner's role in cases such as this is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision and also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in search cases consists of the steps actually taken to search for records, along with miscellaneous other evidence about the record management practices of the FOI body, on the basis of which the decision maker concluded that the steps taken to search for records were reasonable.
Ms Murdiff contacted the applicant on 9 June 2017 and informed him of her view that the Department had taken all reasonable steps to locate records and invited him to comment. She supplied him with search details provided by the Department in this regard. I do not intend to reproduce these here. The applicant made a number of suggestions relating to where additional records might be or what they might contain. His comments and the Department's responses are set out below.
The applicant was of the view that records containing submissions made on the Company's behalf should exist. He provided a list of names of people he believed may have made such representations. The Department stated in response that submissions were made by many of the people named by the applicant and that these records had been contained in the Document Schedule. In this regard, it referred to Records 9, 22, 23, 45, 65 which relate to correspondence submitted on the Company's behalf or PQs raised in relation to the matters at hand. It also referred to records submitted by various members of the Company, including but not limited to Records 9, 73, 91, 102 and 126. In essence, the Department stated that as these records have been refused, it would not be clear to the applicant that they contained the information he refers to.
The applicant also commented that the search details provided by the Department did not refer to records held by the Department's Assistant Secretary, Secretary General and Minister who were in situ at the relevant time. While the Department was of the view that such records would have been forwarded to the relevant Management Board member and captured by searches already performed, it said that it carried out searches of the relevant [archived] files to determine whether any additional relevant records existed. It stated that one additional record was located - an unsigned draft document (Record 178), which it refused to release on the basis of sections 30(1)(a), 30(1)(b) and 36(1)(b) of the Act.
The applicant was of the view that manual records should exist relating to his request and that there was no indication that searches had been carried out of relevant hardcopy records. In essence, the Department's response was that while manual searches had been carried out, most correspondence in this case was by way of email and that hardcopy records were scanned onto the relevant files and would be captured by electronic searches.
The applicant also stated that he believed that a number of attachments had not been identified or considered by the Department in relation to his request. In this regard, he referred to a specific attachment to a letter from the Company (Record No. 155) which was not listed on the document schedule or enclosed with the records provided by the Department to this Office for the purposes of this review. The Department stated that the applicant was not in a position to verify what had been identified or considered as he was not in possession of the records withheld (including Record 155, which was not released to him). In any event, it stated that Record 155 was taken from a version (i.e. where the email had been replied to or forwarded) which did not have the relevant document attached. Furthermore it stated that the relevant attachment to Record 155 had been refused elsewhere under sections 31(1)(a) and 36(1)(b).
While the Department stated that it considered all of the attachments to the records at issue for release, it did not initially include them when providing records to this Office. It is important to note that this Office requires that copies of all records coming within the scope of the request/review, including attachments, be provided. However, in the course of this review, the Department provided the relevant attachments to this Office, and these have been carefully examined.
The Department has maintained its position that there was a very high level of duplication in the records identified and considered by it when processing the applicant's request. Furthermore, it stated that it was not possible to locate, identify and consider records and then prepare a document schedule individually listing every single email or attachment to an email in the time available. It also stated that it did not think that it would be reasonable to be expected to do so. The internal reviewer stated that she deemed some attachments to fall outside the scope of the applicant's request. She also stated that she considered it sufficient that each attachment be considered only once. I agree generally with this position and it is clear to me that considerable resources were devoted by the Department to locating and examining the records sought by the applicant.
Section 15(1)(a) does not require absolute certainty as to the existence or location of records as situations arise where records are lost, destroyed, or simply cannot be found. What is required is that the public body concerned takes all reasonable steps to locate relevant records. Public bodies are not required to search indefinitely for records in response to an FOI request. Furthermore, while the applicant is of the view that further records should exist, no specific evidence that this is the case is before me.
Taking into account the search details provided by the Department, the attachments provided to this Office and its responses to the applicant's points above, and to this Office's queries, I am satisfied that the Department has conducted reasonable searches to locate the records sought and that no additional records exist or can be found. Accordingly, I find that it was justified in its decision to refuse to release additional records on the basis of section 15(1)(a).
The Department relied on a number of exemptions to refuse access to the records sought in full or in part. In many cases, more than one exemption was applied to individual records. I will consider each record below, under what I believe to be the most relevant exemption in each case.
The Department relied on sections 30(1)(a) and 30(1)(b) to refuse to grant access to a number of the records concerned. Section 30 is a harm based exemption. Accordingly, an FOI body seeking to rely on section 30 should first identify the potential harm in relation to the relevant function that might arise from disclosure and secondly consider the reasonableness of any expectation that the harm will occur.
Section 30(1)(a) provides that an FOI body may refuse to grant an FOI request if access to the record concerned could reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct thereof. This is subject to section 30(2) which disapplies subsection (1) when the public interest would, on balance, be better served by granting than by refusing to grant the FOI request concerned.
When a public body relies on section 30(1)(a), it should first identify the potential harm or prejudice to the relevant test, examination, investigation etc and show how releasing the record could reasonably be expected to prejudice the effectiveness of the relevant test, examination, investigation etc. The Commissioner accepts that section 30(1)(a) is not aimed solely at investigations, etc., now in progress but may also cover similar exercises conducted in the future. The FOI body should then go on to consider the public interest test under section 30(2).
In its internal review decision the Department argued that release of the information in the records concerned could "undermine confidence in the Department's control systems". In submissions to this Office, the Department made more detailed arguments setting out how it believed release of the records at issue would prejudice the effectiveness of the Department's investigations. While I cannot set out the Department's reasoning without disclosing material that might be exempt, I am satisfied that the Department has identified a potential harm and shown how release of the records at issue could reasonably be expected to prejudice the effectiveness of the work of a particular unit in the Department. Although the applicant, as an employee of the Department, would be familiar with its methodology and practices as regards investigations of the type at issue here, the FOI Act makes no provisions for restricting the use of records released to the applicant. Release of records under FOI must be taken as release to the world at large.
I have carefully considered all of the records which the Department decided were exempt under section 30(1)(a) and I am of the view that section 30(1)(a) applies to information contained in the following records: Records 1, 2, 3, 6, 9, 10, 11, 16 (pages 2 and 3), 19, 20, 26, 28, 33, 44, 45, 46, 49, 50, 53, 54, 56, 57, 58, 61, 62, 64, 65, 66, 68, 74, 76, 77, 78, 82, 83, 88, 89, 91, 93, 96, 101, 104, 105, 109, 110, 111, 116, 117, 119, 122, 131, 132, 134, 137, 138, 139, 141, 145, 150, 152, 153, 156, 157, 158, 161, 163, 164, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176 and 178.
Section 30(1)(b)
Section 30(1)(b) of the FOI Act is a discretionary exemption that provides for the refusal of a record if access to the record concerned could, in the opinion of the head, reasonably be expected to "have a significant, adverse effect on the performance by an FOI body of any of its functions relating to management (including industrial relations and management of its staff)".
For section 30(1)(b) to apply, there must be a reasonable expectation that release of the records at issue could have a significant adverse effect on the performance of the Department's management functions including staff management. The Commissioner has found in previous decisions that the establishment of "significant, adverse effect" requires stronger evidence of damage than the "prejudice" standard of section 30(1)(a). In other words, not only must the harm be reasonably expected but it must also be expected that the harm will be of a more significant nature than that required under section 30(1)(a).
The Department has stated that senior management need to be free to discuss complaints made against staff openly and make difficult decisions which may not have universal support, but they believe to be in the public interest. In Case No. 99273, the Commissioner accepted that "functions relating to management" included dealing with complaints against members of a staff of a public body.
In its reliance on section 30(1)(b), the Department claims that release of the records sought would adversely affect its ability to make managerial decisions as to how to follow up complaints and what actions to take on foot of the complaints. It says that this would 'interfere with the smooth running" of the Department. Although not expressed in the precise language of section 30(1)(b), its argument is clear enough. The Department has to make decisions relating how to handle complaints from time to time. In some cases the outcome arrived at in this case will prove to be quickest, least costly and generally most satisfactory way of resolving the matters at issue. I make no comment on whether the outcome in this case was the most appropriate one in all the circumstances. That is not a matter for this Office to decide.
The Department argued that the issues arising in the records were complex, and involved the consideration of many factors before arriving at a decision. In essence, the Department is of the view that release of all the records at issue, in the circumstances where the applicant disagreed with the decisions taken by senior management, could reasonably be expected to have a significant adverse effect on the performance of the Department's function of handling such complaints.
Having regard to the above, I am satisfied that the Department has justified its stance that management of its staff could reasonably be expected to be significantly effected by the release of information in the records concerned. Accordingly, I find that section 30(1)(b) applies to the information in the following records: 12, 29, 67, 80, 85, 86, 87, 92, 102, 103, 108, 159, 160 and 177.
The Public Interest
I am then required to apply the public interest balancing test under section 30(2) of the FOI Act.
On the one hand, section 30(1)(a) itself reflects the public interest in protecting the effectiveness of investigations conducted by an FOI body or the procedures or methods employed for the conduct thereof. On the other hand, section 11(3) of the FOI Act provides that public bodies shall, in performing any function under the FOI Act, have regard to a number of matters, including the need to achieve greater openness in their activities and to strengthen their accountability and decision-making.
When considering the public interest, it is important to have regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner[2011] IESC 26 ("the Rotunda case"). It is noted that a public interest ("a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest.
There is a strong public interest in openness and transparency in how the Department carries out its functions. This includes making decisions and handling complaints made against members of staff, as well as the work of the Investigations Unit.
The Department argued that the public interest in this case would be better served by ensuring the Department continues to be able to ensure that public health and animal health and welfare are protected by it being able to carry out investigations without interference. It also argued that there is a clear public interest in it being able to effectively investigate complaints and allegations against its staff and make appropriate decisions as to how to proceed.
The applicant argued that the public interest would be best served by release as "it may expose dubious practices and/or the application of political influence". I agree that, as a general proposition, the public interest might be better served by releasing material if this led to proper scrutiny of wrongdoing. However, I am not satisfied that this aspect of the public interest would be better served in this particular case by disclosing the disputed records. It seems to me that what the applicant seeks is an opportunity to re-open matters which have been settled since 2013. I do not accept that the public interest is on balance better served by doing this. It also seems to me that the choice of the most suitable procedures to adopt in individual cases rests with the Department, which has investigated the matters arising in the records. It made the decisions to conclude matters in a certain way and this was notified to the parties concerned. In any event, I am satisfied that the public interest is not, on balance, better served by releasing internal records of discussions between senior managers as to how to proceed in the course of an investigation of a complaint in the circumstances of this case. In the particular circumstances in this case, I am also satisfied that the public interest, on balance, lies in the Department being able to carry out effective investigations without its methods being prejudiced. I find accordingly.
Accordingly, I find that the following records, refused in full or in part, contain information which is exempt from release under section 30(1)(a) of the FOI Act: Records 1, 2, 3, 6, 9, 10, 11, 16 (pages 2 and 3), 19, 20, 26, 28, 33, 44, 45, 46, 49, 50, 53, 54, 56, 57, 58, 61, 62, 64, 65, 66, 68, 74, 76, 77, 78, 82, 83, 88, 89, 91, 93, 96, 101, 104, 105, 109, 110, 111, 116, 117, 119, 122, 131, 132, 134, 137, 138, 139, 141, 145, 150, 152, 153, 156, 157, 158, 161, 163, 164, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176 and 178.
I also find that the Department was justified in its refusal to grant access to the following records under section 30(1)(b) of the FOI Act: Records 12, 29, 67, 80, 85, 86, 87, 92, 102, 103, 108, 159, 160 and 177.
I should state at this point that there are a number of records in this case where I believe that the Department may have been justified in a decision to refuse access on the basis of LPP, but it has not relied on this provision to refuse to grant access. Section 31(1)(a) is a mandatory exemption, and as such, where appropriate I would consider its application to relevant records. However, in this case the Department clearly stated in its submission dated 18 April 2017 that it had decided not to refuse records on that basis "in the interests of complete transparency". It also stated that it could have argued that "many, if not all" of the records created after legal proceedings were initiated were a matter of litigation privilege. However, it decided not to do so. It seems to me that if the Department considered and then rejected legal privilege as a means of protecting records from release, it has effectively waived privilege over those particular records, and it is not open to me to apply it to them.
Section 31(1)(a) of the Act is a mandatory exemption which provides that a head shall refuse to grant an FOI request if the record concerned would be exempt from production in proceedings in a court on the ground of legal professional privilege (LPP). In deciding whether section 31(1)(a) applies, I must consider whether the records would be withheld on the ground of LPP in court proceedings. LPP enables the client to maintain the confidentiality of two types of communication:
(a) 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
(b) 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).
Litigation Privilege
In considering litigation privilege, the judgment of 21 March 2014 of Finlay Geoghegan J., in the case of University College Cork - National University of Ireland v the Electricity Supply Board [2014] IEHC 135 (the ESB case) is relevant. Arising from the judgment in the ESB case, it appears that, unlike legal advice privilege, litigation privilege does not automatically continue beyond the final determination of the litigation in which it originally applied or closely related litigation.
Advice Privilege
Advice privilege attaches to confidential communications made between the client and his/her professional legal adviser in a situation where the legal adviser is acting in a professional capacity. The concept of "once privileged always privileged" applies where privilege is based on advice privilege, and thus, unless otherwise lost or waived, legal advice privilege lasts indefinitely. The Commissioner also takes the view that privilege attaches to records that form part of a continuum of correspondence that results from the original request for advice.
The Department relied on both limbs of LPP insofar as it claimed that Records 1, 4, 5, 7, 13, 14, 18, 20, 21, 27, 32, 34, 35, 36, 37, 38, 39, 41, 42, 43, 47, 50, 51, 52, 55, 63, 67, 69, 70, 84, 90, 104, 112, 113, 114, 115, 121, 123, 125, 127, 128, 131, 132, 133, 135, 136, 142, 143, 146, 148, 149, 151, 154, 155, 156 and 157 were either created for the purpose of litigation/expected litigation or for the purposes of the seeking or giving of advice by its legal advisors.
The Commissioner accepts that, provided the ingredients of the relevant type of LPP (legal advice privilege or litigation privilege) are present in any given case, the fact that the professional legal adviser concerned is employed as an in-house legal adviser does not prevent the client from being able to assert the privilege over the communications at issue.
In previous decisions, the Commissioner has considered records which may not, on an individual basis, satisfy the criteria for the attraction of LPP but which form part of a series of communications which was for the purpose of giving or receiving legal advice. The Commissioner has adopted takes the view that privilege attaches to records that form part of a continuum of correspondence that results from the original request for advice. In this case, a number of the records concerned comprise continuums of correspondence between the head of the Department's Legal Services Division and top level management arising from the request for legal advice, while other records seek or give legal advice.
Accordingly, I am satisfied that a number of the records attract legal advice privilege. I find that the Department was justified in refusing to grant access to the following records on the basis of LPP: Records 5, 7, 13, 14, 18, 21, 27, 34, 36, 37, 38, 39, 41, 42, 43, 47, 50, 51, 52, 55, 63, 69, 70, 84, 90, 113, 114, 115, 121, 123, 127, 128, 133, 135, 136, 142, 143, 146, 148, 149, 151 and 154.
However, it is my understanding that matters between the Company and the Department were settled and that the litigation in question is no longer expected. Therefore, I am of the view that the Department was not justified in refusing access to any of the records listed above on the basis of litigation privilege. Accordingly, I find that Records 1, 4, 20, 32, 35, 67, 104, 112, 113, 125, 131, 132, 146, 148, 149, 155, 156 and 157 are not exempt from release on the basis of LPP.
Section 31(1)(a) is not subject to a public interest test.
Section 32(1)(a)(i)
The Department relied on section 32(1)(a)(i) in its decision to refuse access to a number of records in this case. I have found the majority of these to be exempt under other sections of the Act, so will not consider those here. However, it solely relied on this section in relation to its decision to refuse to grant access to Record 59. Accordingly, I shall consider whether the Department was justified in refusing access to the parts of Record 59 not containing third party personal information under this exemption.
Record 59 comprises an internal email chain between senior management relating to proposed correspondence with a third party employed by the Company. It contains a large amount of third party personal information which the applicant is not seeking. The remainder of the information (paragraph two, page 1 of Record 59) relates to a suggestion as to how to proceed in relation to an internal report prepared by the Department.
Section 32(1)(a)(i) provides that a request may be refused if access to the record sought could reasonably be expected to prejudice or impair the prevention, detection or investigation of offences, the apprehension or prosecution of offenders or the effectiveness of lawful methods, systems, plans or procedures employed for the purposes of such matters. Where an FOI body relies on section 32(1)(a), it should, firstly, identify the potential harm to the functions covered by the exemption that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur. To justify its decision to refuse access to a record under section 32(1)(a), the FOI body must show how or why releasing the record concerned could reasonably be expected to cause the harm which it has identified.
In this case, the Department stated that the methods, systems, plans and procedures which could be prejudiced were those of the Investigations Unit. It stated that the records (including Record 59) revealed details of actions aimed at gathering evidence for the purpose of prosecution. It was of the view that release of the records would forewarn potential offenders of the methods employed by the Unit and interfere with the Department's ability to gather evidence in future cases.
While some of the other records may contain such details, I am not convinced that Record 59 does. It seems to me that release of the paragraph concerned could not prejudice the work of the Department. I do not see how the information concerned would reveal anything beyond that the Department intended to allow its staff and the Company's staff to view and comment on the report prepared.
Furthermore, it has not been shown how the release of the particular record at issue could result in any harm to any of the functions specified in section 32(1)(a)(i) of the Act. I therefore find no basis for concluding that section 32(1)(a)(i) applies to Record 59.
The Department refused access to the following records (Records 31, 35, 74, 112, 140 and 155) under section 36(1)(b) of the FOI Act. The essence of the test in section 36(1)(b) is not the nature of the information but the nature of the harm which might be occasioned by its release. The harm test in the first part of subsection (1)(b) is that disclosure of the information could reasonably be expected to result in material financial loss or gain. I take the view that the test to be applied in this regard is whether the decision-maker's expectation is reasonable. The harm test in the second part of subsection (1)(b) is whether disclosure of the information "could prejudice the competitive position" of the person concerned. The standard of proof necessary to meet this test is considerably lower than the standard to meet the test of "could reasonably be expected to" in the first part of subsection 36(1)(b).
During the course of this review Ms Murdiff contacted the applicant and informed him of her view that the Department was justified in withholding access to all of the records at issue in this case on the basis of section 36(1)(b) of the FOI Act. She was of the view that all of the records would reveal that the Company had been under investigation by the Department. She was also of the view that this information would could reasonably be expected to result in a material financial loss or gain to the Company. The applicant informed Ms Murdiff that the Company was no longer trading and argued that the information could no longer be commercially sensitive. I note that Ms Murdiff contacted the liquidators of the Company and invited them to comment. They were of the view that a non-disclosure agreement applied to the settlement between the Department and the Company; however, I note that the Department has confirmed that this is not the case. They raised no further arguments.
In the circumstances of this case, I find that section 36 does not apply to the records at issue.
Having carefully examined the remaining records, I am of the view that a number of them do not relate to the applicant or to complaints made about him. I am satisfied that the information withheld from the following records relates solely to the company (eg company name), is third party personal information or otherwise does not relate to the applicant (except where noted):
Records 4 (company name and personal information in cover letter), 8, 15, 17, 22, 23, 30, 31 (page 1), 32, 35 (company name), 40, 48, 59 (all except paragraph 2 on page 1), 71, 73, 75, 79, 81, 94, 95, 97, 98, 99, 100, 106, 107, 112 (company name), 118, 120, 124, 125, 126, 129, 130, 140 (apart from part of one sentence), 144, 147, 155 (company name and details) and 162.
I should say here also that there are some other parts of the withheld records that, had I not found them to be exempt under the various exemptions above, would, it seems to me, qualify for exemption under section 37(1)of the Act as they contain the personal information of individuals other than the applicant.
The applicant has argued that the records released by the Department were heavily redacted, which he felt to be unwarranted. In this regard, I have considered if the records I have found to be fully exempt could be partially released. However, I do not consider it in keeping with section 18 to direct the release of any brief excerpts that might not in their own right be exempt. 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 (section 18(2) refers). The Commissioner takes the view that, generally, neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from a withheld record for the purpose of granting access to those particular sentences or paragraphs. Accordingly, I will not direct the release of the records concerned in part.
For the sake of clarification, I hereby direct the release of the following records to the applicant:
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the Department's decision. I affirm the Department's effective decision to refuse to grant access to additional records on the basis of section 15(1)(a). I also affirm the Department's decision to refuse access to records in full or in part on the basis of sections 30(1)(a), 30(1)(b) and 31(1)(a) of the FOI Act. I annul the Department's decision in relation to sections 32(1)(a)(i) and 36(1)(b) and direct the release of additional records to the applicant as set out above.
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.
Elizabeth Dolan
Senior Investigator