Decision
Mr X and Department of Defence
From Office of the Information Commissioner (OIC)
Case number: OIC-100805-Z6M3F8
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-100805-Z6M3F8
Published on
CASE NUMBER: OIC-100805-Z6M3F8
Whether the Department was justified in refusing access to records relating to the applicant
23 March 2022
The applicant’s FOI request dated 13 August 2020 sought access to records relating to him, including in relation to his employment by another FOI body, dating from 1 January 2019. The Department’s decision of 25 September 2020 part-granted the request. It fully and partially released a small number of 144 records as identified in a schedule provided to the applicant. It relied on sections 15(1)(i) (records already released), 30(1)(a) (investigations of an FOI body), 30(1)(c) (negotiations of an FOI body), 31(1)(a) (legal professional privilege), 35(1)(a) (information given in confidence) and 37(1) (personal information) of the FOI Act in withholding the remaining records and parts of records. The applicant sought an internal review on 5 October 2020, including in relation to the number of records identified as covered by his request. The Department’s internal review decision of 27 October 2020 affirmed its decision on the request. It also said that further to correspondence with the applicant on foot of his request, it carried out searches for records relating to him personally rather than relating to routine matters concerning the applicant’s performance of his functions within the relevant FOI body. On 3 December 2020, the applicant applied to this Office for a review of the Department’s decision.
During the review, the Department said that it would release three records that it had previously withheld under section 31(1)(a) i.e. records 9, 11 and 22 on the applicant’s schedule. It also identified seven further records that it said it would release. It identified 14 other additional records that it is withholding under various provisions of the FOI Act, including section 31(1)(a) and 42(f) (records held or created by the Attorney General). I will refer to these as records A to N. It would be confusing to use the numbers given to them by the Department, which are the same as numbers given to other records in the applicant’s schedule
I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges and correspondence between this Office, the Department and the applicant, as well as the contents of the withheld records. I have also taken account of the provisions of the FOI Act.
The review is confined to the sole issue of whether the Department’s decision on the applicant’s request was justified under the FOI Act. I note that some of the records comprise email threads in which emails covered by the request were forwarded to the Department’s decision maker to consider for release. This review extends to only those records that existed as at the date of receipt of the request.
At the outset, I wish to comment on the Department’s handling of the request and this review. I accept that the Department has at all times acted in good faith. I also note that those responsible for dealing with the request may not deal with FOI very often and therefore may not be particularly familiar with the Act’s requirements. Nonetheless, the Department took various steps along the way that served to complicate and prolong this Office’s handling of this review. For instance, certain records discussed in the Department’s submission to this Office do not use the numbering adopted in the schedule provided to the applicant. Rather, the records are referred to by way of numbers contained in a further schedule that the Department created during the review in relation to a subset of the overall records at issue and in which the various records were renumbered. This and various other matters also had implications for this Office’s compliance with the FOI Act’s requirement that the Information Commissioner must give reasons for his decisions. To avoid this happening again, I would suggest that the Department considers availing of training for personnel dealing with FOI requests. Relevant details are on the website of the Central Policy Unit (CPU) in the Department of Expenditure and Reform at https://foi.gov.ie/download/single-supplier-framework-for-foi-training-services/
The applicant says that he made his FOI request because he was made aware of correspondence and other records concerning him, which he was not given when he requested them. He refers to certain matters involving a third party. He says he has been told that the third party has objected to the release of records to the applicant. He says that he has had no transparency in relation to the matters concerned. He also feels that a disproportionate number of records have been withheld overall. He feels that the Department’s decisions are generic and inadequate, and that they do not reflect an adherence to the FOI Act.
Section 13(4) of the FOI Act requires me to disregard any reasons that the applicant has for making his FOI request. Furthermore, my review does not extend to examining, making findings on or taking account of the applicant’s employer’s, or the Department’s, dealings with him in general. It is also the case that, as the Department has told the applicant, the FOI Act does not require the release of any proportion of records covered by a request. The applicant’s views on the adequacy of the Department’s schedule and indeed the way in which the Department scheduled the records are also irrelevant to my consideration of that body’s decision on his FOI request. I have addressed some of the concerns raised by the applicant separately later in this decision.
It is also relevant to set out the Commissioner’s position on the provision of records with exempt information redacted. 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 Department has granted partial access to some of the records. I acknowledge that this was intended to ensure that the applicant would get as much access to information about himself as possible. While I appreciate the importance that the applicant attaches to getting further access to the withheld details, 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 the remainder of such records for the purpose of granting access to those sentences or paragraphs.
Section 25(3) of the FOI act requires the Information Commissioner to take all reasonable precautions in the performance of his functions to prevent the disclosure of information contained in an exempt record or that would cause the record to be exempt if it contained that information. For this reason, the description I can give of the records and of the reasons for my decision are somewhat limited in this case.
Finally, release of records under FOI is generally understood to have the same effect as publishing them to the world at large.
Findings – Administrative Refusals
Whether further records exist – section 15(1)(a)
Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused where the record does not exist or where it cannot be found after all reasonable steps to ascertain its whereabouts have been taken. A review of an FOI body's refusal of records under this provision assesses whether or not it is justified in claiming that it has taken all reasonable steps to locate records of relevance to a request or that the requested records do not exist.
The applicant’s request seeks access to “all records, in whatever format, regarding or relating to me or concerning me, including my [employment by another FOI body], initiated within, received by, or processed within the Department of Defence, since 01 Jan 2019”. He maintains that the Department should have identified more than the 144 records listed in the schedule provided to him.
The Department’s internal review decision says that, having corresponded with the applicant about the scope of the request, it took it to exclude records relating to the applicant’s performance of his functions within his employing FOI body. It indicates that section 15(1)(c) (voluminous request) would be relevant if such records were not excluded and that many of them would be exempt in any event because of their particular nature. This Office’s Investigator asked the Department to provide copies of its correspondence with the applicant in which he narrowed the scope of the review. However, it appears that the applicant actually confirmed to the Department that his request should be given a broad interpretation. The Department took the view that this would encompass voluminous records and confirms that therefore it searched only for records relating to the applicant personally rather than all records that might otherwise be covered by the request.
In circumstances where the Department unilaterally narrowed the scope of the request, I am not satisfied that it is justified in claiming that it has taken reasonable steps to locate all records of relevance to that request. I find that section 15(1)(a) does not apply. However, it is not this Office’s role to carry out searches for records. Therefore, I have decided to annul the Department’s effective refusal of further records covered by the request under section 15(1)(a) and to direct it to make a new decision on this matter in accordance with the provisions of the FOI Act. The parties should be aware that it is open to the Department to rely on section 15(1)(c), subject to meeting the requirements of section 15(4).
Section 15(1)(i) – records already released
In essence, section 15(1)(i) provides that an FOI body may refuse to grant a request where it relates to records already released to the requester. The Department withheld various records covered by this request under section 15(1)(i), on the basis that they are copies of records released further to a separate FOI request made by the applicant. During this review, it clarified its position on two of the records concerned (i.e. records 61 and 63 on the schedule provided to the applicant). It says that the copy of record 61 that was considered further to the other request was actually refused in full under section 31(1)(a), and that the copy of record 63 was released in part with the remainder withheld under section 37. The Department’s decision on the applicant’s other request is the subject of review by this Office. Otherwise, based on the details supplied by the Department to this Office, I am satisfied that it was justified in relying on section 15(1)(i) in relation to the other records to which it applied this provision in this case.
Findings – Substantive Exemptions
The Department claims that various substantive exemption provisions apply to different records. However, section 37(1) seems to me to be the most appropriate exemption to consider in relation to most of the withheld records and parts of records, given the nature of the information that they contain and the relevant circumstances. I will outline my analysis and findings in this regard later in this decision.
However, I consider that, because of their particular nature, some records do not qualify for consideration under section 37(1). These are records 6, 8, 10, 12-19, 21, 23, 26 and 27 as listed on the schedule provided to the applicant. I note the Department’s position that various provisions, including sections 31(1)(a) and 42(f), apply to the records concerned. I also referred earlier to records A to N and, in my view, records A to G are closely related to records 6, 8, 10, 12-19, 21, 23, 26 and 27. Having regard to their contents and the Department’s arguments, it seems appropriate to me to also consider them under sections 31(1)(a) and 42(f).
The applicant comments on the extent to which the Department relied on section 31(1)(a) in its decisions. He accepts that reliance on legal professional privilege might be expected to some degree in light of a related civil action, but feels that the Department has applied section 31(1)(a) in a blanket manner. While I do not intend to examine whether section 31(1)(a) applies to all of the records withheld accordingly, I do not accept that it applies to the extent claimed. On the other hand, I note the applicant’s concerns about exemptions being applied in a blanket way, it should be noted that these are mandatory provisions and must be applied once a record meets their terms.
Section 31(1)(a) – legal professional privilege
Section 42(f) – restriction of the FOI Act
Section 31(1)(a) – legal professional privilege
Section 31(1)(a) of the FOI Act is a mandatory exemption applying to a record that would be exempt from production in proceedings in a court on the ground of legal professional privilege (LPP). It does not require the consideration of the public interest. LPP enables the client to maintain the confidentiality of two types of communication:
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).
The Commissioner accepts that, provided the ingredients of 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.
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. Privilege may, in certain circumstances, also apply to communications between non-legal advisory staff which detail legal advice sought or received or are part of a continuum of communications arising from an initial request for legal advice. The concept of "once privileged always privileged" applies to advice privilege, and thus, unless otherwise lost or waived, lasts indefinitely. LPP belongs to the client and the client has the right to waive this privilege if the client so wishes. Disclosure of a record to a third party generally amounts to a waiver of privilege except where there is "limited disclosure for a particular purpose, or to parties with a common interest", as per the Supreme Court judgment of 4 March 2009 in the case of Redfern Limited v O'Mahony [2009] IESC 18.
I see no need to describe the Commissioner’s understanding of litigation privilege. Although the records relate to the civil action mentioned by the applicant, the Department confirms his position that the litigation has ended. It is unclear from the Department’s submission whether, in such circumstances, it might consider litigation privilege to continue to apply and, if so, why this is the case. However, given my findings below there is no need to consider this issue further.
Section 42(f) – restriction of the FOI Act
Section 42(f) provides that the FOI Act does not apply to records held or created by, in particular, the Attorney General or the Office of the Attorney General (AGO), other than a record relating to general administration. It should be noted that the Chief State Solicitor’s Office (CSSO) is part of the AGO. The Commissioner, however, does not accept that section 42(f) applies to a record held by an FOI body simply because it is a copy of a record held by the AGO/CSSO.
Insofar as section 31(1)(a) is concerned, I am satisfied that the relevant details attract legal professional privilege on the basis that they comprise confidential communications between the Department and its professional legal advisors for the purpose of seeking and/or providing legal advice, or are part of a continuum of communications arising from an initial request for legal advice. I have no reason to consider that the Department has waived privilege in the circumstances of this case, nor has this been argued. Insofar as my findings below on section 42(f) are concerned, I am satisfied that the relevant records were created by the AGO i.e. that they comprise correspondence sent to the Department by the CSSO and by the AGO. I am also satisfied that the relevant details do not relate to general administration.
Having considered the relevant records, I find that sections 31(1)(a) and 42(f) apply to records 6, 8, 10, 12-19, 21, 23, 26 and 27 and records A to G in full. In the circumstances, I do not intend to consider the Department’s other claims for exemption for these records.
Personal Information - section 37
The Department’s decisions relied on section 37 in relation to only a small number of the withheld records. It now argues that this provision is relevant to most of the remaining withheld records.
The applicant says that the Department cannot claim section 37 in relation to more records than previously claimed. He also has concerns that it is being relied on disproportionately. Again, however, section 37(1) is a mandatory exemption. I must find it to apply if I am satisfied that the relevant tests for the exemption to apply are met, even if it had not been claimed by the Department at all.
Section 37(1)
Section 37(1), subject to other provisions of section 37, requires the refusal of access to a record containing personal information. It is not relevant whether a requester may be aware of any of the information concerned.
For the purposes of the FOI Act, personal information is defined as information about an identifiable individual that (a) would ordinarily be known only to the individual or members of the family, or friends, of the individual, or (b) is held by a public body on the understanding that it would be treated by it as confidential. The definition also includes a list of 14 non-exhaustive examples of what must be considered to be personal information, including (iii) information relating to the employment or employment history of the individual and (v) information relating to the individual falling within section 11(6)(a) (i.e. personnel records). Where information can be classified as one of these 14 examples, there is no need for the requirements at (a) or (b) of the definition to also be met.
I am mindful of the requirements of section 25(3). The request sought all records relating to the applicant generally. However, as noted already, the Department has relied on section 15(1)(i) in relation to records in this case that are copies of records released further to the applicant’s other FOI request to the Department, which sought access to records relating to complaints made by a third party about the applicant.
Having examined all of the remaining withheld records and parts of records in this case, I am satisfied that they are captured by one or more of the examples of what comprises personal information about identifiable individuals. Although not necessary for me to go further, I am satisfied that in any event they contain information of a type that meets the definitions of personal information.
Section 37(7) provides that, notwithstanding section 37(2)(a) (see below), access to a record shall be refused where access to it would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester (i.e. joint personal information). The applicant asks whether he can be given partial access to any relevant records. However, I am satisfied that all personal information relating to the applicant contained in the records at issue here is inextricably linked with personal information of other identifiable individuals. I should also say that I am satisfied that even if names were redacted, individuals would be identifiable from the context and content of the remaining details. Therefore, it is not feasible to separate out information relating solely to the applicant.
I find that the remaining withheld records and parts of records are exempt under section 37(1) of the FOI Act. For the avoidance of any doubt, the Department’s decisions also applied section 31(1)(a) to records 7 and 24, which are closely related to the records I considered earlier under sections 31(1)(a) and 42(f). I am satisfied from their contents that records 7 and 24 are more appropriately considered under section 37(1), as are records H to N and I can confirm that all of these are covered by my finding above on section 37(1).
The application of section 37(1) is subject to the consideration of sections 37(2) and (5), however.
Section 37(2) - exceptions to section 37(1)
Section 37(2) of the FOI Act sets out certain circumstances in which 37(1) does not apply. The applicant refers in particular to section 37(2)(a), which provides for the grant of access to personal information relating to the requester. However, noting the details released by the Department in this case, I am satisfied that no further information falls for release further to this provision of the FOI Act. I have already outlined the provisions of section 37(7) and explained why I do not consider that personal information relating to the applicant can be separated from that of other individuals. I should also say that while a small number of the withheld details may relate only to the applicant, such as his work email address and contact numbers, I do not consider it in keeping with the Commissioner’s approach to section 18 to direct the Department to grant access to such further parts of the records. I am satisfied that the remaining circumstances set out in section 37(2) do not arise.
Section 37(5)(a) - the public interest
In considering section 37(5), I consider that only section 37(5)(a) is relevant in this case. This section provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of the individuals to whom the information relates should be upheld.
On the matter of whether the public interest in granting access to the information at issue would, on balance, outweigh the privacy rights of the individuals concerned, I have had 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] 1 I.R. 729, [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.
On the matter of the type of public interest factors that might be considered in support of the release of the information at issue in this case, I have had regard to the findings of the Supreme Court in The Minister for Communications, Energy and Natural Resources v The Information Commissioner & Ors [2020] IESC 5. In her judgment, Baker J. indicated that the public interest in favour of disclosure cannot be the same public interest as that broadly stated in the Act. She said the public interest in disclosure must be something more than the general public interest in disclosure and the reason must be found from the scrutiny of the contents of the record. She said there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure.
While the comments of the Supreme Court in both judgments cited above were made in relation to provisions of the FOI Act other than section 37, I consider them to be relevant to the consideration of public interest tests generally.
Both the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy (which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution). Unlike other public interest tests provided for in the FOI Act, there is also a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. Privacy rights will therefore be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy. As set out above, it is also relevant to note here that the release of records under FOI is, in effect, regarded as release to the world at large given that the Act places no constraints on the uses to which the information contained in those records may be put.
The applicant is dissatisfied with how he has been treated by his employer and/or the Department. He says that the Department has not properly considered the public interest in granting his request. However, it is the Department’s position that the wider public interest would not be served by release of the withheld records.
I accept that the disclosure of the remaining withheld records and parts of records would give the applicant some further insight into various matters relating to him. This does not mean that there should be no protection of privacy rights of other individuals, however. I do not believe it is appropriate for me to direct the release in the public interest of third party personal information, effectively to the world at large, on the basis that the applicant is not happy with the actions of various FOI bodies or indeed those of particular individuals. Neither do I have any remit to consider, or make findings on, the adequacy of those actions.
It seems to me the Department’s release of certain details from the records attempts to strike a balance between the competing interests, notwithstanding that the vast majority of the records have been withheld. I am satisfied that placing the withheld details in the public domain would significantly breach the rights to privacy of identifiable individuals other than the applicant. Having regard to the nature of the information at issue, I am aware of no public interest factors in favour of the release of the specific redacted information that, on balance, outweigh the right to privacy of the individuals to whom the information relates. I find, therefore, that section 37(5)(a) does not apply.
In the circumstances, it is not necessary for me to consider any other exemptions relied on by the Department in relation to the records concerned.
Scheduling of Records
As noted earlier, the applicant’s views on the adequacy of the Department’s schedule are irrelevant to my review. However, I have decided to address his comments given related matters that arose in the review, which are also dealt with below.
The applicant wants the names of those whom are referred to by their initials and as “Solicitor”/”solicitors”. He refers to the fourth column of the schedule, which lists the number of pages in each record, and says that it suggests that multiple records have not been identified. In other words, he maintains that the schedule should give a better breakdown of the content of each record. The Department is not willing to provide the applicant with more details about the schedule’s contents.
The FOI Act does not impose any requirements on FOI bodies concerning the preparation or provision of schedules. However, the CPU has published a Code of Practice for FOI bodies (the Code), which says that decisions should be issued with schedules providing details of those records being released in full, of those to which partial access is being given and of those being refused. The Code also recommends that schedules should set out the reasons why access is not being granted in full or in part and reference relevant sections of the Act where refusals are made. The CPU has also published a model FOI decision schedule.
I have no powers to compel the Department to take further steps in relation to its schedule. That said, the Department’s schedule appears to me to follow the CPU’s guidance. Indeed, in my view, it would have been acceptable for the schedule to more generally describe certain of the records in light of their contents.
However, the records supplied to this Office by the Department for the purposes of the review include some further records, which the Department considered in its decisions on the applicant’s request, but which it did not describe or otherwise list on the schedule it provided to the applicant. These are additional to the extra records identified during this review, which I mentioned earlier in this decision.
The Department cites various exemption provisions that it believes to apply to the further records. It believes that it is entitled to “remain silent” on them insofar as the applicant is concerned and refers to the former Commissioner’s comments in Case No 080050 as support for its position. The Department’s arguments are set out in detail in my decision in Case No. OIC-100775-Z7M7M6 and I see no need to repeat them here. In summary, it has concerns that any indication of the records’ existence, or any reference to an exemption provision, would have the same effect as would releasing the records concerned.
As I set out in my earlier decision, it is the nature of a particular request that determines whether it is appropriate for an FOI body to refuse to confirm or deny whether the requested records exist.
In this case, the request seeks records relating to the applicant generally. The Department withheld various records covered by that request under e.g. sections 35 and 37, on the basis that such records contain confidential and personal information. Furthermore, as noted already, the Department also relied on section 15(1)(i) in this case in relation to records covered by the applicant’s other FOI request, which sought access to records relating to complaints made by a third party about the applicant. The Department’s decisions on that other request also effectively confirmed the existence of such records. In all of these circumstances, I see no reason why the Department could not have informed the applicant that a small number of further records are covered by the present request and which contain, for instance, confidential and/or joint personal information for the purposes of sections 35 and/or 37 of the FOI Act.
I confirm that I have examined all records that the Department has identified as covered by the applicant’s request, and that the additional records are covered by my findings in this case on section 37. However, I do not believe that it is appropriate for me to stay silent on the records even though I have found them to be exempt under the FOI Act. While I considered annulling the Department’s decision on the records and requiring it to make a fresh decision on them in accordance with the requirements of the FOI Act, I did not consider it practicable or appropriate or in any party’s interests to do so given my findings that the records are ultimately exempt from release. In the circumstances, I see no reason to give the applicant any further detail about the records concerned. I also accept that the Department’s approach to the relevant records was in good faith.
I note the applicant’s view that the Department’s decisions refer to particular matters as an apparent basis for refusal without relying on an appropriate exemption. The comments at issue follow the Department’s explanation that section 15(1)(c) would apply if a broad interpretation was given to the request. They seem to me to indicate, in general terms, that records covered by such a broadly interpreted request may be exempt from release. It is my view, however, that such comments of themselves would not comply with the requirements of the FOI Act for FOI bodies to give reasons for their decisions.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Department’s decision. I annul its effective reliance on section 15(1)(a) in relation to further records covered by the request. I direct it to make a new decision on this matter in accordance with the provisions of the FOI Act. I affirm the Department’s decision to withhold the remaining records and parts of records under sections 15(1)(i), 31(1)(a), 37(1) and 42(f) of the FOI Act.
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.
Deirdre McGoldrick
Senior Investigator