Cinneadh
Ms C and An Bord Pleanála
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-143468-Z0Q0D9
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-143468-Z0Q0D9
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether ABP was justified in refusing access, under sections 35 and/or 42(ja) of the FOI Act, to correspondence between specified individuals and ABP within certain dates and/or records relating to the provision of a specified report to ABP
17 September 2024
All references in this decision to the applicant should be read as references to the applicant or to her legal representative, as appropriate. By way of background, this case relates to a report into allegations made by an employee of an external third party organisation (organisation X) to their employer about the applicant. Organisation X commissioned an independent third party to carry out an investigation into the allegations. The investigation was finalised and I understand that the final report by the independent third party (the Report) was circulated to a limited number of individuals in 2023. The applicant appears to be of the view that an individual or individuals in the organisation forwarded a copy of the Report to ABP. Organisation X is not an FOI body but I understand that it has close ties to ABP.
In a request dated 20 June 2023, the applicant sought access to records held by ABP as follows:
1. All correspondence between a named individual and ABP between 1 January 2022 and 19 June 2023.
2. All correspondence between a second named individual and ABP between 1 January 2022 and 19 June 2023.
3. All correspondence/documentation received by ABP regarding the Report.
In a decision dated 11 August 2023, ABP refused parts 1 and 2 of the request under section 15(1)(a) of the FOI Act on the ground that no such records exist. It confirmed that it had received a copy of the Report referred to in part 3 on 4 January 2023 but said it held no other records relating to the Report.
On 18 August 2023, the applicant sought an internal review of ABP’s decision. Among other things, she queried the lack of records accompanying the Report provided to ABP. On 8 September 2023, ABP varied its original decision. It said the Report had been submitted to it under the Protected Disclosures Act 2014 (the PD Act 2014) and that it was refusing the request under section 35(1)(b) of the FOI Act. It further indicated that it was relying on section 35(4) in respect of parts 1 and 2 of the request, in refusing to confirm or deny whether records existed relating to either part.
On 27 October 2023, the applicant applied to this Office for a review of ABP’s decision. She argued that the alleged unauthorised leaking of the Report to ABP did not qualify as a protected disclosure for a number of reasons and that the PD Act 2014 did not apply.
During the course of this review, the Investigator contacted the applicant and notified her of her view that section 42(ja) was and she invited a submission on the matter. The applicant provided further submissions in response. Submissions and further clarifications were also sought and received from ABP in support of its 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 ABP and the applicant as set out above. I have also had regard to the nature of the records sought. I have decided to conclude this review by way of a formal, binding decision.
It is important to note that a review by this Office is considered to be de novo, which means that in this case, 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 FOI Act provides that the FOI 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(ja) to the applicant’s request, notwithstanding the fact that the provision was not relied upon by ABP as a ground for refusing the request.
Having regard to the above, this review is concerned with whether ABP was justified in refusing the applicant’s request for certain records relating to the Report under section 35 and/or section 42(ja) of the FOI Act.
Before I consider the substantive issues arising, I would like to make a number of preliminary comments. First, in her application for review and subsequent submissions to this Office, the applicant indicated that she was seeking access to the records sought in order to determine the full extent of a “damaging unauthorised leak” of the report to third parties and so that she could “protect her reputation and her right to privacy”. It is important to note that section 13(4) of the FOI Act provides that, subject to the Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. Therefore, while certain provisions of the Act implicitly render the motive of the requester relevant, as a general rule, the actual or perceived reasons for a request must be disregarded in deciding whether to grant or refuse an access request under the FOI Act.
Secondly, while I am required, under section 22(10) of the FOI Act, to give reasons for my decision, section 25(3) requires me to take all reasonable precautions during a review to prevent the disclosure of information contained in an exempt record or matter that, if it were included in a record, would cause the record to be an exempt record. This means that the extent to which I can discuss the matters arising in this case and/or give reasons for my decision is somewhat limited. However, I can confirm that I have carefully considered all submissions made.
Finally, ABP’s letter of 17 July 2023 to the applicant stated that it was extending the time to reply to her request under section 14 of the FOI Act, due to “an elevated workload” and the “unavailability of key staff”. Section 14 provides that the time for consideration of a request may be extended in very specific and narrow circumstances (i.e. if the request relates to such number of records, or the number of other undecided FOI requests relating to the same record(s)/information made to the same FOI body is such, that compliance with the relevant timeline is not reasonably possible). During the course of this review, ABP acknowledged that its extension of time was not in compliance with section 14. ABP’s erroneous reliance on section 14 does not form part of this review. However, I would expect it to have regard to the guidance available on the website of the Central Policy Unit (CPU) of the Department of Public Expenditure, NDP Delivery and Reform at www.foi.ie , and on this Office’s website at www.oic.ie in future so as to ensure that section 14 is applied only when appropriate and necessary.
ABP refused the applicant’s request under sections 35(1)(b) and 35(4) of the Act on the basis that a duty of confidence was owed under the PD Act 2014. Having regard to the nature of the records sought, I am satisfied that section 42(ja) is the most appropriate provision of the FOI Act to consider in the first instance.
A protected disclosure is a disclosure by a worker of relevant information that came to the attention of the worker in a work-related context and the worker reasonably believes that the relevant information tends to show relevant wrongdoing. The PD Act 2014 provides certain protections to those who make protected disclosures. That Act has recently been supplemented by the Protected Disclosures (Amendment) Act 2022 (the 2022 Amendment Act), which came into operation on 1 January 2023. Section 20 of the 2022 Amendment Act amends the FOI Act by inserting a new sub-section, namely section 42(ja).
Section 42(ja) provides that the FOI Act does not apply to “a record relating to a report, within the meaning of the Protected Disclosures Act 2014, made under that Act, whether the report was made before or after the date of the passing of the Protected Disclosures (Amendment) Act 2022”. If a record sought relates to a report made under the PD Act 2014, then the FOI Act does not apply to that record and no right of access to the record exists.
In considering whether the records sought in this case are records “relating to” a report made under the PD Act 2014, I have adopted the reasoning in the case of EH v The Information Commissioner [2001] IEHC 182. In that case, the High Court considered the question of whether records “related to” the requester’s personal information. The Court found that the test to be applied to determine whether a record “relates to” the personal information was “whether there is a sufficiently substantial link” between the requester’s personal information and the record in question. Accordingly, in considering whether the records sought relate to a report made under the PD Act 2014, I have considered whether there is a sufficiently substantial link between such records and a report made under the PD Act 2014.
During the review, the Investigator notified the applicant of her view that section 42(ja) applied and that the records sought seemed to her to relate to the initial complaint made to organisation X, which would also fall under section 42(ja). The applicant disputed the assertion that a protected disclosure was made in this case and she presented a number of arguments in support of her position.
Submissions
I am constrained by the provisions of section 25(3) from describing to any significant extent the details of ABP’s submissions to this Office. I can say, however, that it considered the receipt of the Report on 4 January 2023 to be a protected disclosure made to it.
The applicant said she understood the Report was sent to ABP by members of organisation X. She argued that such members are directly elected volunteers and not “workers” for the purposes of the PD Act 2014. She said the PD Act 2014 does not apply to those members.
The applicant also noted that under section 5(5) of the PD Act 2014, “a matter is not a relevant wrongdoing if it is a matter which it is the function of the worker or the worker’s employer to detect, investigate or prosecute and does not consist of or involve an act or omission on the part of the employer”. She argued that even if organisation X was deemed to be the employer, then it would be the function of organisation X to “detect, investigate or prosecute”. She also argued that the matter “does not consist of or involve an act or omission on the part of the employer”. She argued, therefore, that the original complaint made which preceded the Report that was subsequently prepared was not a protected disclosure.
The applicant also said the complaint was considered by organisation X’s own legal advisors who confirmed that the complaint did not constitute a protected disclosure. She argued that any correspondence relating to the leaking of the Report to ABP relates to the Report and not to the complaint which preceded the Report. She argued, therefore, that such correspondence could not be said to relate to a protected disclosure, even if the preceding complaint was considered a protected disclosure.
The applicant further argued that even if the PD Act 2014 was considered to apply, then the request should be granted under section 16(2)(d) of that Act. Section 16(1) of the PD Act 2014 provides that a person to whom a protected disclosure is made, and any person to whom a protected disclosure is referred in the performance of that person’s duties, shall not disclose to another person any information that might identify the person by whom the protected disclosure was made. Section 16(2)(d) provides that section 16(1) does not apply if the disclosure is otherwise necessary in the public interest or is required by law.
In subsequent submissions, the applicant referred to ABP’s Annual Report in respect of the PD Act 2014 for the period 1 January 2023 to 31 December 2023, which indicated that no disclosures under the PD Act were made to ABP in that period.
My Analysis
In essence, the applicant’s argument is that as no valid report was made under the PD Act 2014, section 42(ja) cannot apply. Much of her argument concerns her view that the initial complaint made to organisation X did not constitute a protected disclosure. ABP’s position is that it regarded receipt of the Report that was prepared on foot of the original complaint to be a protected disclosure to it. The only question I must consider is whether the records sought relate to a report made under the PD Act 2014. If they do, then no right of access exists to such records under the FOI Act.
The PD Act 2014, as amended, defines “report” or “to report” as “the oral or written communication of information on relevant wrongdoings”, while a reporting person is defined as “a worker who makes a report in accordance with this Act”. The definition of a worker is quite broad. It is defined as “an individual working in the private or public sector who acquired information on relevant wrongdoings in a work-related context” and includes a broad range of individuals. Based on her assumption that the Report was forwarded to ABP by members of organisation X, the applicant argued that such members are volunteers and cannot, therefore, be described as “workers”. While I am not in a position to comment on the accuracy or otherwise of her assumption, I note in any event that the broad definition of “worker” includes “an individual who is or was a volunteer”.
The range of matters deemed to be “wrongdoings” for the purposes of the Act is also quite broad. Moreover, I note that section 5(8) of the PD Act 2014, as amended, provides that “in proceedings involving an issue as to whether a disclosure is a protected disclosure it shall be presumed, until the contrary is proved, that it is”.
As I have outlined above, ABP said it regarded receipt of the Report that was prepared on foot of the original complaint to be a protected disclosure made to it. While I am constrained by section 25(3) from explaining my finding in detail, I can say that I am satisfied, having regard to the nature and contents of the Report at issue and to the circumstances under which it was forwarded to ABP, that the giving of the Report to ABP comprises a report made under the PD Act 2014. While I note the applicant’s comment that ABP’s Annual Report 2023 indicated that no protected disclosures were received in the period, this does not alter my view that a report was, in fact, made and ABP has confirmed that it considered receipt of the Report to be a protected disclosure made to it.
Turning to the records sought, while those sought at parts 1 and 2 of the applicant’s request were for all correspondence between two named individuals and ABP, it is clear that the correspondence sought was in relation to the Report that had been provided to ABP. Indeed, in her application for internal review, the applicant specifically described the request as a request for “all correspondence/documentation received by ABP relating to … the Report”. Given my finding that the giving of the Report to ABP comprised a report made under the PD Act 2014, it is clear that if any such records existed, there would be a sufficiently substantial link between those records and the report made. I find, therefore, that the FOI Act does not apply to the records sought, pursuant to section 42(ja) of the Act.
For the sake of completeness, I wish to address the applicant’s comment that if this Office was to find that a protected disclosure was, in fact, made, then the request should be granted under section 16(2)(d) of the PD Act 2014. Section 42 is not subject to a public interest balancing test. If the section applies, then the Act does not apply and no right of access exists. In any event, I note that section 16 of the PD Act 2014 was replaced in its entirety by the 2022 Amendment Act, and that the PD Act 2014, as amended, no longer contains this public interest provision.
As I have found section 42(ja) to apply to the records sought, I do not need to consider ABP’s reliance on section 35 of the FOI Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm ABP’s decision to refuse the applicant’s request. I find that section 42(ja) applies and that the FOI Act does not apply to the records sought.
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