Cinneadh
Mr Ken Foxe, Right to Know CLG and Sport Ireland
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-150710-Q6H5N1
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-150710-Q6H5N1
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether Sport Ireland was justified in refusing access to certain records, in whole or in part, relating to its published guidance on transgender and non-binary inclusion in sport, under sections 29, 30, 36 and 37 of the FOI Act
15 May 2025
In March 2024, Sport Ireland published a guidance document intended to provide information and insights to the Irish sport sector to assist with decision making and policy development for the inclusion of transgender and non-binary people in sport. On 4 April 2024, the applicant made an FOI request for any briefings, memos, reports, recommendations, or submissions created for, or held by, the CEO or the board relating to the guidance. In a decision dated 13 May 2024, Sport Ireland part-granted the request. It identified 19 relevant records, of which 12 were released in full. The remaining records were refused, in full or in part, under sections 29, 30, 35, 36 and 37 of the FOI Act.
The applicant sought an internal review of that decision on 16 May 2024. He said that the wrong public interest test had been applied in respect of section 29 and that section 35 had been misapplied in circumstances where Sport Ireland had contracted a company to carry out research on its behalf. Regarding section 37, the applicant said that while he accepted that the names of staff of the consultancy firm and members of the public were exempt, he believed that redactions beyond this had been applied. He also said that the harm envisaged under section 30 had not been explained. On 16 June 2024, Sport Ireland varied its original decision. It released a small amount of additional information and indicated that it was no longer relying on section 35 as a basis for refusal. On 22 July 2024, the applicant sought a review by this Office of Sport Ireland’s decision. He said he believed the level of redaction in the records to be excessive, and that it meant that the information released was effectively meaningless.
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 Sport Ireland and the applicant’s comments in his application for review. I have also examined the records at issue. I have adopted the page numbering used by Sport Ireland in the schedule of records it prepared when processing the request. I have decided to conclude this review by way of a formal, binding decision.
Sport Ireland refused access, in full or in part, to records 5, 6, 7, 8, 10, 16 and 19 under sections 29, 30, 36 and 37 of the FOI Act. In his request for an internal review, the applicant said that he accepted that personal information relating to staff members of the consultancy or the general public was exempt. I am satisfied that all redactions in record 5 and slide number 2 of record 10 fall into this category and therefore I will give them no further consideration.
During the review, Sport Ireland changed its position in respect of the following information and said that it could be released. If it has not released this already, it should do so immediately:
• Specified fragments of sentences in record 7 (on pages 16, 17, and 18)
• Record 10, pages 46 and 50
The review is therefore limited to whether Sport Ireland was justified in withholding the remaining parts of records 6, 7, 8, 10 (apart from slide 2), 16 and 19 under the various exemptions cited.
Following a tender process in 2022, Sport Ireland appointed Carbmill Consulting (the consultants) to carry out a process of research and stakeholder consultation to support Sport Ireland in developing a policy position on transgender and non-binary inclusion in sport and physical activity, and to develop various resources on the topic. In this context, record 6 is a discussion paper regarding transgender and non-binary inclusion in sport and physical activity prepared by the Ethics Unit of Sport Ireland and dated 28 September 2023. Records 7 and 8 are parts I and II of the Project Report prepared by the consultants in July 2023. Record 10 is a presentation by the consultants to the board of Sport Ireland in May 2023. Record 16 is a review of the scientific literature undertaken by the consultants. Record 19 is a briefing document provided to the Sport Ireland board by the consultants in June 2023.
Sport Ireland refused access to parts of records 6, 8, 10 and 16 under section 29(1). That section provides for the discretionary refusal of a request if (a) the record contains matter relating to the deliberative processes of an FOI body and (b) granting the request would be contrary to the public interest. Section 29 also provides that, without prejudice to the generality of paragraph (b), the FOI body shall, in determining whether to grant or refuse to grant the request, consider whether the grant thereof would be contrary to the public interest by reason of the fact that the requester concerned would thereby become aware of a significant decision that the body proposes to make. Subsections (a) and (b) are two independent requirements and the fact that the first is met carries no presumption that the second is also met. It is therefore important for public bodies to show to the satisfaction of the Commissioner that both requirements are met. The exemption does not apply in so far as the records contain any of the information or matter referred to in section 29(2). Thus, where an FOI body is relying on section 29(1) for the refusal of a record, it must go on to consider whether section 29(2) applies.
In respect of records 6, 8 and 10, Sport Ireland said that they relate to the deliberative process for the development and rolling out, by Sport Ireland, of the guidance on transgender and non-binary participation in sports. It said that it refused the information concerned under section 29(1) because it contained opinions obtained through commissioned consultations that are being taken into consideration for the purposes of rolling out the published guidance document during phase 2 of the project. It said that if released publicly, it could result in undue pressure on certain groups to take a specific position on the matter and influence how they adopt the guidance in shaping their own policies.
Sport Ireland set out the factors that it considered in favour of release, specifically: revealing the process for deliberations and ensuring the greatest possible levels of transparency. Against release, it said that disclosure would reveal the levels of partisan interest on the matter that would hinder the rollout of the guidance and impair the decision-making processes of organisations. It also said that it would harm the effectiveness of workshops which will be delivered to governing bodies to progress the project and to build capacity and understanding. It said that premature release of the records would impair the integrity and viability of the decision-making process to a significant or substantial degree without countervailing benefit to the public. It said that disclosure of records which do not fairly disclose the reasons for a decision may be unfair to the public body and prejudice the integrity of the decision-making process. It concluded that release of the records would be contrary to the public interest, as some of the information reflects opposing viewpoints from those consulted. It said that given the complex nature of the issue, disclosing this information could hinder the effective rollout of the guidance and negatively impact the broader community. Additionally, it said that release of the records may not fairly represent the rationale behind decisions and could be misused against Sport Ireland or other organisations during this deliberative process.
In respect of record 16, Sport Ireland said that the record contains information and expert opinion obtained through a commissioned consultant for the development of the guidance document and its subsequent rollout, which is ongoing. It said that if the information was released publicly, it could result in undue pressure on certain groups to take a specific position on the matter and influence how they adopt the guidance in shaping their own policies. It said that release would be contrary to the public interest because it contains contrasting viewpoints, competing options and analysis of sensitive information which would hinder the rollout of the guidance and could reasonably be expected to adversely affect the integrity of the guidance document. It said that it contains information that could lead to undue pressure being placed on certain groups in taking a position on the matter and in using the guidance for the development of their own policies. It said that release of the record was contrary to the public interest at this stage of the project and that release could be considered at a later stage following the completion of the other phases of the project.
In response to a question about the potential applicability of section 29(2)(e) to records 8, 10 and 16, Sport Ireland said that the records do not fall into the category of “expert report”, but rather that the information relates to surveys and interviews with participants of the study. It also said that section 29(2)(e) does not apply to “a report used or commissioned for the purposes of a decision of an FOI body”.
As section 29(2) provides that section 29(1) does not apply to records falling within certain categories, I consider it appropriate to first examine the potential relevance of section 29(2).
Section 29(2) provides that subsection (1) does not apply to a record if and in so far as it contains any or all of the following:
a) matter such as rules, procedures, guidelines, interpretations and precedents used, or intended to be used, by an FOI body for the purpose of making decisions, determinations or recommendations;
b) factual information;
c) the reasons for the making of a decision by an FOI body;
d) a report of an investigation or analysis of the performance, efficiency or effectiveness of an FOI body in relation to the functions generally or a particular function of the body;
e) a report, study or analysis of a scientific or technical expert relating to the subject of his or her expertise or a report containing opinions or advice of such an expert and not being a report used or commissioned for the purposes of a decision of an FOI body made pursuant to any enactment or scheme.
I accept that subsections (a), (b), (c) and (d) do not apply to the records. However, it seems to me that subsection (e) must be considered in respect of records 8, 10 and 16, all of which were created by the consultants as part of the work that they were commissioned to do by Sport Ireland. Sport Ireland said that section 29(2)(e) does not apply to “a report used or commissioned for the purposes of a decision of an FOI body”. The full text of this exclusion requires that such a report was commissioned “for the purposes of a decision of an FOI body made pursuant to any enactment or scheme ” (my emphasis). Sport Ireland has not shown, and nor is it apparent to me, that the work the consultants were commissioned to carry out was for the purposes of a decision by Sport Ireland pursuant to any enactment or scheme. Rather, it seems to me that they were commissioned to carry out a process of research and stakeholder consultation to support Sport Ireland in developing a policy position on transgender and non-binary inclusion in sport and physical activity and to develop various resources on the topic.
Sport Ireland also said that the records do not fall into the category of “expert report”, but rather that the information relates to surveys and interviews with participants of the study. Record 10 is a presentation giving a project update to the Sport Ireland board on the progress of the consultants to date and record 16 is a literature review prepared by the consultants. I find that both records fall squarely within the first part of section 29(2)(e) i.e. a report or analysis of a scientific or technical expert relating to the subject of his or her expertise. I find, therefore, that section 29(1) cannot apply to either of these records.
Having carefully examined record 8, which is the second part of the report prepared by the consultants, the redactions made under section 29(1) can broadly be described as relating to the views and opinions expressed by individuals and organisations to the consultants. While I am not wholly convinced that this means that section 29(2)(e) cannot apply, on balance, I am prepared to accept Sport Ireland’s position on this and will go on to consider section 29(1)(a) and (b) in respect of record 8, as well as record 6 which is an internal draft discussion paper prepared by Sport Ireland itself.
Having examined the content of the records at issue, I accept that they contain opinions, recommendations, and the results of consultations for the purposes of assisting Sport Ireland in deciding its policy position and then developing relevant resources in relation to the inclusion of transgender and non-binary people in sport in Ireland. I am satisfied that this is a deliberative process and that section 29(1)(a) applies. I must therefore consider whether section 29(1)(b) also applies.
The public interest test at section 29(1)(b) is a stronger public interest test than the public interest test in many other sections of the FOI Act, which require that, on balance, the public interest would be better served by granting than by refusing to grant the request. The public interest test in section 29(1)(b) requires the FOI body to show that the granting of the request would be contrary to, or against, the public interest. Where a body wishes to rely on section 29(1) to refuse access to records, this Office expects it to be in a position to explain how release of the records would be contrary to the public interest. Generally speaking, this requires a body to identify a specific harm to the public interest flowing from release. While there is nothing in section 29 itself which requires the deliberative process to be ongoing, the question of whether it is ongoing or not may be relevant to the issue of the public interest. What I must consider is whether release at this point in time is contrary to the public interest.
In this case, Sport Ireland has published its guidance document and has yet to complete phases 2 and 3 of the project, which I understand involve workshops and training to support various sporting organisations to implement the guidance. While Sport Ireland has not argued that this is the case, I find, for completeness, that it cannot be said that release of the records would be contrary to the public interest by reason of the fact that the applicant would thereby become aware of a significant decision that Sport Ireland proposes to make.
In record 8, as mentioned above, the information that has been redacted generally reflects the output of the consultation process and the varying views and opinions put forward by the organisations and individuals who were consulted. Having considered the specific language used, it seems to me that in drafting this report, the consultants were careful to do so in a way that specific opinions and viewpoints cannot be linked to identifiable individuals or organisations. In fact, the record refers specifically to the conditions under which the consultation was completed i.e. that respondents were assured of anonymity, and confidentiality was guaranteed, including from Sport Ireland. While the redacted information discloses views and opinions that were communicated to the consultants, I am satisfied that they cannot be linked back to any identifiable individual or organisation. Sport Ireland has not explained how release of such information could result in the harms it has set out, including putting pressure on groups to take particular positions, damaging the decision-making process, or hindering the rollout of the next phase of the process. Nor is it apparent to me how such harms might arise from its release. I do not dispute that the issue is complex and that there are diverging views on it, some of which are very strongly held, but I am not satisfied that Sport Ireland has established that release of the redacted information in record 8 would be contrary to the public interest. I find that section 29(1)(b) does not apply.
Parts of two sentences on the first page of record 6 were refused under section 29. The redacted information, it seems to me, reflects high level observations by the consultants following the consultation process. Having regard to the arguments put forward by Sport Ireland and to the analysis in respect of record 8 above, I do not accept that release of these parts of record 6 could hinder the effective rollout of further phases of the process, or negatively impact the broader community or have other negative consequences for Sport Ireland or the sporting organisations consulted, such that its release could be reasonably considered contrary to the public interest. I find that section 29(1)(b) does not apply.
Overall, I am not satisfied that Sport Ireland was justified in refusing to release records 6, 8, 10 or 16 under section 29(1) of the FOI Act.
Sport Ireland refused to release parts of records 7, 8, 10 and 16 under sections 30(1)(a) and 30(1)(c).
Section 30(1) of the FOI Act protects certain records relating to the functions of FOI bodies. The exemption is subject to a ‘public interest override’ i.e. even where the requirements of subsection (1) have been met, the exemption does not apply where the public interest would, on balance, be better served by releasing rather than refusing access to the record sought.
Section 30(1)(a) provides that an FOI request may be refused if the FOI body considers that 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. Where an FOI body relies on this provision, it should identify the potential harm in relation to the relevant function specified in paragraph (a) that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur.
Section 30(1)(c) provides for the refusal of a request where the FOI body considers that access to the record concerned could reasonably be expected to disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations carried on or being, or to be, carried on by or on behalf of the Government or an FOI body. It is important to note that this exemption does not contain a harm test (unlike section 30(1)(a)) and it is sufficient that access to the record concerned could reasonably be expected to disclose such negotiation positions, plans etc.
In its submissions, Sport Ireland said that in respect of section 30(1)(a), release of the records would prejudice the processes and procedures employed in the consultations and examinations of the topic. It said that in respect of section 30(1)(c), release would prejudice the plans and procedures involved in the current rollout phase and affect the use of the guidance document as Sport Ireland “currently undertakes workshops with governing bodies in the understanding of the document”.
Sport Ireland said that given the sensitive nature of the topic, release of these records could hinder Sport Ireland’s functions in having the ability to obtain the opinions of stakeholders in the future, by bringing undue criticism to organisations within the sector who participated. In addition, it said that it has the potential to hinder Sport Ireland’s current rollout phase of the project where many organisations are in the process of utilising Sport Ireland’s workshops to better understand the guidance document in making important decisions on future policies and procedures concerning the topic. It said that release of the records would prejudice the ongoing decision-making process and negotiations of both Sport Ireland and organisations utilising the guidance document. It also said that the potential harms could reasonably be expected to occur given that “this is a divisive topic with significant public interest”. It said that releasing the records could hinder Sport Ireland’s ability to conduct future feedback sessions, surveys or workshops which are all key methods for gathering stakeholder input in developing these documents. It said that release could negatively impact the current project, which is still in its rollout stages. It said that it was public knowledge in some cases who the consultants had previously worked with in Ireland and abroad, and therefore that it was possible to infer who was interviewed as part of the process.
The parts of record 7 refused under section 30 include a high-level description of the consultants’ approach, a list of sports that were represented in the consultation, the categories of individuals who were consulted and the names of some organisations who were consulted. The parts of record 8 refused under section 30 can broadly be described as relating to the views and opinions expressed by individuals and organisations to the consultants as part of the consultation process. Record 10 is a presentation made to the board of Sport Ireland and the parts redacted under section 30 contain a high-level summary of the issue being addressed by the consultants, a summary of a findings from a published scientific research paper, and some details about the breakdown of the consultation and survey process. Specifically in respect of the summary of the research paper included in the presentation (page 45), Sport Ireland said that when this information was presented to its board, it was done so with further explanations and professional guidance from the consultants. It said that without this, the information could be taken out of context or misconstrued and used to pursue a particular agenda. Record 16 is a review of current scientific literature in relation to transgender and non-binary participation in sport. Apart from its final paragraph, the entirety of the ‘discussion’ section of this literature review has been refused under section 30.
In considering the application of section 30(1)(a), as noted above, the FOI body should first identify the relevant function concerned (i.e. the test, examination etc), and then set out the prejudice or harm to the effectiveness of that function which is envisaged. From its submissions, it seems to me that Sport Ireland’s position is that release of these records would prejudice the procedures or methods used by the consultants in carrying out their research and consultation, as well as the processes used by Sport Ireland in the later phases of the project i.e. working with sporting organisations to support them in determining their own policies and procedures with regard to transgender and non-binary inclusion in sport.
Based on the specification provided to the consultants, I understand that they were contracted to engage with Sport Ireland, consult with stakeholders, review existing literature, and then to prepare various documents and materials based on these actions. The Commissioner has accepted a wide range of functions as falling within “tests, examinations, investigations, inquiries or audits”. As noted earlier, I have accepted that these records related to a deliberative process. While it is a close call, I am prepared to accept that the actions undertaken by the consultants in this instance, and indeed the subsequent actions by Sport Ireland to implement the published guidance, can be taken as falling within the category of procedures and methods employed for the examination of or inquiry into a complex policy issue by or on behalf of Sport Ireland.
Notwithstanding that, for section 30(1)(a) to apply it must also be shown that access to the records concerned could reasonably be expected to prejudice the effectiveness of such examinations or investigations or the procedures or methods employed. Having carefully considered Sport Ireland’s submissions, I find that it has not explained how the release of the information at issue could prejudice the effectiveness of these processes, or the procedures/methods employed for them, in circumstances where, as noted earlier, the details of those consulted with and the views that they expressed are included in records 7 and 8 in such a way that no individual or specific organisation is identified with the views expressed. Sport Ireland said that it was possible to infer in some circumstances who was interviewed and while this may be the case, I do not see how this could prejudice the processes when the views expressed cannot also be linked to such individuals or organisations. In relation to records 10 and 16, Sport Ireland has not explained how release of this information, most of which reflects the scientific literature on transgender and non-binary participation in sport and the consultants’ analysis of it, could prejudice the effectiveness of the processes being used, and neither is it apparent to me. In respect of the specific argument on the information from the scientific research paper contained in record 10, this Office does not generally accept that the possibility that released information will be used in some particular way, or will be misinterpreted, or will not be properly understood, is a valid reason for refusing access to the information. Nor does the FOI Act provide for the withholding of information on such grounds. Apart from anything else, such arguments appear to be based on an assumption that public bodies are incapable of explaining their records to the public and are unable to present information to the public in a way which will allow any objective observer to draw accurate and balanced conclusions. For completeness I also note that the reference to the specific paper was released in the first instance and a person could therefore go directly to this resource if they wished. Overall, for these reasons, I am not satisfied that Sport Ireland has shown that section 30(1)(a) applies to any of the records at issue.
In relation to section 30(1)(c), this Office takes the view that the FOI body should identify the relevant negotiations at issue, whether these are current negotiations or those that are envisaged in the future and show that the records disclose positions taken or to be taken, or the plans followed or to be followed, for the purposes of these negotiations. Sport Ireland said that release of the records would prejudice the plans and procedures involved
in the current rollout phase and affect the use of the guidance document as Sport Ireland currently undertakes workshops with governing bodies. It did not explain how this could be considered a negotiation. In considering whether there are negotiations for the purpose of section 30(1)(c), factors to consider include, for example, whether there are any proposals for settlement/compromise, any indication of ‘fall-back’ positions, information created for the purposes of negotiations, any details of the FOI body’s negotiating strategy or an opening position with a view to further negotiation. It does not appear to me that the records contain any of this type of information. Furthermore, I note that the published guidance document explicitly states that it has been made available to support organisations, and that the final decision on the nature, type, extent and format of policies, procedures and processes for transgender and non-binary inclusion in sport is a matter for each individual sporting organisation to determine itself. As such, it is not apparent that Sport Ireland is seeking to negotiate with sporting bodies in an effort to reach some particular goal, or a compromise or a mutually agreeable position. I am not satisfied that section 30(1)(c) applies.
As I have not found either section 30(1)(a) or (c) to apply, there is no need to go on to consider the public interest at section 30(2).
Sport Ireland refused to release record 19 under sections 36(1)(b) and (c).
Section 36(1)(b) of the FOI Act provides that an FOI body shall refuse to grant a request if the disclosure of the record sought could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of the person in the conduct of his or her profession or business or otherwise in his or her occupation. 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 section 36(1)(b) is that disclosure “could reasonably be expected to result in material loss or gain”. This Office takes the view that the test to be applied is not concerned with the question of probabilities or possibilities but with whether the decision maker’s expectation is reasonable. The harm test in the second part of section 36(1)(b) is that disclosure of the information "could prejudice the competitive position" of the person in the conduct of their business or profession. The standard of proof to be met here is lower than the "could reasonably be expected" test in the first part of this exemption. However, this Office takes the view that, in invoking "prejudice", the damage that could occur must be specified with a reasonable degree of clarity.
Record 19 is described as a briefing document. Sport Ireland said that it was not one of the deliverables of the project but that it is the basis of a chapter being prepared by one of the consultants for publication in a book. It said that the paper was provided to the board of Sport Ireland in confidence and on the understanding that it would not be shared. It said that in order for the chapter to be published, the author had agreed with the publishers that it would not be available or published in any format elsewhere, in advance of the publication of the book.
Having carefully examined this record, I am satisfied that it is not one of the agreed deliverables prepared by the consultants as part of its contract with Sport Ireland. I accept that it forms the basis of a chapter to be published that was provided to Sport Ireland in confidence. I am satisfied that its release could prejudice the author’s ability to finalise and publish the paper as a book chapter and that this could prejudice the author’s competitive position in the conduct of his or her profession. I find therefore that section 36(1)(b) applies.
As I have found section 36(1) to apply to the record, I must also consider whether sections 36(2) or section 36(3) serve to disapply section 36(1). Section 36(2) provides for the release of information to which section 36(1) is found to apply in certain circumstances. I am satisfied that none of the circumstances identified at section 36(2) arises in this case.
Section 36(3) provides that section 36(1) does not apply to a case in which the FOI body considers that the public interest would, on balance, be better served by granting than refusing to grant the request.
In considering where the balance of the public interest lies in this case, I have had regard to section 11(3) of the Act which provides that in performing any functions under the Act, an FOI body must have regard to, among other things, the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. In doing so, I have also had regard to the judgment of the Supreme Court inThe Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57. In that case, the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and “there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure”.
The applicant did not make specific submissions on the public interest, although I note that in his request for an internal review he said that the public interest arguments for and against release put forward by Sport Ireland in the original decision were simply cut and pasted from templates and were not specific to the content of the records. In submissions to this Office, Sport Ireland said that in favour of the release of record 19, it considered the accountability of administrators and the scrutiny of decision-making processes, and better informing the public on the subject. Against release, it said that third parties should not be duly impeded in the effective pursuit of their business/commercial arrangements or in negotiations with partners, that premature release could contaminate the decision-making process and that the information was provided to the Sport Ireland board on request and in good faith, outside the deliverables of the project.
I have carefully considered record 19. While section 25(3) prevents me from disclosing the contents of this record, I am satisfied that I can describe it at a high level as providing a more detailed historical and policy context for the board of Sport Ireland as they worked to develop the guidance document on transgender and non-binary inclusion in sport in Ireland. I have accepted that this was provided to the board by the consultants in addition to the deliverables agreed in the contract, and that it forms the basis of a chapter of a book to be published. I accept that release of this record would enable the public to have some further insight into the information considered by the board of Sport Ireland in its preparation of the guidance document. However, having found that release of the record could prejudice the author’s competitive position, in that premature publication could negatively affect the likelihood of the paper being published as a book chapter, it seems to me that there is a weightier public interest in ensuring that third parties can pursue their professional interests and not be impeded in this by engaging with FOI bodies. It seems to me that this is particularly relevant in circumstances where the record was not provided to Sport Ireland by the consultants as one of the specified deliverables in the contract, but was an additional resource made available to the board, without charge, on the understanding that it would not be shared.
On balance, I am not satisfied that any sufficiently specific, cogent and fact-based reason to tip the balance in favour of the release of record 19 exists. I therefore find that section 36(3) does not apply and that Sport Ireland was justified in refusing this record under section 36(1)(b). In the circumstances, there is no need to consider section 36(1)(c).
Sport Ireland refused parts of records 7 and 8 under section 37(1).
Section 37(1) of the FOI Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information.
Section 2 of the FOI Act defines personal information as information about an identifiable individual that, either (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or (b) is held by an FOI body on the understanding that it would be treated by that body as confidential. Section 2 goes on to specify 14 categories of information which, without prejudice to the generality of the above definition, constitute personal information.
Sport Ireland said that participants’ involvement in the consultation process was undertaken on the understanding of privacy and anonymity. It said that release of the information at issue could lead to the identification of a particular person who has contributed to the project. It said that while “certain information alone might not suffice as personal information, details including where a person works, co-habits, who they are associated with (some organisations or groups who have a very small number of staff), when combined can make an individual easily identifiable”.
I have very carefully considered the two records at issue here and I am not satisfied that release of the relevant information would involve the disclosure of personal information. This is because, as noted above, personal information for the purposes of the FOI Act means information about an identifiable individual that either would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or is held by an FOI body on the understanding that it would be treated as confidential. While Sport Ireland has argued that a person could be identified from information contained in the record, by combining it with other information, it has not pointed to any specific examples of this and I cannot see how this could be done. In my analysis under sections 29 and 30, I previously noted that the records explicitly acknowledge that the consultation process was completed on the basis of anonymity and confidentiality, including from Sport Ireland. I am satisfied that the consultants very carefully drafted their project reports in such a way that individuals are not identifiable. While I acknowledge Sport Ireland’s point that some organisations or groups may have small numbers of staff or members, and that in these circumstances disclosing that a certain organisation participated in the consultation process may lead to someone with a certain amount of pre-existing knowledge making an assumption that a certain individual participated, it is not evident to me that this can be seen as disclosing personal information about an identifiable individual, particularly as already noted when the opinions expressed are not tied to either individuals or organisations.
For the above reasons, I find that section 37(1) does not apply to the relevant parts of records 7 and 8. In the circumstances, there is no need to go on to consider the other provisions of section 37, including the public interest test.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary Sport Ireland’s decision. I find that it was justified in its refusal of record 19 under section 36(1). However, I find that it was not justified, under sections 29, 30 or 37, in refusing parts of records 6, 7, 8, 10, 16. I direct release of records 6, 7, 8, 10 and 16 in full (apart from slide 2 of record 10 which fell outside the scope of this review).
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.
Stephen Rafferty
Senior Investigator