Cinneadh
Ms X and Department of Health
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-124611-H8T7Z7
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-124611-H8T7Z7
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Department was justified in refusing access to records relating to a role of Professor in Trinity College Dublin for Dr. Tony Holohan under sections 30, 35 or 37 of the FOI Act
9 November 2023
In a request dated 8 April 2022, the applicant sought access to “(1) All correspondence from the Department of Health to Trinity College regarding a role of Professor in Trinity for Dr. Tony Holohan; (2) All correspondence regarding same from Trinity College to the Department of Health; (3) All reports and documents relating to the post; (4) All internal emails in the Department regarding the post.” In a decision dated 11 May 2022, the Department identified 45 records within the scope of the applicant’s request. It released record 24 and it refused access to the remaining records under sections 29(1), 30(1)(a)/(b), 35(1)(a) and 37(1) of the FOI Act. On 13 May 2022, the applicant sought an internal review of that decision. On 1 June 2022, the Department affirmed its original decision. The Internal Reviewer stated that the Department was no longer relying on section 35(1)(a) of the FOI Act in relation to record 37. On 7 June 2022, the applicant sought a review by this Office of the Department’s decision.
In its submissions to this Office, the Department stated that in April 2022, the Minister for Health initiated an external review in relation to the process of the proposed secondment of the former Chief Medical Officer (CMO). It stated that this “review” was a deliberative process and it refused access to certain records under section 29(1) of the Act. The Department also refused access to certain records under sections 30(1)(a)/(b) of the Act, it stated that granting access to these records could reasonably be expected to prejudice the effectiveness of the external review. The Department stated that the external review was looking into important matters and it was important that the review was given the space and time to be undertaken without interruption, undue influence, or commentary before its completion.
During the course of this review, the Minister for Health published the external review into the proposed secondment of the former CMO. This Office asked the Department to confirm whether its position remains the same in relation to the records under review, given the publication of the external report. This Office also informed the Department that the applicant stated that she would now like to limit her request to “the part of the documentation which is not in the public domain” and we asked the Department to take this into account when confirming its position.
In its reply to this Office, the Department stated that given the passage of time and the completion of the report, the exemptions relied on may no longer apply to certain records. The Department released records 4, 5, 9, 11, 13, 14, 15, 18, 20, 21, 22, 23, 24, 25, 28, 30, 32, 35, 38, 39, 40, 41, 45 in full and records 17, 19, 26, 33 and 42 in part to the applicant. The Department confirmed that it was no longer relying on sections 29(1) and 30(1)(a)/(b) of the Act, however it stated that it now wished to rely on section 30(1)(c) of the Act in respect of a number of records. The Department continued to rely sections 35(1) and 37(1) of the Act. The Department provided the applicant and this Office with a schedule outlining its revised position in relation to the records. This Office updated the applicant and provided her with an opportunity to make comments or observations in relation to the Department’s revised position. This Office also notified Dr. Holohan of the review and provided him with an opportunity to make submissions in relation to the records at issue which may affect his interests.
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 the applicant, the Department and Dr. Holohan. I have also had regard to the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision.
As outlined above, the applicant confirmed that she would like to limit her request to “the part of the documentation which is not in the public domain.” Therefore, any parts of the records at issue which are in the public domain will not be considered in this review.
The scope of this review is confined to whether the Department is justified in refusing access in full or in part under sections 30(1)(c), 35(1)(a) or 37(1) of the FOI Act to the following records: 1, 2, 3, 6, 7, 8, 10, 12, 16, 17, 19, 26, 27, 29, 31, 33, 34, 36, 37, 42, 43, and 44.
It should be noted at the outset that a review by the Commissioner under section 22 of the FOI Act is de novo, which means that it is based on the circumstances and the law as they pertain at the time of his decision.
Section 13(4) of the FOI Act provides that the actual or perceived reasons for a request must generally be disregarded by the decision maker, including the Information Commissioner. This means that I cannot take account of an applicant’s motivation, except for limited purposes in accordance with other provisions of the FOI Act. I have disregarded any actual or perceived reasons for the request in this case.
Section 18 of the FOI Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. However, the Commissioner takes the view that neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, this Office is not in favour of the cutting or "dissecting" of records to such an extent.
Although I am obliged to give reasons for my decision, section 25(3) requires that I take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the records at issue and the material that I can refer to in the analysis is limited.
Finally, the release of a record under the FOI Act is understood, effectively, to be equivalent to its release to the world at large.
Section 30 Functions and negotiations of FOI Bodies
The Department refused access in full or in part to records 1-3, 6-8, 10, 12, 16, 27, 29, 31, 34, 36-37 and 42-44 under section 30(1)(c) of the FOI Act. Section 30(1)(c) provides that a head may refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, 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.
Section 30(1)(c) is designed to protect positions taken for the purpose of any negotiation carried on by or on behalf of the Government or an FOI body. It is sufficient that access to the record concerned could reasonably be expected to disclose such negotiation positions, plans etc. There is no requirement to take a view on the consequences of the disclosure of those positions or on whether disclosure would have an adverse effect on conduct by the Government or the FOI body of its negotiations. However, the exemption is also subject to section 30(2), which provides that section 30(1)(c) does not apply where the public interest would, on balance, be better served by granting than by refusing to grant the request. Therefore, while the exemption does not require release of the records to give rise to any particular harms, such issues may be relevant when considering where the balance of the public interest lies.
This Office takes the view that an FOI body seeking to refuse access to information under section 30(1)(c) should identify the relevant negotiations at issue. In its submissions to this Office, the Department contends that release of these records would disclose information on positions taken throughout a negotiation process for a secondment proposal which was under consideration.
I am limited in the description of the records that I can provide as a result of section 25(3) of the Act. I note, however, that a description of communications in relation to the process related to the proposed secondment of the former CMO is contained in section 2 of the external report. The description of the records in this decision closely follows the description of communications which is in the public domain following the publication of the external report.
Record 1 contains an email of 3 March 2022, in which the former CMO contacted the Head of Strategic HR in the Department to advise her on discussions to date with UCD/TCD and to discuss a possible secondment to a University for a Professorship. The former CMO shared a draft letter of intent which he had prepared which might facilitate progressing the discussions with UCD/TCD. Record 2 contains an email of 10 March 2022, in which the former CMO confirmed to the Secretary General that TCD was happy to engage immediately so that a contract could be signed by the former CMO. Records 3, 6-8, 10, 12 contain internal emails between the Secretary General, the former CMO and Head of Strategic HR which involve discussion regarding sanction for the position and amendment to parts of the draft letter of intent. Record 16 contains a letter from the Secretary General to the former CMO dated 16 March 2022 confirming arrangements relating to the secondment. Record 27 contains an initial Briefing Note which was prepared by the Department for the Taoiseach on the secondment of the former CMO to TCD. Record 29 contains a further advisory note which was prepared by the Department following a request for further information from the Special Advisor to the Minister in advance of a Morning Ireland interview by the Minister. Record 31 is a cover email. Record 34 is an opening statement of 6 April 2022 for the Joint Committee on Health that was prepared in the Department for the former CMO with details on his secondment to TCD. Record 36 contains a version of the opening statement of 6 April 2022 with amendments and record 37 contains the opening statement. Record 42 contains an email of 6 April 2023 from the Secretary General to the Minister and others in which he provided the Minister with the letter of March 16 confirming the arrangements relating to the secondment of the former CMO and the letter of intent. Records 43 and 44 contain emails between the Minister and the Secretary General in relation to these letters.
I have examined these records closely and I accept that there were negotiations with potential University partners in relation to the proposed secondment. I also accept that there were negotiations in relation to terms and conditions and announcement of the secondment arrangement. I am satisfied that release of these records could disclose positions taken by the Department throughout a negotiating process in relation to the proposed secondment. I find that section 30(1)(c) applies to these records with the exception of record 31 which is a simple cover email.
Section 30(2) The Public Interest
My finding that section 30(1)(c) applies to records 1-3, 6-8, 10, 12, 16, 27, 29, 34, 36-37 and 42-44 is not the end of the matter as I must also consider whether section 30(2) serves to dis-apply section 30(1)(c). As I have outlined above, section 30(2) provides that section 30(1)(c) does not apply where the public interest would, on balance, be better served by granting than by refusing to grant the request. It is important to note that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (the “ENet 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”. Although the Court’s comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.
The applicant states that these records should be released in the public interest. She states that the documents relate to the circumstances and decisions around the proposed secondment which led to two Oireachtas committee hearings and also led to the Taoiseach pausing the process and calling for a report. She contends that the issues at stake raise questions around procedure and transparency and they also pose questions around the use of public funds of €2m a year which were promised to Trinity College without sanction.
The Department states that there is a public interest in increasing openness and transparency in how it allocates its resources and it states that there is a serious public interest which extends beyond curiosity in release of the records. On the other hand, the Department said it considered the extent to which release would disclose information on the positions taken throughout a negotiation process for a secondment proposal which was under consideration. It states that the disclosure of this information may impact the future negotiation of similar processes. The Department said it places greater weight on the public interest factors favouring the withholding of these records.
As stated above, section 30(1)(c) does not contain a harm test. The provision makes no distinction between disclosures which have the potential to prejudice current or future negotiations or to cause some other harm and disclosures which do not. However, such a distinction should be made in applying the public interest test in section 30(2) to records which could reasonably be expected to disclose positions taken etc. for the purposes of negotiations. If access to records which disclose positions taken etc. for the purposes of past negotiations could reasonably be expected to prejudice current or future negotiations or cause some other harm, then this is a matter which must weigh heavily in the application of the public interest balancing test.
I do not accept the Department’s contention that disclosure of this information may impact the future negotiation of similar processes. It seems to me, that given the individual nature of any secondment arrangement and the issues which arose in relation to this proposed secondment, it is unlikely that the Department would adopt similar positions in any future negotiation of a secondment process.
I have examined the records closely and in my view they show the nature, context and content of a negotiation of a high profile and high value senior post, paid for by public funds. In my view, there is a public interest in facilitating scrutiny of these matters in the context of this particular case. It seems to me, that evidence of this public interest is provided by the extensive debate both in the media and in the Oireachtas, as well as the significant investigations conducted into the matter. On 11 April 2022, the Secretary General drafted a 12-page briefing note on the proposed secondment which provides an account of the process behind the proposed initiative. This briefing note is publically available. On 4 May 2022, the Joint Committee on Health also examined the proposed appointment and questions put by members of the committee to the Secretary General and the former CMO and their replies are also publically available. On 18 April 2023, the Minister for Health published the external review into the proposed secondment of the former CMO. This report contains extensive information on the process related to the proposed secondment and it contains learnings from the proposed secondment process. In my view, the public interest in facilitating scrutiny of how the Department carried out its functions in negotiating this important public funded position would be served by release of the records and I find that, on balance, the public interest favours release of these records.
Section 37(1) - Personal Information
The Department refused access in full or in part to records 1-3, 6-8, 10, 12, 16, 17, 19, 26 and 33 under section 37(1) of the FOI Act. Section 37(1) of the FOI Act provides for the mandatory refusal of a request where access to the record sought would involve the disclosure of personal information relating to an individual other than the requester. For the purposes of the Act, personal information is defined as information about an identifiable individual that either (a) would ordinarily 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. The definition also details fourteen specific categories of information that is personal information without prejudice to the generality of the foregoing definition, including (ii) information relating to the financial affairs of the individual and (iii) information relating to the employment or employment history of the individual.
Certain information is excluded from the definition of personal information. Where the individual holds or held a position as a member of the staff of an FOI body, the definition does not include his or her name, or information relating to the position, the functions of the position, the terms upon and subject to which the individual holds or held that position, or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of his or her functions (Paragraph I refers).
The exclusion at Paragraph I does not exclude all information relating to staff members. The exclusion is intended, in essence, to ensure that section 37 cannot be used to exempt the identity of a public servant in the context of the particular position held or any records created by the staff member while carrying out his or her official functions, or information relating to the terms, conditions and functions of positions. The exclusion does not deprive public servants of the right to privacy generally.
As stated above, the applicant has now limited her request to “the part of the documentation which is not in the public domain”. Records 1-3, 6-8, 10, 12, 16 contain contractual and retirement information pertaining to Dr. Holohan. These records include draft versions of the letter of intent which contain differences to the final letter of intent which is in the public domain. There is information in relation to salary, duration of secondment, retirement etc. contained in the external report. However, there is additional information in relation to the terms and conditions of the proposed secondment contained in these records which is not in the public domain. I note that a Government Pay scale is in place in respect of the position of CMO; however, the particular arrangements in respect of salary, pension, title, tenure and administrative arrangement, which were to be put in place for the proposed secondment were bespoke arrangements personal to the former CMO. I am satisfied that these records contain personal information for the purpose of the FOI Act and that they do not come within the exclusion in Paragraph I. I find, therefore, that section 37(1) applies to records 1-3, 6-8, 10, 12, 16.
The Department also contends that records 2, 7 and 8 contain information provided to the Department from an individual who would have had the expectation that this information would be held in confidence. The Department has relied on sections 35 and 37 in refusing these records. I will consider section 35 below. For the purposes of section 37, I accept that the identity of this individual which is contained in records 2 and 7 constitutes personal information given the content of these records relates to that individual’s contractual arrangements. I also accept the Department’s contention that Dr. Holohan’s private email address which is contained in records 1-2, 7, 10, 12 and 16 constitutes personal information and is exempt under section 37(1) of the Act. The Department has refused access to email addresses and phone numbers of third parties which are contained in records 17, 19, 26 and 33. I accept that the mobile phone numbers which are contained in records 26 and 33 constitute personal information. I do not, however, accept that the work email addresses and work phone numbers of staff members of an FOI Body which are contained in records 17 and 19 constitute personal information as contended by the Department and I find accordingly.
Section 37(2)
There are some circumstances, provided for at section 37(2) of the FOI Act, in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances identified at section 37(2) (a), (b), (c), (d), or (e) arise in this case.
Section 37(5) - The Public Interest
Section 37(5) of the FOI Act provides that access to the personal information of a third party may be granted where (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the request would benefit the person to whom the information relates. It has not been argued that releasing the records would benefit the individuals to whom the information relates and I find that section 37(5)(b) does not apply.
In relation to the applicability of section 37(5)(a), in carrying out any review this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. Section 11(3) provides that an FOI body must have regard to 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 accountability and improve the quality of decision making of FOI bodies. As outlined above, the Supreme Court found in the ENet case 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 states that the matter of the CMO’s secondment to Trinity raises important public interest issues in terms of transparency. She states the (then) Tánaiste observed in the Dáil that “It would have been far preferable if the full details around the secondment had been put in the public domain at the outset and I think that should have been done." The applicant states that there is a public interest in how the Department carried out its functions in approving the appointment. She states that the appointment proposed use of public funds to pay €2 million per year to Trinity College for research. She states that there was no sanction for the use of these funds by the Government. She states that all matters relating to the use of public funding should be made public. She contends that there was no precedent for the plan put forward for the CMO to remain in the pay of the Department while working for free for Trinity College and she contends that it is in the public interest to know how the matter was dealt with internally by the Department.
In his submissions to this Office, Dr. Holohan states that he would not wish to see any private and personal material relating to him being released under FOI especially in relation to matters on which he corresponded with the personnel department and or secretary general and where he had a clear expectation of confidentiality and privacy as would be usual in such matters. He states that some material sent from his private email address, which was also personal and private, was sent in this way as a number of staff in his division had routine access to his email address and, as such, it was not suited to use for correspondence relating to private HR matters.
The Department states that it owes a duty of confidentiality in relation to individual human resource records and release of these record would involve disclosure of personal information. It states that, on balance, it places greater weight on the public interest favouring the withholding of these records.
The former CMO states that the Department has not shared the records with him which has made it more challenging for him to make submissions. I note however that he was a party to many of the emails concerning the proposed secondment and the press release announcing the proposed secondment. This Office also provided the former CMO with a description of the records at issue and details of the time frame within which they were created. I am satisfied, therefore, that he has been provided with sufficient details regarding the records and the Department’s position to allow him to make submissions. I also note that the Department describes the records as “individual human resource records”. In my view, individual human resources records would typically include official documentation of an individual’s history with an organisation such as details of the individual’s start date, rate of pay, leave records and other records related to the individual’s employment. It is worth noting that the records at issue in this case are not that type of record. They are records relating to the negotiation of bespoke arrangements proposed to be put in place for a new position for the former CMO.
The FOI Act recognises the public interest in the protection of the right to privacy both in the language of section 37 and the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with the right to privacy). It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. Moreover, unlike other public interest tests provided for in the FOI Act, there is 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.
While the right to privacy is protected by the Constitution, the protection afforded is a spectrum. The Courts have found that information relating to a person’s home and family life is likely to attract a high degree of constitutional protection. Conversely, the courts have found that a right to privacy in business affairs only exists at the ‘outer reaches of and the furthest remove from the core personal right of privacy’ and that, accordingly, the exigencies of the common good weigh all the more heavily against it (Caldwell v Mahon [2006] IEHC 86, per Hanna J). There is a small amount of information in the records which is not in the public domain, this information touches on contractual matters such as arrangements in relation to payment of salary, superannuation and duration of secondment etc. In my view, the privacy rights potentially impacted by the disclosure of the records are effectively ‘business affairs’. It seems to me that the weight to be afforded to the privacy interest in this particular case is very low, at the ‘outer reaches’ of the right to privacy, particularly in light of the seniority of the post, the amount of public funding concerned and the extent of information already in the public domain.
For the same reasons as those set out in detail under section 30(2) above, in my view there is a public interest in facilitating scrutiny of the nature, context and content of a negotiation of a high profile and high value senior post, paid for by public funds, in the context of this particular case. Taking into account this public interest, and the weight to be afforded to the particular privacy interest arising in this case, in my view, the public interest would be better served by release of these records. I accept that releasing these records would allow for a greater level of transparency in relation to the structure of the appointment and the method through which the secondment would have been administered, without any significant impact on the intimate or core privacy rights of the former CMO.
Therefore, with the exception of Dr. Holohan’s private email address which is contained in records 1, 2, 7, 10, 12, 16 the name of a private individual contained in records 2 and 7 and mobile phone numbers which are contained in records 26 and 33, I find that the protection of privacy rights does not outweigh the public interest in disclosure of the remaining information in records 1-3, 6-8, 10, 12, 16, 17, 19, 26 and 33.
Section 35 – Information obtained in confidence
The Department refused access to records 2, 7 and 8 under section 35(1)(a) of the FOI Act. The Department states that these records include information provided to the Department from an individual who would have held the expectation that this information would be held in confidence. It states that the release of this information may prejudice the future supply of similar information to the Department.
Section 35(1)(a) of the Act provides that an FOI body shall refuse to grant an FOI request if
the record concerned contains information given to an FOI body in confidence and on the understanding that it would be treated by it as confidential and the body considers that its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and it is of importance to the body that such further similar information as aforesaid should continue to be given to the body.
However, section 35(2) provides that:
“subsection (1) shall not apply to a record which is prepared by a staff member of an FOI body in the course of the performance of his or her functions unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than an FOI body or its staff.”
Accordingly, before considering whether section 35(1)(a) might apply, I have considered whether section 35(2) serves to disapply section 35(1)(a) in this case. Records 2 and 7 were prepared by Dr. Holohan. Record 7 contains proposed conditions of sanction for the new position which were customised following a conversation with a named individual. This individual is also named in records 2. Record 8, prepared by the Secretary General, also contains proposed conditions of sanction for the new position but not the name of the individual. As outlined above, I accept that the identity of this individual which is contained in records 2 and 7 constitutes personal information given the content of these records. However, once the name of the individual is excluded, the proposed conditions of sanction for the new position are records prepared by a member of staff of an FOI body in the course of their performance of their functions. Accordingly, pursuant to section 35(2), section 35(1)(a) cannot apply unless the release of the records would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than an FOI body or its staff.
The Department did not identify any agreement or statute that might provide for a duty of confidence in this case. Nevertheless, a duty of confidence provided for “otherwise by law” is generally accepted to include a duty of confidence arising in equity. This Office accepts that breach of an equitable duty of confidence is comprehended by section 35(1)(b). The essence of the Department’s submission in this case is that it owes a duty of confidence to the individual who provided information, personal to them, on the understanding that it would be treated as confidential.
In the Supreme Court decision in the case of Mahon v Post Publications Ltd [2007] 3 I.R. 338 Fennelly J. confirmed that the requirements for a successful action based on a breach of an equitable duty of confidence, at least in a commercial setting, are found in the judgment of Megarry J. in Coco v. A. N. Clark (Engineers) Ltd. [1969] R.P.C. 41, at 47: “Three elements are normally required if, apart from contract, a case of breach of confidence is to succeed. First, the information itself ... must 'have the necessary quality of confidence about it'. Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it."
Fennelly J. summarised or restated the requirements of what he called “the contours” of the equitable doctrine of confidence as follows:
1. the information must in fact be confidential or secret: it must ... “have the necessary quality of confidence about it”;
2. it must have been communicated by the possessor of the information in circumstances which impose an obligation of confidence or trust on the person receiving it;
3. it must be wrongfully communicated by the person receiving it or by another person who is aware of the obligation of confidence.”
In previous decisions, this Office has adopted this approach in considering whether disclosure of information would constitute a breach of an equitable duty of confidence.
Record 7 and 8 contain proposed conditions of sanction for the post, these conditions were customised following a conversation with a third party, who is named in record 2, and sight of that party’s conditions. However they were customised by Dr. Holohan specifically for the new position in Trinity College Dublin. The records do not contain a copy of the individual’s conditions communicated to the Department in circumstances which impose an obligation of confidence. I do not accept that the records meet the first and second test for a duty of confidence to arise. Accordingly, I find that release of records 2, 7 and 8 would not give rise to a breach of a duty of confidence and that section 35(1) cannot therefore apply given the provisions of section 35(2).
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Department’s decision. I find that the Department was justified in refusing access to Dr. Holohan’s private email address which is contained in records 1, 2, 7, 10, 12, 16, the name of a private individual contained in records 2 and 7 and mobile phone numbers which are contained in records 26 and 33. I find that the Department was not justified in refusing access to the remainder of the records on the basis of sections 30(1)(c), 35(1)(a) and 37(1) of the FOI Act and I direct the release of the remaining information to the applicant.
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.
Ger Deering, Information Commissioner