Cinneadh
Mr X and Department of Justice and Equality
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: 170050
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: 170050
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Department was justified in its decision to refuse access to certain records concerning the Irish Refugee Protection Programme
Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review
22 May 2017
On 2 November 2016, the applicant made a request for access to the following records/information:
1. All reports from the Irish Refugee Protection Programme (IRPP) to the office of the Minister for Justice and Equality regarding the relocation programme for persons being resettled from Syria and Lebanon.
2. All reports to the IRPP and/or the Department from Emergency Reception and Orientation Centres (EROCs).
3. An up to date record of the cost of the IRPP and of each of the EROCs.
4. An up to date list of the number of persons housed at each of the EROCs and, in each case, a breakdown of their countries of origin.
5. All correspondence between the IRPP and An Garda Síochána (AGS) regarding security vetting of persons resettled or seeking resettlement under the IRPP.
6. Whether any persons admitted to the Republic under the IRPP have subsequently been either arrested or deported, and if so, how many in each case.
In respect of part 5, the applicant stated that he was not seeking personal reports on named individuals, but rather was seeking reports on the vetting process and the results thereof.
As the Department failed to issue a decision within the required time-frame, the applicant sought an internal review on 7 December 2016 on the basis that his original request was deemed to have been refused. Again, the Department failed to issue an internal review decision within the required time-frame. On 3 January 2017, the applicant notified this Office of the Department's failure to issue a decision on his request. Following correspondence with this Office, the Department issued its effective position on the request to the applicant on 25 January 2017, in which it partially granted the request. The applicant was dissatisfied with the Department's decision to refuse access to certain records and on 27 January 2017 he confirmed that he required a review of the Department's decision.
I have decided to conclude this review by way of a formal binding decision. In conducting this review, I have had regard to the contents of the records at issue, and to the correspondence between this Office and both the applicant and the Department on the matter.
The Department split its decision into three parts, as different records were held by three separate divisions, namely the Office for the Protection of Migrant Integration (OPMI), the Irish Refugee Protection Programme (IRPP) and the Reception and Integration Agency (RIA). It stated that no records relating to the first element of the request exist, and the applicant has not challenged this. Consequently, the review is concerned with parts 2 to 6 of the request.
In an email of 6 February 2017 to this Office, the applicant referred to the schedules of records that the Department issued with its letter of 25 January 2017. He stated that the schedules contained "pretty much everything that [he] requested".
The Department refused access to 34 of 36 records identified by the OPMI as coming within the scope of the various parts of the applicant's request. It also refused access to 20 of the 22 relevant records identified by the IRPP. The RIA identified certain information coming within the scope of part 3 of the applicant's request that is publicly available, including sample contracts with commercial operators including EROCs, details of the contractors and of the contract values for 2000-2013, and details of its policy on the release of financial information on contract values. It refused access to all other financial information but did not identify any specific records to which access was refused.
Therefore, this review is concerned with whether the Department was justified in its decision to refuse access to 34 OPMI records, to 20 IRPP records and to the financial information sought at part 3 as referenced by the RIA. In referring to the records at issue, I have adopted the numbering system used by the Department in the schedules it prepared in response to the request.
It should be noted that while I am required by section 22(10) of the FOI Act to give reasons for decisions, this is subject to the requirement of section 25(3) that I take all reasonable precautions during 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 of the reasons for my decision is limited.
Additionally, section 18(1) of the Act provides that if it is practicable to do so, access to an otherwise exempt record shall be granted by preparing a copy, in such form as the body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). I take the view that neither the definition of a record under section 2 of the Act 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, I am not in favour of the cutting or "dissecting" of records to such an extent. Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.
Finally, it is important to note that section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request under section 12 shall be presumed not to have been justified unless the head of the relevant FOI body shows to the Commissioner's satisfaction that its decision was justified. This means that the onus is on the Department of satisfying this Office that its decision to refuse access to the records sought, either in whole or in part, was justified.
Access to records 1 to 27 was refused under sections 35(1)(a) and 37(1). Access to records 30 to 36 was refused under sections 30, 32, 33 and 35. As different considerations pertain to these two groups of records, I will consider them separately.
Records 1 - 27
Section 35 is concerned with the protection of information given to a public body in confidence while section 37 is concerned with the protection of personal information relating to individuals other than the requester. For the purposes of the Act, personal information is information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or his/her family or friends, or (b) is held by an FOI body on the understanding that it would be treated by it as confidential. Section 2 of the Act details fourteen specific categories of information which is personal information without prejudice to the generality of (a) and (b) above.
Records 2 to 4, 6, 7, 9, 13, 14, 16, 19 to 22, and 24 to 27 contain information about specific incidents concerning EROC residents. I am satisfied that the release of those records would involve the disclosure of personal information relating to those individuals. I note that the applicant has stated that he is willing to receive the information with the names of the individuals redacted. However, given the limited number of residents and, more importantly, the detailed and specific nature of the information contained in the records, I am satisfied that the disclosure of the records with the names of the various individuals redacted would still involve the disclosure of information relating to identifiable individuals. I find, therefore, that section 37(1) applies to these records.
While section 37(2) of the FOI Act sets out certain circumstances in which 37(1) does not apply, I am satisfied that none of those circumstances arise in this case. Furthermore, section 37(5) provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance, the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or the grant of the information would be to the benefit of the person to whom the information relates. I am satisfied that the release of the information in question would not be to the benefit of the individuals to whom the information relates. Therefore, I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the right of privacy of the individuals concerned.
The FOI Act recognises the public interest in ensuring the openness and accountability of public bodies in the performance of their functions. It is noteworthy, however, that the records at issue comprise reports to the Department about specific incidents concerning EROC residents and that the release of the records would provide little or no insight into the performance by the Department (or any other FOI body) of its functions.
On the other hand, the FOI Act also recognises the public interest in the protection of the right to privacy both in the language of section 37 and in 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. 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. In this case, I find that the public interest in granting access to the records does not, on balance, outweigh the public interest in protecting the privacy rights of the individuals concerned.
I find, therefore, that the Department was justified in its decision to refuse access to records 2 to 4, 6, 7, 9, 13, 14, 16, 19 to 22, and 24 to 27 under section 37(1).
Records 1, 5, 8, 12, 15, 17 and 23 are merely covering emails to the Department that contained a number of the incident reports as attachments. The reports themselves have been considered separately above. I am satisfied that the covering emails contain no personal information and that they cannot, of themselves, be considered to have been given to the Department in confidence. However, it is clear to me that the applicant was not seeking access to such emails. His request was specifically for all reports from the EROCs. I see no merit in giving further consideration to the question of whether a right of access exists to these records as to do so would, in my view, serve no useful purpose. In any event, it seems to me that records 1, 5, 8, 12, 15, 17 and 23 are not captured by the scope of the applicant's request.
Records 10 and 11 contain details of a complaint made by the owner of an EROC about what he considered to be a fake report on an internet site. I find that the disclosure of the record would involve the disclosure of personal information relating to the complainant and that the public interest in granting access to the record does not, on balance, outweigh the public interest in protecting the privacy rights of the individual concerned. I find, therefore, that section 37(1) applies.
Record 18 contains a detailed report of an incident when bicycles were brought to the EROC for the residents. I am satisfied that the release of the record, with the name of the individual who supplied the bicycles and the name of a volunteer from the Kildare Volunteer Centre redacted, would not involve the disclosure of personal information relating to identifiable individuals. I find, therefore, that section 37(1) does not apply. The Department also refused access to the record under section 35(1)(a). That section provides for the mandatory refusal of a request where the record sought contains information given to an FOI body in confidence.
For the section to apply, four cumulative conditions must be met:
However, section 35(2) provides that section 35(1) does not apply to a record which is prepared by, among other persons, a member of the staff of a service provider 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 owed to a person other than the member of the staff of such a service provider. The record at issue in this case was prepared by a member of the staff of the relevant EROC. Unlike the other reports at issue, record 18 is not concerned with an incident involving the residents as such. No argument has been made that the release of the record would constitute a breach of a duty of confidence owed to a relevant person.
Records 30 - 36
Access to records 30 to 36 was refused under sections 30, 32(1)(a), 33(1)(a) and 35(1)(a). The records comprise threads of email correspondence between the OPMI and members of the Special Detective Unit (SDU) within AGS in relation to selection missions to Beirut to interview Syrian refugees for resettlement in Ireland. It is a matter of public record that the selection missions referenced in these records took place.
While not invoked by the Department, it seems to me that section 42(b) applies to parts of the records under consideration. That section provides, among other things, that the FOI Act does not apply to a record created by AGS that relates to the SDU or the Security and Intelligence Section. I find that those parts of records 30 to 36 that comprise emails created and sent to the Department by AGS are excluded from the FOI Act by virtue of section 42(b). On the other hand, those parts of the records comprising emails created and sent by the Department are clearly covered by the Act and I will now consider the exemptions cited by the Department in respect of those parts.
Section 30
Section 30(1)(a) provides for the refusal of a request where the FOI body considers that access to the record sought 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. The exemption is subject to a public interest balancing test (subsection (2)).
In its letter of 25 January 2017 to the applicant, the Department argued that "the effectiveness of security assessments being carried out by [AGS] on behalf of the Department may be prejudiced were the practical arrangements, protocols and methodology underpinning those assessments become available to those being assessed by being placed into the public domain." In its submission to this Office, it argued that "The release of this information could prejudice future decisions with regard to participation on future such missions."
Where an FOI body seeks to rely on section 30(1)(a), it must identify the potential harm in relation to the relevant function specified in paragraph (a) and having identified that harm, consider the reasonableness of any expectation that the harm will occur. In doing so it should explain how it considers that release of the record could reasonably be expected to give rise to the harm envisaged. A mere assertion without supporting evidence is not sufficient to satisfy the requirement that access to the record could reasonably be expected to result in the outcome envisaged.
The Department has identified the harms in this case as prejudice to the effectiveness of security assessments being carried out and prejudice to the methods employed for the conduct of such assessments. However, it has not explained how the release of the specific records could give rise to those harms. It has not explained how the availability of the practical arrangements, protocols and methodology underpinning the assessments to those being assessed could prejudice the effectiveness of the assessments. Indeed, it has pointed to any specific information contained in the records at issue whose disclosure to those being assessed would serve to prejudice the effectiveness of the assessments. Neither has it explained how the release of the records could prejudice future decisions with regard to participation on future missions. Having regard to the provisions of section 22(12)(b), I find that the Department has not satisfactorily shown that release of the records could reasonably be expected to give rise to any of the harms identified in section 30(1)(a). I find, therefore, that section 30(1)(a) does not apply.
Section 32
The Department argued that the records are exempt under subsections (1)(a)(iii) and (1)(b) of section 32. These subsections provide for the refusal of a request where the FOI body considers that access to the record sought could reasonably be expected to;
The Department argued that the ability of AGS to ensure the safety of the general public would be impaired if information regarding protocols and methodologies used during security assessments were to become public knowledge thereby providing opportunity to undermine the process. Having examined the records, it is not clear to me how their disclosure would provide opportunities to undermine the processes employed for security assessments, nor has the Department explained how such harm might arise. For example, it has not argued how the release of the records would disclose any particular processes that would allow those being assessed to take evasive measures that might prejudice or impair those processes.
The Department also argued that the release of the information in the records could endanger the safety and security of future selection missions and that the missions have a significant level of danger for participants and are generally kept confidential. It stated that the records contain flight and hotel arrangements and names and contact details of individual members of AGS who would be travelling to Beirut to carry out security screening of the interviewees. It argued that members of AGS may no longer feel safe participating on such missions, in which case security screening of applicants for resettlement would no longer take place during the application process thus possibly impacting public safety and security.
The missions discussed in the records at issue are historic and the fact that they took place is a matter of public record. Nevertheless, I accept the Department's argument that the disclosure of hotels used and the names and contact details of individual members of AGS who participated on the missions and may be travelling on future missions could endanger the safety of the mission participants and prejudice the assessment process itself. Furthermore, I accept that it is reasonable to expect such harms to arise by the disclosure of such information. I find, therefore, that the name of the hotel in record 30, and the names and contact details of the members of AGS contained in records 33 to 36 who participated in the previous missions are exempt from release under section 32. However, the Department has not, in my view, justified its decision to refuse access to the remainder of those parts of the records that are covered by the Act under section 32.
Section 33
The Department argued that subsections (1)(a) and (3)(a) of section 33 apply to the records. Subsection 1(a) provides for the refusal of a request where the FOI body considers that access to the record sought could reasonably be expected to affect adversely the security of the State. The Department stated that the security assessments and any protocols under which they are conducted are carried out by AGS to preserve national security and it argued that placing this information in the public domain would compromise these efforts. This argument is similar to that put forward in respect of the applicability of section 30(1)(a), which I have already rejected. The Department has not explained how the release of the records would compromise the security assessments or related protocols.
The Department also argued that should release of the records result in the non-participation of members of AGS in future selection missions as a result of concern for their own safety, then this in turn could put the security of the State at risk. However, as I have already found that the identities of the relevant members of AGS are exempt under section 32, I do not consider it necessary to consider this argument further. I find, therefore, that the Department has not justified its decision to refuse access to the remainder of those parts of the records that are covered by the Act under section 33(1)(a).
Section 33(3)(a) provides for the mandatory refusal of a request where the record sought contains information that was obtained or prepared for the purpose of intelligence in respect of the security or defence of the State. While the Department did not expressly identify any such information in the records, I am satisfied that the relevant part of record 31 that is covered by the FOI Act contains a small amount of such information. Specifically, I find that section 33(3)(a) applies to the main paragraph commencing "Subject is ..." in the email that was created on 23 May 2016 at 15:11 and to the paragraph commencing "You may wish to bring ..." in the email that was created on 27 May 2016 at 09:08. For the avoidance of doubt, I find that section 33(3)(a) does not apply to any other parts of the records covered by the Act.
Section 35(1)(a)
Section 35(1)(a) provides for the protection of information given to an FOI body in confidence. However, section 35(2) provides that the exemptions at section 35(1) do not apply to a record prepared by a member of staff 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. The Department has not argued that the disclosure of the records would constitute a breach of a duty of confidence owed to any such person. I find, therefore, that section 35(1)(a) does not apply.
Section 37(1)
While not applied by the Department to these records, this is a mandatory exemption that provides for the protection of personal information relating to individuals other than the requester. I note that record 30 includes emergency contact details for a staff member of the Department who took part in a mission. I am satisfied that this is personal information, and I consider that there is no public interest in favour of its release. I find that section 37(1) applies to this information.
The Department refused access to record 1 under sections 35 and 37. This record is similar to the OPMI records that contain information about specific incidents concerning EROC residents. For the same reasons as I have outlined above in respect of those OPMI records, I find that this record is exempt from release under section 37(1).
I note that a number of the remaining records contain email threads and that the same emails appear in a number of the records. The majority of the records were refused under sections 29, 30, 32 and 33. Section 35 was also relied upon in the case of four of these records. As with the OPMI records, the Department has not considered the applicability of section 42(b). As a number of the records involve communications with the Security and Intelligence section of AGS, I consider that section 42(b)(v) is relevant. In so far as the records contain emails that were created and sent by the Security and Intelligence section of AGS, I find that the FOI Act does not apply to those emails.
In addition, a number of the remaining records contain identifying details of possible candidates for relocation. I am satisfied that names of candidates, and other identifying information, is personal information. I do not consider that the release of this information would benefit these individuals. In considering the public interest, I acknowledge that there is a public interest in favour of openness and transparency in the workings of public bodies. However, I do not consider that the release of identifying information about particular individuals would provide meaningful insight into how the Department carries out screening of potential refugees. On the other hand, I believe that the release of such information would significantly interfere with the individuals' right to privacy. In all the circumstances, I am satisfied that section 37(1) applies to the following information:
Section 29
Section 29(1) of the FOI Act provides for the refusal of a request where the record sought contains matter relating to the deliberative processes of an FOI body (including opinions, advice, recommendations, and the results of consultations, considered by the body, the head of the body, or a member of the body or of the staff of the body for the purpose of those processes), and where the FOI body considers that granting the request would be contrary to the public interest.
A deliberative process can be described as a thinking process which informs decision making in FOI bodies. It involves the gathering of information from a variety of sources and weighing or considering carefully all of the information and facts obtained with a view to making a decision or reflecting upon the reasons for or against a particular choice. Thus, it involves the consideration of various matters with a view to making a decision on a particular matter. It would, for example, include some weighing up or evaluation of competing options or the consideration of proposals or courses of action.
In its letter of 25 January 2017 to the applicant, the Department stated that the protocols regarding security assessments of persons arriving under the IRPP are currently under review by the Department and AGS in light of an increase in the volumes of people being assessed and the increased frequency of assessment missions. In its submission to this Office, the Department stated that it considers the records at issue constitute part of an ongoing process of assessment and deliberation as to how the IRPP and AGS should work together to protect the security of the State. It referred to one specific aspect of the process under consideration and stated that "The deliberative process is very much active in this regard and in fact the matter has been escalated to the diplomatic level." It argued that releasing the records would be contrary to the public interest as they would reveal an overall policy approach and undermine a public body's confidence in its own decision making as regards something as serious as State security. It argued that the public needs to be confident that the public bodies concerned can make decisions without fear that those decisions might be predicted in advance through a familiarity with the information contained in the records and that release of the records could give a person an insight that might help them pre-empt the State's position prior to important decisions on security or approaches to negotiations with other States being made.
Some, but not all, of the records at issue concern the matter of a review of the security screening arrangements of candidates for relocation under the IRPP. For example, records 14 to 16 contain proposals for a protocol to cover arrangements between the IRPP and AGS for the carrying out of security assessments of candidates for relocation to Ireland from Italy and Greece. However, other records such as records 5 to 9, 18 and 19 to 22 and relate primarily to issues concerning specific cases. In relation to those records, or parts of records, which might be considered to contain matter relating to the deliberative processes identified, the Department must also satisfy this Office that release of the records would be contrary to the public interest.
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 Act which require that, on balance, the public interest would be better served by granting than by refusing to grant the request. I must admit that the Department's reasoning for considering that release would be contrary to the public interest is not entirely clear to me. For example, the Department did not explain how the release of the records would undermine the Department's confidence in its own decision making, nor did it explain why it considered that it would be contrary to the public interest if decisions on protocols regarding security assessments of persons arriving under the IRPP were to be predicted in advance. It seems to me that prior insight of the proposals contained in the records would be unlikely to affect the outcome of discussions between the Department and AGS on the nature of the protocols to be agreed.
The Department has not, in my view, satisfactorily shown that the release of the records would be contrary to the public interest. For the sake of completeness, I should add that this includes the specific issue that the Department referred to as having been escalated to the diplomatic level which, I understand to be a matter of public record. I find, therefore, that section 29 does not apply to the records at issue.
Section 30
The Department argued that section 30(1)(a) applies to records 5 to 22. It argued that the records, when taken in the round, reveal elements of the overall approach taken by the IRPP in its engagement with AGS which could possibly be used to circumvent procedures in some way. However, the Department has not explained how the release of the records could give rise to such harm, nor does it appear to me that the Department takes the view that it is reasonable to expect such harm to occur. Rather it appears to be concerned that the harm might arise. Having regard to the provisions of section 22(12)(b), I find that the Department has not satisfactorily shown that release of the records could reasonably be expected to give rise to any of the harms identified in section 30(1)(a). I find, therefore, that section 30(1)(a) does not apply.
Section 32(1)(a)
The Department's argument for refusing access to records 4 to 22 under section 32(1)(a) are similar to its arguments for refusing access to the OPMI records under the same provision. The Department has not, in my view, explained how the release of the records could reasonably be expected to prejudice or impair the screening process for potential immigrants. For the most part, the records concern historic screening missions. While the protocol to be agreed between the Department and AGS concerns future missions, it does not appear to me to contain sensitive or confidential information such that its release could reasonably be expected to give rise to the harms identified.
For the same reasons as I have outlined in respect of the OPMI records, I find that the names and contact details of the members of AGS involved in the security assessments contained in records 4, 10 and 11 are exempt from release under section 32, as is the name of the hotel contained in record 10. However, the Department has not, in my view, justified its decision to refuse access to the remainder of those parts of the records that are covered by the Act under section 32.
Section 33(1)(a)
The Department has also sought to apply section 33(1)(a) to records 4 to 22 and has stated that its arguments for doing so largely mirror those already stated under the justification for citing section 32. For the same reasons as I have outlined above in respect of the OPMI records, I find that the Department has not justified its decision to refuse access to the remainder of those parts of the records that are covered by the Act under section 33(1)(a).
Section 35(1)(a)
The Department argued that section 35(1)(a) applies to certain information contained in records 1, 6, 8 and 13. However, I have already found that the identifying information relating to named asylum seekers is exempt under section 37, that the names and contact details of the members of AGS involved in the security assessments are exempt under section 32(1)(a), and that the Act does not apply to the emails created and sent by the Security and Intelligence section of AGS. I do not need to consider the applicability of the exemption relating to confidential information any further.
RIA dealt solely with the third part of the applicant's FOI request, which was for an up to date record of the cost of the IRPP and of each of the EROCs. The IRPP provided details of the total cost of the IRPP from the date of its establishment until 31 December 2016. In relation to the cost of EROCs, the Department stated that the RIA was refusing the request under sections 15(1)(d), 29(1), 30(1), 35(1), 36(1) and 40(1). In its submission, it stated that "all of the releasable financial information is already publicly available on RIA's website...RIA's policy on the release of financial information provides for a temporary moratorium on the release of the information covering the most recent 2 full calendar years."
The Department has also furnished a copy of its "Policy Document: Release of Financial Information on Contract Values." This document states that "It is not in the interests of the taxpayer that current details of individual contracts are made known both to the public and to other parties who are, or may be in the future, engaged in negotiations with the RIA. To compile or release such current detailed financial information could negatively affect the competitive position of the State...RIA has adopted the policy set out in the following paragraphs in relation to requests under FOI and otherwise in respect of information on contract values. A Table of Contract Values will be updated once each year. The Table of Contract Values will show all information on contract values, excluding the most recent two previous years...Limited information relating to contracts covering the two year 'withholding' period will be provided on request. However, such information will not include any information that could identify the contractor(s) or the centre(s) concerned."
As a general point, the FOI Act does not provide for a blanket refusal by the Department of requests for access to records concerning the values of contracts with identifiable individuals or companies within the previous two years. Section 11(1) of the FOI Act provides that "Subject to this Act, every person has a right to and shall, on request therefor, be offered access to any record held by an FOI body and the right so conferred is referred to in this Act as the right of access."
In this instance, the Department has not furnished this Office with any record that could or might relate to the applicant's request, and it is not clear from its submission or from its letter of 25 January 2017 whether any such record exists. In its submission to this Office, the Department stated that its policy was devised after a long examination undertaken by this of a previous decision taken by the RIA and that the policy was based on the compromise that was reached in the earlier case.
The fact that a particular requester may have been agreeable to settling for the release of a certain amount of information does not mean that the Department can use the settlement reached as a ground for arguing that no additional information must be released. A decision to refuse access to records must be grounded in the specific provisions of the FOI Act. In considering those provisions, the FOI body must have regard to the requirement to consider the public interest balancing test, where relevant. While the Department cited various exemption provisions in this case, it does not appear to have carried out a proper consideration of the request, which it summarily refused as a matter of policy. I believe, therefore, that the most appropriate approach is to annul the Department's decision on this part of the request and to direct it to carry out a fresh decision making process in respect of this part.
Having carried out a review under section 22(2) of the Act, I hereby vary the decision of the Department as follows:
I direct the release of record 18 and records 30 to 36 subject to the following redactions:
Record 18:
Record 30:
Record 31:
Record 32:
Record 33:
Record 34:
Record 35:
Record 36:
I direct the release of records 4 to 22 subject to the following redactions:
Record 4:
Records 5 to 7:
Record 8:
Record 9:
Record 10:
Record 11
Record 13:
Record 14:
Record 15:
Record 16:
the paragraph commencing "In the absence of such ..." that is contained in the attachment entitled "IRPP security assessment arrangements with AGS v2.doc"
Record 17:
Record 18:
Record 19:
Record 20:
Record 21:
Record 22:
I direct the Department to carry out a fresh decision making process in respect of the applicant's request for an up to date record of the cost of each of the EROCs within the IRPP.
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