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Whether the Department's decision to refuse the applicant's request for access to records concerning the irishgenealogy.ie web portal was justified under sections 19, 20, 27 and 28 of the FOI Act

Conducted in accordance with section 34(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 17 July 2014, the applicant made a request to the Department for access to records relating to the decision to allow access to General Register Office (GRO) information via the irishgenealogy.ie web portal. The Department identified a significant number of records. On 16 September 2014, it advised the applicant that it had agreed to release some records to her, but that access to the majority of the records identified was being refused. On 17 September 2014, the applicant sought an internal review of the Department's decision. On 21 October 2014, the Department advised the applicant that it had decided to uphold its original decision in full. On 14 November 2014, the applicant sought 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 relevant records, to the correspondence between the applicant and the Department, to the correspondence between the applicant and this Office, to the correspondence between the Department and this Office, to the correspondence between certain relevant third parties and this Office, and to the provisions of the FOI Act.

In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997-2003 notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

The Records

The applicant has sought access to the following records:

1. All records concerning the decision to allow access to GRO data via the irishgenealogy.ie portal, including, but not limited to, any correspondence with the GRO.
2. All correspondence to and from third parties regarding the use of and access to GRO data.
3. Records relating to the development and cost of development of the irishgenealogy.ie portal.
4. Briefing notes for former Minister Jimmy Deenihan/his staff/advisers/and junior Ministers related to the launch of the irishgenealogy.ie portal.
5. Records related to any third parties given access to, or seeking access to data available on the irishgenealogy.ie portal, including GRO data.

The Department grouped the records identified into five schedules. I will adopt the Department's classification system for the purposes of this decision. The Department's decision in respect of each of the records is set out in the second and third columns of the Appendix to this decision.

Scope of the Review

The scope of this review is concerned with whether the Department was justified in refusing to fully release those records to which access has not been granted.

Findings

It should be noted that a review under section 34 of the FOI Act is de novo. This means that it is based on the circumstances and the law as they pertain at the time of the review by this Office. Furthermore, the courts have taken the view that, under FOI, records are released without any restriction as to how they may be used and, thus, FOI release is regarded, in effect, as release to the world at large.

Additionally, while I am required by section 34(10) of the FOI Act to give reasons for decisions, this is subject to the requirement of section 43 that I take all reasonable precautions to prevent disclosure of information contained in an exempt record. This means that the description that I can give of the record at issue is limited. Furthermore, section 34(12)(b) of the FOI Act places the onus of proof on the Department to demonstrate that its decision to refuse to grant the request for access to records was justified.

The circumstances surrounding the original request are a matter of public knowledge and are relevant for the purposes of this decision. The Department, in conjunction with other public bodies, previously decided to place civil records data online, via the irishgenealogy.ie website, in order to assist people who were attempting to discover information about their ancestry. However, following concerns raised by the Office of the Data Protection Commissioner (DPC) regarding the potential for identity theft, the civil records were removed from the website in July 2014.

I will deal with the records on the basis of the different schedules set out in the Department's response to the request.

Schedule 1

There are two exemptions at issue in regards to the records in this this schedule - section 19 and section 20.

Section 19

This is a mandatory exemption, which provides that certain records relating to meetings of the government are exempt from release under FOI. There is no public interest balancing test; neither is section 19 a harm-based exemption. Record 1 is a government decision which the Department claims is exempt under section 19(1)(b) (except for paragraph (1)(i) which it accepts has been discussed publicly and is willing to release). I agree with the Department that the record is exempt on the basis claimed (save for paragraph (1)(i)), in that it is, on the face of it, a record of the government other than a record by which a decision of the government is published is published to the general public by or on behalf of the government. Record 2 is a memorandum for government that has been submitted by the Minister for Arts, Heritage and the Gaeltacht and was created for that purpose, and I am satisfied that it is exempt under section 19(1)(a).

Record 26 contains observations provided to, and received from, the Minister for Arts, Heritage and the Gaeltacht, primarily for use by him for the purpose of the transaction of business of the government at a meeting of the government, and I consider it exempt under section 19(1)(c). Record 27 is a memorandum for government which I find is exempt pursuant to section 19(1)(a), as it was submitted to the government for its consideration by the Minister of Social Protection and was created for that purpose. Record 30 contains a memorandum for government, and observations/ advice to the Minister for Arts, Heritage and the Gaeltacht primarily for use by him at a government meeting, and therefore I consider it exempt under both section 19(1)(a) and section 19(1)(c).

In respect of all of these records, I find that the exceptions within subsection (3) do not apply. Therefore, I am satisfied that the Department was entitled to refuse access to the records (save for paragraph (1)(i) of record 1, the release of which I now direct, if it has not already been done).

Section 20

The majority of records which have not been released in Schedule 1 have been withheld under this exemption. This is a discretionary exemption which seeks to protect the deliberative processes of public bodies. The record must contain matter relating to the deliberative process, and the exemption does not apply where the public interest would, on balance, be better served by granting rather than refusing the request. A deliberative process involves the consideration of various matters with a view to making a decision on a particular issue. A deliberative process may 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.

The Department advised that the Indexes to Civil Records held by the General Register Office were launched on the irishgenealogy.ie website on 3 July 2014. It stated that it was contacted by the DPC on 18 July 2014 expressing concerns about the availability of personal data in relation to living persons on the website. The material was removed from the website, pending further consultations and consideration.

In its submissions to this Office of 2 March 2015, the Department stated that it was at that time engaged in a "two stage" deliberative process: "The Department is awaiting a decision from the Minister in relation to placing the historical indexes on line. In addition, the Department is in the process of considering the options in relation to the presentation of further index information online...Once the Department has formalised its views on the presentation of further historical data, it will then present its ideas to the Office of the Data Protection Commissioner."

On 29 May 2015, the Department confirmed to Simon Noone, Investigator, that the first stage of the deliberative process had been concluded, and that the historic indexes to civil records had been relaunched on irishgenealogy.ie. It stated that the second stage of the process was ongoing.

Therefore, I believe it can be said that the Department's deliberative process concerns the restoration of the civil records indexes to the irishgenealogy.ie website, following its receipt of notification of the DPC's concerns regarding some of the information available on 18 July 2014. Consequently, it seems to me that the deliberative process commenced on 18 July 2014; before this date, the matters that subsequently were under consideration, were not within the contemplation of the Department. While the Department was undoubtedly involved in deliberations prior to the launch of the web portal on 3 July 2014, these deliberations appear to me to have been, by necessity, of a wholly different nature to those that commenced after the Department was made aware of the concerns regarding data protection.

However, those records under Schedule 1, to which the Department has refused access on the basis of the section 20 exemption, were created prior to 18 July 2014, i.e. before the deliberative process commenced. Therefore, I am satisfied that these records do not "relate" to the deliberative process which the Department has sought to rely upon, and should be released. As I am satisfied that as the records do not relate to the relevant deliberative process, the question of the whether the public interest favours release does not arise.

The records to be released on this basis are as follows:

Records: 3 - 25, 28, 29, 31 - 33

Schedule 2

This schedule contains 21 records that have been refused on the grounds of the section 20 exemption. However, unlike the Schedule 1 records, the records in this instance were created subsequent to 18 July 2014, and therefore I consider that they can potentially come within the deliberative process relied upon by the Department. The Department has submitted that these records form part of its "thinking process", and it has advised this Office that the second stage of its "two stage" deliberative process remains ongoing. In considering the public interest, the Department argued that the factors favouring release include the public's right to have access to information, the accountability and scrutiny of the decision making process and the principles of openness and transparency, including the release of information to allow for a more informed public debate. The Department argued that the factors against release include the unnecessary intrusion at this point in time into the ongoing deliberative and decision making process, and possible interference with the Minister's policy-making function.

Having considered the records in question, I am prepared to accept that they do relate to the deliberative process claimed by the Department, the second stage of which is ongoing (see discussion regarding Schedule 1 records above). Therefore, I must consider whether the public interest would, on balance, be better served by granting rather than refusing the request. In this respect, I note that a number of the records contain communications that appear to me to contain little more than information concerning actions taken as a result of the DPC's invention which is already in the public domain. I do not believe that their release would negatively impact on the Department's deliberative process, and I am satisfied that, on balance, the public interest in openness and transparency outweighs the public interest in protecting the relevant deliberative process. Consequently, I find that these records should be released.

The records within Schedule 2 that should be released are as follows:

Records 1 - 7, 11 - 13, 15, 17 and 21

On the other hand, I consider that the remaining records concern sensitive aspects of the deliberative process, including exploration of and consultation on options and solutions, that are ongoing and are not in the public domain. The fact that a deliberative process exists and is ongoing does not mean that the exemption automatically applies without consideration of all the provisions of section 20, and the Commissioner does not accept that the purpose of the exemption is to protect the deliberative process until its completion.. Having said that, in respect of these records, in my view the public interest, on balance, favours protection of the Department's deliberative process at this time, as release of the records now could negatively impact on that process. When that process has been concluded, the public interest considerations may well change.

Therefore, I consider that the following records should not be released:

Records 8 - 10, 14, 16, 18 - 20

Schedule 3

The majority of records listed under this schedule have already been released by the Department. Access to four of the records (Nos. 6, 7, 28 and 31) was refused on the grounds of section 20. However, I find that, given these records were created prior to 18 July 2014, they should be released, for the same reasoning as set out above in respect of the Schedule 1 records. It should be noted that records 7, 28 and 31 concern communications, including reports, from a third party. Mr. Noone invited the third party to make submissions on whether it objected to the release of the reports. It confirmed that the reports were the property of the Department, and it did not have a view on whether they should be released or not. Furthermore, I consider that the exception to section 20(1), created by section 20(2)(e), applies, as, in my opinion, the reports were created by a technical expert, relating to the subject of his expertise, and contained advice from him, and these reports were not used or commissioned for the purposes of a decision of the Department made pursuant to an enactment or scheme. Consequently, as the only exemption claimed by the Department is section 20, and I am satisfied that it should not apply in this instance, I find that records 6, 7, 28 and 31 should be released.

The remaining records under this schedule that have not been released are nos. 52 - 56. These are internal Department documents concerning the payment of invoices received from third party suppliers. The Department refused to release these records on the basis that they contained personal information such that they were exempt under section 28. I am satisfied that this exemption is not applicable. Section 2 states that "personal information" does not include "in a case where the individual is or was providing a service for a public body under a contract for services with the body, the name of the individual or information relating to the service or the terms of the contract or anything written or recorded in any form by the individual in the course of and for the purposes of the provision of the service." I consider that the third parties in this instance were providing a service to the Department under a contract for services. Having examined the records in question, I am satisfied that they do not contain personal information in respect of any of the third parties.

However, section 27 of the FOI Act protects commercially sensitive information. Therefore, Mr. Noone wrote to the third parties concerned and invited them to make submissions on whether they believed the records should be withheld. Two of the relevant third parties responded that they did not object to the release of the relevant records. The remaining two third parties did not respond within the requested time period.

Section 27(2)(a) provides that a record, that might otherwise be exempt on the grounds of commercial sensitivity, should be released if the person to whom the record relates consents. Therefore, I am satisfied that record 53 and 55 should be released, as the relevant parties have consented. I am further of the view that the remaining records (52, 54 and 56) should also be released. I do not consider that they contain information such as is protected by paragraphs (a), (b) or (c) of section 27(1). Even if the information could be considered to be commercially sensitive, I am of the view that there is a strong public interest in ensuring maximum openness in the expenditure of public funds, and therefore I am satisfied that the public interest would favour the release of the records. This is in accordance with previous decisions of the Commissioner in relation to successful tender agreements; see e.g. Case Nos. 98049, 98056 & 98057 (Henry Ford and Sons Ltd and Office of Public Works, at www.oic.ie).

Schedule 4

All four records listed under this schedule have already been released by the Department.

Schedule 5

Schedule 5 contains a number of records concerning correspondence between the Department and a third party company regarding a proposal from that company to link certain church records with its own genealogical project. The Department refused access to these records on the basis of section 20 and section 27.

I will firstly address the section 27 exemption, which appears to me to be the stronger of the two invoked. This is a mandatory exemption that protects commercially sensitive information. Section 27 (1) provides that

"Subject to subsection (2), a head shall refuse to grant a request under section 7 if the record concerned contains --
(a) trade secrets of a person other than the requester concerned,
(b) financial, commercial, scientific or technical or other information whose disclosure 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 that person in the conduct of his or her profession or business or otherwise in his or her occupation, or
(c) information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates."

Subsection (2) contains a number of exceptions to the exemption. Subsection (3) contains a public interest balancing test.

In its submissions to this Office, the Department has claimed that section 27(1)(b) applies to the records, as they contain commercial and technical information which could prejudice the competitive position of the company if released. In accordance with section 34(6) of the Act, Mr Noone of this Office wrote to the third party and invited it to make submissions on whether it believed that the records contained commercially sensitive information. In its reply, it claimed that paragraphs (a), (b) and (c) of subsection (1) applied, and that consequently the records should not be released. The company stressed that the arrangement being considered by the Department never actually took place. This has been confirmed by the Department when it advised this Office in May 2015 that it had decided not to proceed with the particular project.

I will consider the exemption firstly on the basis of subsection (1)(b), as this is the exemption that has been relied upon by the Department. In Henry Ford & Sons Ltd, Nissan Ireland and Motor Distributors Ltd and The Office of Public Works (Cases 98049, 98056, 98057), the Commissioner held that:-

"[T]he essence of the test in section 27(1)(b) is not the nature of the information but the nature of the harm which might be occasioned by its release. The subsection protects information whose disclosure might 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 that person in the conduct of his or her profession or business or otherwise in his or her occupation."

The standard of proof in relation to section 27(1)(b) is not a particularly onerous one. All that is required is that the Department (or the company) demonstrates the possibility of prejudice to the competitive position of the company in the conduct of its profession or business. The Department has submitted that "the records contain detailed information of how the websearch project would operate or the success rate of other websearch projects...the Department considers that the release of this information would affect the company's competitive position vis a vis other genealogy companies in this area."

In my opinion, some of the records within Schedule 5 contain commercially sensitive information, and I am satisfied that the Department has demonstrated that a potential prejudice to the position of the third party could accrue if these records were released. I am satisfied that none of the exceptions set out in subsection (2) are applicable. Therefore, I must consider whether the public interest would, on balance, be better served by granting rather than refusing to grant the request for access.

In its submissions, the Department has stated that "there is a public interest in openness, transparency and accountability of public bodies...there is a legitimate public interest in persons being able to conduct commercial transactions with public bodies without fear of suffering commercially as a result..." In its submissions to this Office, the third party has set out in further detail the information contained within the records that it believes to be commercially sensitive, and the prejudice that would result from its disclosure. Having considered the matter, and in particular having considered the nature of the information contained in the records, I am of the view that release of this information could tend to discourage other private companies from dealing with the public sector. I do not believe that this would be in the public interest. Of particular importance in this instance is that there was no expenditure of public funds, and that therefore the recognised public interest in maximum openness in such matters is not applicable. I am satisfied that the public interest would be better served in this instance by refusing access to the records.

However, I am also satisfied that some other Schedule 5 records do not contain commercially sensitive information (whether as defined in subsection (1)(a), (1)(b) or (1)(c)) and therefore these should be released. In my opinion, these records do little more that reveal relatively routine communications, including acknowledgements, that passed between the Department and the third party, and they do not contain any of the type of material that the third party has submitted is commercially sensitive. Consequently, I am satisfied that these records do not come within the section 27 exemption, and should be released.

Turning now to the section 20 exemption, I am satisfied that the records relate to a deliberative process of the Department (section 20(1)). I am further satisfied that the exceptions set out by subsection (2) do not apply. Therefore, I must consider the public interest balancing test set out in subsection (3). The Department has not raised any specific public interest arguments in respect of these records. However, I note that on 29 May 2015, the Department advised this Office that it had decided not to proceed with the project. Consequently, it appears to me that the deliberative process in which the Department was engaged has been completed. The Commissioner has previously found that once a decision to proceed or not to proceed with a proposed action is taken, the need to withhold the release of the related information weakens; e.g. Case 98078 (Wall and Department of Health, at www.oic.ie). No argument has been made in this instance that the public interest should favour withholding the records, in circumstances where the deliberative process has concluded. In my opinion, therefore, in this instance the public interest lies in favour of the release of the records, in respect of this exemption.

In conclusion, I find that neither section 20 nor section 27 apply to the following records within Schedule 5, and these should be released:

Records 4, 9 - 13

I find that section 27(1)(b) applies to the following records, and that the public interest would on balance be better served by refusing access to them:

Records 1, 2, 3, 3a, 3b, 5 - 8

Conclusion

Having considered all of the records in respect of which the request was refused by the Department, I am satisfied that the Department's decision should be varied, and that further records should be released. For the purposes of clarity, I have set out my decision in respect of each of the records in the fourth and fifth columns of the Appendix to this decision.

Decision

Having carried out a review under section 34(2) of the Act, I hereby vary the decision of the Department. I direct release of some of the records outstanding, and I affirm the refusal to release other records.

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks after notice of the decision was given to the person bringing the appeal.

Elizabeth Dolan
Senior Investigator