Whether the Department was justified in its decision to refuse access to certain records contained on the Gmail account of the Minister under sections 28(2)(a) and 37(1) of the FOI Act

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

Background

On 22 February 2017, the Department received a request from the applicant for access to "all correspondence between the Minister and any other elected representatives, the Attorney General and her Office, and any other state employee conducted through the use of Gmail email".

The Department granted access to a number of records, refused access to two records, and granted partial access to two further records, under sections 28(2)(a), 29(1)(a), 30(1)(b) and 37(1) of the FOI Act. Following an application for an internal review, the Department affirmed its decision on 12 June 2017. On 15 June 2017, the applicant sought a review by this Office of the Department's decision. In referring to the records at issue, I have adopted the numbering system used by the Department when processing the request.

During the course of this review, the Department stated that it was prepared to release in full one of the records to which partial access had been granted. It maintained its position that record 2A was exempt under section 28(2)(a) and that record 14 and part of record 18A were exempt under section 37(1).

In conducting my review, I have had regard to the submissions of the Department and to correspondence between this Office and the applicant and the Department. The applicant was invited to make a submission but none was received in this Office. I have also had regard to the content of the records at issue.

Scope of Review

This review is concerned solely with whether the Department was justified in refusing access to record 2A, record 14 and part of record 18A under sections 28(2)(a) and 37(1) of the FOI Act.

Preliminary Matters

The Department's decision letters fell well short of the requirements of the FOI Act in this case. Section 13 of the FOI Act provides that where a body decides to refuse a request, it must notify the requester of the reasons for the refusal, the provisions of the Act under which the request has been refused and the findings on any material issues relevant to the decision and particulars of any matter relating to the public interest taken into consideration for the purposes of the decision (section 13(2) refers). The Department's decision letters did little more than cite the various exemptions upon which the decision to refuse access was based. I expect the Department to take appropriate measures to ensure that future decision letters are fully compliant with the requirements of the Act.

It is also important to note that under section 22(12)(b) of the FOI Act, a decision to refuse to grant a request shall be presumed not to have been justified unless the body satisfies the Commissioner that its decision was justified. This places the onus on the Department of satisfying this Office that its decision in respect of records 2A, 14 and 18A was justified.

Analysis and Findings

Record 2A
The Department refused access to record 2A under section 28(2) of the Act. That section provides that a head shall refuse to grant an FOI request if the record concerned-

(a) contains the whole or part of a statement made at a meeting of the Government or information that reveals, or from which may be inferred, the substance of the whole or part of such a statement, and 

(b) is not a record-” 

(i)  referred to in paragraph (a) or (c) of subsection (1), or 
(ii) by which a decision of the Government is published to the general public by or on behalf of the Government.

The section is concerned with the protection of Cabinet discussions, the confidentiality of which is provided for by Article 28.4.3 of the Constitution. For the section to apply, the FOI body must show that the record at issue contains the whole or part of a statement made at a Government meeting or contains information that reveals the substance of such a statement or from which such a statement may be inferred. 

Record 2A is entitled "Briefing Note on UK-EU Referendum. In submissions to this Office, the Department stated that the briefing note was created by the Government Secretariat and circulated to the private secretaries of all Government Ministers following a meeting of the Government. It stated that the note "was perceived to comprise information that had been stated to Ministers at the previous week's Government meeting". It subsequently stated that following consultation with the Government Secretariat, it was satisfied that the record contains part of a statement made at a Government meeting and was discussed at the previous Cabinet meeting.

The covering email accompanying record 2A that was issued by the Government Secretariat states the following:

"As discussed at last week's Government meeting, attached is a briefing note for your Minister's information on the UK-EU Referendum".

The Department has not, in my view, satisfactorily explained why it considers that Record 2A contains the whole or part of a statement made at a Government meeting or that it contains information that reveals the substance of the whole or part of such a statement or from which such a statement may be inferred. The accompanying email indicates nothing more than the fact that the memo was prepared as a briefing note for the information of the various Ministers. 

While I fully accept that the UK-EU Referendum was, in all likelihood, discussed at the Government meeting that took place prior to the circulation of the briefing note, neither the email nor the contents of the note itself suggest that the record contains the information necessary for section 28(2)(a) to apply. It is noteworthy that a redacted version of the briefing note is publicly available on the website of the Oireachtas Library and Research Service.

Having regard to the provisions of section 22(12)(b) outlined above, I am not satisfied that the Department was justified in refusing access to record 2A under section 28(2)(a).

I also note that the Department argued that should section 28(2)(a) not be regarded as applying to the record, it would be appropriate to exempt its release under sections 29 and 33 of the Act. However, as the Department presented no arguments for refusing access under either section, I do not propose to consider the applicability of the sections, given that the onus is on the Department to justify the refusal of a request.

In conclusion, therefore, I find that the Department was not justified in refusing access to Record 2A.

Records 14 and 18A
The Department refused access to Record 14 and to part of Record 18A under section 37(1). Record 14 is a hotel reservation confirmation for a third party that, according to the Department, was for a private hotel booking paid for with a personal credit card. The information redacted from Record 18A is telephone contact details of a number of named individuals. Section 37(1) provides for the mandatory refusal of a request where access would involve the disclosure of personal information relating to third parties. 

Having reviewed the records and redactions, I am satisfied that the disclosure of Record 14 and the relevant part of Record 18A would involve the disclosure of personal information relating to identifiable third parties. I find, therefore, that section 37(1) applies.

Subsection (1) is subject to other provisions of the section. In my view, only subsection (5)(a) is of relevance in this case. That subsection 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.

I must have regard to the provisions of the FOI Act, which recognises the public interest in ensuring the openness and accountability of public bodies. On the other hand, however, the language of section 37 and the Long Title to the FOI Act recognise a strong public interest in protecting the right to privacy, which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution. Accordingly, when considering section 37(5)(a), privacy rights will 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.

It is not apparent to me that the release of the information at issue would serve to enhance the accountability and transparency of the Department in any meaningful way. Given the strong protection afforded to the protection of privacy rights, I find that section 37(5)(a) does not apply in this case. I find, therefore, that the Department was justified in refusing access to Record 14 and in redacting certain information from Record 18A.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the decision of the Department in this case. While I find that it was justified in refusing access to Record 14 and in redacting Record 18A under section 37(1), I find that it was not justified in refusing access to Record 2A under section 28(2)(a). I direct the release of Record 2A.

Right of Appeal

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