Whether the Department was justified in refusing access to certain records relating to the applicant and her late son under sections 15(1)(a), 31(1)(a), 37(1) and 42(j) of the FOI Act

16 November 2022

Background

As the circumstances surrounding this case are extremely traumatic for the applicant and her family, I will not set them out in this decision in order to avoid the inadvertent disclosure of their identity and to protect the family-�s privacy rights. For the same reasons, I am not setting out the applicant-�s FOI request of 20 September 2019 in any detail other than to say that it was for access to various records dating from 1 June 2015 relating to herself and her late son.

This case follows on from a previous review (OIC-60891). In our decision in that case, we directed the Department to make a fresh decision on electronic records covered by the applicant-�s request. This review concerns the Department-�s subsequent decision.

In its fresh decision dated 29 January 2021, the Department set out details of the searches it had undertaken to locate relevant electronic records. It noted that it had released five boxes of records to the applicant on 17 September 2020. It refused access to a number of records under sections 28, 29, 31, 37, and 42 of the Act. It also refused access, under section 15(1)(i) of the Act, to those records that it released to the applicant on 17 September 2020 on the basis that the records had already been released. On 29 January 2021, the applicant sought an internal review of the Department-�s decision in relation to all records it refused, in-part or in-full. On 25 February 2021, the Department affirmed its decision on the request.

On 11 March 2021, the applicant applied to this Office for a review of the Department-�s decision, noting that many thousands of electronic records had been refused or redacted. Regrettably, I had to discontinue our review of the case because of the substantial impact a review of that magnitude would have on our resources. Subsequently, following a number of engagements with the applicant, we agreed to accept a revised application for review from the applicant, wherein she significantly reduced the number of records she wished us to review, namely those set out in Tabs 1 to 18 of her letter dated 24 November 2021. In addition to seeking access to the information redacted from these records, the applicant believes a number of further records ought to exist based on the content of the records released to her by the Department.

During the course of this review, the Department released a number of further records, in-full or in-part, to the applicant. It also made submissions to this Office in support of its refusal to grant access to the remaining records and provided details of the searches undertaken in an effort to locate the additional records identified by the applicant and of its reasons for concluding that no further relevant records exist or could be found. On 26 July 2022, this Office-�s investigator wrote to the applicant with details of the Department-�s submissions and invited the applicant to make further submissions, which she duly did on 8 August 2022. On 4 October 2022, the applicant made further submissions to this Office in response to a request from the investigator to clarify outstanding matters on her case.

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 correspondence referred to above, including the submissions made by both parties. I have also had regard to the contents of the records at issue. I have decided to conclude this review by way of a formal, binding decision. In referring to the records at issue in this case, I have adopted the Tab numbering system used by the applicant in her application to this Office.

Scope of Review

As noted above, during the course of this review the Department released a number of records, or parts thereof, to the applicant, including records relating to Tabs 2, 3, 4, 5, 7, 8, 12, 13, 14, 15,16, 17 and 18. In relation to Tab 13, the Department continued to withhold a number of attachments to the emails it released during the review.

While the Department redacted a small amount of personal information from the records it released to the applicant during the review, the applicant indicated that she was not seeking a review of those redactions. The applicant queried why she did not receive the information released by the Department sooner. In its submissions to this Office the Department said that due to the time which has passed since the receipt of the applicant-�s FOI request in 2019, it was now in a position to release certain information/records to which access had been refused. The Department maintains that its initial decision to refuse to release the information was correct at the time. While I note the applicant-�s disappointment that she did not get the information sooner, I consider that the matter of access to the information released during this review is settled.

In her application to this Office, the applicant sought a review of redactions to emails contained in Tabs 4 and 11 which were made by the Department on the basis that the information fell outside the scope of the applicant-�s request. As the Investigator explained in his letter of 26 July 2022, the Department also claimed that Record 13.18 of Tab 13 fell outside the scope of the request. Having examined the records, I am satisfied that the redactions in Tabs 4 and 11 and the entirety of record 13.18 fall outside the scope of the applicant-�s request. In her submissions to this Office, the applicant argued for the release of the redacted information in Tab 11 in the public interest. However, as I have found the information to fall outside the scope of the request, we have no role in considering the matter of access to this information or the public interest arguments for releasing the relevant information. It is open to the applicant to make a new FOI request for the full content of the record, if she wishes.   

In addition to seeking the information redacted by the Department in the records at issue in this case, the applicant argued that further relevant records should exist, arising from her queries around the content of Tabs 2, 5 and 7. The Department-�s position is that no further relevant records exist or can be found. This is, in essence, a refusal to grant access to further records under section 15(1)(a) of the Act, which provides for the refusal of a request where the records sought do not exist or cannot be found.

Accordingly, this review is concerned with whether the Department was justified in its decision to refuse access, under section 15(1)(a) of the Act, to additional records sought by the applicant in her application for review. The review is also concerned with whether the Department was justified in refusing access, under sections 31, 37 and 42 of the FOI Act, to the remaining information at issue as set out in Tabs 1, 6, 9, 10 and 13 of the application for review to this Office.

Preliminary Matters

Before I address the substantive issues arising, I would like to make a number of preliminary comments. First, while I can fully understand the applicant-�s desire to access the records at issue in full, section 13(4) of the FOI Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall generally be disregarded. This means that I cannot have regard to the applicant's motives for seeking access to the information in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest, which I will deal with below.

Secondly, it is important to note that while I am required by section 22(10) of the FOI Act to give reasons for my decisions, this is subject to the requirement of section 25(3) that I take all reasonable precautions to prevent the disclosure of information contained in an exempt record during the course of a review. For this reason, the description I can give of the records at issue and of the reasons for my decision is somewhat limited.

Lastly, it is important to note that release of records under the FOI Act is regarded, in effect, as release to the world at large given that the Act places no restrictions on the uses to which records released under FOI may be put.

Analysis and Findings

Records to which the FOI Act does not apply - section 42(j)

Section 42(j)

Tab 13 comprises a number of emails with attachments that relate to records prepared by the Department for use by the Taoiseach, Tánaiste or Minister for Justice in the Dáil. In supplying a copy of these records to this Office for the purpose of this review, the Department numbered these records from 13.1 to 13.20. While the Department released a number of the records at issue in Tab 13 to the applicant during this review, it refused access to records 13.3, 13.5, 13.7, 13.9, 13.15, 13.17 and 13.20 under sections 29, 31 and 42 of the Act.

Record 13.15 is a draft statement prepared for the Minister for Justice for use in proceedings in the Dáil. The remaining records consist of briefing notes on topics which may be raised in the Dáil during Leaders Questions. As I consider section 42(j) to be most relevant, I will consider that provision first.

Section 42(j) provides that the FOI Act does not apply to a record given by an FOI body to a member of the Government or a Minister of State for use by him or her for the purposes of any proceedings in either House of the Oireachtas or any committee of either or both of such Houses or any subcommittee of such a committee. Proceedings include such proceedings in relation to questions put by members of either House of the Oireachtas to members of the Government or Ministers of State (whether answered orally or in writing).

In its submissions to this Office, the Department said that records 13.3, 13.5, 13.7, 13.9, 13.17 and 13.20 are Leader-�s Questions Briefing Notes, prepared for An Taoiseach and the Tánaiste. The Department said that these briefing notes are supplied in certain instances to another Minister, for the purpose of proceedings in the Dáil in a situation where they are, on behalf of the Taoiseach or Tánaiste, answering questions put by Opposition Leaders. As noted above, record 13.15 is a draft statement prepared for the Minister for use in proceedings in the Dáil. The Department provided this Office with a hyperlink to the subsequent speech the Minister made in the Dáil. This hyperlink was provided to the applicant by the investigator in his letter on 26 July 2022.

I am satisfied that these records were given by the Department to a member of the Government for use for "the purposes of any proceedings" in the Dáil. I find that section 42(j) applies, the effect of which is that the Act does not apply to those records. As such, I do not need to consider the applicability of sections 29 and 31 to the records. 

Personal Information - section 37

Section 37(1)

Due to the nature of the records held by the Department concerning the applicant and her son, the records at issue also contain personal information related to other individuals. While the applicant said that she does not want any personal information about third parties, it is evident from her submissions that she is seeking certain third party personal information contained in the records at issue. The Department refused access to parts of the records at Tabs 1, 6, 9 and 10 on the basis that the relevant information contained in these records is exempt under section 37(1) the FOI Act.

Section 37(1) of the FOI Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information. 

Section 2 of the FOI Act defines the term -�personal information-� as 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, of the individual or (b) is held by an FOI body on the understanding that it would be treated by it as confidential. The Act details fourteen specific categories of information that is personal, without prejudice to the generality of the foregoing definition. As I have noted above, I am constrained by the provisions of section 25(3) in terms of the level of detail I can give when describing the information at issue in this case. Having examined the records, I am satisfied that the release of the withheld information would involve the disclosure of personal information relating to individuals other than the applicant. While it may be the case that some of the withheld information is generally known to the applicant, I must have regard to the fact that a record released under the FOI Act effectively amounts to disclosure to the world at large.

In the circumstances, I find that section 37(1) applies to the information withheld by the Department. However, that is not the end of the matter, as section 37(1) is subject to the other provisions of the section.

Section 37(2)

Section 37(2) sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances provided for in section 37(2) apply to the information concerned. That is to say, (a) the information contained in the records does not relate solely to the applicant or her son; (b) the third parties have not consented to the release of their information; (c) the information is not of a kind that is available to the general public; (d) the information at issue does not belong to a class of information which would or might be made available to the general public; and (e) the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.

In her submissions to this Office, the applicant requested that consent of the relevant third parties to whom the personal information relates is sought with a view to facilitating disclosure by consent. In the circumstances of this case, I am satisfied it is not appropriate to seek such consent.

Section 37(5)

Section 37(5) provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance (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 information would be to the benefit of the person to whom the information relates. While the applicant contended that the release of the records at issue would be to the benefit of the third parties concerned, she provided no evidence to suggest how that would be the case. Having regard to the content of the information at issue here, it is not apparent me how the release of their personal information would be to the benefit of those third parties. I find that section 37(5)(b) does not apply in this case.

On the matter of 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 the accountability and improve the quality of decision making of FOI bodies.

It is important to note, however, that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57, 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.

When considering the public interest, it is important to have regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner [2011] IESC 26 ("the Rotunda case"). It is noted that a true public interest should be distinguished from a private interest.

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.

In her submissions to this Office, the applicant contended that the public interest in releasing certain personal information at issue in this case tips the balance in favour of disclosure, particularly given the public interest in further enhancing accountability and transparency. The core of the applicant-�s argument is that there were systemic failures in the Irish criminal justice system in the lead up to her son-�s death which are grounds for release of the personal information at issue in this case. The applicant also referred to matters concerning her son-�s case that have been discussed before the Oireachtas. She contended that the information related to this matter is by extension in the public interest, such that section 37(5)(a) disapplies section 37(1).

While I am sympathetic of the applicant-�s desire to get any and all information relating to the issues surrounding her son-�s death, I must have regard to the protection of personal information afforded by the FOI Act. While I understand that the applicant will be disappointed with my decision, it seems to me that the Department endeavoured to strike a balance between making as much information as possible available to the applicant from the records at issue in this case while seeking to protect the privacy rights of the relevant third parties. Having carefully considered the matter, I have not been able to identify any sufficiently specific, cogent and fact-based reason for finding that the public interest that the information contained in records at issue here should be granted outweighs the right to privacy of the individuals to whom the information relates. Accordingly, I find that the section 37(5)(a) does not apply.

Legal Professional Privilege -� section 31(1)(a)

Tab 10 contains two records, an email dated 19 January 2018 and an Information Note for the Tánaiste about correspondence from the applicant. The majority of the redacted information in Tab 10 was refused by the Department under section 37(1) as it contains personal information of third parties, which I have dealt with above. The Department also refused a small amount of information in the -�Background-� section of the Information Note for the Tánaiste under sections 29(1), 30(1)(a), 31(1)(a) of the Act. As I consider section 31(1)(a) of most relevance, I will consider it in the first instance.   

Section 31(1)(a) of the FOI Act provides for the mandatory refusal of a request where the record sought would be exempt from production in proceedings in a court on the ground of legal professional privilege (LPP). It does not require the consideration of the public interest. LPP enables the client to maintain the confidentiality of two types of communication:

• confidential communications made between the client and a professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege), and
• confidential communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation (litigation privilege).

Advice privilege attaches to confidential communications made between the client and his/her professional legal adviser in a situation where the legal adviser is acting in a professional capacity. In our decision in the applicant-�s previous related case (OIC-60891), we explained that legal advice privilege applies to confidential communications made between the Department and the Attorney General-�s Office (AGO) for the purpose of obtaining legal advice. In that decision, we also accepted that records summarising legal advice sought and received from the AGO attract advice privilege. The redacted information at issue here contains a summary of legal advice received from the AGO. I find that section 31(1)(a) applies to this information. As I have found that section 31(1)(a) applies, I do not need to consider the other exemptions relied upon by the Department in refusing access to this information.

Access to further records -� section 15(1)(a)

The applicant identified a number of additional records which she believes ought to exist. The Department-�s position is that it has undertaken all reasonable steps to locate all relevant records coming within the scope of the applicant-�s request. This is, in essence, a refusal under section 15(1)(a) of the Act to grant access to any further relevant records, on the ground that no further relevant records exist or can be found.

Section 15(1)(a) of the Act provides that a request for access to a record may be refused if the record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. In such cases, the Commissioner's role is to review the decision of the public body and to decide whether the decision that no further records exist is justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision. The evidence in "search" cases consists of the steps actually taken to search for records along with miscellaneous other evidence about the record management practices of the public body on the basis of which the public body concluded that the steps taken to search for records was reasonable.

As I have outlined above, the Department provided this Office with details of searches it undertook in an effort to locate the additional records sought by the applicant and of its reasons for concluding that no further records exist or can be found. While I do not propose to repeat those details in full here, I confirm that I have had regard to them for the purpose of this review.

Tab 2

Referring to the record at Tab 2 of her application to this Office, the applicant noted that a submission had been shared with two named staff. The applicant requested access to these emails.

The Department explained that when a submission is shared with a staff member through the eSubmissions portal, they will receive a notification of this by email. It explained that keyword searches for records sought by the applicant were performed using the applicant-�s name, that of her son and variations on the spelling of their names. It said the submission title does not contain any of these keywords and therefore would not have been located during searches for the records sought in the applicant-�s FOI request.

The Department said that as part of its initial decision on the request, a search was conducted for records held by the first named staff member but that no email notification of the eSubmission having been shared with him was returned as part of this search. The Department-�s FOI Unit contacted the member of staff during the course of this review and asked him if he held the record. The staff member confirmed that following a search of his emails, the record cannot be located. He suggested that due to the volume of automatically generated emails relating to eSubmissions which he received at that time, the record may have been deleted upon receipt. With regard to whether such automatically generated emails are within scope of this request more generally, the Department-�s position is that they are generally not. It said automatically generated emails which issue when eSubmissions are shared would generally provide the eSubmission number but would not necessarily contain further details.

In relation to the submission shared with the second named member of staff on 10 November 2019, the Department said that as the FOI request was made on 20 September 2019, no notification which resulted from the submission being shared with that individual would fall within scope of the request.

Tab 5

Tab 5 refers to an email which contains a request from a staff member to his colleague to discuss an eSubmission the following day. The Department said that one further record (Tab 5, record 2) which relates to the record at Tab 5 was provided to the applicant as part of its initial decision on her request. On 14 July 2022, the Department released another copy of this email thread to the applicant. The Department said that the individual who sent the email confirmed that he has no further records relating to this matter, having performed a further search of the eSubmission number, the applicant-�s name and her son-�s name. Given the Department-�s explanation and the context of the email, I consider the Department has undertaken all reasonable steps to locate any record of the follow up to this email.

Tab 7

Tab 7 contains an email dated 17 January 2018 that refers to three emails sent by a staff member who is identified solely by his first name. The applicant asked that she be given these emails if they relate to her son-�s case. The Department said that the email of 17 January 2018 is internal and administrative in nature. It said that as a result of this being correspondence between colleagues regarding work on hand, the correspondence assumed foreknowledge of that work and third parties involved in that work. Due to this, there is very little information in this correspondence which would facilitate locating the three emails referenced in the correspondence. The Department said it has attempted to establish who the individual is in this correspondence, and it has been suggested by the person who issued this email, that the individual in question may refer to a retired staff member. The Department said it carried out searches of a database based on the available information. It said it was not possible to locate the records due to the vague reference in the email at Tab 7. The Department is of the view that there is nothing to indicate that these emails would reference the applicant or her son. It said that if the records were within scope of the applicant-�s request, they would have been located during the Department-�s searches for records for this request.

In the circumstances, and having considered the details of the searches undertaken by the Department, its explanation as to why no further records could be found, and in the absence of further supporting evidence to suggest that additional relevant records should exist, I am satisfied that the Department has taken all reasonable steps in an effort to locate the additional records sought by the applicant, as outlined above. Accordingly, I find that the Department was justified in refusing access, under section 15(1)(a) of the Act, to any further relevant records on the ground that no further records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department-�s decision. I affirm the Department-�s decision to refuse, under section 42(j), the Records at Tab 13 on the basis that the FOI Act does not apply to those records. I find that the Department was justified in refusing access to the personal information contained in the records at Tabs 1, 6, 9 and 10 under section 37(1) of the Act. I also find it was justified in refusing that part of Tab 10 which contains legal advice under section 31(1)(a). Finally, I affirm the decision of the Department to refuse access, under section 15(1)(a) of the Act, to the additional records sought by the applicant, on the basis that no further relevant records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

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 not later than four weeks after notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator