Elaine Edwards of The Irish Times and the Department of Arts, Heritage and the Gaeltacht

CourtInformation Commission
JudgeElizabeth Dolan Senior Investigator
Judgment Date22 September 2015
Case OutcomeThe Senior Investigator found that the Department?s decision was justified in respect of some of the records, including memoranda for Government and records invoking the deliberative process, but that it was not justified in refusing to release others. She varied the Department?s decision and directed the release of certain records to the applicant.
Record Number140319
RespondentDepartment of Arts, Heritage and the Gaeltacht
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

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.


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...

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