Irish Airline Pilots Association and Department of Transport, Tourism and Sport

• Judge: Elizabeth Dolan Senior Investigator
• Judgment Date: 07 February 2017
• Case Outcome: The Senior Investigator annulled the Department's decision and directed the release of the records. She found that the Department had not justified its refusal of the request under sections 30(1), 35(1) or otherwise
• Court: Information Commission
• Record Number: 160331
• Respondent: Department of Transport, Tourism and Sport

Case Number: 160331

Whether the Department's refusal of access to records relating to a report of a statutory examination of the Irish Aviation Authority is justified under sections 30(1) and 35(1) of the FOI Act

Conducted in accordance with section 22(2) of the FOI Act by Elizabeth Dolan, the Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 26 April 2016 the applicant made an FOI request on behalf of the Irish Air Line Pilots' Association (IALPA) to the Department for the report(s) relating to a recent examination of the Irish Aviation Authority (IAA) under section 32 of the Irish Aviation Authority Act 1993 (the 1993 IAA Act). By letter dated 1 June 2016, the Department refused access to the records, on the basis that they were exempt from release under sections 30(1)(a) and 35(1)(a) of the FOI Act. On 16 June 2016, the applicant applied for an internal review. By letter dated 13 July 2016, the Department issued its internal review decision, in which it affirmed the original decision under s30(1)(a) and s35(1)(a). The applicant applied to this Office for a review of the Department's decision on 10 August 2016.

In conducting this review I have had regard to the Department's decision; the Department's communications with the applicant and with this Office; the applicant's communications with the Department and with this Office; the submissions of the Department, the applicant, the consultants who prepared the report, and the IAA; the content of the withheld records, provided to this Office by the Department for the purposes of this review and to the provisions of the FOI Act.

Scope of the Review

The question for this review is whether the Department is justified under sections 30(1)(a) and 35(1)(a) of the FOI Act in withholding access to record 1 (a report of a statutory examination of the IAA prepared by consultants) and record 2 (a letter from the consultants to the Department advising on future such examinations, which the Department deemed to come within the records requested).

I should mention that in correspondence with this Office, the Department provided an annotated version of record 1 which distinguished between information marked "factual" and information marked "refuse". However, it did not propose to release any of the information and therefore the scope of my review covers all of records 1 and 2.

Preliminary Matters

Before I consider the exemptions claimed, I wish to make the following points.

First, it is important to note that section 22(12)(b) of the FOI Act provides that when I review a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore in this case, the onus is on the Department to satisfy me that its decision is justified.
Secondly, my jurisdiction under section 22 of the FOI Act is to make a new decision, in light of the facts and circumstances as they apply on the date of the review. This approach was endorsed by the High Court judgment of Mr Justice Ó Caoimh in the case of Minister for Education and Science v Information Commissioner[2001] IEHC 116. In The National Maternity Hospital and The Information Commissioner[2007] 3 IR 643, [2007] IEHC 113, the High Court (Quirke J) explained:

"The Commissioner was entitled to consider all of the material before her on the date on which she made her decision and to make her decision having regard to the circumstances which existed on [the date of her decision]".

Finally, subject to the other provisions of the FOI Act, section 13(4) of the FOI Act requires FOI bodies and this Office to disregard an applicant's reasons for an FOI request.

Analysis and Findings

During the review, this Office obtained submissions from both the IAA and the consultants engaged by the Department to carry out the report, in addition to submissions from the applicant and the Department. I will refer to these submissions below.

Section 41 - Enactments relating to non-disclosure of records

Section 41(1)(a) of the FOI Act provides for the mandatory refusal of access to records where disclosing them is prohibited by EU law or any enactment (other than certain enactments named in schedules to the FOI Act). The Department does not expressly claim section 41. Nonetheless, having regard to the substance of its submissions and those of the IAA, I believe that it is necessary to consider the applicability of this provision.

During the review, the Department made submissions in which it referred to section 35 of the 1993 IAA Act. The Department says that should any member of the IAA voluntarily or otherwise provide confidential information to a body such as the consultants who prepared the report and the report is published, it is considered that those individuals are in breach of section 35. If the Department is claiming that disclosing the records is prohibited by the 1993 IAA Act for the purposes of section 41(1)(a), I note that Schedule 3 to the FOI Act expressly excludes section 35 of the 1993 IAA Act from the application of section 41 of the FOI Act. Accordingly, I will take this submission into account only insofar as it may relate to the Department's argument on confidentiality under section 35 of the FOI Act, which I deal with below.

The Department also said that "a breach of confidentiality through publication could most certainly be considered as an infringement of EU regulations". It referred to Articles 4 and 5 of Regulation (EU) No 376/2014 on the reporting, analysis and follow-up of occurrences in civil aviation etc. (EU Regulation). The EU regulation requires EU member states to establish procedures for mandatory and voluntary reporting of occurrences relating to aviation safety. The IAA also referred to the EU Regulation in its submissions. The applicant submits that the section 32 examination of the IAA does not fall within the scope of the EU Regulation.

When questioned by this Office, both the Department and the IAA agreed that the 1993 IAA Act was a separate legal régime to the EU Regulation. In that regard, I would note that although the Department alludes to "overlaps" between the requirements under the 1993 Act and the EU Regulation, it does not demonstrate how disclosing the records would be prohibited by the requirements of the EU Regulation itself. Indeed, the Department states that it is not its position that the section 32 report was a report under the EU Regulation. All of the parties' submissions and the content of the records make clear that the report was prepared pursuant to section 32 of the 1993 Act, rather than EU law. The Department has not pointed me to any other prohibition in any enactment which would engage the section 41 exemption.

Having regard to the above, to the extent that the Department purports to argue that disclosing the records would breach domestic or EU law for the purposes of section 41, I take the view that it has not discharged the burden of proof under section 22(12)(b) in this respect. I find that the Department is not justified in refusing access to the records under section 41 of the FOI Act.

Section 30(1)(a) - Functions and negotiations of FOI bodies

The Department invokes this exemption in respect of both records under review.

Section 30 of the FOI Act provides, among other things, that:

"(1) A head may refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, reasonably be expected to -

(a) 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,

...

(2) Subsection (1) shall not apply in relation to a case in which in the opinion of the head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the FOI request concerned."

When a public body relies on section 30(1)(a), it should first identify the potential harm to the relevant function specified in paragraph (a) which might arise from disclosure and secondly consider the reasonableness of the expectation that the harm will occur. The FOI body must show that there are adequate grounds for its expectation. It should identify the potential harm or prejudice to the relevant test, examination etc and show how releasing the record could reasonably be expected to prejudice the effectiveness of tests or examinations etc. It should then go on to consider the public interest test under section 30(2).

Submissions

The Department submits that the statutory examination process involved confidential interviews with individual stakeholders, who might be reluctant to furnish similar information if the information is released. It says that given the small size of the civil aviation industry in Ireland, the source of many comments in the report would be obvious to people in the industry. It submits that such reports rely on access to information supplied voluntarily on a confidential basis. In relation to the public interest, the Department submits that the process is tasked with ensuring that Ireland has a safe and reliable civil aviation system and the public interest would not be served by any diminution in the quality...