Mr A and Department of Finance

CourtInformation Commission
JudgeSenior Investigator
Judgment Date28 Jun 2021
Case OutcomeThe Senior Investigator varied the Department's decision. She found that it was justified in refusing access to certain information under sections 35(1)(b) and 37(1) of the FOI Act. She annulled its decision on the remaining information and directed its release.
RespondentDepartment of Finance
Record NumberOIC-101373-T1Q3C3
Whether the Department was justified in refusing access to records relating to a previous application for review by the applicant, under sections 30(1)(a) and 35(1)(a) of the FOI Act

28 June 2021

Background

The background to this review is a previous application for review by the applicant. This Office’s decision on that review can be found at www.oic.ie, Case OIC-96537-J0R5T9.

On 8 October 2020 the applicant made an FOI request to the Department for records relating to the previous review. He sought access to the Department’s letters or emails in reply to this Office; documents relied on by the Department in making three specified assertions to this Office; and specified correspondence between the Department and a named bank (the bank). On 2 November 2020, the Department refused access to the records on the ground that they were exempt under sections 30(1)(a) and 35(1)(a) of the FOI Act. On 12 November 2020, the applicant applied for an internal review. On 30 November 2020, the Department issued its internal review decision, in which it affirmed its original decision under sections 30(1)(a) and 35(1)(a). On 14 December 2020, the applicant applied to this Office for a review of the Department’s decision.

In conducting my review, I have had regard to the correspondence between the applicant and the Department as outlined above and to the correspondence between this Office and both parties, as well as to the content of the withheld records that were provided to this Office by the Department for the purposes of this review.

Scope of the Review

In correspondence with this Office, the applicant said that the Department did not appear to have addressed point 1 of his FOI request. During the review, the Investigator confirmed for the applicant that the records contain records sought by him at point 1 of his FOI request. The applicant also said that he regards this as a request for personal information, as he is requesting records that name him specifically. However, he has since confirmed that his request concerns all the records he originally sought.

This review is concerned with whether the Department was justified in refusing access to the records under sections 30(1)(a) and 35(1)(a) of the FOI Act.

Preliminary Matters

Before considering the exemptions claimed, I wish to note the following points. First, 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. The Courts have endorsed this approach.

Secondly, section 18 of the FOI Act provides that if it is practicable, records may be granted in part, by excluding the exempt material. Section 18 shall not apply if the copy of the record provided would be misleading. This Office takes the view that the provisions of section 18 do not envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, this Office is not in favour of the cutting or "dissecting" of records to such an extent. Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.

Thirdly, and 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. 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 FOI Act requires a consideration of the public interest.

Finally, with certain limited exceptions (e.g. section 37(2), which I consider below), the FOI Act does not provide for the limiting of access to records to particular individuals only. When a record is released under the FOI Act, it effectively amounts to disclosure to "the world at large" (H.(E.) v Information Commissioner...

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