Mr Ken Foxe of Right to Know CLG and Houses of the Oireachtas Service

CourtInformation Commission
JudgeSenior Investigator
Judgment Date14 December 2021
Case OutcomeThe Senior Investigator varied the decision of the Service. He found it was justified in refusing access to the vast majority of the information and records at issue under sections 31(1)(a) and 37(1). However, he found section 37(1) did not apply to a small amount of information in one of the records and he directed its release.
RespondentHouses of the Oireachtas Service
Record NumberOIC-105916-P7P7G9
Whether the Service was justified in refusing access to the names and additional details of Members and staff of the Oireachtas in records relating to compliance with public health guidance relating to the COVID-19 pandemic on the basis of sections 31(1)(a) and 37 of the FOI Act

14 December 2021

Background

In a request dated 15 November 2020 the applicant sought access to copies of any records held by the Houses of the Oireachtas Service relating to failures to adhere to social distancing or other COVID-19 public health measures in the Leinster House complex and/or the Convention Centre.

The applicant explicitly stated that his request related to records from 26 June 2020 to the date of his application. Following correspondence between the applicant and the Service the applicant agreed to narrow the scope of his request to records from 1 August 2020 to the date of his request. At the request of the Service the applicant withdrew his original request and on 23 November 2020 submitted a new request with the revised dates.

On 21 December 2020 the Service issued a decision in the applicant’s request. The schedule accompanying the decision listed a total of 77 records. Access was granted to two records in full (records 20 and 62) and 11 in part (records 1, 6, 7, 8, 9, 13, 19, 24, 25, 29 and 73). Access to the remaining 64 records was refused. The Service relied on sections 29(1), 30(1)(a), 30(1)(b), 31(1)(a), 32(1)(a)(ii) and section 37(1) to refuse access to the various records, in whole or in part. It also appears that the decision-maker did not disclose details of two further records falling within the scope of the request on the basis of section 31(4) of the FOI Act.

On 7 January 2021 the applicant sought an internal review of that decision, following which the internal reviewer the affirmed the original decision. The schedule accompanying the decision listed 79 records as falling within the applicant’s request. The revised schedule provided with the internal review decision listed the two additional records as records 75 and 76, while the records numbered 75, 76 and 77 on the original schedule were re-numbered as 77, 78, and 79 respectively. Access to the two additional records was refused on the basis of section 31(1)(a) amongst other exemptions. Access was granted to some further information contained in two records (records 39 and 74). On 2 April 2021 the applicant sought a review by this Office of the internal review decision.

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 applicant’s comments in his application for review and to the submissions made by the Houses of the Oireachtas Service in support of its decision. I have also had regard to the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

In the course of the review by this Office, the Service reconsidered its position and released further information to the applicant on two different occasions.

On 23 June 2021, it released records 61, 65 and 70 (the latter two being identical) in full. It part-released records 2, 3, 4, 5, 10, 11, 12, 15, 14, 16, 17, 18, 21, 22, 23, 24, 25, 26, 27, 28, 30, 31, 32, 33, 34, 35, 36, 37, 38, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 63, 64, 66, 67, 68, 69, 71, 72, 77, 78 and 79. It also released further information in records 6, 39 and 73. The Service further indicated that it was no longer seeking to rely on sections 29(1), 30(1)(a), 30(1)(b) and 32(1)(a)(ii) in this case and instead was seeking to rely solely on sections 31(1)(a) and 37(1).

Subsequently, on 14 October 2021, the Service released records 33, 40, 41, 42 and 43 in full and released additional information in records 2, 3, 4, 10, 14, 16, 17, 21, 23, 26, 31, 38, 44, 47, 49, 52, 57, 59, 60, 67, 71, 72, 74 and 78. It maintained its reliance on section 37 to refuse access to the remaining information in the records, with the exception of records 75 and 76 for which it maintained its reliance on section 31(1)(a).

In his application to this Office the applicant indicated that he was happy for the names of the Oireachtas compliance team to be redacted from the records. Following the most recent release of information, the sole remaining information that has been redacted from records 1, 2, 3, 5, 6, 12, 14, 16, 17, 18, 22, 24, 25, 27, 30, 45 and 49 relates to the names of staff members of the COVID-19 compliance team. As such, I do not need to examine these records further.

In addition, records 8, 9, 10, 11, 15, 19, 21, 23, 26, 28, 29, 31, 32, 34, 35, 36, 38, 39, 44, 46, 47, 48, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 63, 64, 66, 67, 68, 69, 72, 73, 74, 77, 78 and 79 contain both names of members of the COVID-19 compliance team as well as further information which has been redacted on the basis of section 37(1). In...

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