Mr R and Department of Children, Equality, Diversity, Integration and Youth

• Jurisdiction: Ireland
• Judge: Senior Investigator
• Judgment Date: 18 May 2021
• Case Outcome: The Senior Investigator varied the decision of the Department. He found that the Department was justified in refusing access, under section 37(1), to the vast majority of the records. He found that it was not justified in refusing access, under section 36(1), to a contract extension letter and directed its release with the redaction of the name of the recipient, under section 37(1).
• Court: Information Commission
• Respondent: Department of Children, Equality, Diversity, Integration and Youth
• Record Number: OIC-91419-Q6T7W3

Whether the Department was justified in refusing access to records of any correspondence between the Department or the Reception and Integration Agency (RIA) and the operators of a named direct provision centre for the period 1 January 2019 to 3 February 2020

18 May 2021

Background

In a request dated 3 February 2020, the applicant sought access to records of any correspondence between the Department or the Reception and Integration Agency (RIA) and the operators of a named direct provision centre for the period 1 January 2019 to date of the request. On 27 March 2020, the Department refused the request under section 36(1) of the FOI Act. It did not provide any indication of the number or nature of the relevant records, nor was any schedule of records provided to the applicant.

The applicant sought an internal review of that decision following which the Department affirmed the refusal of the request. It refused access to the contract with the centre under section 36. It said that details in relation to current contracts are not published and that this is in accordance with the RIA's policy on disclosure of financial information which was agreed with the Office of the Information Commissioner. It said that under this policy, a table of Contract Values is published on the RIA website but excludes the most recent previous two years.

The Department also gave a description of the types of records held by the International Protection Accommodation Service (IPAS) that relate to residents of the centre. It refused access to all information relating to the residents under section 37. Again, no indication of the number of records held was given, nor was a schedule provided. The Department referred to the unprecedented challenge of COVID 19 at the time and measures put in place by it as a result, as the reason why it was unable to provide a schedule to the applicant at that time.

On 29 April 2020, the applicant sought a review by this Office of the Department’s decision. The application for review was accepted by this Office on 30 April 2020, and in accordance with our normal procedures, a copy of the records relevant to the review was sought from the Department, with the records to be provided by 15 May 2020. Despite a number of reminders, it was not until 24 June 2020 that the Department engaged in any meaningful way with the request for records. On that date, it provided a schedule of 180 records, in which it indicated that access was being granted in full to 24 records and four in part. Access to the remaining records was refused. The Department also suggested that a sample of records would be provided, having outlined its difficulties in providing all of the records. In the circumstances outlined by the Department relating to the impact of COVID 19 public health measures, this Office agreed to accept a sample of relevant records. On 3 July 2020, the sample records as well as the records to which access was being granted in full or in part were provided to this Office.

On 30 July 2020, the Investigator sought a submission from the Department. Among other things, the Investigator asked the Department if the schedule that had been given to this Office could be provided to the requester, and if the records or part records to which it was now granting access had been or could be released to the requester. It was explained to the Department that these steps would be helpful in progressing the review and an early response was sought. Despite further engagement and reminders, the Department did not respond until 7 September 2020, at which point it indicated that the schedule and records had been provided to the requester on 3 September 2020.

The Investigator contacted the applicant on 8 September 2020 and advised him of her view that, based on the sample records provided and the description of the refused records on the schedule, the refused records contained personal information of residents of the centre. One of the sample records provided was a weekly report to the Department of which there are over 50 listed on the schedule. In response, the applicant confirmed that he wanted a formal decision on the matter. He also indicated that, while he accepted that much of the information was personal information, he was of the view that some could be released with redactions.

At that stage, the Investigator informed the Department that a full copy of the refused records was now required and should be provided by 23 September 2020, along with the submission which was still outstanding. The Department’s submission was not received until 6 October 2020, along with most of the records listed on the schedule. However, the Department said that some records could not be located, though they had been included in the schedule of records prepared in June 2020. Following further correspondence, the remaining records were provided to this Office on 9 October 2020, some five months after they were first requested and more than three months after a schedule was prepared.

In summary, the Department identified 182 records relevant to the review, as the contract and an associated extension letter were not included on the schedule. It granted access to 24 records in full and partial access to four records. Access to the remaining 154 records was refused. Two were withheld under section 36, while the remainder were refused, in full or in part, under section 37.

The Investigator notified the contractor of the review and invited it to make a submission. No response was received from the third party.

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 subsequent correspondence and to the submissions made by the Department in support of its decision. I have also examined the records at issue. I have decided to conclude the review by way of a formal, binding decision. In referring to the records at issue, I have adopted the numbering system used by the Department in the schedule of records provided.

Scope of Review

During the course of the review, the applicant agreed to remove the four part granted records from the scope of the review (records 12, 29, 40 and 93). As record 147 is an internal email within the Department, rather than correspondence with the named centre, I have excluded it from the scope of the review. I also note that the contract identified by the Department to which access as refused under section 36 was created before the date range of records sought by the applicant. A such, I have also excluded that record from the scope of the request.

Accordingly, this review is concerned solely with whether the Department was justified, under sections 36(1) and 37(1) of the Act, in refusing access to the remaining 152...