Mr X and the Department of Justice and Equality

• Judge: Stephen Rafferty, Senior Investigato
• Judgment Date: 11 September 2015
• Case Outcome: The Senior Investigator varied the decision of the Department. He found that the Department was not required to disclose whether or not the record sought exists under section 37(6) of the FOI Act.
• Court: Information Commission
• Record Number: 150108
• Respondent: Department of Justice and Equality

Whether the Department was justified in refusing the applicant's request for a letter his estranged wife sent to the Department

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

Background

On 30 October 2014 the applicant submitted a request to the Department for "the letter my separated wife sent to Immigration which made false allegations of me been [sic] violent to her". On 3 December 2014 the Department refused the applicant's request under section 15(1)(a) of the FOI Act, on the basis that the record sought did not exist. The applicant requested an internal review of the Department's decision and on 29 January 2015 the Department issued its internal review decision, wherein it affirmed the original decision. On 15 April 2015, the applicant sought a review by this Office of the Department's decision.

During the course of the review, Mr Art Foley of this Office wrote to the applicant on 26 August 2015, setting out his view that the Department was justified in refusing the request, albeit based on a different exemption to that cited by the Department. In his response dated 30 August 2015, the applicant indicated that he disagreed with Mr Foley's view on the matter and requested that a final decision be made by this Office in relation to his request. I therefore consider that this review should be brought to a close by issue of a formal, binding decision.

In conducting this review, I have had regard to correspondence between the Department and the applicant as set out above. I have also had regard to communications between this Office and the applicant and to communications between this Office and the Department.

Scope of Review

This review is concerned with whether the Department was justified in refusing the applicant's request for a letter his estranged wife sent to the Department

Preliminary Matters

I should explain at the outset that a review conducted by this Office under section 22 of the FOI Act is considered de novo in that it is based on the circumstances and the law as they apply on the date of the decision. 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 a more recent judgment, 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]".

In addition, while I am required by section 22(10) of the FOI Act to give reasons for my decisions, this is subject to the requirement of section 25(3) that I take all reasonable precautions to prevent disclosure of information contained in an exempt record during the course of a review. Accordingly, in the analysis which follows, I must be careful not to disclose whether or not a record of the type sought by the requester exists. It is also worth noting that release of information through FOI is considered, effectively, to be release to the world at large.

Analysis and Findings

While the Department relied on section 15(1)(a) of the FOI Act to refuse the applicants request, on the basis that there are no records coming within the scope of the request, I agree with Mr Foley that the more appropriate course of action would have been for the Department to consider the provisions of section 37(6) in the first instance.

Section 37(1) is a mandatory exemption which requires the FOI body to refuse a request, subject to the other provisions of section 37, where it considers that access to the record concerned would involve the...