Mr X and the Department of Transport, Tourism and Sport

JudgeElizabeth Dolan Senior Investigator
Judgment Date21 August 2015
Case OutcomeThe Senior Investigator varied the decision of the Department. She upheld the Department?s refusal of certain records on the basis of sections 10(1)(c), and 22(1)(a) of the FOI Act. She found that the FOI Act did not apply to one record which related to a previous review under section 34 of the Act. She affirmed the Department's decision in relation to some of the records for which it claimed legal professional privilege under section 22(1)(a); she annulled the Department?s refusal of access to certain other records in respect of which it had claimed legal professional privilege and directed the Department to release those records
CourtInformation Commission
Record Number140146
RespondentThe Department of Transport, Transport and Sport
Whether the Department was justified in its decision to refuse access to records, concerning the hosting of American Football events in Ireland, under various provisions of the FOI Act
Conducted in accordance with section 34(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

On 15 January 2014, the applicant made an FOI request to the Department for:

"1. All documentation and records which mention or concern, the Irish American Football Association, between 1 June 2013 and the current date.

2. All documentation concerning (i) the Department's policies regarding the interaction/involvement of Irish National Governing Bodies of Sport in visiting sporting events (ii) individual instances where the Department has become involved in such matters and (iii) any correspondence received or issued on this topic in general or on any individual events hosted by Ireland. This can be time limited to documentation in the past 6 years.

3. All documentation relating to American Football events proposed, previously held, previously proposed or due to be held in Ireland. This can be time limited from 13th March 2013 to the present day."

In its decision of 13 February 2014, the Department identified 75 records which fell within parts 1 and 3 of the applicant's request. The Department stated that it did not hold any records within part 2(i) of the request, and it refused access to the records sought under parts 2 (ii) and (iii) on the basis that complying with these requests would cause an unreasonable interference with its work. The Department invited the applicant to amend part 2(ii) and (iii) of his request. The applicant, in a letter dated 4 March 2014, clarified elements of his request; however, the Department wrote to him stating that the clarification provided did not assist it in narrowing the scope of the request. The applicant sought an internal review of the Department's decision. In its internal review decision, the Department decided that, in relation to parts 1 and 3 , it would release 54 records, release one record in part and refuse to release 18 records. The Department upheld its decision to refuse access to the records in parts 2(ii) and (iii).
On 5 June 2014, the applicant applied for a review of the Department's decision and made submissions in support of his application.
Both the applicant and the Department made further submissions in the course of the review. At this stage, I must bring the review to a close by issuing a formal, binding decision.
In conducting my review, I have had regard to the correspondence between the applicant and the Department, to correspondence between the Department and this Office, to correspondence between the applicant and this Office, and to the contents of the records at issue.
Finally, I have had regard to the provisions of the FOI Act.
In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997-2003, notwithstanding the fact that the FOI Act 2014 has now been enacted.
The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Scope of the review

This decision is concerned with (i) whether section 10(1)(c) of the FOI Act applies to certain records sought by the applicant; (ii) whether the Department was justified in its decision to refuse to release record 69 on the basis that section 20(1) of the FOI Act applied; (iii) whether the Department was justified in its decision to refuse access to records 42, 46, 47, 48, 58, 59, 60, 63, 64, 65, 66, 67, 68, 73 and 75 on the basis that section 22(1)(a) applied.
Preliminary matters
Section 34(12)(b) of the FOI Act provides that a decision to refuse to grant a request under section 7 shall be presumed not to have been justified unless the head of the relevant public body shows to my satisfaction that its decision was justified.

Although I am obliged to give reasons for my decision, section 43(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description that I can give of the records at issue is limited.

The release of a record under the FOI Act is considered, effectively, as release to the world at large. Furthermore, it has been recognised that a review under section 34 of the FOI Act is de novo which means that it is based on the circumstances and the law at the time of the decision. This view of the Commissioner's role has been endorsed by the High Court in the judgment of O'Caoimh J. in Minister for Education and Science v Information Commissioner [2001] IEHC 116.

Finally, the applicant has made submissions in relation to the inadequacy of the Department's practices and procedures for the purposes of compliance with the FOI Act. An assessment of the Department's practices and procedures, if it were deemed necessary, would have to be carried out pursuant to section 36 of the FOI Act, while this review, conducted pursuant to section 34 of the FOI Act, must be confined to reviewing whether the Department has justified its refusal of the request under the FOI Act. The applicant complains about many issues concerning the Department's handling of the FOI request and the background to the records themselves. While I have taken his submissions into account insofar as they are relevant to the review, I do not comment on every element of them.

Analysis and Findings

Section 10(1)(c)
The Department has refused to release the records sought by the applicant under part 2 (ii) and (iii) of his request on the basis that section 10(1)(c) of the FOI Act applies to these records.
Section 10(1)(c) provides:

"A head to whom a request under section 7 is made may refuse to grant the request if - in the opinion of the head, granting the request would, by reason of the number or nature of the records concerned or the nature of the information concerned, require the retrieval and examination of such number of records or an examination of such kind of the records concerned as to cause a substantial and unreasonable interference with or disruption of the other work of the public body concerned."

In accordance with section 10(2) of the Act, the Department, as outlined in the background section of this decision, invited the applicant to amend his request so that it would no longer cause a substantial or unreasonable interference with its work. Based on the information provided, I agree with the Department that, even with the clarification submitted, the granting of the request involves the retrieval and examination of a large amount of material covering its role in regard to various sporting events. I accept that the effect of complying with the request would...

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