Mr X and the Department of Justice and Equality

• Judge: Elizabeth Dolan Senior Investigator
• Judgment Date: 13 April 2016
• Case Outcome: The Senior Investigator varied the Department's decision. She affirmed its decision to withhold two records under section 31(1) of the FOI Act and its decision to withhold part of the third record under section 28(1) of the FOI Act. She annulled its decision to withhold the remaining part of the third record and directed the release of that part.
• Record Number: 150350
• Court: Information Commission
• Respondent: Department of Justice and Equality

Whether the refusal of access by the Department to records concerning the implementation of Article 24 of the EU Services Directive is justified under sections 28 and 31(1) of the FOI Act

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

Background

On 23 February 2015, the applicant made an FOI request to the Department for records relating to the implementation of Directive 2006/123/EC (EU Services Directive) insofar as such records relate to solicitors, barristers, the Bar Council of Ireland or the Law Society of Ireland. By letter dated 25 March 2015, the Department refused access to most of the records on the basis that they were exempt from release under sections 15(1)(d), 29(1) and 42(f) of the FOI Act. On 14 April 2015, the applicant applied for an internal review in respect of the withheld records. By letter dated 9 October 2015, the Department issued its internal review decision, in which it affirmed its original decision. On 15 October 2015, the applicant applied to this Office for a review of the Department's decision.

I should note at the outset that this Office received a request for a review of an FOI decision by the Department of Jobs, Enterprise and Innovation (Department of Jobs) in relation to records concerning the same subject matter. A separate decision on that will issue (Case Number 150336). As the Department of Jobs' observations in that case pertain to this matter, given that one of the records was created by that Department, I refer to its submissions in this decision.

I should also note that the applicant acted through their solicitor in their dealings with the Department and this Office in this FOI request.

In conducting this review I have had regard to the Department's decision on the matter; the Department's communications with the applicant and with this Office; the applicant's communications with the Department and with this Office; the submissions of the Department and the Department of Jobs; the content of the withheld records, provided to this Office by the Department for the purposes of this review; and to the provisions of the FOI Act.

Preliminary Matters

Before I consider the exemptions claimed, I wish to make 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. 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 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]".

Secondly, it is important to note that section 22(12)(b) of the FOI Act provides that when the Commissioner reviews a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore in this case, the onus is on the Department to satisfy me that its decision is justified.

Finally, I must comment on the Department's delay in dealing with the applicant's request for an internal review decision. Over five months elapsed between the internal review request and the Department's internal review decision. This is a clear breach of the statutory requirement (three weeks). By letter dated 19 October 2015, this Office asked the Department to explain this delay, but did not receive any explanation. In view of the Department's obligations under the FOI Act, I find this unacceptable. I would remind FOI bodies that it is incumbent on them to...