Mr X and the Department of Justice and Equality

• Judge: Peter Tyndall Information Commissioner
• Judgment Date: 08 November 2016
• Case Outcome: The Commissioner varied the decision of the Department. He affirmed its decision in relation to certain records under sections 15(1)(a), 15(1)(d), 30(1)(c), 31(1)(a), 35(1)(b), 37(1) and (7) and 42(f) of the FOI Act. He annulled its decision in relation to the remaining records and directed their release.
• Court: Information Commission
• Record Number: 150400
• Respondent: Department of Justice and Equality

Case Number: 150400

Whether the refusal of access to records concerning the applicant's employment and certain investigations is justified under sections 15(1)(a), 15(1)(d), 29(1), 30(1)(a), (b) and (c), 31(1)(a), 31(1)(b), 32(1)(a)(i), 35(1)(a) and (b), 37 and 42(f) of the FOI Act

Conducted in accordance with section 22(2) of the FOI Act by the Information Commissioner (the Commissioner)

Background

On 9 June 2015 the applicant made an FOI request to the Department for records held relating to him and to the Garda Síochána's Serious Crime Review Team. He specifically referred to nine categories of records relating to complaints and legal proceedings by him and investigations into certain matters raised by him. By letter dated 8 July 2015, the Department refused access to the records on the basis that they were exempt from release under sections 15(1)(d) and 31(1)(a) of the FOI Act. On 11 July 2015 the applicant applied for an internal review in respect of all of the records. By letter dated 7 September 2015, the Department issued its internal review decision, in which it affirmed its original decision, under sections 15(1)(a), 15(1)(d), 29(1), 30(1)(c), 31(1)(a), 32(1)(a)(i), 35(1)(a) and (b), and 41(1)(b) of the FOI Act. On 16 November 2015 the applicant applied to this Office for a review of the Department's decision.

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 Garda Síochána in relation to certain records; the nature and content of the withheld records; and to the provisions of the FOI Act.

Scope of the Review

The Department identified 90 records relevant to the request. It submits that records 4 and 54 fall outside the scope of the applicant's FOI request. Having reviewed these records, I accept that record 54 falls outside the scope of the applicant's FOI request but do not accept that record 4 falls outside the scope of his FOI request.

At my Office's request, the Department provided a numbered schedule of records during this review. Despite the recommendations of the Central Policy Unit of the Department of Public Expenditure and Reform in relation to good FOI decision-making practice, no schedule was prepared at request stage. The schedule refers to each record and the provision of the FOI Act being relied on. The Department also invoked additional exemptions during this review. Having regard to this schedule and to all of the Department's submissions and to the submissions of the Garda Síochána, the question for this review is whether the Department was justified in refusing access to records 1 - 90 (not 54) under sections 15(1)(a), 15(1)(d), 29(1), 30(1)(a), (b) and (c), 31(1)(a), 31(1)(b), 32(1)(a)(i), (ii) and (iv), 35(1)(a) and (b), 37 and 42(f) of the FOI Act.

Handling of the request and review by the Department

I must draw attention to some of the shortcomings in the Department's approach to this case. At the outset, it invoked a large number of exemptions over the records, on a "blanket" basis. It does not appear to have examined the content of each record and properly analysed which particular provision of the FOI Act was relevant. Moreover, it was not clear about which exemptions it was relying on. Towards the end of the review process, due to issues raised by my Office and a change in circumstances in relation to court proceedings, it made further submissions and invoked additional exemptions. However, the Department again sought to claim exemptions on a "blanket" basis over a number of records. Overall, the Department's submissions suggest a lack of clarity in its thinking about the content of certain records in this case.
As discussed above, the Department did not initially provide a numbered schedule of records to the applicant or to my Office. Instead, it referred to the categories of records named by the applicant. Even when the requested schedule was produced, it did not number the records individually. In many cases, it bundled various records under one number and included duplicates. This made the review process less straightforward than it ought to have been. While the FOI Act does not require a schedule of records, it is clearly best practice to provide the requester with one, especially where a large number of records is held. Unless they are relying on a "neither confirm nor deny" provision, FOI bodies should clearly list what records they hold within the scope of the request.
The Department initially declined to send copies of any records to my Office for the purpose of this review. Following correspondence with my Office, the Department agreed to send copies of some records. However, it said that it would not provide copies of those records in respect of which it invoked section 42(f), despite assurances of confidentiality from my Office. My staff agreed that an investigator would visit the Department's offices to inspect those records. With the benefit of hindsight, I believe that my staff should have insisted that the Department provide me with copies of the records at the outset, by way of notice under section 45 of the FOI Act if necessary. As it transpired, the investigator had to examine the records on more than one occasion in the presence of a Department official. This was not, in my view, the best use of resources. FOI bodies regularly provide my Office with highly sensitive records for the purpose of reviews and I trust that the Department does not take the view that its records would be treated other than entirely confidentially by my staff. At the end of the review process, the Department finally agreed to provide my staff with copies of all the records.
In short, the Department's overall approach in this case made the review process more lengthy and cumbersome than it should have been. In general, I would expect better handling of an FOI request and review from a Department that has been designated as an FOI body since 1998.
Preliminary Matters
First, I should explain that 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, with certain limited exceptions, the FOI Act does not provide for the limiting of access to records to particular individuals only. When a record is released under the FOI Act, it effectively amounts to disclosure to "the world at large" (H.(E.) v Information Commissioner [2001] IEHC 58). The FOI Act places no restrictions on the type or extent of disclosure or the subsequent use to which the record may be put.

Thirdly, section 18 of the FOI Act provides that if it is practicable, records may be granted in part, by excluding the exempt material. Section 18 shall not apply if the copy of the record provided would be misleading. I take the view that neither the definition of a record under section 2 nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, I am not in favour of the cutting or "dissecting" of records to such an extent.

Finally, 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.

Records falling outside of the FOI Act

Section 42 of the FOI Act excludes certain records from the provisions of the FOI Act.

Section 42(f) - records created or held by the Attorney General's Office

Section 42(f) of the FOI Act disapplies the FOI Act in relation to records which are held or created by the Attorney General or the Office of the Attorney General. The Chief State Solicitor's Office is part of the Office of the Attorney General. The Department claims section 42(f) over records 1 - 58 (not 8) and records 74 - 76.

The following records, or parts of records, were created by the Chief State Solicitor's Office: 2 (not the correspondence from the applicant's solicitors), 5 (not the court order), 6 (not the court order), 7 (not the emails from the applicant's solicitors or from the Courts Service or the plenary summons), 9 (not the court order), 10, 11, 12, 13 (not the letter from the applicant's solicitors), 14, 15 (not the email from the Gardaí), 17, 18, 19, 20, 21 (not the email from the Department), 22, 23, 24 (not the letter from the applicant's solicitors), 25 (not the email from the barrister), 26 (not the email from the barrister), 27 (not the email from the Gardaí), 28 (not the email from the Gardaí), 29 (not the letters from the applicant's solicitors), 30 (not the correspondence from the barrister), 31, 32, 33 (not the letter from the barrister), 34, 35, 36 (not the letter from the barrister), 37, 38, 39, 40, 41, 42, 43 (not the applicant's affidavit and exhibits), 44, 45 (not the email from the Department), 46 (not the affidavit), 47 (not the applicant's affidavit), 48 (not the internal...