Ms Q and Department of Justice

• Jurisdiction: Ireland
• Judge: Senior Investigator
• Judgment Date: 22 June 2021
• Case Outcome: The Senior Investigator affirmed the Department's decision to refuse access to the report under section 37(1) of the Act.
• Court: Information Commission
• Respondent: Department of Justice
• Record Number: OIC-101882-W1B7Z6

Whether the Department was justified in refusing access, under various provisions of the FOI Act, to a copy of the report drawn up by the Chair of the International Protection Appeals Tribunal (IPAT) into the attendance by a member of the Tribunal at an event in August 2020

22 June 2021

Background

In a request dated 28 October 2020, the applicant sought access to a copy of the report drawn up by the Chair of the International Protection Appeals Tribunal (IPAT) into the attendance of a named member of the Tribunal at an event in August 2020. The event in question was a public gathering related to the ongoing restrictions associated with the COVID-19 pandemic.

As the Department did not issue a decision within the required timeframe, the applicant sought an internal review of the deemed refusal of her request on 26 November 2020. The Department issued its internal review decision on 1 December 2020, wherein it refused the request under sections 29(1) and 30(1) of the FOI Act. On 4 January 2021, the applicant sought a review by this Office of the Department’s decision.

During the review, the Department indicated that, in addition to the exemptions already relied upon, section 31, relating to legal professional privilege and court matters, and section 37, relating to personal information, were also relevant. The Investigator notified the applicant of the additional exemptions cited and offered her an opportunity to make further submissions on the matter. The Investigator also notified the Tribunal member who was the subject of the report of the review and offered her an opportunity to make submissions in the matter. In response, the Tribunal member indicated that she objected to the release of the report on the grounds that it contained information provided by her in confidence to the Chair of the Tribunal in circumstances where she had a legitimate expectation that such information would be treated as confidential. The Tribunal member also objected to the release of the report on the grounds that it contained her personal information.

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 submissions made by the applicant in her application for review, to the submissions made by the Department in support of its decision, and to the submission made by the Tribunal member. I have also had regard to the contents of the record at issue. I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

This review is concerned solely with whether the Department was justified in refusing access, under various provisions of the FOI Act, to the report prepared by the Chair of IPAT into the attendance of a named member of the Tribunal at an event in August 2020.

Preliminary Matters

Before I address the substantive issues arising in this case, I would like to set out some preliminary points that are relevant to my review.

First, section 22(12)(b) of the FOI Act provides that a decision to refuse to grant an FOI request shall be presumed not to have been justified unless the FOI body shows to my satisfaction that its decision was justified.

Secondly, section 25(3) of the FOI Act requires the Commissioner to take all reasonable precautions in the performance of his functions to prevent the disclosure of information contained in an exempt record. As such, I am limited in the descriptions I can provide of the contents of the report at issue.

Thirdly, with certain limited exceptions, 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. Furthermore, the fact that the applicant may be aware of the identity of individuals to whom the withheld information relates, does not mean that the information cannot be withheld under the provisions of the FOI Act.

Finally, 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. This Office takes the view that the provisions of section 18 do not 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, this Office is not in favour of the cutting or "dissecting" of records to such an extent. Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.

Analysis and Findings

The report in question contains an introduction and four discrete parts, namely; Part A (The Tribunal’s Code of Conduct and Rules on Conflict of Interest), Part B (Investigation), Part C (Findings) and Part D (Recommendation). I note that the report references an appendix as comprising correspondence between the Chair and...