Ms X and the Department of Justice and Equality

• Judge: Elizabeth Dolan Senior Investigator
• Judgment Date: 14 September 2015
• Case Outcome: The Senior Investigator varied the Department's decision by (i) annulling the decision to refuse access to record 1 (part) and record 4 (part) and directing the release of parts of those records and (ii) affirming the decision to refuse access to the remaining withheld records
• Court: Information Commission
• Record Number: 150007
• Respondent: Department of Justice and Equality

Whether the Department was justified in refusing access to records relating to concerns/complaints made about the operation of the Reception and Integration Agency (RIA) on the basis that sections 10(1)(c), 26(1)(a) and 28(1) of the FOI Act apply

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

Background

The applicant submitted a request to the Department on 10 September 2014 for access to all records relating to:
(i) all concerns/complaints raised with the Department - internally or externally - about the operation of RIA and its interaction with clients within the past year
(ii) all reports, ministerial briefings notes and internal and inter-departmental and inter-agency correspondence relating to the above
(iii) all reports, ministerial briefings notes and internal and inter-departmental and inter-agency correspondence relating to concerns/complaints raised about medical services and access to medical services for people in the direct provision system, including documents from the RIA itself
(iv) the numbers of individuals in the asylum system for whom the Department of Justice has provided discretionary travel papers in the past five years.

I should state at the outset that the Department's processing of this FOI request was most unsatisfactory considering that it has been subject to the provisions of the FOI Act for the past 17 years and should be fully aware of its obligations and requirements when processing FOI requests. It would appear that the request was neither acknowledged nor dealt with until the applicant's follow up query of 20 November 2014. Under section 7(2) a public body is required to acknowledge a request within two weeks of receipt and the notification must include details of the provisions of section 41 of the Act i.e. where a decision is not made within the prescribed time-frame, the request is deemed to have been refused.

In the ordinary course, a public body must issue its decision within four weeks of receipt of an FOI request. There is no evidence that the Department exercised its discretion to extend the time frame as provided for in section 9 of the Act on the basis that it considered that the request relates to such a number of records that compliance with the four week period was not reasonably possible. I note that the Department apologised to the applicant for the delay on the basis that the entire staff of RIA had been diverted from dealing with day-to day work such as FOI requests since August 2014 due to having to deal with "protests in centres and their aftermath". However, it is incumbent on the Department to comply with the statutory requirements of the FOI Act.

As the applicant did not receive a response from the Department, she applied for an internal review on 20 November 2014 on the basis of a deemed refusal. On 21 November 2014, the Department wrote to the applicant asking her to narrow the scope of the request as the records requested could be filed on any of over 4,300 files. In response, the applicant clarified certain issues. However, the Department took the view that this did not substantially narrow the scope of her request. The Department issued its decision on 15 December 2014 on parts (i), (ii) and (iii) of the request refusing access to the records on the basis of sections 10(1)(c), 20(1), 26(1)(a) and 28(1) of the FOI Act. The applicant did not receive a decision on part (iv) of her request. She wrote to this Office on 6 January 2015 seeking a review of the Department's decision.

In June 2015, following the intervention of this Office, the Department gave the applicant its updated position on part (iv) of her request. The applicant confirmed on 12 August 2015 that she no longer wished to have part (iv) included in the scope of this review. The applicant and the Department have made detailed submissions to this Office and I consider that the review should now be brought to a conclusion by way of a formal, binding decision. In reviewing this case I have had regard to the following:

• the Department's decision on the matter,
• the Department's communications with this Office,
• the applicant's communications with this Office,
• communications between the applicant and the Department on the matter,
• the content of the withheld records provided to this Office by the Department for the purposes of this review.

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

In its submission to this Office, the Department identified eight records to which it refused access under sections 26(1)(a) and 28(1). It refused the request for the remaining records on the basis of section 10(1)(c) of the FOI Act. Therefore, this review is concerned solely with the question of whether the Department was justified in refusing access to the withheld records on the basis of sections 10(1)(c), 26(1)(a) and 28(1) of the FOI Act.

Preliminary Matters
Section 34(12)(b)
It is important to note that section 34(12)(b) of the FOI Act provides that the onus is on the Department of satisfying this Office that its refusal of access to certain records was justified.

Section 43(3)
While I am required by section 34(10) to give reasons for my decision, section 43(3) of the FOI Act requires the Information Commissioner to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description I can give of the records themselves is limited as is the extent of the detail I can include concerning the reasons for my findings.

Section 13
I should explain the approach to the granting of access to parts of records. Section 13 of the FOI Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the...