Z Solicitors and Department of Health

• Court: Information Commission
• Judge: Stephen Rafferty Senior Investigator
• Judgment Date: 24 November 2015
• Case Outcome: The Senior Investigator affirmed the decision of the Department.
• Record Number: 150264
• Respondent: Department of Health

Whether the Department was justified, under section 31 of the FOI Act, in refusing to grant access to records evidencing consideration of the payment or non-payment of compensation to certain parties in connection with the introduction of standardised packaging for tobacco products

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

Background

By letter dated 29 January 2015, the applicant submitted a request to the Department for access to certain records, including "All records [created after 1 June 2012] which evidence consideration of the payment or non-payment of compensation to the tobacco companies and/or other Property owners in respect of the deprivation and/or expropriation and/or restriction of the Property [as a result of the introduction of standardised packaging for tobacco products]."

On 15 May 2015, the Department refused to confirm or deny the existence of relevant records under section 31(4) of the FOI Act. On 12 June 2015, the applicant sought an internal review of the Department's decision. On 7 July 2015, the Department affirmed its original decision. On 20 August 2015, the applicant sought a review by this Office of the Department's decision.

On 17 November 2015, Simon Noone, Investigator, informed the Department of his view that it had not justified its decision to refuse to confirm or deny the existence of records. On 19 November, the Department stated that it was willing to concede that it had not met the public interest test set out in section 31(4), and that it was agreeable to this Office proceeding to examine the records it had identified as coming within the scope of the applicant's request.

In conducting this review, I have had regard to the submissions of the parties, and to the contents of the records at issue.

Scope of the Review

In its submissions to this Office, the Department identified and furnished 56 records which it considered relevant to the request. Having carefully inspected the records, I am satisfied that only ten of these records come within the scope of the request; i.e. record numbers 1, 2, 4, 5, 7, 8, 9, 11, 14 and 15. I consider that records 3, 6, 10, 12 and 13 are outside scope as they do not evidence consideration of the payment or non-payment of compensation. Records 16 - 56 (inclusive) do not come within the scope of the request as they were created subsequent to the date on which the request was submitted, i.e. 29 January 2015. Therefore, the scope of this review is concerned with whether the Department was justified in refusing access to those records that fall within the scope of the request.

Findings

It should be noted that the courts have taken the view that, under FOI, records are released without any restriction as to how they...