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Whether the Department was justified in its decisions to grant two requests, to which section 29 of the FOI Act applies, for access to records containing information relating to the applicant

Conducted in accordance with section 34(2) of the FOI Act, by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review.

Background

This review arises from decisions made by the Department on 15 September 2014 and 6 October 2014 to release records following two requests to which section 29 of the FOI Act applies. Section 29 of the FOI Act applies to FOI requests where the public body has decided that the records in question qualify for exemptions under one or more of the relevant exemptions in the FOI Act (i.e. sections 26, 27 and 28 - relating to information that is obtained in confidence, commercially sensitive or is personal to the third parties, respectively) but that the records should be released in the public interest. While the original requests were not identical in their terms, the record at issue and the arguments raised by the third party pursuant to section 29 of the FOI Act are the same in both cases, and I am satisfied that it is appropriate to consider both cases in this decision.

Where section 29 applies, the public body is required to notify an affected third party before making a final decision on whether or not the exemption(s), found otherwise to apply, should be overridden in the public interest. The requester or an affected third party, on receiving notice of the final decision of the public body may, if they so wish, apply for a review of that decision to this Office directly.

On 24 July 2014 and 15 August 2014, the Department received two separate requests under the FOI Act for the release of records. The Department's decision maker formed the opinion that section 28 of the FOI Act applied to one of the records coming within the scope of both requests, as its release could potentially disclose personal information of third parties, including the applicant. He concluded that the request was one to which section 29 of the FOI Act applied and undertook a process of formal consultation with the third parties involved. Accordingly, he wrote to the applicant enclosing extracts from the record that he deemed to be relevant, setting out his preliminary view in relation to the matter and soliciting the applicant's submissions.

The applicant's solicitor responded on his behalf by way of letter dated 29 August 2014, setting out a number of specific complaints regarding the content of the record in question and the manner in which it was prepared. It was submitted that he objects to the "content and tone" of the record, that the record does not reflect that he "was consulted on the draft or that he took issue with its content" and stated that there was a "total lack of due process" in the preparation of the record.

The applicant argued that it was "neither in the public nor in the private interest that [the record] be released into the public domain" as it is "defamatory of [the applicant] and injurious to his good name and professional reputation".

The Department's decisions issued on 15 September 2014 and 6 October 2014 in relation to the FOI requests it had received. While holding that the record contains personal information relating to the applicant within the meaning of section 28(1) of the FOI Act, "as well as exemptions under other sections", the decision maker concluded that the record should be released in the public interest. He cited the public interest in accountability and scrutiny of the decision-making process and accountability in the use of public monies, as against a public interest that confidential and commercially sensitive information should not be released and the public interest in "protecting information given in confidence".

Therefore, the decision maker directed the release of the record in question. The applicant lodged applications for review of both decisions with this Office on 29 September 2014 and 3 October 2014.

I note that the applicant furnished a submission on 27 October 2014 setting out his position in relation to this matter. I therefore consider that the review should now be brought to a close by the issue of a formal, binding decision. In conducting my review, I have had regard to the applicant's submissions to this Office and to correspondence between the applicant and the Department. I have also had regard to the content of the records at issue and to the provisions of the FOI Act.

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.

Preliminary Matters

The applicant has raised concerns as to the substance of the record and regarding the Department's procedures relating to the preparation of the record. The applicant is a barrister who represented the Department in a particular case. The applicant very strongly argued that it was inappropriate for the Department to have approached him directly in relation to this matter, but should rather have approached the Office of the Director of Public Prosecutions (the DPP) for comment. He states that he was unable to comment on the detail of the matters at issue for the purpose of compiling the report, as the request to him did not come through the "proper channels".

The applicant, in his submissions, produced two emails sent by him to the officer of the Department who carried out the review. In both instances he expressed his misgivings about the appropriateness of his making direct contact with the Department, rather than dealing with any queries through his instructing solicitor, in this case the DPP. The applicant stated that he disagreed with several elements of the report and that he had prepared a detailed response for the purposes of that review, but was not in a position to provide it to the Department without sanction from the DPP.

The applicant states that he made arrangements with the relevant State Solicitor for his response to be provided to the Department, but that his views were not reflected in the final report. The report, did, however, refer to the note of court proceedings provided by the applicant to the DPP in the normal course of dealings between counsel and his instructing solicitor. Overall, the applicant's view is that the "method of proceeding adopted by [the Department] in this case was grossly unsatisfactory".

The applicant, in his submissions, referred to Articles 6 and 8 of the European Convention on Human Rights (ECHR) as respectively grounding his right to his reputation and his right to fair procedures in the determination of issues. The applicant submits that the Commissioner is obliged to have regard to the European Convention on Human Rights Act 2003 in carrying out his work, which I accept to be an accurate statement, having regard to the provisions of section 3 thereof.

Regarding the right to reputation, in this case it is the applicant's professional reputation that is at issue. In my view, section 27 of the FOI Act provides sufficient protections for the right at issue, and will be considered later in this decision.

In relation to the applicant's right to fair procedures, the Commissioner, in the recent decision in the case of Mr. P and the HSE (Case 090261), held that:-

"[H]aving regard to the Rotunda Hospital case ([2011] IESC 26), section 8(4) of the FOI Act, and the limits of my remit, I believe that the recognition of a public interest in promoting procedural fairness through FOI is more properly understood as an acknowledgement that the public interest in openness and accountability is entitled to significant weight when the constitutional rights of individuals may be affected by the actions of public bodies. It does not mean that it is for me as the Information Commissioner to determine the precise scope of what fair procedures would have required of a public body in a certain set of circumstances...

... I wish to emphasise that the public interest test does not give me the authority to investigate complaints against public bodies or to act as an alternative dispute mechanism with respect to actions taken by public bodies....

Thus, while I accept that there is a strong public interest in openness and accountability in relation to the manner in which public bodies carry out their functions... this does not mean that it is within my remit as Information Commissioner to determine or to make value judgments as to whether the applicant should have been provided with further personal information in the course of the assessment process or the investigation, whether as a matter of fair procedures, "equality of arms", or simply good administrative practice. It also does not permit me to review the question of whether the outcome of the investigation was correct or not."

While I note the applicant's concerns, these matters are beyond the scope of this review. The role of this Office is to assess the decision in light of the provisions of the FOI Act, and in particular the arguments advanced on the applicant's part as to why he believes that the records are exempt.

Scope of the Review

The record which is the subject of this review is a report prepared by the Department at the request of the Minister for Agriculture, Food and the Marine, relating to a review of the conduct of a set of court proceedings. The scope of this review is confined to assessing whether the Department was justified in its decision to release those parts of the report about which the Department notified the applicant of its intention to release. Specifically, I must consider whether the record is exempt from release pursuant to sections 28 of the FOI Act on the basis that it contains personal information of the applicant and, if so, whether the public interest would be better served by release or non-release of that information.

Analysis and Findings

The record at issue in this review is a report prepared by the Department in relation to the conduct of a prosecution by it. Section 34(12)(a) of the FOI Act provides that a decision to grant a request to which section 29 of the Act applies is presumed to have been justified unless the person appealing that decision shows to the satisfaction of the Commissioner that it was not justified. While the Department concluded that the record contained personal information relating to the applicant, it decided to release the record in the public interest, in accordance with the provisions of section 29 of the FOI Act. Section 29 refers exclusively to exemptions under sections 26, 27 and 28.

Section 28

Section 28(1) of the FOI Act provides, subject to other provisions of section 28, that a public body shall refuse a request for a record where granting it would involve the disclosure of personal information about an identifiable individual. Personal information is defined in section 2 of the FOI Act as:-

"..information about an identifiable individual that -

(a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends of the individual, or

(b) is held by a public body on the understanding that it would be treated by it as confidential...".

The definition goes on to detail twelve specific instances of information that is personal information, including:

"(xii) the views or opinions of another person about the individual"

Section 2 goes on to specifically exclude from the definition of personal information, "in a case where the individual is or was providing a service for a public body under a contract for services with the body ... information relating to the service". In this case, given the structure of the legal professions, while the applicant was providing a service to the Department, no contract for services was involved.

The information at issue in this case comprises details of the Department's description of the manner in which the applicant represented the Department in Court. As such, it would appear to be of a type that would be excluded from the definition of personal information had the applicant been providing a service under a contract for services. However, as the exclusion to the definition does not appear to apply, I am prepared to accept, on the face of it, that the information relating to the Department's description of the service provided by the applicant is personal information for the purpose of section 28(1) of the FOI Act. I find accordingly.

The Public Interest in relation to section 28

Section 28(5) provides that a record, which is otherwise exempt under section 28(1), may be released in certain limited circumstances.

The effect of section 28(5)(a) is that a record, which has been found to be exempt under section 28(1) may be released if it can be demonstrated that "on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld".

In its judgment of July 2011, in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. The Information Commissioner, [2011] 1 IR 729, [2011] IESC 26, the Supreme Court outlined the approach that the Commissioner should take when balancing the public interest in granting access to personal information with the public interest in upholding the right to privacy of the individual to whom that information relates.

That judgment suggests that a public interest ("a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law") must be distinguished from a private interest for the purpose of section 28(5)(a). The language of section 28 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy (which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution). Accordingly, when considering section 28(5)(a), privacy rights will be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy.

The application of the public interest test requires that the decision maker consider the general principle, set out in the long title to the FOI Act that the Act is intended to "enable members of the public to obtain access, to the greatest extent possible consistent with the public interest and the right to privacy, to information in the possession of public bodies", but also to consider "on balance" the other rights that may be affected by the release of the record in question (see Sheedy v. Information Commissioner [2005] 2 ILRM 374 per Fennelly J and South Western Area Health Board v. The Information Commissioner [2005] 2 ILRM 374).

The FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies. In this case, there is a particular public interest in the manner in which the Department had conducted itself in the course of a well-publicised prosecution it undertook. On the other hand, as well as the applicant's right to privacy, there is a public interest in the confidentiality of instructions to counsel as an important element of the administration of justice. Given that the Department was the applicant's client and now proposes to release the information at issue, it does not seem to me that this factor should weigh particularly strongly against the release of the records.

In this case, the applicant's right to privacy arises out of his conduct in a professional capacity. Indeed, one would normally expect persons in similar circumstances to be acting under a contract for services, which would affect the operation of section 28, although no such contract exists in this case. The Courts have given some consideration to the relevance of the constitutional right to privacy in relation to business dealings. Hanna J stated in Caldwell v. Mahon [2007] 3 IR 542 that such a right operates at the "outer reaches of and at the furthest remove from the core personal right to privacy". McGovern J in Slattery v. Friends First Life Assurance Company [2013] IEHC 136 interpreted this statement as entailing that such a right "may readily be qualified by countervailing considerations."

Having carefully considered the matter I find, on balance, that the public interest in release of the record at issue is sufficient to outweigh the applicant's right to privacy. Thus, I find that the applicant has not demonstrated in line with section 34(12)(a) of the Act that the decision by the Department to release the record is not justified and I find that the relevant details should be released pursuant to section 28(5)(a) of the FOI Act.

The applicant was consulted by the Department based on the potential applicability of section 28 of the FOI Act. However, it is apparent from the tenor of the applicant's submissions that he considers that sections 26 and 27 of the Act may also be relevant, although he does not specifically refer to these sections.

Given that the Department's decision was based on the application of section 28, which I have dealt with above, it is not necessary for me to consider the exemptions at sections 26 and 27. However, for completeness I will deal with the applicant's arguments insofar as sections 26 and 27 may apply in this case.

Section 26

Section 26(1)(a) of the FOI Act provides for the mandatory refusal of a record containing information:-

- given to a public body in confidence; and
- on the understanding that it would be treated by it as confidential; and
- in the opinion of the head, its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons; and
- it is of importance to the body that such further similar information as aforesaid should continue to be given to the body.
-
Section 26(1)(b) provides for the refusal of a request where disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment (other than a provision specified in column (3) of the Third Schedule of an enactment specified in that Schedule) or otherwise by law.

However, section 26(2) of the FOI Act provides that subsection (1) shall not apply to a record which is prepared by a head, directors or staff members of a public body, or "a person who is providing a service for a public body under a contract for services" in the course of the performance of his or her functions "unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than a public body, or a head, director, or member of staff of a public body, or someone who is providing or provided a service for a public body under a contract for services. "

I note that the record at issue relates to matters heard in open court, and quotes extensively from the transcript of those proceedings. Conversely, there are also issues involved going to the nature of the applicant's instructions, which would usually be of a confidential nature. However, in relation to the latter, I must take into account the fact that the duty of confidentiality in that regard was owed by the applicant to his client, the Department and it remains at the discretion of the Department to disclose those details if it sees fit.

The applicant submits that he had been assured by an officer of the Department in the course of a telephone conversation that the report would be treated as confidential to the Minister, but that it was ultimately disclosed to third parties.

Having carefully considered the matter, and having had particular regard to the contents of the record at issue, I see no basis for concluding that the disclosure of information relating to the Department's description of the manner in which the applicant represented the Department in Court would constitute a breach of a duty of confidence owed to the applicant, notwithstanding the assurance that the applicant claims was given to him. Accordingly, I find that section 26(1) does not apply. Having so found, it is not necessary for me to consider the public interest in relation to this exemption.

Section 27

Section 27(1) of the FOI Act provides:-

"Subject to subsection (2), a head shall refuse to grant a request under section 7 if the record concerned contains...

(b) financial, commercial, scientific or technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation, or

(c) information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates..."

In relation to section 27(1)(b), the applicant's primary concern appears to be an apprehension of damage to his professional reputation. In Henry Ford & Sons Ltd, Nissan Ireland and Motor Distributors Ltd and The Office of Public Works (Cases 98049, 98056, 98057), the Commissioner held that:-

"[T]he essence of the test in section 27(1)(b) is not the nature of the information but the nature of the harm which might be occasioned by its release. The subsection protects information whose disclosure might reasonably be expected to result in a material financial loss or gain to the person to whom the information relates or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation."

In the case of Electricity Supply Board and Department of Public Enterprise (Case 98197, available from <www.oic.ie>), the former Commissioner held that the possibility of "unwelcome publicity" alone would not be sufficient to satisfy the requirements of section 27(1)(b). Rather, it is necessary to point to the specific possibility of harm. The standard of proof in relation to section 27(1)(b) is not a particularly onerous one, with an applicant being required only to demonstrate the possibility of prejudice or pecuniary harm. The applicant has made submissions setting out the apprehended effects of the release of the record. I am satisfied that this threshold has been met in this regard and that the applicant has demonstrated a potential prejudice to his competitive position in the conduct of his profession.

Section 27(2) goes on to set out five specific sets of circumstances in which section 27(1) will not apply, none of which appear to me to be relevant to the applicant's case.

The Public Interest in Relation to Section 27

Section 27(3) provides that the exemption contained at 27(1) will be subject to a public interest test, in the following terms:-

"Subject to section 29, subsection (1) does not apply in relation to a case in which, in the opinion of the head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the request under section 7 concerned."

The decision maker, in his preliminary view letter, set out various factors informing his application of a public interest test. In his decision, he found in favour of the release of the record in question, citing "the general accountability of administrators and scrutiny of the decision making process".

I have already considered the public interest in the context of section 28 of the FOI Act. However, as set out in the preceding paragraphs, the public interest test for section 28 requires the that the public interest in favour of release should be sufficient to outweigh the right to privacy.

In relation to his professional reputation, the applicant's argument, as it appears to me, is premised upon the contention that the report contains false, misleading or inaccurate information. The FOI Act does not confer any powers upon this Office to enquire into such matters in the context of an application for the release of records, nor does it seem to me that this review is an appropriate forum in which to raise such arguments. As set out above, it is not the role of this Office, in an application such as this, to reach a determination in relation to the contents of a record or the procedures surrounding its creation.

In reaching my decision, I have taken into account the public interest in openness and accountability of public bodies, the public interest in ensuring that persons can exercise their rights under the Freedom of Information Act, the public interest in the manner in which the Department conducted prosecutions, as well as the countervailing public interests in the confidentiality of instructions to counsel as an important element of the administration of justice and in upholding the rights of professionals to their reputations.

Having carefully considered the matter, I am satisfied, on balance, that the applicant has not demonstrated that the public interest would be better served by a refusal to release the record in question than by its release.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby affirm the decision of the Department to release the report that is the subject of this review.

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator