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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 record thus created would not be misleading. However, the Commissioner takes the view that neither the definition of a record nor the provisions of section 13 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.

Analysis and Findings

Section 10(1)(c)
Apart from the eight records which were, apparently, readily identifiable as they were filed as being part of a formal complaints process, the Department relied on section 10(1)(c) to refuse access to records relating to concerns/complaints raised about the operation of RIA and medical services and access to medical services for people in the direct provision system. Section 10(1)(c) provides that a request for a record may be refused if granting the request would, by reason of the number or nature of the records concerned or the nature of the information concerned, require the retrieval and examination of such number of records or an examination of such kind of the records concerned as to cause a substantial and unreasonable interference with or disruption of work of the public body concerned. Furthermore, where a public body wishes to refuse a request under section 10(1)(c) it must consider the applicability of section 10(2) before doing so. Section 10(2) provides that a public body shall not refuse a request under section 10(1)(c) unless it has assisted, or offered to assist, the requester concerned in an endeavour so to amend the request so that it no longer falls within the parameters of section 10(1)(c).

In its submission to this Office, the Department claimed the original request was very broad and was not specific enough to allow it to coordinate a clear and relevant response. The Department wrote to the applicant on 21 November 2014 and claimed that to search and retrieve over 4,300 documents would not be feasible. It explained some of the difficulties envisaged in searching for and retrieving potentially relevant records and invited the applicant to consider specific records which would enable the Department to narrow the scope of the request to a more manageable level. The applicant responded by specifying documents relating to concerns about dietary provisions, health and safety provisions for residents, child safety provisions, mental health and welfare concerns and crime. She stated that she was not seeking material that is in the public domain and was happy for identifying details of clients to be deleted from records. However, according to the Department, the applicant sought to expand the request rather than focus on certain elements in order to reduce the scope of the request.

I note that the Department did not make any decision on the original request and, thus, did not invoke section 10(1)(c) or section 10(2) until it received the internal review request arising from its "deemed refusal". Certainly, this is not what the FOI Act requires. However, given that this Office's jurisdiction to review the decision arises from the internal review decision under section 14(1)(a) of the Act, I have decided, in the circumstances of this case, to include this element of the decision in this review.

The Department contended that the definition of "concerns" is broad and could be taken to encompass a wide range of records. The Department estimated the files to be examined for relevance include 356 Health Unit files, 127 Child and Family Services Unit files and 4,000 hardcopy files in the Operations Unit. It also claimed that, units in the Department who would deal with persons within the Direct Provision system and may hold records relevant to this request, include the Office of the Refugee Applications Commissioner, Refugee Appeals tribunal, Asylum and Immigration policy units, Garda National Immigration Bureau, Anti Human Trafficking Unit and also the Minister's Office and Secretary General's office.

According to the Department, RIA is a small unit with 22 staff comprising a Principal Officer, Procurement Unit, Health, Statistics and Payments Unit, Operations Unit and Family Services Unit. It stated that RIA is a frontline Agency providing emergency accommodation, food and ancillary supports to asylum seekers entering the State and these core functions of RIA cannot be set aside to do other work. The Department contended that these and related commitments put pressure on human resources at RIA which simply cannot be released for the processing of broad FOI requests.

The applicant in her submission to this Office stated that she would be happy to restrict her request to complaints and concerns raised by specific named bodies and government officials. However, it seems to me that this would require the making of a new FOI request to the Department.

I agree with the Department that the applicant's request is of an excessively broad and voluminous nature. In particular, I believe that "concerns" about the operation of RIA has potentially a very wide interpretation. In light of the Department's submission, I accept its contention that a variety of internal units were likely to hold many records of potential relevance to the request. I accept that the processing of the request would cause a substantial and unreasonable interference with or disruption of the other work of RIA by reason of the number and nature of records that would require examination. I also accept that it would not be appropriate for the Department to process very broad requests at the expense of its other statutory duties. While the FOI Act imposes statutory obligations on public bodies, compliance with these obligations is not intended to be unreasonably burdensome; for this reason, the Oireachtas made provision for administrative grounds for refusal of requests, such as section 10(1)(c). However, I would expect that the Department would examine its records management system in regard to how it identifies and files the various concerns and complaints in relation to RIA. In the circumstances, I am satisfied that the Department's refusal of the request under section 10(1)(c) is justified and I find accordingly.

Section 28(1)
The withheld records in this case mainly comprise letters of complaint from, or on behalf of, residents in the direct provision centres including a response from the manager of a centre. The Department relied on section 28(1) to refuse access to records numbered 1 to 8. Section 28 provides for the refusal of a record where access would involve the disclosure of personal information relating to a person other than the requester.

I have examined the withheld records and in light of the definition of personal information in the FOI Act, I accept that certain records in this case contain personal information relating to identifiable individuals and I deal with this below. However, I note that some parts of certain records are complaints which are very general in nature, were not hand written and were made in letters sent by, or on behalf of, all the residents of the centres. Such letters do not identify any individual. Therefore, I am satisfied that section 28(1) does not apply to record 1 (except the first 3 paragraphs of page 3) and record 4 (except the first and second last sentence).

As regards the remaining parts of records 1 and 4, together with records 2, 3, 5, 6, 7 and 8, I accept that these contain personal information relating to individuals (other than the requester) who are identifiable from the content and are, on the face of it, exempt under the section 28(1) exemption which is mandatory. The applicant is of the view that the records could be redacted to protect the identities and personal information of the individuals concerned. However, I consider that it is not feasible to redact the personal information in these records as the details are so specific that release could identify individuals and their circumstances. Therefore, I find that the above records are exempt on the basis of section 28(1) subject to the provisions of section 28(2) and section 28(5) which I examine below.

Section 28(2)

There are some circumstances, provided for at section 28(2) of the FOI Act, in which the exemption at section 28(1) does not apply. I am satisfied that none of the circumstances identified at section 28(2) arise in this case.

Section 28(5) - The Public Interest
Under section 28(5), however, access to the personal information of a third party may be granted where:

(a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or
(b) the grant of the information would be to the benefit of the person to whom the information relates.

I do not believe that the grant of the information would be to the benefit of the third parties concerned.

There is a clear public interest in promoting openness, transparency and accountability in relation to the manner in which the Department dealt with complaints relating to direct provision for asylum seekers. On the other hand, the FOI Act also recognises a very strong public interest in protecting privacy rights - both in the language of section 28 and in the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with "THE RIGHT TO PRIVACY"). It is worth noting that the right to privacy also has a Constitutional dimension as one of the unenumerated personal rights under the Constitution. Privacy rights will therefore 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. I consider that, in the circumstances of this case, the privacy rights of the various third parties whose information is at issue outweighs, on balance, the public interest in granting the request. Accordingly, I find that the withheld records are exempt from release under section 28(1).

Section 26(1)(a)

The Department also relied on section 26(1)(a) of the FOI Act to refuse access to the withheld records. As I have found that section 28 applies to exempt certain records, I will now examine the remaining parts i.e. records numbered 1 (part) and 4 (part). Section 26(1)(a) 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(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 refer to my findings above under section 28 that parts of records 1 and 4 do not identify individuals. Bearing in mind the general nature of the letters' content it is difficult to accept the Department's view that the complaints were provided in confidence. Record 1 (part) and record 4 (part) are typed letters of complaint by unnamed residents of certain direct provision centres about matters on which they wished management to take action. According to the Department, the complaints were made in accordance with the House Rules and Procedures of RIA which state that all complaints will be handled sensitively and in confidence by centre staff and by RIA. The Department referred to a High Court decision C.A. & anor -v- Minister for Justice and Equality & ors [2014] IEHC 532 (14 November 2014) and stated that, on foot of that decision, certain elements of the RIA House Rules were required to be adapted which includes the introduction of an additional layer of independent review of complaint outcomes on appeal. Having examined this judgment, I cannot see any reference in it to the confidentiality of complaints which is directly relevant here. I am satisfied that there was an implied understanding on the part of complainants that the information provided would be used to find a solution to their grievances but, that the details which might identify individual complainants would remain confidential. However, I am not satisfied that release of the parts of the records in which no individual is identified would be likely to prejudice the giving of further similar information by unnamed residents of centres and accordingly, I consider that the tests, as set out above, have not been met and I find that the Department has not justified its decision that those parts of the records are exempt under section 26(1)(a) of the FOI Act.

Given my finding that section 26(1)(a) does not apply to record 1 (part) and record 4 (part), it is not necessary to address the public interest balancing test under section 26(3) on which the Department also made submissions.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby vary the Department's decision by (i) annulling the decision to refuse access to record 1 (part) and record 4 (part) and (ii) affirming the decision to refuse access to the remaining withheld records. I direct the release of record 1 (except the first 3 paragraphs of page 3) and record 4 (except the first and second last sentence).

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.

Elizabeth Dolan
Senior Investigator