Whether the Council was justified in refusing the applicant's request for records relating to concerns raised by a named individual pertaining to Sporting Fingal Football Club under section 41(1) of the FOI Act.

22/11/2018

Background

On 23 June 2017, the applicant sought access to records relating to concerns raised by a named individual pertaining to Sporting Fingal Football Club. On 21 July 2017 the Council refused the request under section 41(1) of the FOI Act. The applicant sought an internal review of that decision on 28 July 2017. On 16 August 2017 the Council affirmed its original decision to refuse the request. The applicant sought a review by this Office of the Council's decision on 16 August 2017.
In conducting this review I have had regard to the Council correspondence with the applicant, and to the correspondence between this Office and the applicant, the Council, and an affected third party who this Office notified of the request. I have also had regard to the contents of the records at issue.

Scope of Review

This review is solely concerned with whether the Council was justified in refusing the applicant's request under section 41(1) of the FOI Act.

Analysis and Findings

Section 41(1)(a) of the FOI Act is a mandatory provision that requires an FOI body to refuse a request if the disclosure of the record concerned is prohibited by law of the European Union or any enactment (other than a provision specified in column (3) of Part 1 or 2 of Schedule 3 of an enactment specified in that Schedule). Section 41(1)(a) is not subject to a public interest override.  Therefore, if records are deemed to fall within section 41(1)(a) of the Act a public body is obliged to refuse access to them.  
The applicant has drawn attention to the fact that while the Council refused the request under section 41(1) on the ground that to disclose the records would be in breach of its obligations under other applicable legislation, it did not identify the specific legislation involved.  Ordinarily, I would expect that a decision to refuse a request under section 41(1) would contain such information, given the provisions of sections 13(2)(d) and 21(5), which require an FOI body to give reasons for the refusal. However, it is important note that under sections 13(5) and 21(6), the body is not required to include information in the decision that would cause the record to be exempt.

In its submission to this Office, the Council has identified the particular legislative provisions on which it based its decision to refuse the request under section 41(1). Having examined the relevant legislative provision and the contents of the records at issue, I am satisfied that the disclosure of the records is prohibited by the legislative provision and that the provision is not specified in Schedule 1. Given the exceptional set of circumstances relating to the case, it is not appropriate for me to make specific reference to the relevant legislative provision in this decision as to do so would, in my view, breach the prohibition contained in the legislative provision. Section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. 

In conclusion therefore, while it is regretful that I cannot provide a more detailed explanation for my findings, I find that the Council was justified in refusing the request under section 41(1) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the Council's decision to refuse the applicant's request for records relating to concerns raised by a named individual pertaining to Sporting Fingal Football Club under section 41(1) of the FOI Act.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision.  In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator