Whether the Department was justified in refusing access to certain records relating to a protected disclosure made to the Department concerning the applicant under sections 31(1)(a), 37(1), and 42(m)(i) of the FOI Act 

9 December 2021

Background

In a request dated 16 June 2020, the applicant submitted a request to the Department, through his legal representatives, for records relating to a protected disclosure made to the Department regarding severance and pension payments he received from [a semi state company]. For the sake of convenience, all references to communications with the applicant in this decision should be taken to include communications with his legal representatives. In a decision dated 22 July 2020, the Department refused the request under section 42(m) of the FOI Act. The applicant sought an internal review of that decision, following which the Department affirmed its refusal of the request. On 24 August 2020, the applicant sought a review by this Office of the Department’s decision.  

During the course of the review, the Department provided this Office with a copy of the records and a schedule of the records it had identified as relevant to the review. No schedule had been provided to the applicant. The Department subsequently rearranged the records and provided this Office with a revised schedule of 39 records.  I have adopted the numbering system used by the Department in that schedule in referring to the records at issue.  

Following engagements with this Office, the Department reviewed its position and decided to release four records in full and 20 records in part. It also revised its position and claimed that section 31(1)(a) applied to five records in full and part of one record; and that section 37 applied to the withheld information in 18 of the records which were part released.  It maintained that section 42(m)(i) applied to ten records in full and part of one record. 

I have now completed my review in accordance with section 22(2) of the FOI Act.  In carrying out my review, I have had regard to the correspondence between the applicant and the Department as described above and to the correspondence between this Office and both the applicant and the Department on the matter. I have also had regard to the contents of the records at issue.  I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with the question of whether the Department was justified, under sections 31(1)(a), 37(1), and 42(m) of the Act, in refusing access in whole or in part, to certain records relating to a protected disclosure regarding the applicant.  For the avoidance of doubt, the records remaining in scope are records 1, 2, 5 - 8, 15, 18, 20 - 23, 28, 30, and 32 in full, and parts of records 9 - 14, 16, 19, 24 - 27, 29, 31, and 33 - 38.
 

Preliminary Matters
 

Firstly, section 25(3) of the FOI Act requires the Information Commissioner to take all reasonable precautions in the performance of his functions to prevent the disclosure of information contained in an exempt record. As a consequence, the descriptions I can give of the reasons for my findings in this case are necessarily limited.

Secondly, I acknowledge that this review has been with this Office for some considerable time.  However, the handling of this request and review by the Department fell short of what would be expected of a body subject to the FOI Act for many years. There were delays in the provision of records and information required to progress this review. There were also issues with the manner in which records and schedules were provided to this Office by the Department leading to further delays while those issues were addressed. 

Finally, as noted above, no schedule of records was provided by the Department to the applicant with its decisions. The Code of Practice on FOI for public bodies published by Central Policy Unit of the Department of Public Expenditure and Reform (see www.foi.gov.ie) states a schedule should be included with decisions providing details of those records being released in full, of those to which partial access is being given, and of those being refused and setting out the reasons why access is not being granted in full or in part and referencing relevant sections of the Act where refusals are made. Under section 48(3) of the Act, public bodies must have regard to the Code of Practice in the performance of their functions under the Act. I expect the Department to take measures to ensure that all future requests are processed in accordance with the requirements of the Act and in accordance with the guidance provided in the Code of Practice.
 

Analysis and Findings

The records at issue comprise correspondence and records relating to a protected disclosure made to the Department concerning the applicant. 

Section 31(1)(a)
The Department argued that section 31(1)(a) applies to records 6, 7, 18, 22, and 32 in full and to record 33 in part. That section provides for the mandatory refusal of a request if the record concerned would be exempt from production in proceedings in a court on the ground of legal professional privilege. Legal professional privilege enables the client to maintain the confidentiality of two types of communication:

• confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege), and
• confidential communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation (litigation privilege).

For advice privilege to apply, the communication must be made between the client and his/her professional legal adviser in a situation where the legal adviser is acting in a professional capacity. This Office is also satisfied that advice privilege attaches to records that form part of a continuum of correspondence that results from an original request for advice. The exemption in section 31(1)(a) is not subject to a public interest balancing test. 

Having examined the records for which section 31(1)(a) has been claimed, I am satisfied that they comprise communications between the Department and its professional legal advisor for the purpose of obtaining or giving legal advice. I find that section 31(1)(a) applies to records 6, 7, 18, 22, 32, and 33(part). 

Section 42(m)(i)
The Department claimed that section 42(m)(i) applied to records 1, 2, 5, 7, 8, 20, 21, 23, 28 and 30 in full and to record 38 in part.  As I have already found record 7 to be exempt under section 31(1)(a), I do not need to deal with it here. 

Section 42(m)(i) provides that the FOI Act does not apply to a record relating to information whose disclosure could reasonably be expected to reveal or lead to the revelation of the identity of a person who has provided information in confidence in relation to the enforcement or administration of the law to an FOI body, or where such information is otherwise in its possession. In essence, the section provides for the protection of the identity of persons who have given information to FOI bodies in confidence in relation to the enforcement or administration of the law to ensure that members of the public are not discouraged from co-operating with such bodies or agencies.

For section 42(m)(i) to apply, three specific requirements must be met. The first is that release of the withheld information could reasonably be expected to reveal, whether directly or indirectly, the identity of the supplier of information. The second is that the information provided must have been provided in confidence, while the third is that the information provided must relate to the enforcement or administration of the law.

First Requirement
In this case, the Department’s position is that the information in the records for which section 42(m)(i) has been claimed is such that its release could reasonably be expected to lead to the revelation of the identity of the person who provided the information.  Having examined the records, I accept that the nature and content of these records are such that release could also lead to the revelation of the identity of the person who provided the information.  I am satisfied that the first condition is met.

Second Requirement
The second requirement is that the provider of information must have provided that information in confidence. The information at issue was provided to the Department as a protected disclosure.  The Protected Disclosures Act 2014 (PD Act) aims to protect people who raise concerns about possible wrongdoing in the workplace. Section 16 of the PD Act provides for the protection of the identity of the informant. According to the Department, the information was given in confidence and was treated as such in accordance with the PD Act and the Department’s Protected Disclosure Policy. I therefore find that the second requirement is met.

Third Requirement
The third requirement is that the information provided relates to the enforcement or administration of the law.  The Department has a responsibility in relation to the enforcement and administration of the PD Act. The Department pointed to the grounds on which a protected disclosure can be made as set out in the PD Act, and that this protected disclosure fell within one of these grounds.  I am satisfied that the third requirement is met.

Having found that each of the requirements are met, I find that section 42(m)(i) of the FOI Act applies to records 1, 2, 5, 7, 8, 20, 21, 23, 28, and 30 in full and to record 38 in part.

Section 37 Personal Information
The Department refused access to some information in records 9-14, 16, 19, 24-27, 29, 31, 34-37 on the basis that section 37 applied.  Section 37 is also relevant to redacted information in record 33.  The information at issue comprises names, positions held and contact details of staff members of an organisation which is not subject to the FOI Act.  

Section 37(1) provides that an FOI body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information relating to an individual or individuals other than the requester, including personal information relating to a deceased individual.  The Act defines the term "personal information" as information about an identifiable individual that either (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 an FOI body on the understanding that it would be treated by the body as confidential. The definition also contains a list of 14 specific types of information that is personal information, without prejudice to the foregoing definition, including information relating to the employment or employment history of an individual.  I find that the release of the information at issue in this case would involve the disclosure of personal information relating to the individuals to whom it relates and that section 37(1) applies. 

Section 37(2)
There are some circumstances, provided for at section 37(2), in which the exemptions at section 37(1) do not apply. I am satisfied that none of the circumstances identified at section 37(2) arise in this case. That is to say, (a) the information contained in the records does not relate solely to the applicant; (b) the third parties have not consented to the release of their information; (c) the information is not of a kind that is available to the general public; (d) the information at issue does not belong to a class of information which would or might be made available to the general public; and (e) the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual. I find that section 37(2) does not apply to the withheld information.

Section 37(5)
Having found that section 37(1) applies to the withheld information, I must also consider section 37(5). That section provides that a request which would fall to be refused under section 37(1) may still be granted where the FOI body considers that, on balance, (a) 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, or (b) the grant of the request would benefit the individual concerned.

I see no basis for finding that the grant of the request would benefit the individuals to whom the information relates.  I am satisfied that section 37(5)(b) does not apply in this case.  

In relation to the public interest test contained in section 37(5)(a), I wish to emphasise that in carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. In sum, section 11(3) recognises the need to enhance public scrutiny and accountability of government and public affairs, particularly the activities and decision making of FOI bodies. However, in a judgment delivered on 25 September 2020 (The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors, available on our website), the Supreme Court held that general principles of openness and transparency do not provide a sufficient basis for directing the release of otherwise exempt information in the public interest. Rather, a “sufficiently specific, cogent and fact-based reason” is required “to tip the balance in favour of disclosure”.

Moreover, while the Court stated that the public interest balancing test involves a “weighing of the respective private and public interests in the analysis of the records in issue”, it did not disturb the guidance that it previously gave in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner [2011] IESC 26 ("the Rotunda Hospital case") in which it drew a distinction between private and public interests. Relevant private interests are those that are recognised by law and, in particular, through the protection afforded by the exemption provisions. Although the Court’s comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.

The FOI Act recognises the public interest in the protection of the right to privacy both in the language of section 37 and 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 also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. Moreover, unlike other public interest tests provided for in the FOI Act, there is a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. 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.

In considering where the balance of the public interest lies in this case, it is important to note that the release of records under FOI is regarded, in effect, as release to the world at large, given that the Act places no constraints on the uses to which a record released under the Act may be put. I have also had regard to the nature of the information in this case.  In the circumstances, I find no relevant public interest in granting access to the information that, on balance, outweighs the public interest in upholding the right to privacy of the third party individuals concerned. I find that section 37(5)(a) does not apply in this case.

In conclusion, therefore, I find that the Department was justified in refusing the redacted information in records 9-14, 16, 19, 24-27, 29, 31, 33-37 under section 37(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 decision of the Department to refuse access to the records remaining within scope under sections 31(1)(a), 37(1), and 42(m)(i).
 

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