Whether the Department was justified in refusing access to a report (and accompanying photographs) undertaken by the National Parks and Wildlife Service (NPWS) on the basis of section 30(1)(a) of the FOI Act

17 August 2022

Background

In a request dated 9 February 2022, the applicant sought access to an investigation report undertaken by NPWS relating to works carried out by, or on behalf of, the Office of Public Works (the OPW) at Emo Court, Laois in 2019 and 2020, including the recommendations from the report. In a decision dated 4 March 2022, the Department refused access to the report under section 30(1)(a) of the FOI Act. On 14 March 2022, the applicant sought an internal review of that decision. On 14 April 2022, the Department affirmed the original decision. On 26 April 2022, the applicant applied to this Office for a review of the Department-�s decision.

During the course of the review, the Investigator notified the OPW of the request and invited it to make a submission on the matter. A submission was received by this Office on 22 July 2022. Furthermore, it became apparent that section 37 of the FOI Act may be relevant to a small quantity of information within the records and therefore to this review. Section 37 protects personal information relating to third parties. The Investigator attempted to contact the applicant to enquire as to whether she was seeking such information but no response was received.

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 applicant-�s comments in her application for review and to the submissions made by the Department and the OPW.  I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

The Department identified two records as coming within the scope of the request: one written report and a set of 20 accompanying photographs. Access to both records was refused under section 30(1)(a). The relevant documents were referred to as one record in the internal review decision but for the avoidance of doubt I will use the referencing in the original decision.

Accordingly, this review is concerned solely with whether the Department was justified in refusing access to the records on the basis of section 30(1)(a) and 37(1).

Preliminary Matters                                                                       

Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request under section 12 shall be presumed not to have been justified unless the head of the relevant FOI body shows to the Commissioner's satisfaction that its decision was justified. This means that the onus is on the Department to satisfy this Office that its decision to refuse access to the records sought, either in whole or in part, was justified.

It is also important to note that a review by this Office is considered to be -�de novo-�, which means that it is based on the circumstances and the law as they pertain at the time of the decision. Accordingly, in light of the -�de novo-� nature of our reviews, I consider it appropriate to consider the applicability of additional mandatory exemptions, notwithstanding the fact that the provisions were not relied upon as a ground for refusing access to the records in the FOI body-�s decisions on the request.

Analysis and Findings

The records at issue

The records at issue relate to an investigation undertaken by NPWS in relation to work undertaken at Emo Court by, or on behalf of, the OPW. In particular, the records relate to the impact of such works on bats and their breeding and resting places. To put the records in context, the Department provided the following background information in respect of investigations undertaken by NPWS. In the decision-making records it says that -�it is public knowledge that NPWS conducted an investigation into works done by the OPW at Emo Court (in relation to bat conservation) and that this investigation did not result in a prosecution-�. The report requested is the product of this investigation.

In its submissions to this Office, the Department said that NPWS officers may be appointed as authorised persons/officers under theWildlife Act 1976or under theEuropean Communities (Birds and Natural Habitats) Regulations 2011. The Wildlife Act is the principal national legislation for the protection of wildlife and the control of certain activities that may adversely affect wildlife. The 2011 Regulations transpose relevant EU Directives relating to the conservation of natural and species habitats.

The Department said that when authorised officers suspect that offences against wildlife law have been committed, they may investigate. It said investigations may involve -�visits to the scene of the suspected offences and a search for, and interviews with, any witnesses-�. It said physical evidence located may be seized and held. It said individuals may be given a caution and interviewed, if they are willing to do so. It said investigators submit reports to their superiors along with a recommendation to prosecute or not to prosecute and that the decision to prosecute is made by a senior officer acting on behalf of the relevant Minister.

The report at record 1 comprises a number of sub-sections including a memo, correspondence and statements of evidence and witnesses. The report was compiled by a staff member of the NPWS who has been appointed as an authorised officer. Record 2 comprises a set of accompanying photographs.

Section 30(1)(a)

The Department refused access to the records concerned under section 30(1)(a) of the FOI Act. This section provides that an FOI body may refuse to grant a request if it considers that access to the record concerned could reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct thereof. Section 30(2) provides that the exemption does not apply where the public interest would, on balance, be better served by granting than by refusing to grant the request.

Where an FOI body relies on section 30(1)(a) to refuse access to a record, it should identify the potential harm in relation to the relevant function specified in paragraph (a) that might arise from disclosure, and having identified that harm, consider the reasonableness of any expectation that the harm will occur. In examining the merits of an FOI body-�s view that the harm could be reasonably expected, I do not have to be satisfied that such an outcome will definitely occur. The test is not concerned with the question of probabilities or possibilities. It is concerned with whether or not the decision maker's expectation is reasonable. It is sufficient for the FOI body to show that it expects an outcome and that its expectations are justifiable in the sense that there are adequate grounds for the expectations.

Submissions

The Department-�s position is that release of the record could reasonably be expected to prejudice the effectiveness of investigations undertaken by the Department. It argued that granting the request -�would be likely to lead to a reduced level of cooperation with NPWS investigators in future-�. It said that if persons declined to be interviewed by investigators, the subsequent investigation file would not include their perspective or motives. It said that this may result in prosecutions being initiated -�when it might not have been deemed warranted if the subject-�s perspective was better understood when the decision to prosecute was made-�. It said that while no prosecution has been initiated in in the current case, disclosure could lead people who are approached by investigators to -�understand that, even if a decision is made not to prosecute them or the organisation they work for, the investigation file is likely to be released to the public following an FOI request-�.

In its submissions to this Office, the Department, while relying solely on section 30(1)(a) of the FOI Act, also raises the matter of potential harm to the -�good name-� of the OPW should the records be released. Following our invitation to make submissions, the OPW provided a short response in which it said it agrees with the decision of the Department that the records are exempt under section 30(1)(a) of the Act. It argued that the determination that the release of the records would prejudice the effectiveness of certain functions -�appears well founded-�. It said that it would not appear to service the wider public interest to -�harm the ability of [an] FOI body to carry out effective investigations in areas of [its] remit-�.

The applicant-�s position is that any decision taken not to prosecute under the relevant legislation should be subject to oversight by -�the public and relevant EU authorities-�. In her request for an internal review, she says that bodies are under a -�legal compulsion to provide the information in question to NPWS-� and references the Supreme Court decision inSheedy v the Information Commissioner[2005] IESC 35.

In response to queries posed by this Office, the Department said that there are legislative requirements that individuals co-operate with NPWS investigations. It said that section 72 of the Wildlife Act empowers authorised persons to require a person to give such information and assistance as they consider necessary for the purpose of exercising their functions. Section 5(6) of the 2011 Regulations outlines the functions of authorised officers and includes requirements in respect of the engagement of persons with such officers. However, the Department says that such obligations do not -�override a person-�s constitutional right to remain silent when questioned-�.

Analysis

Having examined the content of the records, I am satisfied that they relate to an investigation for the purposes of section 30(1)(a). However, I am not satisfied that their disclosure could reasonably be expected to prejudice the effectiveness of such investigations or the procedures or methods employed for the conduct thereof.

It is important to note that section 30(1)(a) is a harm based exemption. A claim for exemption under section 30(1)(a) must be made on its merits and in light of the contents of each particular record concerned and the relevant facts and circumstances of the case. A claim for exemption pursuant to section 30(1)(a) which is class-based is not sustainable e.g. a claim for exemption for -�any-� inspection report.

As referenced above, I note that legal provisions exist which require co-operation from parties in respect of investigations undertaken by NPWS. In its judgment inSheedy v the Information Commissioner[2005] IESC 35, referenced above, the Supreme Court found that the High Court was correct in holding that, in circumstances where teaching staff are statutorily required to co-operate in the provision of information leading to the compilation of school reports, the Information Commissioner was entitled to take the view that no prejudice or adverse effect could follow a direction to release such reports, because co-operation would still have to be forthcoming from teachers and staff in schools because of their statutory obligations.

It had been argued before the Court that the finding of the Commissioner on this point was unsupported by any evidence and, secondly, the mere fact that the relevant statutory provisions compelled compliance did not of itself mean that section 21(1)(a) (the equivalent of section 30(1)(a) of the FOI Act 2014) could never apply. It was submitted that the overall effectiveness of the inspection regime might well be hampered if information which would otherwise be volunteered by teachers would not be forthcoming.

The Supreme Court found that the onus to produce evidence of prejudice fell on the Department and in the absence of same, the Commissioner was entitled to hold against the Department. It found that a -�mere assertion of an expectation of non co-operation from teaching staff could never constitute sufficient evidence in this regard, particularly in the circumstances shown to apply, namely, that as a consequence of both Circular 12/83 and s.13 of the Act of 1998, there was no choice left to schools or their staff as to whether or not to co-operate with the Department-�s inspectors in terms of furnishing the information sought-�.

It seems to me that the Department is essentially arguing for the protection of inspection reports as a class under section 30(1)(a). As I have outlined above, such an argument is not sustainable. In the particular circumstances of this case, I find it very difficult to accept that the release of the records at issue could reasonably be expected to prejudice the effectiveness of investigations generally or the procedures or methods employed for the conduct of such investigations. It is very relevant, in my view, that the organisation which was the subject of the investigation in this case is another public body and that the individuals who contributed to the investigation were employees of that public body or contractors authorised to carry out work on its behalf. I do not accept that such individuals would be reluctant to provide similar information in similar circumstances in the future, or that the release of the records, involving as they do the OPW, could reasonably be expected to cause other individuals to refuse to co-operate in similar investigations. Accordingly, I find that section 30(1)(a) does not apply.

Section 37

Having reviewed the records, it appears that a limited amount of information within comprises personal information relating to third parties. Section 37(1) of the FOI Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of third party personal information.

Section 2 of the FOI Act defines 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 that body as confidential. Section 2 goes on to specify 14 categories of information which, without prejudice to the generality of the above definition, constitute personal information, including (iii) information relating to the employment or employment history of the individual.

Certain information is excluded from the definition of personal information. Where the individual holds or held a position as a member of the staff of an FOI body, the definition does not include his or her name, or information relating to the position, the functions of the position, the terms upon and subject to which the individual holds or held that position, or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of his or her functions (Paragraph I refers). In a case where the individual is or was a service provider, the name of the individual or information relating to the service or the terms of the contract or anything written or recorded in any form by the individual in the course of and for the purposes of the provision of the service, does not fall within the definition of personal information (Paragraph II refers).

A number of individuals are referenced in record 1. Having reviewed the content of same, I am satisfied that the names of individuals who are staff members of an FOI body does not comprise personal information relating to those individuals, having regard to the exclusion at Paragraph I. However, I am satisfied that the name of an employee of a contractor engaged by the OPW is personal information as Paragraph II excludes the name of the service provider and not the names of staff members of a service provider. I am also satisfied that the name of an ecologist and the name of a legal professional as contained in the record comprises personal information for the purposes of the FOI Act and that section 37(1) applies to those names.

However, that is not the end of the matter as section 37(1) is subject to the other provisions of section 37. Section 37(2) provides that section 37(1) does not apply in certain circumstances. I am satisfied that no such circumstances arise in this case and that section 37(2) does not, therefore, apply.

Section 37(5) provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance (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 request would benefit the person to whom the information relates. I am satisfied that section 37(5)(b) of the Act does not apply.

Section 37(5)(a) provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of the individuals to whom the information relates should be upheld.

On the matter of whether the public interest in granting access to the information at issue would, on balance, outweigh the privacy rights of the individuals concerned, I have had regard to the comments of the Supreme Court inThe 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 Rotunda case-�). It is noted that a public interest should be distinguished from a private interest.

On the matter of the type of public interest factors that might be considered in support of the release of the information at issue in this case, I have had regard to the findings of the Supreme Court in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors,[2020] IESC 57 [59] (the eNet judgment). In her judgment, Baker J. indicated that the public interest in favour of disclosure cannot be the same public interest as that broadly stated in the Act. She said the public interest in disclosure must be something more than the general public interest in disclosure and the reason must be found from the scrutiny of the contents of the record. She said there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure.

While the comments of the Supreme Court in both judgments cited above were made in relation to provisions of the FOI Act other than section 37, I consider them to be relevant to the consideration of public interest tests generally.

Both the language of section 37 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). Unlike other public interest tests provided for in the FOI Act, there is also 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.

Having regard to the nature of the record at issue, and the context in which the referenced personal information appears, I am aware of no public interest factors in favour of its release that, on balance, outweigh the right to privacy of the individuals to whom the information relates. I find, therefore, that section 37(5)(a) does not apply.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Department-�s decision. I find that it was not justified in refusing access, under section 30(1)(a) of the Act, to the records sought and I direct their release, subject to the redaction of the names of an employee of a contractor, an ecologist and a legal professional as referenced in record 1 under section 37(1) of the 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 by the requester not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

Stephen Rafferty
Senior Investigator