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Mr S and the Central Bank of Ireland (FOI Act 2014)

Case Number: 160474

Whether the Central Bank was justified in refusing access to certain records concerning the applicant's complaints of corruption in relation to a regulatory inspection carried out in 2008

Conducted by the Information Commissioner in accordance with section 22(2) of the FOI Act

Background

[This decision has been substantially redacted in order to remove identifying information about the parties concerned.]

On 20 April 2016, the applicant made an FOI request to the Central Bank seeking access to 13 categories of records relating directly or indirectly to complaints made against the Bank and certain named officials arising from an inspection carried out in 2008 of a financial services company [Company X] regulated by the Central Bank. The complaints date from July 2011 and were addressed to a Teachta Dála and the European Central Bank (ECB), respectively; both complaints were forwarded to the Central Bank, which carried out investigations of the matter. In a decision dated 16 June 2016, the Central Bank granted the applicant's FOI request in part, but refused access to a large number of records in full or in part under various exemption provisions of the FOI Act. The Central Bank also took the view that the FOI did not apply to certain records in their entirety by virtue of Schedule 1, Part 1(b)(i) of the Act. On 11 July 2016, the applicant sought an internal review of the Central Bank's decision. On internal review, the Central Bank reconsidered its position in relation to the scope of Schedule 1, Part 1(b)(i) having regard to the decision of this Office in Case 150195 (Mr X and the Central Bank of Ireland), available at www.oic.ie, and granted partial access to additional records accordingly.

In October 2016, the applicant applied to this Office for a review of the Central Bank's decision. In support of his application for review, the applicant submitted a large binder of relevant documents, including a copy of the inspection report from 2008. There is nothing to indicate, however, that access to the inspection report was ever granted under FOI or is otherwise publicly available.

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 submissions made by the applicant and the Central Bank, and I have also examined the contents of the records at issue. I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

During the course of the review, the Central Bank reconsidered its position further and agreed to release additional records. A copy of the additional records being released was forwarded to this Office with the Central Bank's submissions on 21 February 2017. The applicant was notified of the Central Bank's revised position and in his reply he clarified that he is primarily interested in obtaining the details of the three investigations of his complaints. (The third "investigation" referred to is in fact a review conducted by an external barrister following the second investigation carried out by the Central Bank's Internal Audit Division.) He stated that he is not interested in obtaining the direct telephone numbers of the Central Bank officials involved in the matter, but rather the identity of the staff members who were "aware that the Minister for Finance highlighted criminality in this episode by getting the post book details and didn't refer the matter to the Guards as per Section 19 of the Criminal Justice Act 2011". (This is a reference to a statement added by the Private Secretary to the Minister for Finance in a letter from May 2013 suggesting that the applicant may wish to pursue matters with An Garda Síochána given that "certain events" he described "could be perceived as criminal offences".) He also accepts the claim of legal advice privilege made with respect to relevant internal correspondence with the Central Bank's legal division and draft correspondence with the Office of the Data Protection Commissioner that was prepared by the internal legal division or sent to that division for advice.

Accordingly, adopting the categorisation system used by the Central Bank in its amalgamated schedule of records (a copy of which was made available to the applicant), my review in this case is concerned with the question of whether the Central Bank's decision to refuse access to the following records was justified under the FOI Act:

  • records IR1, IR2, 3.17, IR3, IR4, IR5, 7.1, 10.1, 13.3, 13.5, 13.10, 13.30-13.36, IR8, IR9 (in part - other than in relation to the direct telephone numbers included therein)
  • records 4.1, IR7, 6.1, 7.0, 8.0, IR10 (apart from the direct telephone number included in IR10).

 

My review will also involve the examination of the records of internal correspondence with the Central Bank's legal division to confirm whether the correspondence was for the purpose of seeking or giving legal advice.

I should add that four records that the Central Bank has agreed during the course of this review to release in full originally included attachments which do not in fact appear to be proposed for release. A comparison of the copy of the additional records forwarded to this Office on 21 February 2017 with the copy the records previously provided to this Office for the purposes of my review indicates that only the emails contained in records 13.123, IR13, IR14, and IR17 are being released. Two attachments to records IR13 and IR14 are copies of a record that has already been released, however: record 13.21. The remaining attachments are copies of records IR1 and IR2. Any findings made below in relation to records IR1 and IR2 also apply with respect to any copies of these records that had been appended to the released records or which are still attached to the records remaining at issue.

Preliminary Matters

Before setting out my findings, there are some preliminary points I wish to make.

The first point to note is that section 13(4) of the Act requires that, subject to the Act, any reasons a requester gives for making a request shall be disregarded. This means that an applicant's motivation cannot be considered except insofar as it might be relevant to the consideration of public interest provisions. I also note that the remit of this Office does not extend to examining the manner in which a public body performs its functions generally, to investigating complaints against a public body, or to acting as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.

A related point to make is that, with certain limited exceptions, the FOI Act does not provide for the limiting of access to records to particular individuals only. When a record is released under the FOI Act, it effectively amounts to disclosure to "the world at large" (H.(E.) v Information Commissioner [2001] IEHC 58). The FOI Act places no restrictions on the type or extent of disclosure or the subsequent use to which the record may be put.

In addition, I should point out that, while I am obliged to give reasons for my decision, section 25(3) requires that I take all reasonable precautions to prevent the disclosure of information contained in an exempt record or matter that, if it were included in a record, would cause the record to be exempt. This constraint means that the extent to which I can describe the contents of the records is limited. In this case, the constraint extends to the submissions made by the applicant. However, I am mindful of the burden of proof under section 22(12)(b) of the Act, which provides that a decision to refuse to grant access to a record "shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified."

Lastly, I should draw attention to section 18 of the FOI Act, which 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 18 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, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent.

Analysis and Findings

Records IR1, IR2, IR4, IR5, 13.3, IR9, and IR10
Schedule 1, Part 1(b)(i)
The Central Bank claims that Schedule 1, Part 1(b)(i) applies in part to records IR1, IR2, IR4, IR5, 13.3, and IR9 and in full to IR10. On a without prejudice basis, the Central Bank alternatively claims that section 42(i), section 41(1)(a), and section 37 of the Act apply to these records and that records IR2 and IR10 are also exempt under section 36 of the Act. I consider it necessary to address the issue of jurisdiction first.

Schedule 1, Part 1(b)(i) provides that the Central Bank is not a public body for the purposes of the FOI Act in relation to records

 

"(i) records held containing -

(I) confidential personal information relating to the financial or business affairs of any individual, or

(II) confidential financial, commercial or regulatory information relating to the business affairs of any person who holds or has held or who has applied for a licence, authorisation, approval or registration from the Central Bank of Ireland, or is otherwise regulated by the Central Bank of Ireland,

 

that the Central Bank of Ireland has received for the purposes of performing, or in the discharge of, any of its statutory functions (other than when that information is contained in records in summary or aggregate form, such that persons cannot be identified from the record)".

The applicant argues that the information concerned was not received by the Central Bank for the purposes of performing, or in the discharge of, any of its statutory functions, but rather from the "whistle-blowers declaration" that he made to then a Teachta Dála. He also suggests that the information is in the public domain or known to the "public at large".

I note, however, that in investigating the matter, the Central Bank did not simply rely on information provided by the applicant; rather, the Central Bank carried out a review of its inspections of Company X and another company referred to in the applicant's complaints [Company Y], in reference to the applicant's complaints. I also note that the applicant's initial letter of complaint drew upon information included in the 2008 inspection report that had been provided by the Central Bank to Company X at the time on a confidential basis. I find no evidence that information pertaining to the inspection of Company X is now in the public domain. The applicant's letter to then a Teachta Dála was marked as confidential, and a reference to the confidentiality of correspondence concerning financial institutions was also made in the body of the complaint. I am satisfied that the matter was in turn treated as confidential by the parties concerned and not disclosed to the "public at large". While the applicant may have shared details of his complaints within his circle of family, friends, and business associates, this does not mean that the details are in the public domain or that a duty of confidence does not exist with respect to the information obtained during the course of his association with Company X.

I am satisfied that, in applying Schedule 1, Part 1(b)(i) of the Act upon reconsideration of its position during the course of this review, the Central Bank has attempted to distinguish information about its actions in investigating the applicant's complaints of corruption from information based on its regulatory role in inspecting the companies concerned as the financial regulator. The lines are blurred in some instances, but this is due to the nature of the applicant's complaints, particularly as the applicant included information from the 2008 inspection report in his initial letter of complaint. Moreover, the applicant's complaints also implicated Company X and its accountants (another company regulated by the Central Bank) and, as noted, it drew comparisons with Company Y. Therefore, investigation of his complaints necessarily involved reference to confidential financial, commercial or regulatory information relating to the business affairs of these companies. As the Central Bank explains in its submissions to this Office:

"A Central Bank inspection report into a regulated entity by its very nature contains an extensive and in-depth assessment of financial, commercial and regulatory information of that entity which all relate ultimately to the business affairs of that entity and its engagement with consumers. Such reports would constitute almost in their entirety of confidential financial, commercial or regulatory information relating to the business affairs of the entity, in this case [Company X] and/or [Company Y]. It is this type of information which is referenced and quoted in the requester's complaints and correspondence with the Central Bank and the ECB, and therefore referred to continuously in the Central Bank's investigative actions into these complaints and correspondence surrounding the same. As referred to above, the requester draws comparison between [Company X] and [Company Y] (based on public information and his own opinion), however, given that the Central Bank's investigation into this complaint involved the comparison [of] the financial affairs of both [Company X] and [Company Y], the internal records of the Central Bank contain confidential, financial and regulatory information regarding [Company X] and [Company Y]."

 

I further note that it is apparent that the complaints were forwarded to the Central Bank for investigation by a Teachta Dála and the ECB in the first place because of the Central Bank's statutory role in the matter as the financial regulator in Ireland. Thus, it seems to me that the complaints were indeed received by the Central Bank "for the purposes of performing, or in the discharge of, any of its statutory functions". In the circumstances, I do not generally consider it appropriate to treat any occasional excerpts as falling outside the ambit of Schedule 1, Part 1(b)(i) simply because they may, arguably, be closer in proximity to the complaints than the Central Bank's regulatory role in carrying out the actual inspections. That is is to say, I am satisfied that most of the information withheld from the records concerned is confidential financial, commercial or regulatory information relating to the business affairs of Company X, its accountants, and/or Company Y that was received by the Central Bank for the purposes of performing, or in the discharge of, any of its statutory functions (other than when that information is contained in records in summary or aggregate form, such that persons cannot be identified from the record). In making this finding, I note that some information about the inspection of Company Y is in the public domain and therefore the name of the company in the context of the inspection is not itself "confidential". However, the references to the company in the context of the applicant's letter of complaint alleging corruption in relation to the Central Bank's inspection of Company X are confidential and therefore also fall within the ambit of Schedule 1, Part 1(b)(i). The same is true of a reference to the issuing of a banking license to the parent company of Company X. Having found that Schedule 1, Part 1(b)(i) applies to the withheld references to the companies concerned in these records, I also find that it applies to any withheld references to the companies found in the other records at issue. Moreover, as indicated above, my findings in relation to Schedule 1, Part 1(b)(i) also apply to copies of the relevant records which have been included as attachments to various other records listed in the schedule of records, such as a copy of record IR2 that is appended to record IR3.

For the sake of completeness, I note that the information falling within the ambit of Schedule 1, Part 1(b)(i) of the Act would also be excluded from the remit of the Act by virtue of section 42(i) of the Act. Section 42(i) provides that the FOI Act does not apply to a record held by the Central Bank of Ireland, the disclosure of which is prohibited by (i) the Rome Treaty, (ii) the ESCB Statute, or (iii) any of the Supervisory Directives, within the meaning of the Central Bank Act 1942. The relevant Supervisory Directive, as listed in section 33AK(10) of the Central Bank Act 1942, is Directive 2004/39/EC (the "MiFID I"), as Company X and Company Y are or were authorised investment firms under the regulations which transpose MiFID I into Irish law. Although MiFID has now been replaced by a new directive, Directive 2014/65/EU ("MiFID II"), both directives contain the same prohibition on disclosure of confidential information. Article 76 of Directive 2014/65/EU provides:

"Member States shall ensure that competent authorities, all persons who work or who have worked for the competent authorities or entities to whom tasks are delegated pursuant to Article 67(2), as well as auditors and experts instructed by the competent authorities, are bound by the obligation of professional secrecy. They shall not divulge any confidential information which they may receive in the course of their duties, save in summary or aggregate form such that individual investment firms, market operators, regulated markets or any other person cannot be identified, without prejudice to requirements of national or criminal law or the other provisions of this Directive or of Regulation (EU) No 600/2014."

It is readily apparent that the Oireachtas wished to observe the professional secrecy obligations arising under EU law by ensuring that any confidential information held by the Central Bank relating to the entities it regulates is excluded from the ambit of the FOI Act.

Exceptions & the alternative claims for refusal
However, I find that certain discrete parts of records IR2, 13.3, and IR10 do not fall within the ambit of Schedule 1, Part 1(b)(i). They are as follows:

  • the names of Central Bank staff members which have been withheld from record IR2;
  • the redactions made from record 13.3 apart from those referring to Company X, i.e. those following after "N/A Screenshots from";
  • record IR10, apart from the attachments and the excerpts referring to Company Y.

 

I will address the names of the Central Bank staff members withheld from record IR2 below in relation to section 37 of the FOI Act.

I note that the Central Bank's alternative claims for refusal or exemption under section 42(i), section 41(1)(a), and section 36 relate to Company X, its accountants, and Company Y. However, the information withheld from records 13.3 and IR10 as identified above does not relate to these companies. Record 13.3 includes reference to information given in confidence from a third party in 2005 and to a legally privileged letter received from a certain law firm in 2004, but it does not disclose the actual confidential or legally privileged information given as opposed to its mere existence. No case has been made that any of the "neither confirm nor deny" provisions of the FOI Act (e.g., section 35(4)) apply in this case. I also do not see that any personal information within the meaning of the Act is at issue. I therefore find no basis for withholding the information contained in records 13.3 and IR10 that falls within the remit of the FOI Act. While the Central Bank has referred to section 18 in relation to record IR10, I am not satisfied that section 18 supports the decision to refuse to grant access to the record in part (as redacted in the copy forwarded to this Office on 21 February 2017, with the additional redaction of the reference to Company Y on page 2 of the email).

Section 37
Section 37(1) is a mandatory exemption that applies where the grant of a request would involve the disclosure of personal information (including personal information relating to a deceased 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 their family or friends or, (b) is held by a public body on the understanding that it would be treated by it as confidential. The FOI Act details twelve specific categories of information which are included in the definition without prejudice to the generality of the forgoing definition, including "(iii) information relating to the employment or employment history of the individual"; "(vi) information relating to any criminal history of, or the commission or alleged commission of any offence by, the individual"; and "(xiv) the views or opinions of another person about the individual".

I note that section 2 excludes certain information from the definition of personal information, such that the definition does not include, in pertinent part, in a case where an individual occupies or occupied a position as a member of staff of a public body, the name of the individual or information relating to the office or position or its functions or anything written or recorded by the individual in the course of and for the purpose of the performance of his or her functions. This exclusion to the definition of personal information is intended, in essence, to ensure that section 37 will not be used to exempt the identity of a public servant in the context of the particular position held or any records created by the public servant while carrying out his or her official functions. However, the exclusions to the definition of personal information do not deprive public servants of the right to privacy generally. Thus, previous decisions of this Office have accepted that the exclusions do not apply to references involving allegations of inappropriate or illegal behaviour, whether proven or otherwise

As noted above, direct telephone numbers have been excluded from the scope of the review. Of the remaining records at issue, the Bank claims that section 37(1) applies in part to records IR2, 3.17, IR3, 7.1, and 10.1. The information redacted from these records includes the names of and other information relating to the staff members against whom the applicant has made allegations. The applicant has suggested that these staff members should be "exposed for engaging in wrongdoing". He notes that public servants working in a Department of State are accountable to elected officials, whereas the Central Bank has "complete independence from political input". He therefore contends that "there must be a higher level of transparency" from the Central Bank than from a politically controlled body such as a Department of State. However, I do not accept that the political independence of the Central Bank means that its staff members are deprived of the right to privacy under FOI in relation to allegations of wrongdoing.

I find that the following redactions fall within the exclusion to the definition of personal information or are otherwise not exempt under section 37(1) of the FOI Act:

  • the name of the person who carried out the first review or investigation, as it appears in section 16 of record IR2 under "Final Comments";
  • the second redaction made from records 3.17 and 7.1;
  • the email address redacted from record IR3 (which has been disclosed in other records).

 

I am satisfied that section 37(1) otherwise applies as claimed. The applicant's allegations against staff members of the Central Bank are not limited to those first made in his letter of complaint from July 2011; rather, he has since made additional allegations against certain staff members based on subsequent events. I find that the redactions which contain identifying about the individuals concerned and the first redaction made from records 3.17 and 7.1, which comments on the performance of certain staff members, qualify as personal information within the meaning of the Act.

Section 37(2) of the FOI Act sets out certain circumstances in which 37(1) does not apply. However, I am satisfied that none of those circumstances arises in this case. That is to say, (a) the information does not relate solely to the applicant; (b) the individuals to whom the information relates have not consented to the release of the information; (c) the information is not of a kind that is available to the general public; (d) the information 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.

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 information would be to the benefit of the person to whom the information relates.

As I find no basis for concluding that the release of the information concerned would be to the benefit of the third party individuals to whom it relates, I find that section 37(5)(b) does not apply. In considering the public interest test contained in section 37(5)(a), it is important to have regard to the comments of the Supreme Court 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"). It is noted 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") should be distinguished from a private interest. In this case, I accept that there is a strong public interest in openness and accountability in relation to the manner in which the Central Bank carried out its investigations into the applicant's complaints. However, I note that the applicant has now been granted access to a significant amount of information about the investigations. I also note that the redactions made under section 37 are minimal in scope.

I am satisfied that the released records have served the public interest in openness and accountability to a large degree. Weighing against the public interest in granting access to the information that qualifies for exemption under section 37 is the strong public interest in protecting the right to privacy. The public interest in protecting privacy rights is reflected both in the language of section 37 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). The right to privacy also has a constitutional dimension in Ireland. In the circumstances, I find that the public interest in granting access to the information that qualifies for exemption under section 37 does not, on balance, outweigh the public interest in upholding the right to privacy of the individuals concerned.

Section 31(1)(a)
Section 31(1)(a) is a mandatory exemption which protects records that would be exempt from production in proceedings in a court on the ground of legal professional privilege.

Legal professional privilege enables a client to maintain the confidentiality of two types of communication:

(a) 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
(b) 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).

Unlike several other of the exemptions in the FOI Act, the provision at section 31(1)(a) does not provide for the setting aside of that exemption where to do so would serve the public interest.

As noted above, the applicant accepts the claim of legal advice privilege made with respect to relevant internal correspondence with the Central Bank's legal division and draft correspondence with the Office of the Data Protection Commissioner that was prepared by the internal legal division or sent to that division for advice. For the sake of completeness, I note that the records of internal correspondence with the Central Bank's legal division are the following: 3.5, 3.10, 3.11, 3.12, 3.15, IR6 in part, and numerous records falling under category 13 of the applicant's request. I have examined these records and confirm that they contain communications, or form part of a continuum of communications, for the purpose of obtaining and/or giving legal advice. I am satisfied that they would qualify for legal advice privilege.

However, the applicant argues that the Central Bank is not entitled to claim legal professional privilege in relation to the review carried out by an external barrister. The relevant records are primarily records 4.1, IR7, and IR6 (which includes an email from the barrister attaching his report). Copies of the barrister's report on his review are also included as an attachment to various other records listed in the schedule. The applicant compares the appointment of the external barrister to that of Mr. Justice Kevin O'Higgins and Sean Guerin SC in relation to the whistleblower's declaration made by Sergeant Maurice McCabe and suggests that a review by an independent party is not for the purpose of obtaining and/or giving legal advice. However, both Justice O'Higgins and Mr. Guerin were appointed by the Government to carry out the relevant investigation or inquiry into An Garda Síochána. The external barrister, in contrast, was engaged by the Central Bank in his capacity as a barrister, through the legal division, to carry out an external review of the relevant file to determine, having regard to its legal obligations, whether any further action was warranted. In its submissions, the Central Bank explains:

 

"[The external barrister] was requested by [the former General Counsel for the Central Bank] to give legal advice on the Central Bank's handling of the requester's complaint and to advise if any additional actions should be undertaken by the Central Bank or whether any further obligations arose. The report was compiled on the understanding and expectation that it would be subject to legal professional privilege; this is one of the reasons why the Central Bank took the decision not to provide the report in full to the requester (instead, a summary of same was provided). There was no obligation on the Central Bank to conduct an external review and the report was collated on the basis that it was legal advice sought by the Central Bank. Instructions of this nature to a Junior Counsel in the Law Library from the Central Bank's General Counsel would only be made by the Central Bank in the context of seeking external legal advice."

In these circumstances, I am satisfied that the Central Bank would be entitled to claim legal professional privilege over the records concerned if production were sought in proceedings in a court and that section 31(1)(a) therefore applies as claimed.

However, section 31(1)(a) has also been claimed with respect to record IR8 in part. Record IR8 does not consist of internal correspondence with the Central Bank's legal division. It restates a summary of a conclusion reached by the external barrister, but a copy of this summary has been disclosed elsewhere to the applicant and is therefore not confidential (e.g. record 13.25). I find no basis for withholding any part of the email exchange included in the record. For the sake of completeness, however, I note that the attachments are copies of records IR1, IR2, and IR7 and therefore my findings above in relation to Schedule 1, Part 1(b)(i), section 37(1), and section 31(1)(a) apply accordingly.

Section 35
The Central Bank claims that records 13.5 and 13.10 are partially exempt under section 35(1) of the FOI Act. Record 13.5 includes a schedule of the records that were at issue in an appeal before the ODPC. Record 13.10 is a note of a meeting with ODPC officials and, like the schedule at record 13.5, it includes a brief description of the records that were at issue. The excerpts from these records that are at issue in this case both refer to a letter that was considered to be confidential or otherwise exempt from release under the Data Protection Act. However, neither record discloses the contents of the letter.

Section 35(1) states that "Subject to this section, a head shall refuse to grant an FOI request if-


(a) the record concerned contains information given to an FOI body, in confidence and on the understanding that it would be treated by it as confidential (including such information as aforesaid that a person was required by law, or could have been required by the body pursuant to law, to give to the body) 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, or (b) 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) in Part 1 or 2 of Schedule 3 of an enactment specified in that Schedule) or otherwise by law".


Under section 35(2), the confidentiality exemption does not apply to a record prepared by a staff member 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 head or a director, or member of the staff of, a public body or a person who is providing or provided a service for a public body under a contract for services". In addition, section 35(1)(a) does not apply if the public interest would, on balance, be better served by granting rather than by refusing to grant the request (section 35(3) refers).

In this case, both of the records concerned were prepared by staff members of the Central Bank and therefore section 35(2) operates to disapply section 35(1) unless disclosure of the information concerned would constitute a breach of a duty of confidence that is owed to a third party, i.e. to a person other than a member of staff of a public body or a person who is providing a service for a public body under a contract for services. As stated, neither record discloses the contents of the letter that was at issue before ODPC; the records merely provide a brief description of what the letter was about and why the letter was provided to the Central Bank. No claim has been made that the "neither confirm nor deny" provision under section 35(4) of the Act applies. In any event, I note the letter's existence and its date have already been disclosed in the redacted records released to the applicant. I further note that the date of the letter indicates that it was not provided by the source identified by the Central Bank in its submissions. In the circumstances, I simply find no basis for concluding that a duty of confidence is owed to any third party with respect to the redacted information.

Section 36
The Central Bank claims that records 13.35-13.36 are partially exempt under section 36 of the FOI Act on the basis that they contain commercially sensitive information. Record 13.32 includes a copy of record IR2, which has been dealt with above. Otherwise, the information redacted from the records concerned consists of references to Company Y. However, as I have found that such references fall within the ambit of Schedule 1, Part 1(b)(i) and alternatively section 42(i) of the Act, it is not necessary for me to address the Central Bank's claims with respect to section 36 of the Act.

Section 15(1)(a)
The Central Bank claims that section 15(1)(a) applies to three categories of records sought by the applicant: the board pack given to the Internal Audit Committee in respect of the paperwork that he provided to the ECB in advance of the Committee's meeting on the matter; the handwritten contemporaneous note taken of the Committee meeting discussing the paperwork that he provided to the ECB; and the minute of the Committee meeting discussing the paperwork that he provided to the ECB.

Section 15(1)(a) provides that access to a record may be refused if the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. In cases such as this one, the role of the Commissioner is to decide whether the decision maker has had regard to all the relevant evidence and to assess the adequacy of the searches conducted by the public body in looking for relevant records. The evidence in "search" cases generally consists of the steps actually taken to search for the records along with miscellaneous other information about the record management practices of the public body insofar as those practices relate to the records in question. On the basis of the information provided, the Commissioner forms a view as to whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found. It is not normally the Commissioner's function to search for records.

The Central Bank's explanation of the steps taken to locate the records sought has been explained in detail to the applicant and need not be repeated here. In his response, the applicant comments on the significance of his complaints and suggests that the absence of a board pack and minute would be indicative of poor corporate governance and a cover up. However, as the applicant is aware, an electronic version of the note of the meeting has been located and released to the applicant, subject to the redactions discussed above in relation to records 3.17 and 7.1. In any event, having had regard to the submissions made by both the applicant and the Central Bank on the matter, I am satisfied that the Central Bank has taken all reasonable steps to search for the records concerned and that section 15(1)(a) applies as claimed.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Central Bank's decision. I affirm its decision to refuse access to the records at issue with the following exceptions:

  • I direct that access be granted to the name redacted from record IR2 under "Final Comments";
  • I direct that access be granted to the information covered by the second redaction made from records 3.17 and 7.1;
  • I direct that access be granted to the email address redacted from record IR3;
  • I direct that access be granted to the information redacted from record 13.3 after "N/A Screenshots from";
  • I direct that access to records 13.5 and 13.10 be granted in full;
  • I direct that access be granted to the information redacted from the email in record IR8;
  • I direct that access be granted a redacted copy of record IR10 (i.e. apart from the attachments and subject to the redaction of the information pertaining to Company Y).

 

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 applicant 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.

 


Peter Tyndall
Information Commissioner