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Mrs X and the Department of Justice and Equality (FOI Act 2014)

Case Number: 160157

Whether the Department was justified in refusing access to certain records, whether in full or in part, relating to the applicant and her late son

Conducted in accordance with section 22(2) of the FOI Act, by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 9 June 2015, the applicant made an FOI request to the Department for all records relating to herself and her son, who died tragically in [date deleted]. The Department's decision of 21 August 2015 concerned records held in three Divisions: Garda; Crime 1; and Courts Policy. It released some records and withheld others under sections 29, 35, 37 and 42 of the FOI Act (provisions concerning deliberative processes, confidential information, personal information and certain information to which the FOI Act does not apply). The applicant sought an internal review of the Department's decision on 8 September 2015, which the Department affirmed on 11 November 2015.

The applicant sought a review by this Office of the Department's decision on 5 April 2016.

I have now decided to conclude my review by way of binding decision. In carrying out my review, I have had regard to the above; to correspondence between this Office and the Department and the applicant; and to copies of the records at issue, which were provided to this Office for the purposes of this review. I have had regard also to the provisions of the FOI Act.

I must acknowledge here that the records in this case concern circumstances which are extremely traumatic for the applicant and her family. I have not detailed these in my decision simply because to do so might identify the applicant and breach her privacy rights in relation to sensitive personal information.

Scope of the Review

This review is confined to whether or not the Department has justified its refusal to grant access to the remainder of the records it identified as relevant to the applicant's FOI request.

Records At Issue

As at the time the application to this Office was made, I understand the Department to have withheld the following records:

Crime 1 Division
Duplication and Correspondence File: Records 5; 9; 15; 22; 24; 25; 26; 33; 48; 49; 50; 52 (in part); 53; 59; and 62.
File 151/87: Records 8; 13; 14 (in part); 15; 22; 25 (in part); 28; 31; 35 (in part); 36; 37; 38; 39; and 40.
Correspondence Query File: Records 11; 12; 13; 34 (in part); 35 (in part); 36 (in part); 39 (in part); 40 (in part); 43 (in part); 44 (in part); and 46 (in part).

Courts Policy Division
Untitled File: Record 1 (in part).

Garda Division
Schedule 3: Records 19 (in part) and 66 (in part).

In the course of the review, the Department said it would release certain records that it had previously withheld under section 29 of the FOI Act, and one record it had previously withheld under section 42(j) of the FOI Act. However, some of these records also refer to a third party, who is not a public servant. It would not be appropriate to exclude these records from my review without considering the application of section 37 (the exemption for personal information) of the FOI Act to them.

The Department says it kept no details of what had been withheld from some of the partially released records. While this is unsatisfactory, in the circumstances, all I can do is examine the records and decide on what elements of them should now be released, regardless of what the Department might have released previously.

Any reference in the remainder of this decision to a "record" may be taken as also referring to the withheld parts of partially released records.

Preliminary Matters

At the outset, it is relevant to note a number of preliminary matters.

I have great sympathy for the tragic circumstances surrounding this request, and have given careful consideration to the applicant's submission and to details of a telephone conversation she had with a member of this Office's staff. However, I cannot take into account, or make any findings on many of the issues she raised since my remit under the FOI Act is relatively narrow.

Section 13(4) of the FOI Act provides that, subject to the other provisions of the Act, FOI decision makers must disregard any reasons for the request.

Section 18(1) provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the public body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). I take the view that, generally, neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from the remaining withheld details for the purpose of granting access to those particular sentences or paragraphs.

Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant an FOI request shall be presumed not to have been justified unless the head of the relevant public body shows to my satisfaction that its decision was justified.

Although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record.

Finally, the release of a record under the FOI Act is understood, effectively, to be equivalent to its release to the world at large.

Findings

Information Not Subject to FOI - Section 42

Record 39 on the Crime 1 Division "File 151/187", and record 5 on Crime 1 Division "Duplication and Correspondence Query" were withheld under section 42(j) of the FOI Act. The Department is no longer relying on section 42(j) in respect of record 39, but maintains that it is still relevant to record 5.

Section 42(j) provides that the FOI Act does not apply to a record given by an FOI body to a member of the Government or a Minister of State for use by him or her for the purposes of any proceedings in either House of the Oireachtas" (or a committee or sub-committee of either or both of such Houses). While record 5 relates to the preparation of a reply for a Parliamentary Question (PQ) put to the Minister for Justice and Equality, it does not, on its face, appear to be a record that was, or would have been, actually "given" by the Department to the Minister in response to that PQ. This Office's request for submissions on this case put that point to the Department. However, other than saying it "retains its original view in relation to record 5, namely that the FOI Act does not apply to this record and, as such, record 5 remains exempt in accordance with section 42(j)", the Department does not explain why it considers that provision to apply.

I do not consider the Department to have justified its application of section 42(j) to record 5 on Crime 1 Division "Duplication and Correspondence Query". However, as noted by the Department, parts of this record are identical to parts of record 36 on Crime 1 Division: File 151/87, which was apparently withheld on the basis that it is a "public record". Therefore, I will consider record 5 Crime 1 Division "Duplication and Correspondence Query" along with the various "public record[s]".

"Public Record[s]" - Section 15(1)(d)

The Department's schedule of the records on Crime 1 Division: File 151/87 listed records 36, 37, 38 and 40 as "public record[s]". It did not say whether the records were being refused or withheld. Neither did it identify the grounds on which a "public record" may be refused under the FOI Act, nor did it give the applicant any details of where these "public record[s]" may be found. As already outlined, record 5 on Crime 1 Division "Duplication and Correspondence Query" contains the same content as parts of record 36 on File 151/87.

While section 15(1)(d) provides that an FOI body may refuse an FOI request where "the information is already in the public domain", I consider it reasonable for the FOI body to include details in its decision as to why it considers the information in the record at issue to be in the public domain, and/or to provide details of where the information might be obtained.

In the case at hand, records 37, 38 and 40 are, on their face, written replies to PQs (respectively, Numbers 577 of 18 February 2014; 119 of 28 November 2013; and 135 of 14 November 2013). I accept that the replies concerned are on the Oireachtas website, and that the information in these records is indeed in the public domain. I find that section 42(j) applies to these records accordingly.

However, records 5 and 36 are different, in that they concern the disallowance of a PQ tabled for written answer on 24 June 2014, on the basis that it is a repeat of PQ Number 544 of 17 June 2014. The Department says that "[r]ecord 36 is not available publicly - the record you received was ... taken from our internal PQ system." It seems logical to take the view, accordingly, that the relevant elements of record 5 are not in the public domain either.

Section 42(j) provides for the refusal of a record on the basis that the information in it is in the public domain. While there now seems to be no doubt that the records themselves are not in the public domain, the Department has not offered any explanation, in the circumstances, as to where in the public domain is the information in records 5 and 36. In such circumstances, I do not accept that it has justified its refusal of these records on the basis of section 15(1)(d) of the FOI Act.

Deliberative Process - Section 29

The Department considers section 29 to still apply to some of the records it had previously refused under this exemption.

Section 29(1) provides that an FOI request may be refused if (a) it contains matter relating to the deliberative processes of an FOI body (including opinions, advice, recommendations, and the results of consultations), and (b) the granting of the request would, in the opinion of the head of the FOI body, be contrary to the public interest. These two requirements are independent. The fact that the first is met carries no presumption that the second is also met. It is therefore important for FOI bodies to show to this Office's satisfaction that both section 29(1)(a), and section 29(1)(b), have been met.

A deliberative process may be described as a thinking process which informs decision making in FOI bodies. It involves the gathering of information from a variety of sources and weighing or considering carefully all of the information and facts obtained with a view to making a decision or reflecting upon the reasons for or against a particular choice. Thus, it involves the consideration of various matters with a view to making a decision on a particular matter. It would, for example, include some weighing up or evaluation of competing options or the consideration of proposals or courses of action.

The public interest test contained in section 29, as set out in section 29(1)(b), differs from the public interest test found in other exemptions under the FOI Act. Other exemptions require the public body to be of the opinion that the public interest would be better served by release. To avail of section 29, the public body must be of the opinion that releasing the records would be against the public interest. In my view, this exemption tends more strongly towards release of records, and public bodies have a higher hurdle to overcome in demonstrating that it applies.

Therefore, public bodies must show, to this Office's satisfaction, that release of the material at issue would be contrary to the public interest. Generally speaking, this requires a body to identify a specific harm to the public interest flowing from release. While there is nothing in the exemption itself which requires the deliberative process to be ongoing, the question of whether the process is ongoing or at an end may be relevant. Furthermore, section 29 specifically requires consideration of whether the requester would, by the release of the record(s), become aware of a significant decision that the relevant FOI body proposes to make.

This Office's request for submissions outlined the above to the Department, and also referred it to the Commissioner's Guidance Note on section 29. The request made it clear that the Department's submissions should explain why it considers both requirements of section 29 to apply, and why it does not consider the various exceptions at section 29(2) of the FOI Act to apply. It also said that "[a] mere assertion that, or a summary statement as to why, a provision applies is not sufficient for the Commissioner to find that a particular exemption provision applies. It must be shown how or why the particular information concerned meets the criteria of the relevant exemption provisions."

The Department's submission simply says it considers the two requirements of section 29(1) to be applicable to the relevant records, but did not explain why. Further to comments in the submission, I should make it clear that, for instance, the fact that a record may be a draft or preliminary version of a final document, or the fact that a document might contain a hand-written note by any person, is not of itself sufficient to render the record exempt under section 29(1). Neither did the Department address section 29(2).

Accordingly, I do not consider the Department to have justified its application of section 29 in this case.

Confidential Information - Section 35

Although not stated specifically, the Department's submissions seem to suggest that it is no longer relying on this exemption, which protects confidential information in certain circumstances.

Again, this Office's request for submissions referred the Department to the published Guidance Note on section 35. It drew attention to section 35(2), which provides that section 35(1) cannot apply to a record created by a public body, except in so far as the disclosure of that record would result in the breach of a duty of confidence owed to a third party (i.e. a party that is not an FOI body or a "service provider").

The Department's submissions give me no reason to consider it to have justified its refusal of access under section 35 in this case.

Summary of Findings On Sections 29 and 35

The Department is, I acknowledge, willing to release, or partially release, some of the records at issue, although it is necessary for me to consider the application of section 37 to such records.

However, it has not justified its application of section 29 (and/or section 35) of the FOI Act to other records, or parts of records, which it considers should still be withheld. The FOI Act enables me to direct the release of such records. However, I cannot ignore the fact that the background to this case is such that all of the records at issue may contain third party personal information. As section 37 is a mandatory provision, I thus consider it appropriate to consider whether all of the records at issue, including those that the Department has specifically claimed are exempt under section 37, contain personal information.

Personal Information - Section 37

Section 37 - General
Under FOI, a parent is not generally entitled to access the personal information of their adult children. However, section 37(8) of the FOI Act, and associated Regulations, provide for the release of information about deceased persons to certain categories of requester in certain circumstances. This is, presumably, the basis on which the Department released personal information about the applicant's son to the applicant. Section 37(8), and its associated Regulations, do not entitle the applicant to obtain personal information about any other persons (including personal information about other persons that is linked to information about the applicant and her son). Sections 37(1) and/or (7) must be considered in relation to those details.

Section 37(1), subject to other provisions of section 37, provides for the mandatory refusal of access to a record containing the personal information of a party other than the person seeking the record. Section 37(7), also subject to other provisions of section 37, provides for the mandatory refusal of a record that contains the personal information of the person making the FOI request and that of another party or parties (joint personal information).

"Personal information" is defined at 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 members of the family, or friends, of the individual, or
(b) is held by a public body on the understanding that it would be treated by it as confidential"

Section 2 goes on to list 14 examples of personal information. Where information can be classified as one of these 14 examples, there is no need for the requirements at (a) or (b) of the definition to also be met.

Information Meeting the Requirements of Section 2

I am constrained in the description I can give of the details at issue. I am satisfied that, having regard to section 2, certain of those details fall into one or more categories of information that must be considered to be personal information about parties other than the applicant and/or her son, or the joint personal information of the applicant, her son, and others. As far as the joint personal information is concerned, given the inextricable link between the personal information of the applicant and/or her son and that of other parties, I do not consider it possible or practicable to extract any personal information about the applicant and/or her son alone for the purposes of section 18 of the FOI Act. I should say here also that while it may well be the case that various pieces of third party personal information in the records are known to the applicant, this does not change the fact that such information is exempt from release under the FOI Act. The fact that the applicant may have created, or may have been sent, some of the records concerned does not mean that she has any entitlement to them under FOI.

Thus, I set out below those parts of the records which I find to contain personal information, or joint personal information, having regard to sections 2 and 18 of the FOI Act:

Crime 1 Division
Duplication and Correspondence File: Records 9 (a reference to, and name of, a non-public servant third party in second paragraph of letter from GSOC); 15 (various references to a non-public servant third party in draft letters addressed to various parties, including the applicant, and the entirety of a document created by the applicant); 22 (various references to a non-public servant third party); 24 (as 22); 25 (as 22); 33 (in full); 48 (as 33); 49 (as 33); 50 (as 33); 52 (as 33); 53 (as 33); 59 (as 33); and 62 (as 33).
File 151/87: Records 8 (various references to a non-public servant third party); 13 (in full); 14 (name and address of third party and a reference to that person in the first paragraph of cover letter; and attached letter in full); 15 (in full); 22 (name of /references to non-public servant third parties in the first five pages of this record; remainder of record in full); 25 (names of /references to non-public servant third party; email dated 17 April 2013 on fourth page; letter received from applicant; various non-public servant email addresses on pages 9-13); 28 (name of non-public servant third party on first page and a document created by the applicant in full); 31 (in full); 35 (name and address of non-public servant third party, and attached letters).
Correspondence Query File: Records 11 (names of/references to any cases other than the applicant's); 12 (as 11); 13 (as 11); 34 (in full); 35 (name and address of non-public servant third party and attached letters received from that party); 36 (as 34); 39 (as 34); 40 (as 34); 43 (as 34); 44 (as 34); and 46 (as 34).

Courts Policy Division
Untitled File: Record 1 (names, address of non-public servant third parties, correspondence from third party).

Garda Division
Schedule 3: Records 19 (references to all cases other than the applicant's, which indeed could be said to be outside the scope of the request in the first place).

Information Not Meeting the Requirements of Section 2

Where I have not referred above to a record that is also listed under "Scope of the Review", or to all pages in a record, it may be taken that I do not consider the details concerned to contain any personal or joint personal information. I do not intend to go into any further detail in this regard except in relation to the material withheld from record 66 on Garda Division Schedule 3.

I do not consider it to be a breach of section 25(3) to say that record 66 is an email string from which the Department has withheld the name and Departmental email address of a person whom I understand to have been a counsel on the Independent Review Mechanism (the IRM). The IRM was a temporary, independent, process that has now concluded. It was set up to review certain allegations of Garda malpractice, and included the applicant's complaint about the Gardai's handling of the investigation into her son's death. The names of the panel are in the public domain but the Department says that individual complainants were not made aware of the particular counsel that dealt with their case.

The Department appears to consider the name to be held by it on the understanding that it would be treated by it as confidential. Furthermore, information relating to one's employment is listed as an example in the definition of personal information. However, section 2 of the FOI Act also provides that certain types of information - including a service provider's name - about a person who "is or was a service provider" is not considered to be their personal information. The Act defines "service provider" as a person "... providing a service for an FOI Body under a contract for services and contract for services in this definition includes an administrative arrangement between an FOI body and another person;". The Department's submission says that the various counsel "were engaged on a contract for services basis to provide legal advice to the Minister". Even if, given the structure of the legal professions, the arrangement concerned was technically not under a contract for services, I take it that the equivalent of an administrative arrangement applied in relation to counsel's professional services. Under the circumstances, I have no basis on which to find that the withheld details comprise the personal information of the counsel concerned.

While there are provisions in the FOI Act that might apply to exempt the details at issue in light of concerns expressed in the Department's submission about release of the information in record 66, it has not claimed or argued for any such exemptions. I have no basis therefore on which to consider whether any other provision of the FOI Act applies to the details concerned.

Information to Which Sections 37(1) and/or (7) Apply

I find the material I identified above as containing personal, or joint personal, information to be exempt under the mandatory sections 37(1) and (7) of the FOI Act.

Section 37(2)

There are some circumstances, provided for at section 37(2), in which the exemption at section 37(1) does not apply.

Having examined the withheld details, I am satisfied that none of the circumstances identified at section 37(2) arise in this case. That is to say, (a) that the details concerned do not relate solely to the applicant; (b) that the third parties have not consented to the release of their personal information; (c) that the information is not of a kind that is available to the general public (in which regard, the fact that the applicant created or received some of the records at issue does not render the information therein to be of a kind that is available to the general public); (d) that 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) that 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)

Section 37(5) provides that a record, which is otherwise exempt under section 37(1), may be released if (a) on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of an individual to whom the information relates should be upheld or (b) the grant of the request would benefit the individual. I do not consider that the release of the information at issue would benefit the third parties, as envisaged by section 37(5)(b) of the FOI Act, nor has the applicant made any argument in this respect.

Section 37(5)(a) - The Public Interest

The Supreme Court judgment in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner(the "Rotunda case") outlined the approach that the Commissioner should take when balancing the public interest in granting access to personal information with the public interest in upholding the right to privacy of the individual(s) to whom that information relates. The Supreme Court has made it clear that, in considering section 37(5)(a), I must distinguish private interests from "true public interest[s] recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law. "

It is clear from the applicant's submissions that she is very unhappy with how her son's death was investigated, and the case prosecuted, and with how subsequent enquiries into these matters were handled. However, I have no remit to consider, or make findings on, the adequacy of the procedures employed in any of these processes. Neither would it be appropriate for me to direct the release of third party personal information in the public interest, effectively to the world at large, on the basis of assertions to the effect that such processes may have been inadequate. As the Commissioner said in cases 090261/090262/090263, "I believe that the recognition of a public interest in promoting procedural fairness through FOI is more properly understood as an acknowledgement that the public interest in openness and accountability is entitled to significant weight when the constitutional rights of individuals may be affected by the actions of public bodies. It does not mean that it is for me as the Information Commissioner to determine the precise scope of what fair procedures would have required of a public body in a certain set of circumstances."

In the case at hand, there is a public interest in establishing that the Department (the FOI body to which the request in this case was made) carried out its functions in dealing with various matters arising from the applicant's son's death in a way that was consistent with the principles of natural and constitutional justice, as well as the right to privacy. This public interest has been served to some extent by the material released to date.

On the other hand, 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). The right to privacy extends to persons involved with the applicant's son's death. The applicant refers in her submissions to transparency in the context of EU law; however, I am not aware of any jurisprudence that would allow me to disregard the rights to privacy, including its Constitutional dimension, in considering the public interest in this case.

When considering section 37(5)(a), privacy rights will 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 accept that, although much of the records' content would be known to the applicant already, release of further details could enhance the public interest in openness and accountability in respect of various steps taken by the Department in relation to matters arising from the applicant's son's death. However, I find that the public interest in granting the request in full is not such that it outweighs the public interest that the right to privacy of the third parties should be upheld.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Department's decision. I affirm its refusal of certain parts of the records identified above under section 37 of the FOI Act. I annul its decision to refuse access to the remaining details and direct their release.

 

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.

 

Elizabeth Dolan
Senior Investigator