Chapter 3: Decisions

Table of Contents

Formal decisions

Annulled decisions

Significant decisions

• Department of Health
• Bray Town Council
• Department of Justice and Equality
• Department of Finance
• Department of the Taoiseach
• Department of Jobs, Enterprise and Innovation
• Health Service Executive
• Health Service Executive

Formal decisions

In 2013 a total of 258 cases were reviewed by my Office. As I mentioned earlier, this total is comprised mainly of formal decisions, settlements, or withdrawals. The outcomes of the reviews which went to formal decision in the years 2010 to 2013 are highlighted in the table below.

Percentage comparison of formal decisions 2010 - 2013

Annulled Decisions

The table records an increase in decisions that were annulled by my Office in 2013 over 2012. Decisions of public bodies may be annulled by my Office for a variety of reasons. For example, where a public body is considering refusal of a request under section 10(1)(c) of the FOI Act on the ground that granting the request would cause a substantial and unreasonable interference with, or disruption of, its work, it must first offer assistance to the requester to amend the request under section 10(2). Where a public body fails to do so, the decision may be annulled by my Office and the public body directed to conduct an entirely new review of the original request.

Decisions annulled under Section 29

My Office may also annul decisions of public bodies where timelines associated with the provisions of section 29 of the FOI Act were not adhered to by the body concerned.

Section 29 of the FOI Act applies to cases where the public body has decided that the record(s) in question qualify for exemptions under one or more of the relevant exemptions in the FOI Act (i.e. sections 26, 27 and 28 - relating to information that is confidential, commercially sensitive or personal information about third parties, respectively) but that the record(s) should be released in the public interest. Where section 29 applies, the public body is required to notify an affected third party before making a final decision on whether or not the exemption(s), otherwise found to apply, should be overridden in the public interest. The requester or an affected third party, on receiving notice of the final decision of the public body, may apply for a review of that decision to this Office directly.

Section 29 provides for the processing of such requests within a specified timeframe. However, where the timeframe is not adhered to, my Office will annul the decision and direct the public body to consider the request anew, in compliance with the time requirements of section 29. In 2013, this form of section 29 annulment was made by my Office on nine occasions.

The following are a number of formal decisions which issued during 2013. The full text of each decision is available on my Office website www.oic.gov.ie.

Significant decisions

Mr. X and the Department of Health – Case no: 120170

In this case, the Department of Health refused the applicant’s request for a copy of a transcript of a meeting he had with Mr Justice Thomas Smyth in connection with an inquiry conducted by Mr Justice Smyth into certain matters relating to Our Lady of Lourdes Hospital Drogheda, known as the “Drogheda Review”. The Department refused the request on the ground that it did not hold the records in question for the purposes of the FOI Act.

Mr. Justice Smyth was appointed by the then Minister for Health, Mary Harney, on 15 January 2010 to carry out the review, the purpose of which was to advise on whether a further investigation into the procedures and practices operating at the Hospital during the period 1964 to 1995, to protect patients from sexual abuse while undergoing treatment or care at the hospital, would be of benefit.

During the course of his review, the reviewer met with former patients, including the applicant, in or around May 2010. He submitted his report to the Minister in September 2010. The Department informed my Office that on conclusion of the review at the end of September 2010, the reviewer wrote to the Department enclosing his written report and seven boxes of records of the review, six of which contained copies of transcripts including, presumably, the transcript of the applicant's meeting. The Department claimed that it was the common understanding of the Minister and the reviewer that all documentation should be the property of the reviewer. According to the Department, the reviewer pointed out that the transcripts were his property which he had lodged with the Department for safekeeping only. The Department argued that the records sought remained the property of the Drogheda Review.

Section 6(1) of the FOI Act confers a general right of access to records held by a public body. While the term "held" is not defined in the Act, section 2(5)(a) of the Act provides that a reference to records held by a public body includes a reference to records "under the control" of that body. It is clear to me that the intent of section 2(5)(a) is to ensure that records which are not physically held by a public body but are under its control are deemed to be held by it for the purposes of the FOI Act. Having regard to the ordinary meaning of the word "hold", my Office found that the relevant records were held by the Department in this case because it had physical possession of the records in question. My Office noted that the FOI Act does not appear to be concerned with the question of whether or not a particular public body ought to be in possession of given records. Rather, it simply confers a right of access to a requester to records "held" by such a body. In any event, given their subject matter, it seemed to my Office that it was entirely appropriate that the records were in the possession of the Department in this case. For the avoidance of doubt as to whether the records sought were held by the Department, my Office also considered the Department's arguments that the records in question were not under its control.

My Office noted that the term "Drogheda Review" simply reflected the name by which the review undertaken became known, given the nature of the issues being examined, and that the review itself was completed. My Office found, therefore, that the records could not be deemed to be under the control of the "Drogheda Review" as no such entity exists. On the matter of whether the records were held by the reviewer in the context of the FOI Act, my Office noted that the appointment of Mr Justice Smyth was subject to terms and conditions as set out in a specified ‘terms of reference’ document and in a letter of 18 December 2009. That letter, which contained details of the fee to be paid, also contained an instruction that “the records of the enquiry should be preserved” and indicated that they could be used by any subsequent statutory tribunal. Furthermore, no evidence was presented to my Office to suggest that the reviewer would have any further role in the matter once he had concluded his report to the Minister. My Office found that once the reviewer had completed the review and given the final report and related records to the Department, those records were then under the control of the Department.

(Note: This decision was appealed to the High Court by the Department. The case was heard by Mr Justice O’Neill in January 2014 and judgment was reserved. Judgment is awaited at the time of writing.)

Mr X and Bray Town Council – Case no: 110161

Bray Town Council established a limited company (Bray Swimming Pool Sports & Leisure Centre, to which I will refer as the “company”). The Council is the company’s only member/ shareholder. In May 2011, the applicant sought any records held by the Council, as shareholders of the company, in relation to the breakdown of the company’s 2008 and 2009 income and expenditure figures. The Council refused the request on the basis that it did not hold the records and had no right of access to any such records held by Council staff in their capacity as officers of the company.

A review such as this, conducted under section 34 of the FOI Act, cannot examine any loss of transparency and accountability arising from a public body’s transfer, to a private company, of functions that would previously have been subject to FOI. This review was concerned only with whether or not the body has justified its refusal of the records at issue.

The first aspect of the review was whether records held by the Council in its capacity as shareholder of the company were exempt under section 27(1)(b) of the FOI Act. Section 27(1)(b) provides for the refusal of a record if, among other things, it contains financial, commercial, scientific or technical, or other information whose disclosure could prejudice the competitive position of that person, in the conduct of his or her profession or business. The records at issue were the company’s draft unabridged accounts for the years 2008 and 2009, which the company was legally required to send to the Council as shareholder. Abridged versions of such documents had been published by the Companies Registration Office (the CRO). However, additional details were contained in the documentation sent to the Council, including a breakdown of the company’s profit and loss account and tangible fixed assets for the years 2008 and 2009.

The company argued that release of these details to the world at large would enable competitors to understand how its business is run, notwithstanding that they date from 2008 and 2009. My Office accepted that competitors could use an insight into the finances of a private company to that company’s detriment (particularly when it would not be able to gain a similar insight into competitors’ finances), such that release of the records could prejudice the company’s competitive position in the conduct of its business. My Office found section 27(1)(b) to apply to the details at issue.

My Office was satisfied that any public interest there may be in the release of commercially sensitive information, regarding a limited company that is not subject to the FOI Act, was adequately met by the various requirements of company legislation (such as the CRO’s publication of various material). The Office also considered the low standard of proof required to be met in order for section 27(1)(b) to apply in the first place to recognise the public interest in ensuring the release of material under FOI does not impact inappropriately on commercial interests. On balance, my Office found that the public interest weighed in favour of withholding the details at issue.

It seemed that additional records were held by the company, which may or may not have been relevant to the request as framed in this particular case. My Office considered any information therein of a commercially sensitive nature likely to be exempt under section 27.

For completeness, however, the second aspect of the review considered whether the Council controlled those records such that it may be deemed to hold them, as provided for at section 2(5)(a) of the Act. Once records are held by a public body, they are subject to FOI.

The applicant contended that the Council controls the company, and its records. My Office considered that companies have separate legal personalities to those who own and/or manage them and that the company in this case must be legally seen as a separate entity to the Council. It was also my Office’s understanding, from company case law, that it is not the majority, or 100%, ownership of a company that determines if an owner controls a company, but rather the extent to which the owner takes an active role in that company’s day-to-day operations.

The Council said that the company’s CEO makes decisions on day-to-day, operational matters and makes recommendations to the company’s Board of Directors (the Board) on more strategic issues. The Council argued that it did not control the Board or the company even though the Board included two current and one former local authority staff. Company law requires Directors to make decisions in the interests of the company, such that they must declare conflicts of interest and abstain from decision making where such conflicts arise. Thus, it seemed to my Office that the relevant former and current local authority staff made such decisions in their capacity as officers of the company, rather than as local authority officials, and thus did not accept that the Council can be said to control those (strategic, rather than operational) Board decisions. Neither did it seem that the Town Manager or the Town Council’s elected members have any role in approving the Board’s decisions, other than deciding on matters that are required to be taken at a general meeting.

My Office accepted that the Council does not control the company or have any role in its day-to-day operations. Furthermore, it was satisfied that the Council has no legal entitlement to any records that came into the possession of current or former local authority staff as a result of their roles as company Directors. Thus, my Office found that further records as held by the company, which might be of relevance to the request, cannot be deemed to be held by the Council further to section 2(5)(a) of the FOI Act.

(Note: This decision was appealed to the High Court by the applicant. The case was awaiting a hearing at the time of writing.)

Mr CB and the Department of Justice and Equality – Case no: 130176

This review concerned the refusal by the Department of Justice and Equality of a request for access to a record from the applicant’s immigration file. The record in question comprised an application from An Garda Síochána for a Removal Order under Article 20 of the European Communities (Free Movement of Persons) Regulation 2006, in respect of the applicant. Access was refused under sections 23(1)(a) and 26(1)(a) of the FOI Act.

On the applicability of section 26(1)(a), the Department argued that the record in question was intended to remain confidential. It argued that there was a risk that the extent and quality of information received by the Minister in the future would be prejudiced if the contents of correspondence which is clearly intended to be confidential is disclosed. It went on to say that it was clearly the intention of the Oireachtas, when the FOI legislation was enacted, to safeguard the confidentiality of communications from the Garda authorities.

In essence, it appeared to my Office that the Department was arguing for the protection of all communications from An Garda Síochána as a class. As my Office has explained to the Department on many occasions in the past, section 26(1)(a) does not protect records as a class. Regard must be had to the contents of the records. There are four separate requirements to be satisfied for section 26(1)(a) to apply, namely

• that the information was given in confidence, and
• that the information was given on the understanding that it would be treated as confidential, and
• that the disclosure of the information would be likely to prejudice the giving to the body of further similar information from the same person or other persons in the future, and
• that it is of importance to the body that such further similar information should continue to be given to the body.

I accept there may be circumstances in which the content of communications between An Garda Síochána and the Department would be such as to meet the requirements for Section 26(1)(a) to apply. In this case, however, my Office found that this was not such a case.

My Office noted that all of the information in the refused record was included in other records which were released in response to the original FOI request. The applicant was aware of the existence of the record at issue, not only from the FOI request, but also as it was referred to in the other records. The applicant knew from the other records that the Garda authorities had provided the Department with the information contained in the record. In the circumstances, my Office found that the four requirements for section 26(1)(a) to apply were not met.

It is noteworthy that during the course of the review, my Office invited An Garda Síochána to make a submission on the matter and it chose not to do so. As I outlined in chapter 2, I raised the matter of the Department’s treatment of Garda records with the Secretary General of the Department and received a very positive response. I am satisfied that we have identified a mechanism for resolving the issues outlined.

Mr X and the Department of Finance – Case no: 120102

I reviewed a decision of the Department of Finance to refuse access to two letters, dated 15 October 2010 and 19 November 2010, sent by the President of the European Central Bank (ECB), Jean-Claude Trichet, to the then Minister for Finance in 2010. The Department relied on a number of exemptions for its refusal of the records, including section 24(2)(e) of the FOI Act. Section 24(2)(e) is a mandatory exemption which provides, amongst other things, that a public body shall refuse access to a record containing information communicated in confidence from an institution or body of the European Union.

The Department stated that it was totally opposed to the release of the records. It stated that it was the intention of the ECB when sending the letters that they be treated as confidential and that this was clearly indicated by the fact that one record was marked “strictly confidential” and the other was marked “secret”. It also stated that the ECB had refused to release the letters under the Public Access Scheme. The Department referred to a letter from the ECB to the applicant in which the ECB refused to give the applicant access to the letters. In that letter the ECB had described the records as “strictly confidential communications concerning the then extraordinarily severe and difficult situation”. It was apparent that the Department accepted that the records at issue were communicated in confidence.

It is important to note that, unlike some other exemptions in the FOI Act, section 24(2)(e) is not subject to a ‘harm’ test, nor is it subject to a public interest balancing test. This means that there is no requirement to identify a harm that might arise in the event of a record being released or to consider whether the public interest would, on balance, be better served by its release. If a record is of a class or type captured by the exemption, this is sufficient for the exemption to apply. My remit in such cases is limited to determining whether a public body is justified in refusing access to records in accordance with the provisions of the FOI Act. However, I would add that a refusal to grant access to records under section 24(2)(e) does not equate to a general prohibition on release of the records outside of the FOI process.

Having had regard to the Department’s submissions and to the contents of the records at issue, I was satisfied that the records contained information communicated in confidence from an institution or body of the European Union and that section 24(2)(e) of the FOI Act applied.

Mr. X and the Department of the Taoiseach – Case no: 100171

My first decision as Information Commissioner coincided with the first case to require a formal decision on the question of the applicability of the so-called 10-year rule under section 19. Section 19 is a mandatory exemption relating to meetings of the Government. For instance, section 19(1)(a) applies to exempt records which have been, or are proposed to be, submitted to the Government for their consideration by a Minister of the Government or the Attorney General and were created for that purpose. Section 19(1)(c) applies to exempt what may be described as “briefing papers”.

Section 19(3)(b) provides that the exemptions in subsection (1) do not apply if the record concerned relates to a decision of the Government that was made more than 10 years before the receipt of the request by the head concerned. However, section 19(2), which relates in essence to Cabinet discussions, applies indefinitely.

In this case, the Department basically sought to apply the indefinite section 19(2) protection to records disclosing the views taken by the Ministers prior to the meetings, as well as to the statements made at the meetings. With certain limited exceptions, I found that section 19(2) did not apply to the records concerned.

Some of the records, which were over 15 years old at the time of my decision, concerned industrial grant applications. In light of arguments presented by the Department of Jobs, Enterprise and Innovation, I also had cause to emphasise that section 31, relating to the financial and economic interests of the State and public bodies, is not a class-based exemption, including in relation to industrial grant information.

Mr. X and the Department of Jobs, Enterprise and Innovation – Case no: 110023

One of the earliest decisions I issued was in a very interesting case involving complex issues of international law relating to various export control arrangements between Ireland and other States. The request related to a certain aviation company that was under investigation by United States (US) authorities. The alleged business activities of the third party company and its directors had in fact received extensive publicity as a result of multiple-count US indictments against them. Of particular relevance was a published article written by the applicant, a journalist, entitled, “Minister aided wanted trader”.

I found that the Department’s decision to refuse access to the records concerned was justified under sections 24 and 26 of the FOI Act, because they contained confidential communications relating to international relations and also because of a duty of confidence owed to the affected third parties in the circumstances of the case. In reaching my decision, I accepted that the effective administration of the export control regime requires a high level of intelligence-sharing between States, especially Member States of the European Union (EU), as well as between public bodies such as the Department concerned in this case and the Department of Foreign Affairs and Trade. I also accepted that it requires, where relevant, that companies engaged in the international trade of goods are willing and able to provide the competent authorities with detailed information regarding their proposed business transactions.

In relation to the publicity that certain matters had received, and in particular the alleged involvement of a certain former Minister of State, I drew a distinction between information that is in the “public domain” on the basis of an undisclosed or anonymous source, on the one hand, and primary documentation relating to the matters concerned, on the other. I also acknowledged that the direct involvement of a Minister of State in a licensing matter would generally tend to undermine the reasonableness of any expectation of confidentiality insofar as it relates to information about the Minister’s involvement. In this case, however, I accepted that the sensitivities were such that no reasonable person could have failed to understand that confidentiality was expected.

Mr. X and the Health Service Executive – Case no: 100286

The question presented in this case was whether the Health Service Executive (the HSE) was justified in refusing the applicant’s request for access to further records relating to a Family Centre assessment of his 11-year-old daughter, who had been referred to the Centre by a Social Work Department because of allegations of sexual abuse by the applicant. As the records contained the personal information of the applicant’s child and of her mother, they were exempt from release under section 28(1) of the FOI Act, but subject to the other provisions of the section. The Office found that none of the overriding provisions of section 28 applied.

Of particular significance was the acknowledgement that, unlike the Supreme Court case of McK v. The Information Commissioner [2006] IESC 2, the Constitutional rights of parents were not a consideration in determining whether it would be in the child’s best interests to disclose her personal information to the applicant under section 28(6) of the FOI Act and the 2009 Regulations [S.I. No. 387 of 2009]. The applicant was not married to the child’s mother and was not a parent in a family recognised by the Constitution. Furthermore, the applicant had never lived together with his child and her mother and they had never constituted a household together, nor was he the legal guardian of his child. Having regard to the arguments presented by the applicant in favour of release, the mother’s refusal to consent to the release of the records, and the fact that release under FOI is without any restriction on future use, my Office found in the circumstances that the best interests of the applicant’s child would not be served by the release to the applicant of her personal information.

Mr. X and the Health Service Executive – Case no: 100186

This case was very similar in nature to case no: 100286 in that it concerned the question of whether the HSE was justified in refusing the applicant’s request for access to further records relating to a complaint involving allegations of sexual abuse by the applicant of his young daughter, but also other alleged incidents of domestic violence. Again, the records were exempt under section 28(1) of the FOI Act, but subject to the other provisions of the section. However, as a marital father, the applicant was entitled to the Constitutional presumption of parental primacy for the purposes of section 28(6). Nevertheless, the circumstances of the Supreme Court case of McK v. The Information Commissioner [2006] IESC 2 were found to be distinguishable from those presented in this case.

The Supreme Court’s repeated references to medical information or medical care were taken as an indication that, while the nature or content of the records in question may not be determinative, it is a relevant factor. It was also noted that, under the Constitution, both parents in a marital family are presumed to be acting in the best interests of their child, which presents especial difficulties where, as here, the parents are not acting in accord. The Office had regard to the highly sensitive nature of the records and to the fact that (unlike family law proceedings) no conditions are attached when records are made available to a requester under the FOI Act. The Office also took the view that the applicant had already acquired a sufficient knowledge of the information regarding his daughter to enable him to exercise his parental role in making “appropriate decisions for the child”.

The Office found that provision of that same information to the applicant, in the form of copies of records released under the FOI Act, would not enhance his capacity to make “appropriate decisions for the child”. On the other hand, the provision of copies of those records to the applicant carried some potential to impact negatively on the best interests of the child. Accordingly, the Office found in the circumstances of this case that the best interests of the applicant’s child would not be served by the release to the applicant of those records disclosing his child’s personal information and that section 28(6)(a) therefore did not apply. As none of the other overriding provisions was found to apply, the records at issue were found to be exempt under section 28(1) of the FOI Act.