Case number: 000274
Request for access to the recommendation of the Refugee Appeals Authority on the requester's application for refugee status - whether release could reasonably be expected to prejudice the effectiveness of future investigations - section 21(1)(a) - public interest - section 21(2)
Mr X, an asylum seeker, sought access to the recommendation of the Refugee Appeals Authority on his application for refugee status. The Department of Justice, Equality and Law Reform refused access on the basis that the recommendation revealed the reasoning of the Authority in coming to its decision. It said that the release of such detail would help other asylum seekers to build up false cases for their applications.
The Commissioner found that at present there was nothing to prevent successful asylum seekers from sharing the facts of their cases with other applicants. He was not satisfied that in general, disclosure of reasons for accepting applications would prejudice the effectiveness of future investigations. In this case the Commissioner found that the explanation as to why this application was allowed was done at such a general level as to be of little use to any other applicant. The Commissioner found that there was no justification for the Department's decision to refuse access and directed that access be granted to the recommendation in full.
Although not required to, in view of his finding that the recommendation was not exempt under section 21(1)(a), the Commissioner went on to comment on the Department's public interest arguments. He commented that "sometimes a public body will have to accept the risk of some reduction in the effectiveness of its procedures in the interests of transparency and accountability". The Commissioner went on to say that "in the absence of any other consideration, such as the need to protect information given in confidence or to protect personal privacy, the public interest in having a transparent and accountable appeals system is so great as to outweigh any damage to the effectiveness of that appeals system which might arise from disclosure of the detailed reasons of the Refugee Appeals Authority".
Our Reference: 000274
Dear Mr X
I refer to your application for a review of the decision of the Department of Justice, Equality and Law Reform ("the Department") to refuse you access to part of a recommendation by the Refugee Appeals Authority.
I have now completed my review of the Department's decision. In carrying out that review I have had regard to correspondence from the Legal Aid Board with this Office and the Department's submission to me and I have examined the record involved. I have decided to conclude my review by issuing a binding decision.
In summary, my decision is to annul the decision of the Department to refuse you access to the whole of the recommendation of the Refugee Appeals Authority.
My review is concerned solely with the question of whether the decision of the Department to refuse you full access to the recommendation was justified.
The Department relied on section 21(1)(a) in refusing you access to part of the recommendation. Section 21(1)(a) of the Freedom of Information Act allows a head, subject to consideration of the public interest, to refuse to grant a request for information made under the Act if access to the record concerned could, in the opinion of the head, reasonably be expected to -
"(a) prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of the public body concerned or the procedures or methods employed for the conduct thereof,".
As a preliminary point, I should say that I accept that the processing of appeals by the Refugee Appeals Authority can properly be described as an investigation or inquiry and I shall so refer to it for the remainder of this decision.
In the case of the Sunday Times Newspaper & Others and the Department of Education and Science (case number 98104) I explained the approach which I adopt to applying this exemption. In summary, the exemption is concerned with whether or not the decision maker's expectation is reasonable. It seems to me that in arriving at a decision to claim a section 21 exemption, a decision maker must firstly identify the potential harm to the functions covered by the exemption that might arise from disclosure and having identified that harm, consider the reasonableness of any expectation that the harm will occur.
Section 21(1)(a) envisages two potential types of "prejudice" which must be considered by a decision maker in terms of his or her expectations. The decision maker must hold the view that the release of the records will prejudice the "effectiveness" of the investigation or inquiry or that release will prejudice the "procedures or methods employed for the conduct thereof".
In this case the Department argued that the part of the recommendation that has been refused reveals the reasoning of the Refugee Appeals Authority in coming to its decision. Such detail, it argued, could be used by other applicants to build up a false case which would assist in convincing the authorities of the "veracity" of their arguments made in support of their applications. This would help them to gain asylum to which they have no entitlement. More specifically, the Department argued that the credibility of the applicant is central to the determination of an application. This is because it is not always possible to verify all the details presented by the applicant. Recommendations contain material such as why a particular applicant was regarded as credible. The Department's argument appears to be that allowing such material to become widely known would so increase the difficulties faced by the authorities in distinguishing between genuine and false applications as to prejudice the effectiveness of future similar investigations. This is the potential harm to the functions covered by the exemption which the Department has identified.
For section 21(1)(a) to apply, the decision maker must also form the opinion that disclosure could reasonably be expected to lead to the harm identified. Therefore the question which I have to address is whether the expectations of prejudice in this case are reasonable. In doing so, I think it is useful to distinguish between the pattern of facts in a case and the reasons for accepting an applicant's evidence.
At present, there is nothing to prevent individuals who have been successful in obtaining refugee status from verbally passing on the facts of their cases to other applicants. It would be remarkable if applicants for asylum from the same country did not do so. Indeed, I note that in this case and another similar case before me it is clear that details of the facts of the requesters' cases are known to other applicants. I am not suggesting that there was anything wrong in this. Rather, I make the point just to show that it is impossible to keep such details secret. It would seem likely therefore that the problem of applicants repeating patterns of fact similar to those of successful applicants must already exist. I have to assume, in such cases, that officials dealing with appeals by asylum seekers have the necessary skills and experience to decide these matters. I am not satisfied that it is reasonable to expect that these skills and experiences will not be just as effective in the future in assessing the validity of applications as they are today merely because the detailed pattern of facts in individual applications are made public.
As regards the disclosure of reasons for accepting applications, I am not satisfied that, in general, such disclosure would prejudice the effectiveness of future investigations or inquiries. More specifically, I have considered this matter with reference to the part of the record which the Department claims to be exempt. It seems to me that to the extent that this part of the record explains why the application was allowed, this is done at such a level of generality as to be of little use to any other applicant seeking to fabricate evidence in support of his/her application. The first sentence accepts that the applicant demonstrated fear of return to Cabinda - something which I can disclose without revealing exempt material since the recommendation of the Refugee Appeals Authority, in effect, discloses this by accepting that the applicant fulfilled the requirements of Article 1A(2) of the 1951 Convention on the Status of Refugees. As I read this sentence it does not explain the reason why the Refugee Appeals Authority accepted that the applicant was afraid ; rather, it repeats why he said that he was afraid. The final sentence of this part of the record is of a similarly general nature. It is not clear to me how the information in the second sentence of this part of the record, and which is described as supporting the applicant's case, is something which future applicants could misuse in any way. The remaining five sentences in this part of the record contain facts and comments whose bearing on the outcome of the application is simply unclear.
In the circumstances, I am not satisfied that it is reasonable to expect that disclosure of this part of the record could prejudice the effectiveness of future investigations or inquiries.
Having regard to the requirements of section 34(12) and the submission of the Department, I find that the Department is not entitled to refuse access to the part of the record concerned under section 21(1)(a) of the Freedom of Information Act.
The Department argued that it is not in the public interest to have refugee status granted to persons who are not genuine refugees. It also pointed to the damage to the public interest which could be caused by undermining the integrity of the asylum process. I presume that it raised these points in the light of section 21(2) which permits the granting of access to a record which otherwise would be exempt by virtue of section 21(1)(a), where the public interest would, on balance, be better served by doing so. In the circumstances, I wish to state that even if I were to accept that the requirements of section 21(1)(a) were met, I would find, in this case, that the public interest would, on balance, be better served by granting than by refusing the request.
I acknowledge that there is a public interest in ensuring that the Refugee Appeals Authority is able to conduct its business in an effective manner. It is possible to construct a case that public bodies, including the Refugee Appeals Authority, can operate more effectively if they do not have to give reasons for their decisions. If such a case were to be accepted, it has to be with the clear recognition that there will be a consequent reduction in transparency and accountability, leaving the public body open to accusations of arbitrary decision making. Sometimes a public body will have to accept the risk of some reduction in the effectiveness of its procedures in the interests of transparency and accountability. In my opinion, this is such a situation. In my view, and in the absence of any other consideration such as the need to protect information given in confidence or to protect personal privacy, the public interest in having a transparent and accountable appeals system is so great as to outweigh any damage to the effectiveness of that appeals system which might arise from disclosure of the detailed reasons of the Refugee Appeals Authority.
I note that the general basis for decisions in relation to the acceptance of refugees is widely known, as the criteria are set out in the 1951 Convention on the Status of Refugees and the 1967 protocol, and the UNHCR Handbook which states that refugees should demonstrate a well-founded fear of persecution in relation to race religion, nationality, membership of a particular social group or political opinion. I believe that there is a public interest in applicants for refugee status knowing what type of evidence they should produce and the standard that must be met in order to demonstrate a well founded fear of persecution. Doing so would help ensure that those who are entitled to such status are made aware of what is expected of them during the application process. Examples of evidence of this type is contained in the recommendation of the Refugee Appeals Authority.
I would also draw attention to Section 16 of the FOI Act which requires each public body to publish all the internal rules and guidelines which it uses for the purposes of decisions, determinations or recommendations. During the passage of legislation the purpose of this section was stated to be to inform the public in advance of the ground rules and basis on which its application for any grant or benefit would be judged.
Having carried out a review under section 34(2) of the Freedom of Information Act, 1997, I have decided to annul the decision of the Department. In accordance with section 34(2)(b)(ii) I have decided to grant access to the whole of the recommendation of the Refugee Appeals Authority.
A party to a review, or any other person affected by a decision of the Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than 4 weeks from the date of this letter.