Case number: 110040

Whether the Brothers of Charity Services Roscommon (the "BoCSR") was justified in its decision to refuse a request for access to records under section 7 of the FOI Act in accordance with section 21(1)(a) of the FOI Act.

Review Application to the Information Commissioner under the Freedom of Information Acts 1997 & 2003 (the FOI Act)

On 4 January 2011, the applicant made a Freedom of Information (FOI) request to the Brothers of Charity Services Roscommon seeking access to a list of records relating to an investigation carried out into an incident which occurred while her daughter was under the care of the BoCSR and Caremark. On 31 January 2011, the BoCSR wrote to the applicant with a decision in relation to her request and released all records with the exception of the transcripts of those interviewed in the course of the investigation. The applicant requested an internal review of this decision in a letter dated 7 February 2011 as she said that it was stated in page 2 of the report into the incident involving her daughter that all interviews were recorded and full transcripts were available. On 23 February 2011, the BoCSR issued a decision on the internal review in which it said that the transcripts of the interviews were exempt from release under sections 21(1)(a), 21(1)(b) and 26(1)(a) of the FOI Act. The Information Commissioner received a letter from the applicant on 9 March 2011 in which she requested a review of the decision of the BoCSR to refuse access to these transcripts.

I note that Ms Rachel Dunn, Investigator, wrote to the applicant on 12 March 2013 setting out her preliminary views on the matter and inviting the applicant to submit any further comments that she considered relevant to the review. The applicant's solicitor responded on 23 April 2013 with her comments. I consider that the review should now be brought to a close by the issue of a formal, binding decision.

In conducting this review, I have had regard to the submissions of the applicant (including those made to both the BoCSR and this Office) as well as to those of the BoCSR. I have also carefully examined the records which were provided by the BoCSR to this Office for the purposes of this review.

Scope of the Review
This review is concerned solely with the question of whether the BoCSR was justified in its decision to refuse access to the transcripts of the interviews which were conducted during the course of the investigation on the basis that the transcripts are exempt from release under the provisions of the FOI Act.

Analysis and Findings
Section 21(1)(a)
Section 21(1)(a) of the FOI 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 -
"prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of the public body or the procedures or methods employed for the conduct thereof..."

In arriving at a decision to claim exemption under section 21(1)(a) 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. This Office accepts that section 21(1)(a) is not aimed solely at current investigations but is apt also to cover future investigations.
The records which the applicant is seeking are the transcripts of interviews which were carried out with members of staff of both the BoCSR and Caremark as part of an investigation into an incident involving her daughter. In a submission to this Office, the BoCSR has claimed exemption under section 21(1)(a) because in cases such as this, the investigation panel is faced with interviewing people against whom allegations have been levelled and expecting those same people to co-operate fully and frankly with its inquiries. It is central to these inquiries that statements given to the investigation panel are treated in confidence. The BoCSR has stated that each of the interviews has a quality of confidence attached to it and the question of confidentiality was raised by a number of interviewees and assurances as to confidentiality were explicitly addressed and confirmed in writing in the transcript of at least one of the interviews.
The BoCSR has also pointed out that the question of confidentiality is particularly important in a case such as this one where the investigation needs corroborative evidence or information of a collateral nature. For an organisation dealing with vulnerable children and adults, many of whom are unable to speak for themselves, the organisation's ability to obtain information from interviewees is critical to the effectiveness of any such investigation. The BoCSR expressed concerns that if there was a perception that it did not fully respect the confidentiality of such interviews it is reasonable to assume that staff might decide not to co-operate to the fullest extent possible and this would have a significant adverse effect on such an investigation. Breaching confidentiality in the case of individual interviews would have the effect of creating a perception among members of staff that similar breaches would occur in future and therefore it is likely that members of staff would, as a result, be less frank in their comments in the future or may even insist on any statements being made through their legal representatives, particularly if the investigation is conducted against the backdrop of a Garda investigation.
The BoCSR also claimed that the procedures adopted in this investigation (and other investigations of this nature) rely on the members of staff interviewed being satisfied that what they say will not be revealed to any extent greater than is necessary for the purposes of making findings and recommendations. However, that is not to say that the findings or recommendations of the investigation, or the final report, should be kept confidential and the BoCSR has already released the investigation report in this case to the applicant. The BoCSR clarified that the reference on page 2 of the report that full transcripts are available was intended by the authors of the report to mean that the transcripts would be available to the BoCSR as the body that had commissioned the report in the first place.
I am satisfied that the transcripts in question contain the frank and confidential comments and opinions of all of those interviewed as part of the investigation which was carried out into the incident involving the applicant's daughter. It is also clear from their contents that the interviewees co-operated fully in answering questions and gave their own honest views about matters, even where these might at times be critical about other people or procedures. I concur with the view of the BoCSR that it is important when conducting interviews as part of investigations that the interviewees feel free to talk openly and honestly as possible, and that this is especially important when the investigation relates to the treatment of vulnerable people who may be unable to speak for themselves. I accept the comments of the applicant's solicitor which said where an investigation is mandatory, as is the case in child protection cases, that staff are required to co-operate irrespective of any concerns that they might have as to the subsequent disclosure of their interviews. However, release of records under the FOI Act is, generally speaking, equivalent to release to the world at large, therefore I am satisfied that it is reasonable to assume that interviewees would be less open and co-operative, or would insist on any statements being made through their legal representatives, if they felt that their comments would not be treated in confidence. I accept that release of the transcripts in this instance would ultimately have the effect of discouraging interviewees from co-operating fully and openly during investigations and could reasonably be expected to prejudice the effectiveness of any future investigations being carried out by the BoCSR. In the circumstances, I find that the withheld information qualifies for exemption under section 21(1)(a).

Section 21(2) - the Public Interest
Section 21(2) provides that the exemption under section 21(1)(a) does not apply if the body considers that the public interest would, on balance, be better served by granting than by refusing the request. I have, therefore, considered the public interest in this case. There are a number of public interest factors in favour of release of the records. These include the public interest in requesters exercising their rights of access under the FOI Act and the public interest in people having access to records that relate to personal information about them. There is also a public interest in public bodies being open and transparent in matters related to regulation and governance. However, there is also a strong public interest in public bodies being able to carry out effective investigations into sensitive matters where those being investigated will co-operate fully and provide information in a frank and open manner without fear that any confidences will be breached.

The BoCSR prepared an investigation report into the incident involving the applicant's daughter. This report contains factual information about the incident and this information was gathered from confidential statements made by people who were interviewed as part of the investigation. The report also identifies any deviations from good/acceptable practice and the reasons underpinning these deviations while also making recommendations which would inform future good practice. Having examined the interview transcripts in the context of the final investigation report, I am satisfied that the main issues which were discussed during the interviews were distilled into the final investigation report. The investigation report was issued to the applicant in December 2010 prior to her FOI request along with a copy of the transcript of her own interview with the panel. The investigation report was again released to the applicant under FOI, and release under FOI is akin to release to the world at large. Therefore, I find that the public interest in openness and transparency of public bodies has been sufficiently satisfied by the release of the investigation report under FOI and that the public interest would not, on balance, be better served by releasing the transcripts of the confidential statements which were gathered during the course of the investigation.

Accordingly, I find that section 21(2) does not apply to these interview transcripts and that these records remain exempt from release under section 21(1)(a) of the FOI Act. Having so found, I do not deem it necessary to consider the applicability of sections 21(1)(b) or 26(1)(a) to the records.

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of the BoCSR to withhold the records in question under section 21(1)(a) of the FOI Act.

Right of Appeal
A party to a review, or any other person affected by a decision of the Information 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 eight weeks from the date on which notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator
29 April 2013