Case number: OIC-137528-W9W8C2

Whether the Council was justified in refusing access to records relating to an investigation carried out on the basis of sections 29(1), 30(1)(b), 31(1)(a), 36(1)(b), 36(1)(c), 37(1) and 42(ja) of the FOI Act 

 

10 August 2023

 

Background

In a request dated 24 January 2023, the applicant sought access to copies of two internal investigation reports, completed in 2020, into a matter concerning allegations in respect of payments to contractors. He also sought copies of all associated records and any internal council memoranda concerning the matter. On 21 February 2023, the Council wrote to the applicant and informed him that it would be necessary to extend the period for consideration of his request by four weeks. In a decision dated 20 March 2023, the Council refused the request under sections 29(1), 30(1)(b), 31(1)(a), 36(1)(b), 36(1)(c) and 37(1) of the FOI Act. In respect of section 37(1), the Council said that the granting of access to certain records where the release of the records would result in the disclosure of personal information was refused and that “the existence of any such records is neither confirmed nor denied”. This is effectively a reliance on section 37(6) of the FOI Act, which I will consider further below.

On 27 March 2023, the applicant sought an internal review of the Council’s decision. In correspondence dated 12 April 2023, the Council affirmed its original decision. In addition to the sections cited in the original decision, it said that it was also relying on section 42(ja) of the FOI Act as a basis for its refusal. On 18 April 2023, the applicant applied to this Office for a review of the Council’s decision.

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 correspondence between the applicant and the Council and to the correspondence between this Office and both parties on the matter. I have also had regard to the nature and contents of the records at issue. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned with whether the Council was justified in refusing, under various provisions of the FOI Act, the applicant’s request for two investigation reports and various related records.

Analysis and Findings

The records at issue

The Council identified eight records as relevant to the request. Section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent the disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the records is limited. Nevertheless, I believe I can appropriately provide some background information in respect of the records and the matter referenced in the applicant’s FOI request. In its submissions, the Council provided what it said was confidential contextual information in respect of the records at issue. As such, the extent to which I can refer to this context is also quite limited. Nevertheless, I do not consider myself to be in breach of section 25(3) by stating that the records in question relate to an independent investigation undertaken in respect of potential breaches of financial procedures in a named municipal district.

In addition, I consider it necessary to note that the Council explained that it commissioned an independent investigation into certain matters in March 2017. Terms of reference were drawn up. The Council further explained that following receipt of notification of a protected disclosure, the terms of reference of the investigation were extended to include the subject of the protected disclosure. The investigation was undertaken and a report was furnished to the Council in 2018. In its submissions, the Council said that the report contained certain recommendations. It said that a further investigation was carried out in accordance with the recommendations of the earlier report. Record 1 is a copy of a 2020 report written by the independent investigator and relating to this further investigation. Record 2 is a copy of an internal report, also dated 2020. Record 3 is a copy of the terms of reference of the investigation undertaken in 2017. Records 4, 5 and 6 are copies of internal memoranda/documentation. Record 7 is a copy of correspondence between An Garda Síochána (AGS) and the Council. Record 8 is a copy of internal file notes.

As noted above, the Council has refused access to the records under a number of exemptions. Given that the effect of section 42 is to exclude certain records from the scope of the FOI Act, I deem it appropriate to consider the application of section 42(ja) to the records at issue at the outset.

Section 42(ja) – restriction of Act

A protected disclosure is a disclosure by a worker of relevant information that came to the attention of the worker in a work-related context and the worker reasonably believes that the relevant information tends to show relevant wrongdoing. The Protected Disclosures Act 2014 provides certain protections to those who make protected disclosures. The Act has recently been supplemented by the Protected Disclosures (Amendment) Act 2022 (the 2022 Amendment Act), which came into operation on 1 January 2023. Section 20 of the 2022 Amendment Act amends the FOI Act by inserting a new sub-section, namely section 42(ja).

Section 42(ja) provides that the FOI Act does not apply to “a record relating to a report, within the meaning of the Protected Disclosures Act 2014, made under that Act, whether the report was made before or after the date of the passing of the Protected Disclosures (Amendment) Act 2022”. Section 4 of the 2022 Amendment Act defines “report” or “to report” as “the oral or written communication of information on relevant wrongdoings”.

In considering whether the records are records “relating to” a report made under the Protected Disclosures Act, I have adopted the reasoning in the case of EH v The Information Commissioner [2001] IEHC 182. In that case, the High Court considered the question of whether records “related to” the requester’s personal information. The Court found that the test to be applied to determine whether a record “relates to” the personal information was “whether there is a sufficiently substantial link” between the requester’s personal information and the record in question.

In its submissions, the Council said that the records in question include a report on the outcome of the investigation which focused in part on the subject of a protected disclosure along with associated records. It said that record 3 contains the text of the protected disclosure and demonstrates that the terms of reference were widened to include the subject matter of the protected disclosure. It said that there is a sufficiently substantial link between the records at issue and the relevant report made under the Protected Disclosure Act. It said that section 42(ja) applies even in circumstances where the report was made before the 2022 Amendment Act came into force. 

In support of its position, the Council referenced the above case of EH v The Information Commissioner as well as a recent decision of this Office (OIC-123006-K3B7Q6). It said that the decision in the latter review related to the same protected disclosure and that this Office held that the copy of the investigation report which the applicant sought was sufficiently linked to the relevant report made under the Protected Disclosure Act.

In respect of the specific records, the Council said that the independent investigator’s report was prepared in light of the protected disclosure. It said that there is therefore a sufficiently substantial link between the report and the protected disclosure. In respect of the internal report, terms of reference and file notes, it said that same are directly related to the investigator’s report and therefore also the protected disclosure. The Council said that correspondence from AGS and an internal memo also relate to the subject matter of the protected disclosure.

The question at issue is whether the records in question are records “relating to” a report made under the Protected Disclosures Act. Applying the test outlined in EH v The Information Commissioner, I deem it appropriate to consider whether there is a sufficiently substantial link between the relevant report made under the Protected Disclosure Act and the records in question. Record 3, the terms of reference of the investigation, includes the text of the protected disclosure.

As I have outlined above, the terms of reference of the investigation in question were extended to include the subject of the protected disclosure made. The records at issue comprise reports, terms of reference, internal notes, memoranda and correspondence in respect of that investigation. While I note that an investigation had commenced prior to the receipt by the Council of the notification of the protected disclosure, the terms of reference of the investigation were widened to include the report made. The resultant independent and internal reports and associated documents reflect this widened scope.

I have carefully considered the records to determine whether a sufficiently substantial link exists. The independent and internal reports focus on matters which were the subject of the protected disclosure made. I note that the Council has stated that the report focused “in part on the subject of a protected disclosure”. However, having carefully considered records 1 and 2 and the text of the protected disclosure, I do not accept that it would be possible to separate information relating to the subject of the protected disclosure from any other information in the records. In terms of the remaining records, the terms of reference outline the protected disclosure and the expansion of the investigatory scope. The associated documents relate to the investigation which concerned the subject matter of the protected disclosure.

Having reviewed the records carefully, including the text of the protected disclosure made, I am satisfied that there is a sufficiently substantial link between the records at issue and the relevant report made under the Protected Disclosures Act. I find that the records relate to a report made under the Protected Disclosures Act 2014. As outlined above, section 42(ja) applies even if the report was made before the 2022 Amendment Act. Accordingly, I find that section 42(ja) applies and that the records at issue are excluded from the scope of the FOI Act.

Section 37(1) and 37(6) – personal information

Given my finding in respect of section 42(ja) of the FOI Act, there is no need for me to consider the application of section 37(1) to the eight records identified as relevant to the request and referenced above. However, as noted above, the Council has also sought to rely on section 37(6) of the FOI Act.

As I have outlined above, in its original decision the Council cited, among other exemptions, section 37(1) in support of its refusal of the request. It also provided a schedule of records which it described as including records “relevant to the request other than those records where the existence is neither confirmed nor denied”. In its internal review decision, the Council again cited section 37(1) as a ground for refusing “certain records where the release of the records would result in the disclosure of personal information”. The internal review decision also stated that the “existence of any such records is neither confirmed nor denied”.

In its submissions to this Office, the Council made no reference to whether it wished to continue to maintain its position that the existence of certain records is neither confirmed nor denied. The Investigating Officer sought to clarify the matter following which the Council indicated that it wished to maintain its reliance on the provision.

Section 37(6) is what is referred to as a “neither confirm nor deny” provision. It provides for the refusal of a request for access to a record and for the refusal to disclose whether or not such a record exists, provided the requirements of the subsection are met. The overall purpose of section 37(6) is to protect the personal information of a third party in situations where knowledge of the existence or non-existence of particular records would effectively disclose that party’s personal information.

In short, for section 37(6) to apply, the following requirements must be satisfied:

 

  1. the record sought must be of a type whose release, if it existed, would disclose personal information of a third party and would be exempt from release by virtue of section 37(1),
  2. none of the exceptions to the section 37(1) exemption, contained at sub-sections (2) or (5) of section 37, would apply, and
  3. the FOI body must be of the opinion that to state whether or not relevant records exist would, of itself, involve the disclosure of personal information of a third party.

 

Section 2 of the FOI Act defines personal information as information about an identifiable individual that either (a) would ordinarily be known only to the individual of his/her family or friends or (b) is held by an FOI body on the understanding that it would be treated by the body as confidential. The definition also includes a list of 14 non-exhaustive examples of what must be considered to be personal information.

As noted above, the Council did not make submissions in respect of its position that that the existence of certain records is neither confirmed nor denied. As such, it has not explained how disclosing the existence or non-existence of records other than those already identified would involve the disclosure of personal information. I have considered the scope of the applicant’s request. He sought copies of two internal investigation reports, associated records and internal council memoranda. The Council has identified eight records as coming within the scope of the request, including reports, correspondence and file notes.

Having regard to the definition of personal information as outlined above, I am not satisfied that the disclosure of whether or not further relevant records exist would reveal personal information. The applicant is aware that relevant reports and related documentation exist. This information was provided by the Council. The applicant’s FOI request was general. It referenced “contractors”, rather than any named individuals. It is not apparent to me how disclosing the existence or non-existence of further records would reveal any personal information about an identifiable individual. Accordingly, I am not satisfied that the Council was justified in refusing the request under section 37(6). I therefore direct the Council to issue a fresh decision to the applicant in respect of any other relevant records that might exist. If no such records exist, it will be open to the Council to refuse the request under section 15(1)(a) which provides for the refusal of a request where the records sought do not exist.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Council’s decision. I find that it was justified in its decision to refuse access to the eight records it identified as coming within the scope of the applicant’s request under section 42(ja) of the Act. I find that it was not justified in refusing to confirm or deny the existence of any further relevant records on the basis of section 37(6) and direct it to issue a fresh decision in respect of any such records.

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 not later than four weeks after notice of the decision was given to the person bringing the appeal.

Alison Connolly

Investigator