Case number: OIC-127176-G3K0X1

Whether the Department was justified, under sections 29(1), 31(1)(a), 37(1) and 42(f) of the FOI Act, in refusing access records relating to a determination made by the Workplace Relations Commission (WRC)

 

16 August 2023

 

Background

On 18 June 2022, the applicant made a request to the Department for “records concerning the [Workplace Relations Commission] WRC determination in the Geraghty v Revenue Commissioner 2021 (a case concerning non consensual retirement of a woman at 65) that were created after that decision was made in 2021”. On 19 July 2022, the Department refused access to 45 records it identified as relevant to the request, under sections 29(1) and 31(1)(a) of the FOI Act. The applicant sought an internal review of that decision, following which the Department varied its decision. It identified 6 additional records to which it refused access, under sections 29(1) and 31(1)(a). It released one document, the WRC Adjudication Officer’s decision which, it noted, was already in the public domain. As this document was included as an attachment to emails in records 1, 3, 4, 6, 14 and 40, these records were all said to have been part-granted. The Department also amended the exemption claimed on some of the records, from section 31(1)(a) to 29(1), and applied both exemptions to two of the records, and refused parts of record 40 under section 37(1). A revised schedule reflecting these changes was issued to the applicant. The applicant applied to this Office for a review of the Department’s decision.

In the course of the review, the Department revised its position and said that all of the records were exempt from release under section 31(1)(a) of the FOI Act. For those records that had been refused under section 29(1), its position was that those records were exempt under both sections 29(1) and 31(1)(a). It also said that many of the records contained personal information of an individual who was not the applicant and that section 37 of the FOI Act applied. It did not specify which other records it believed section 37 to apply to. The applicant was informed of this and offered an opportunity to provide comments, which he did. Further to this, the Department informed this Office that there were a further 6 records that it had refused under section 42(f) of the Act, but that it hadn’t listed on the schedule. It issued an addendum to the schedule to the applicant listing these records, and provided copies of the relevant records to this Office. Again, the applicant was invited to comment, which he did. As a party potentially affected by a decision in this case, the Office of the Revenue Commissioners (Revenue) was also informed of the review and invited to make a submission which it did.

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 the submissions made by the Department, by Revenue and by the applicant, and to the exchanges outlined above. I have also examined each of the records at issue. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

In the course of the review, further to the Department issuing a revised schedule of records to the applicant listing the six additional records refused under section 42(f), the applicant asked why those records were not identified earlier and queried the quality of the searches carried out by the Department. My understanding is that the records were not listed on the schedule by the Department because its position was that the FOI Act did not apply to them by virtue of section 42(f), rather than because they hadn’t been found at the time the original schedule was prepared. I also note that the applicant raised no concerns about whether additional relevant records might exist either in his application for internal review or in his application to this Office for a review of the Department’s decision. Accordingly, I do not propose to consider the adequacy of searches undertaken by the Department to locate relevant records in this review.

Accordingly, this review is concerned with whether the Department was justified in refusing access, under sections 29(1), 31(1)(a), and 37(1) of the Act, to the 51 records listed on the schedule of records dated 5 August 2022, and whether it was justified in refusing access, under section 42(f), to the additional 6 records it identified during the review. For consistency and to avoid confusion, I will refer to the additional six records as 52 to 57 respectively.

As records 12 and 20 are duplicates of records 11 and 18 respectively, I have given records 12 and 20 no further consideration.

Preliminary Matters                                                                        

Before I address the substantive issues in this case, I wish to make some preliminary comments.

Firstly, section 25(3) requires this Office to take all reasonable precautions to prevent the disclosure of exempt material in the performance of its functions. I am therefore required to limit the level of detail I can give in describing the withheld records.

Secondly, a review by this Office is considered to be de novo, which means that in this case, it is based on the circumstances and the law as they pertain at the time of the decision.

Thirdly, section 22(12)(b) of the FOI Act provides that when the Commissioner reviews a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore, in this case, the onus is on the Department to satisfy the Commissioner that its decision to refuse access to certain records, either in whole or in part, was justified. However, that is not the end of the matter. I must also have regard to the findings of the Supreme Court in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 ("the Enet Case"). In that case, the Court noted that while the presumption places an onus on the FOI body to justify refusal, that does not mean that the conclusion is always that disclosure is to be ordered. The Commissioner must adjudicate the merits of the decision to refuse by reason of an analysis of the records and the interests engaged, which might suggest either disclosure or refusal.  ​ 

Fourthly, section 18 of the FOI Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading.  However, the Commissioner takes the view that neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent. Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.

Finally, the way in which the Department provided the records and schedules of records to this Office was confusing and made it time consuming for the Investigator to establish precisely what was at issue in the case, and contributed to the delays in finalising the case. Moreover, during the course of the review, the Investigator invited the Department to make focused submissions with specific questions to be answered and references to Sample Questions available on this Office’s website relevant to the exemptions claimed. It appears that the Department did not have regard to the Sample Questions. Its submissions under each of the exemptions claimed were very brief and lacked a comprehensive explanation of how they applied to the record(s) at issue. The Sample Questions, as well as a series of Guidance Notes, have been prepared by this Office to assist public bodies in providing focused and structured submissions to this Office in the course of a review and can reduce the need for additional over and back communication between this Office and the public body, which was necessary in this case and prolonged the length of the investigation. The Sample Questions and Guidance Notes can also be a useful resource for public bodies in their processing of FOI requests at the first instance. I urge the Department to take appropriate measures to ensure that it has appropriate regard to these resources in the future.

Analysis and Findings

The records at issue

As stated above, I am required by section 25(3) of the Act to take all reasonable precautions in the course of a review to prevent the disclosure of exempt material. Therefore, while I am required by section 22(10) of the FOI Act to give reasons for decisions, the description I can give of the records at issue and of the reasons for my decision is somewhat limited. However, I do not believe that I am in breach of section 25(3) by providing the following description and context. The WRC decision that underpins the FOI request in this case, which is published on the WRC website, essentially found that a Revenue employee who had to retire at aged 65 had been discriminated against on age grounds, and directed that compensation be paid to her. Revenue lodged an appeal to the Labour Court and the appeal was listed for hearing on the Labour Court’s online diary for 8 and 9 November 2022.

However, Revenue confirmed to this Office that the hearing was adjourned and the appeal subsequently withdrawn. The Department, while not a party to the case, had an interest in the matter. The records identified by the Department as relevant to the applicant’s FOI request consist of email correspondence, and associated attachments, within the Department and between the Department and Revenue between November 2021 and April 2022. A small number of records contain correspondence between the Department and the Office of the Attorney General.

Section 42: Restriction of the FOI Act

Section 42(f) of the FOI Act provides that the Act does not apply to a record held or created by the Attorney General or the Director of Public Prosecutions or the Office of the Attorney General or the Office of Director of Public Prosecutions, other than a record relating to general administration.

The effect of section 42(f) is that the only records held or created by the Attorney General’s Office to which a potential right of access applies are those that relate to general administration. While the Act is silent on the meaning of general administration, this Office considers that it clearly refers to records which have to do with the management of the Office of the Attorney General such as records relating to personnel, pay matters, recruitment, accounts, information technology, accommodation, internal organisation, office procedures and the like. I am satisfied that it does not refer to records relating to matters concerning the core business of the Office, which includes, but is not limited to, advising on legislation and litigation.

The Department refused to release records 52 to 57 under section 42(f). Having examined these records, I am satisfied that parts of some of these records were created by the Office of the Attorney General and that they do not relate to general administration. These are emails sent on 3 December 2021 17:37 (contained in records 53, 54, 55) and on 8 December 2021 13:59 (contained in records 54, 55, 56 and 57). I find that these specified parts of records 53, 54, 55, 56 and 57 are excluded from the scope of the FOI Act pursuant to section 42(f) and I will give them no further consideration.

I find, however, that record 52 and the remaining information in records 53 to 57 are held by the Department and were not created by the Office of the Attorney General and that section 42(f) does not apply. I will consider these records further under the other mandatory exemptions claimed by the Department in relation to the remaining records. I am satisfied that this is in keeping with the de novo nature of a review by this Office.

Section 31(1)(a): Legal Professional Privilege

The Department’s position is that records 1-51 are exempt from release under section 31(1)(a). As stated above, I will also consider record 52 and the remaining parts of records 53 to 57 under this exemption.

Section 31(1)(a) provides for the mandatory refusal of a request if the record sought would be exempt from production in proceedings in a court on the ground of legal professional privilege. The exemption does not require a consideration of the public interest for or against release.

Legal professional privilege enables the client to maintain the confidentiality of two types of

communication:

  • confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege), and
  • confidential communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation (litigation privilege).

Provided the prerequisites of advice privilege or litigation privilege are present, the fact that a professional legal adviser is employed as an in-house legal adviser does not prevent the client from asserting privilege over the communications at issue. Moreover, the Commissioner takes the view that advice privilege attaches to records that form part of a continuum of correspondence that results from the original request for advice.

The concept of "once privileged always privileged" applies where privilege is based on legal advice privilege, but not where it is based on litigation privilege. Thus, unless otherwise lost or waived, legal advice privilege lasts indefinitely. Where a claim is made for exemption under section 31(1)(a) on the grounds of litigation privilege and where the documents concerned were created or obtained in preparation for proceedings which did not proceed or have since concluded, the FOI body should show how litigation privilege would continue to apply by providing details of any other related proceedings in being, or contemplated, and to explain how those proceedings have a substantive or close connection with the earlier proceedings.

Legal professional privilege belongs to the client and the client has the right to waive this privilege if the client so wishes. Waiver by the client may be done expressly, but it may also be implied from the circumstances. The Commissioner takes the view that the Irish courts would be slow to infer that there was a waiver of privilege, other than in clear cut cases. He considers that he would not be justified in concluding that, as a general proposition, privilege does not extend to records in the possession of an FOI body simply on the grounds that the body is the not the client to whom the privilege belongs. One of the factors necessary to establish that legal professional privilege arises is that the communication concerned is confidential. Where the communication ceases to be confidential, waiver of privilege may result. The steps taken to preserve the confidentiality of the communication may be relevant in considering whether there has been a waiver of privilege. The Commissioner has explained that his approach concerning the disclosure of a record to a third party is that it generally amounts to a waiver of privilege, except where there is “limited disclosure for a particular purpose, or to parties with a common interest”, as per the Supreme Court judgment in the case of Redfern Limited v O’Mahony [2009] IESC 18.

Submissions from the Department

In its submissions to this Office, the Department said that section 31(1)(a) was cited on the basis of legal advice privilege. It said that even if and when the litigation is completed, the records will still be subject to legal privilege. It did not elaborate beyond this.

Submissions from Revenue

In its submissions, Revenue said that records 5, 15, 17, 18, 21, 23, 24, 28, 29, 30, 31, 32, 34, 39, 40 (in part), 44, 45, 47, 48, 49 and 50 are communications to which legal advice privilege applies. It said that these records either constitute or contain legal advice received from internal and external legal advisers; or constitute or contain communications which were made for the purposes of obtaining legal advice from internal and external legal advisers.

It said that the communications passed between Revenue and the Department by way of expressly confidential communications relying on common interest privilege. It said that the proceedings before the WRC and the Labour Court were self-evidently of common concern to Revenue and the Department and that legal privilege has not been waived.  

Furthermore, Revenue said that in applying the approach that legal advice privilege applies to communications which form part of the continuum of correspondence relating to the seeking or receiving of legal advices, it considers that records 1 (in part), 2, 4, 26, 27, 42 and 43 should also be covered by legal advice privilege. It said that Revenue and the Department were obliged to correspond in relation to the question of an appeal from the decision of the WRC because that decision raised issues of common concern for both Revenue and the Department. It said that some of the communications disclose the nature of the requests for legal advice being made by Revenue and the Department and/or instructions being requested by legal advisors for the purposes of providing legal advice and that even if, on an individualised basis, there might have been some doubt as to whether each of the records benefited from the legal advice privilege, they form part of a continuum of correspondence to which that privilege attaches.

Revenue also stated that litigation privilege attached to record 51 in the context of the appeal of the WRC adjudication to the Labour Court. However, it accepted that the withdrawal of the Labour Court appeal resulted in that privilege ceasing to apply to that record.

My analysis

Having carefully considered each of the records at issue, I am of the view that while many records contain legal advice or a request for legal advice, or refer to such legal advice, or form part of a continuum of communication between the legal advisor and client resulting from the original request for advice, not all of them do. Some of this legal advice was provided to the Department by its legal advisors, and some of it was provided to Revenue by its legal advisors and shared with the Department. Most of the correspondence between the Department and Revenue was with a Revenue solicitor, and I accept that the sharing of legal advice was on the basis of a common interest, which does not amount to a waiver of privilege. I accept that internal communications within the Department that either directly refer to or indirectly disclose legal advice sought or given are legally privileged. However, I do not accept that more general communications or discussions of the case and that disclose no legal advice are subject to legal advice privilege, nor do I accept that general updates on the case that contain no references to legal advice sought or given and that are more procedural or administrative in nature are privileged. I do not accept that those records form part of a continuum of correspondence that results from the original request for advice.

On this basis, I find that the following records are exempt from release under section 31(1)(a) on the basis of legal advice privilege: records 4, 5, 6 (in part – bottom email, 10 November 2021 at 10:33 only) 7, 8, 10, 11, 14, 15 (in part- emails dated 15 November 2021 only), 16 (in part - emails dated 15 November 2021 only), 17 (in part – bottom emails only, 6 December 2021 at 09:14 and all earlier emails), 18, 19 (in part – the full chain of emails apart from the first one dated 7 December 2021 at 11:32), 21 (in part – attachment to email only), 22 (in part- the emails dated 8 December 2022, and the text in red on the email of 14 December 2022 and the sentence immediately below that, only), 24, 25, 28, 29, 30, 31, 32, 33 (in part – emails in the chain from 13 January to 19 January 2022 inclusive only), 34, 35, 36, 37 (in part -  email of 24 January 2022 only), 38, 39, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51 (in part – email only),  52 and the remaining parts of 53, 54, 55, 56 and 57 to which I have found section 42(f) not to apply.

While the Department did not claim litigation privilege, given that section 31(1)(a) is a mandatory exemption, I have considered the question of whether the records which I have found not to be privileged on the basis of legal advice, could be exempt from release due to litigation privilege. I am satisfied that this is appropriate given the de novo nature of reviews by this Office. Some of the records which I have found not to be subject to legal advice privilege may have been prepared with the dominant purpose of preparing for litigation i.e. the appeal to the Labour Court. However, given that this process has now ended and nothing has been put forward to suggest that similar or related proceedings are in process or contemplated, I find that any litigation privilege that may have existed at one point in time has now ceased to apply.

I find that section 31(1)(a) does not apply to the remaining records. I will proceed to consider whether any of the other exemptions cited by the Department apply to those records.

Section 37 – Personal information

At internal review stage, the Department refused part of record 40 under section 37(1) of the Act. In its submissions to this Office, it made a more general reference to section 37 saying that the case “contains many personal details and sensitive personal data of an individual who is not the requester”. In its submissions, Revenue also referred to record 40, observing that large portions of it contained personal information relating to the complainant in the underlying proceedings before the WRC and the Labour Court.

In his submissions, the applicant argued that it was wrong for the Department to claim that section 37 applied without ‘nailing down’ which records it was referring to. He also said that the WRC decision contains extensive personal data on the complainant in the case. He said that the starting point is disclosure and that the onus is on the Department if the decision is otherwise, and submitted that the Department had not justified its decision to refuse the records.

While I accept the applicant’s point that Department should have made more specific submissions in relation to the applicability of section 37 to the records, it is important to note that this is a mandatory exemption that serves to protect the interests of third parties. As such, I consider it appropriate for me to consider the applicability of section 37 to all the records that I have found not to be exempt from release under section 31(1)(a) or outside the FOI Act further to section 42(f) i.e. records 1, 2, 3, 9, 13, 23, 26, 27, 41 in full, and records 6, 15, 16, 17, 19, 21, 22, 33, 37, 40 and 51 in part.

Section 37(1)

Section 37(1) of the FOI Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information. This does not apply where the information involved relates to the requester (section 37(2)(a) refers).

Section 2 of the FOI Act defines personal information as information about an identifiable individual that, either (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 an FOI body on the understanding that it would be treated by that body as confidential. Section 2 goes on to specify 14 categories of information which, without prejudice to the generality of the above definition, constitute personal information, including (ii) information relating to the financial affairs of an individual, (iii) information relating to the employment or employment history of the individual, and (viii) information relating to the religion, age, racial or ethnic origin, sexual orientation or civil status (within the meaning of section 2 (1) of the Civil Registration Act 2004 ) of, any disability of, or the political opinions or the religious or philosophical beliefs of, the individual.

The Supreme Court, in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner [2011] IESC 26 (“the Rotunda case”), held that once the information at issue falls into one of the then 12 (now 14) categories in the definition of personal information, there is no requirement for it to also meet the requirements of paragraph (a) or (b).

Certain information is excluded from the definition of personal information. Where the individual holds or held a position as a member of the staff of an FOI body, the definition does not include his or her name, or information relating to the position, the functions of the position, the terms upon and subject to which the individual holds or held that position, or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of his or her functions (Paragraph I refers).

While the complainant to the WRC was a member of staff of an FOI body, the exclusion at Paragraph I does not exclude all information relating to staff members. The exclusion is intended, in essence, to ensure that section 37 cannot be used to exempt the identity of a public servant in the context of the particular position held or any records created by the staff member while carrying out his or her official functions, or information relating to the terms, conditions and functions of positions. The exclusion does not deprive public servants of the right to privacy generally. While the complainant to the WRC was a member of staff of an FOI body, the records in this case concern her complaint to the WRC rather than her more generally carrying out her functions as a staff member of an FOI body, and I find that the exclusion at Paragraph I does not apply.

Having carefully examined the 19 records at issue, I am satisfied that all of them disclose information relating to the financial affairs, employment history and age of an identifiable individual. While I note the applicant’s point that much of this information is in the public domain by virtue of the published WRC decision, the Rotunda case provides that this is nonetheless personal information for the purposes of section 37(1). Furthermore, record 41 also contains a small amount of personal information relating to staff members of a public body, that I find is not captured by the exclusion at Paragraph I.

However, that is not the end of the matter as section 37(1) is subject to the other provisions of section 37.

Section 37(2)

Section 37(2) provides that section 37(1) does not apply in certain circumstances. I am satisfied that the circumstances set out in sub-sections (a), (b), (d), and (e) do not apply. Section 37(2)(c), however, provides that section 37(1) does not apply if information of the same kind as that contained in the record in respect of individuals generally, or a class of individuals that is, having regard to all the circumstances, of significant size, is available to the general public.

Following the Supreme Court decision in Zalewski v. Adjudication Officer & Ors [2021] IESC 24, the WRC introduced a number of changes to the way in which it carried out its work, including that WRC hearings (apart from industrial relations hearings) became open to the public and that published decisions would not be anonymised (apart from in limited special circumstances). The WRC Adjudication Officer’s decision that underpins the FOI request at issue in this review, is one such decision. It names the parties and provides considerable detail about the complainant’s personal circumstances in the context of the Adjudication Officer setting out the background to the complaint, summarising the various arguments, and making and giving reasons for his decision. As such, it seems to me that information concerning an individual’s complaint to the WRC, that goes as far as adjudication, is available to the general public, and that section 37(2)(c) may be applicable here. Similarly, when a WRC decision is appealed to the Labour Court, and a date is set for the hearing, the details of that hearing, including the named parties, is listed on the diary on the Labour Court website and Labour Court hearings relating to employment rights cases are, subject to certain exceptions, held in public.

In these circumstances, and taking into account the specific content of each of the 19 records at issue, I find that the majority of personal information that the release of these records would disclose is of the same kind that is already available to the general public i.e. that an identifiable individual made a complaint to the WRC, the details of that complaint, that the WRC adjudicator found in her favour, and that this decision was appealed to the Labour Court by Revenue. Where the records contain the name of the applicant, I am satisfied that this is already available to the general public, and that any discussion of this by the public bodies in question is in the context of identifying the relevant determination of the WRC and its subsequent appeal. I find, therefore, that section 37(2)(c) serves to disapply section 37(1) as it relates to the following records: records 1, 2, 3, 9, 13, 23, 26, 27 in full, and records 6, 15, 16, 17, 19, 21, 22, 33, 37, 41 and 51 in part.

However, I distinguish the remaining parts of record 40, part of record 41 (the email of 11 March 2022 at 15:58 only), and part of record 51 (the attachments to the email) from the above records. These records contain the submissions from the complainant to the Labour Court (as respondent to the appeal), submissions from Revenue to the Labour Court, and comments on the submissions. I am satisfied that the personal information that would be disclosed by the release of these records goes beyond the kind that is already available public, and that therefore section 37(2)(c) does not disapply section 37(1) for these three records. I also find that the personal information relating to a staff member(s) in record 41 (the first sentence in the email sent on 11 March 2022 at 16:20, and the second sentence in the email sent at 16:12) is not of a kind that is generally available and that section 37(2)(c) does not apply.

Section 37(5)

Section 37(5) provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the request would benefit the person to whom the information relates. I am satisfied that section 37(5)(b) of the Act does not apply.

In relation to the applicability of section 37(5)(a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the individual to whom the information relates. In carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. Section 11(3) provides that an FOI body must have regard to the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies.

It is important to note that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (“the Enet Case”), the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and “there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure”. Although the Court’s comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.

In relation to the issue of the public interest, it is also important to have regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner [2011] IESC 26 ("the Rotunda case"). It is noted that a true public interest should be distinguished from a private interest.

The FOI Act recognises the public interest in the protection of the right to privacy both in the language of section 37 and the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with the right to privacy). It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. Moreover, unlike other public interest tests provided for in the FOI Act, there is a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. Privacy rights will therefore 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.

No arguments were advanced by any party in relation to the public interest in releasing records to which section 37(1) applies. It is noteworthy that much of the information relating to the individual’s complaint to the WRC is already in the public domain. While I accept that there may well be a public interest in knowing what actions the Department may have sought to take on foot of the WRC decision, it is not apparent to me that the release of the relevant personal information relating to the individuals in question would serve that public interest. Having examined the records, I cannot identify any sufficiently specific, cogent and fact-based reason in favour of disclosure that, on balance, outweighs the public interest in upholding the privacy rights of the individual whose personal information is contained in the records. In the circumstances, I find that section 37(5)(a) does not apply and that the rest of record 40, and the specified parts of records 41 and 51, are exempt from release under section 37(1). 

Section 29: Deliberation of FOI bodies

The Department also relied on section 29(1) as a basis for refusing to release some of the records at issue. These records, excluding those records or parts of records that I have found to be exempt from release under section 31(1)(a) or 37(1) are: records 1, 2, 3, 9, 12, 13, 23, 26, 27 in full, and records 6, 15, 16, 17, 19, 21, 22, 33, 37, 41 and 51 in part.

Section 29(1) provides for the discretionary refusal of a request if (a) the record contains matter relating to the deliberative processes of an FOI body and (b) granting the request would be contrary to the public interest. The exemption has two independent requirements: the record must contain matter relating to the deliberative process, and its disclosure must be contrary to the public interest. Without prejudice to the generality of paragraph (b), the FOI body is required, in determining whether to grant or refuse to grant the request, to consider whether the grant thereof would be contrary to the public interest by reason of the fact that the requester concerned would thereby become aware of a significant decision that the body proposes to make.

The exemption at section 29(1) thus has two requirements, and the fact that the first is met carries no presumption that the second is also met. It is therefore important for public bodies to satisfy this Office that both requirements are met. Any arguments against release should be supported by the facts of the case and it should be shown how release of the record(s) would be contrary to the public interest.

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.

In its submissions on section 29, the Department said that releasing the records would disclose the thinking and methodology behind its position on matters and could prejudice its ability to rely on those positions in future negotiations, which it would be contrary to the public interest. It also said that the public interest would be better served if the Department protected “positions which may, if known, be used in considerations in the future and have additional costs to the Exchequer, as is the case here”.

The Department did not provide details of the basis on which it considered the records in question to relate to a deliberative process. Having examined the records, I am prepared to accept that the contents of records 9 and 13 relate to the Department considering various matters in order to decide its position on the WRC determination and a potential appeal to the Labour Court. However, I do not accept this for the other records, which contain more general communications, initially sharing the WRC determination and later dealing with practical and administrative issues after a decision had been made that Revenue would appeal to the Labour Court. I find therefore that section 29(1) does not apply to these records.

In relation to records 9 and 13, I must go on to consider whether release of these records would be contrary to the public interest. The public interest test at section 29(1)(b) is a stronger public interest test than the public interest test in many other sections of the Act, requiring the FOI body to show that the granting of the request would be contrary to the public interest.

This Office has previously held that the Act clearly envisaged that there will be cases in which disclosure of the details of an FOI body’s deliberations – whether before or, in some cases, after a decision based on those deliberations has been made – would be against the public interest. However, this is not to say that such disclosure is always, as a matter of principle, against the public interest. Any arguments against release under section 29 should be substantiated and supported by the facts of the case. An FOI body should show how granting access to the particular record would be contrary to the public interest, e.g. by identifying a specific harm to the public interest flowing from release.

It seems to me that the Department’s arguments in relation to the public interest are centred on concerns that release of the records would disclose the thinking behind its position on certain matters which would prejudice its ability to rely on this position in the future and which could have additional costs to the Exchequer. It has not, however, explained, with reference to the specific contents of the records, how this could occur, nor is it evident to me from an examination of the records. Having considered the contents of the records, it appears to me that they contain some general references to the decision-making process and I cannot see how their release might give rise to the harms identified. I am not satisfied that the Department has shown that release of the records would be contrary to the public interest, and I find that section 29(1) does not apply.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of the Department.

I find that it was justified in refusing access, under sections 31(1)(a), 37(1) and 42(f), to records 4, 5, 7, 8, 10, 11, 14, 18, 24, 25, 28, 29, 30, 31, 32, 34, 35, 36, 38, 39, 42, 43, 44, 45, 46, 47, 48, 49, 50, 52, 53, 54, 55, 56 and 57 in full and records 6, 15, 16, 17, 19, 21, 22, 33, 37, 40, 41, 51 in part.

However, I find that it has not justified its decision to refuse access to the remaining records, and I direct their release. The records for release are:

  • Records 1, 2, 3, 9, 13, 23, 26, 27
  • Record 6 – top email, sent 10 November 2021 at 12:39, only
  • Record 15 – top email in the chain, sent 2 December 2021 at 16:56, only
  • Record 16 – top three emails in the chain, sent 2 and 3 December 2021, only
  • Record 17 – top two emails in the chain, sent 6 December 2021 at 10:04 and 10:08, only
  • Record 19 – top email in the chain, sent 7 December 2021 at 11:32, only
  • Record 21 – email only (not the attachment)
  • Record 22 – the emails in the chain sent from 10 to 14 December 2021 inclusive, except the text in red on 14 December 2021 and the sentence immediately after that
  • Record 33 – the email sent on 10 January 2022 and the four emails sent on 20 January 2022 only
  • Record 37 – email sent on 25 January 2022 at 07:59 only
  • Record 41 – the emails sent on 11 March 2022 at 15:14, 16:12 (except for the second sentence) and 16:20 (except for the first sentence) only
  • Record 51 – email only, not the attachments.

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 applicant 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.

 

Stephen Rafferty
Senior Investigator