Case number: OIC-129209-Z2V9Y2
9 February 2023
The Protected Disclosures Act 2014 (the 2014 Act) protects for workers from retaliation if they speak up about wrongdoing in the workplace. It has been supplemented by the Protected Disclosures (Amendment) Act 2022 (the 2022 Act), which came into operation on 1 January 2023.
The applicant’s FOI request to the FOI body of 26 July 2022 sought access to records in relation to his Protected Disclosures (PDs) dated after 1 July 2021. The FOI body’s decision of 23 August 2022 refused the request under various provisions of the FOI Act.
The applicant sought an internal review on 25 August 2022. The FOI body’s internal review decision dated 15 September 2022 affirmed its refusal of the request.
On 28 September 2022, the applicant applied to this Office for a review of the FOI body’s decision.
I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges and to correspondence between this Office, the FOI body and the applicant. I have also considered the contents of the records at issue and the provisions of the FOI Act.
The scope of this review is confined to whether the FOI body’s refusal of the request was justified under the provisions of the FOI Act. It does not extend to examining or making findings on any other matter, including the FOI body’s handling of the applicant’s PDs or his requests for updates on such matters.
A review by this Office is considered to be de novo, which means that it is based on the circumstances and the law as they pertain at the time of the decision.
The 2022 Act came into effect since the FOI body made its decisions. In particular, section 20 of the 2022 Act inserts section 42(ja) into the FOI Act, which (generally speaking) serves to dis-apply the FOI Act to records relating to PDs. In the circumstances, it is appropriate for my review to consider the application of section 42(ja) of the FOI Act.
Section 42(ja) of the FOI Act – restriction of Act to records relating to PDs
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 [2022 Act]”. Section 4 of the 2022 Act defines “report” or “to report” as “the oral or written communication of information on relevant wrongdoings”.
It is the FOI body’s position that, further to the coming into operation of the 2022 Act, the FOI Act does not apply to any PD made since 2014, or to any records relating to such a PD.
The applicant he says that while the FOI body promised to update him about his PDs, it has not done so and that he has made many attempts to get information and updates. He says that he is entitled to records relating to himself and his PDs. He says that his other similar FOI request was granted on appeal, and explains why he believes that he has a genuine and material interest in the information. However, although the applicant was invited to make submissions on the potential relevance of section 42(ja), I have received no response.
It is not this Office’s role to require the FOI body to take particular steps regarding the PD process and I cannot have regard to the applicant’s views about such matters. The FOI body’s previous release under FOI of similar, related records does not give me a basis to disregard section 42(ja). It is not relevant to section 42(ja) whether the records relate to/refer to the applicant, or if he has an interest in their contents. Furthermore, it is not relevant that the FOI body could not rely on the provision when making its decisions on the request.
Section 25(3) of the FOI Act requires the Information Commissioner to take all reasonable precautions in the performance of his functions to prevent the disclosure of information contained in an exempt record or that would cause the record to be exempt if it contained that information. While, accordingly, I must limit my description of the records, I am satisfied that they comprise reports made by the applicant under the 2014 Act, and other records relating to those reports.
I find that all of the requested records are of a sort that fall under the scope of section 42(ja) of the FOI Act, such that the FOI Act does not apply to them. In the circumstances, there is no need for me to consider the provisions relied on by the FOI body in its decisions.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the FOI body’s decision, on the basis that the records fall within the scope of section 42(ja) of the FOI Act.
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.