Whether the Department was justified in refusing, under sections 32(2) and 37(6) of the FOI Act, to confirm or deny the existence of a copy of a report the Insolvency Service of Ireland (ISI) prepared on a named personal insolvency practitioner (PIP) provider
8 January 2020
In a request dated 29 August 2019, the applicant sought access to a copy of a report the ISI prepared on a named PIP provider. In its decision dated 24 September 2019, the Department refused to confirm or deny the existence of the record under sections 32(2) and 37(6). The applicant sought an internal review of that decision, following which the Department affirmed its original decision. On 21 October 2019, the applicant sought a review by this Office of the Department’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 the correspondence between the applicant and the Department as set out above and to the correspondence between this Offcie and both the Department and the applicant on the matter. I have decided to conclude the review by way of a formal, binding decision.
Scope of review
This review is concerned solely with whether the Department was justified in its decision to refuse to confirm or deny the existence of an ISI report concerning a named PIP provider.
Analysis and Findings
A number of the exemptions in the FOI Act contain what are commonly referred to as "neither confirm nor deny" provisions. In essence, such provisions allow a public body to refuse to confirm or deny the existence of a record where doing so may give rise to the harm which the relevant exemption seeks to avoid. In its original and internal review decisions in this case, the Department relied on the neither confirm nor deny provisions set out in sections 32(2) and 37(6).
However, during the course of this review, following engagement with this Office, the Department decided to disclose to the applicant the existence of the report.
Accordingly, I find that the decision of the Department in this case was not justified under sections 32(2) and 37(6) of the FOI Act. However, I do not consider it appropriate to simply direct the release of the record, particularly in light of the fact that any such decision may affect third party interests.
In the circumstances, I find that the most appropriate course of action is to annul the Department’s decision and to direct it to conduct a new decision-making process on the request. The normal rights of internal review and appeal to this Office will apply to the new decision.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the Department to refuse the applicant’s request for a copy of the relevant report prepared by ISI under sections 32(2) and 37(6). I direct the Department to conduct a fresh decision-making process on the request.
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.