Whether the Council was justified in refusing access to information on protected disclosures it received in 2016 under section 15(1)(d) of the FOI Act on the basis that the information is in the public domain
18 June 2020
This case has its background in a protected disclosure the applicant made to the Council in 2016 and his concerns that it was not appropriately investigated. On 29 September 2019, the applicant submitted an FOI request to the Council for ”information on protected disclosures received by [the] Council throughout 2016”. The Council initially directed the applicant to its 2016 Protected Disclosures Annual Report on its website which indicated that there were no protected disclosures in 2016.
The applicant informed the Council that the information on its website was incorrect and he sought to have his request processed. On 23 October 2019, the Council refused the request under Section 15(1)(d) of the Act on the ground that the information was publicly available and it also enclosed a copy of the relevant extract from its 2016 Protected Disclosures Annual Report which indicated that there were no protected disclosures in 2016.
Following a further communication between the parties, the applicant sought an internal review of the Council’s decision, in which he provided details of a protected disclosure he had made in 2016. In its internal review decision of 27 November 2019, the Council informed the applicant that it had decided to amend the 2016 Report to reflect the disclosure made and that it would be updated on its website. On 28 April 2020, the applicant sought of a review by this Office 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 the correspondence between the applicant and the Council outlined above and to their submissions to this Office. I have decided to conclude this review by way of a formal, binding decision.
Scope of the Review
In his application for review to this Office, the applicant referred to communications he had with the Council following receipt of its internal review decision, including an email of 3 February 2020 wherein he indicated that he had expected to receive records relating to the disclosure he had made. At that stage, the Council deemed the request as having been fully processed as it had already issued its internal review decision on the matter and it referred the applicant to this Office.
The Council’s decision was to refuse the request under section 15(1)(d) on the ground that the information sought was publicly available. Accordingly, this review is concerned solely with whether the Council was justified in refusing the applicant’s request for information on protected disclosures received by the Council during 2016 under section 15(1)(d) on the basis that the information sought is publicly available.
Analysis and Findings
In its submission to this Office, the Council argued that up until 3 February 2020, it was not clear or apparent that the applicant was seeking specific investigation notes in relation to his own protected disclosure. It stated that both the original request and next correspondence spoke in absolute generality. The Council said that it took that request on 'face value' and responded to same in its original decision on 23 October 2019 and its internal review decision on 27 November 2019.
The Council said that it considered in the original request that the applicant was seeking a copy of the Annual Protected Disclosures Report, which would reflect, his request for disclosures received by Louth County Council throughout 2016. The Council explained that as it had made a decision under the Act and had also carried out an internal review of the original decision, it was of the view that the remaining redress was with the Office of the Information Commissioner and therefore the matter was considered "closed', as far as it was concerned.
The Council stated that at no point up until 3 February 2020, did the applicant express the level of detail required by him, in his application or other correspondence. At the time of the internal review decision, the Council was still not aware of the applicant’s requirements or a need to contact him, to provide assistance in clarifying records sought. It said the communication from the applicant was approximately two months after the Council issued its internal review decision, which informed the applicant of his right of appeal to the Information Commissioner.
It is important to note at the outset that while the purpose of the Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from a public body must make a request for records that contain the information sought. Under section 12(1)(b), the request must contain sufficient particulars in relation to the information concerned to enable the record to be identified by the taking of reasonable steps.
While the applicant sought information on protected disclosures received during 2016, he did not indicate in his request that he was seeking access to records relating to the particular protected disclosure he had made, nor did he do so when he informed the council that its Report which indicated that no disclosures had been made in the year was incorrect.
The Council interpreted the request as a request for general information about the number of disclosures made. This was a reasonable interpretation, in my view. Had there been a number of disclosures, I do not consider that it could reasonably have been expected to interpret the request as a request for all records relating to those disclosures, in circumstances where it has an obligation to publish a report each year which does not enable the identification of the persons involved containing information relating to the number of protected disclosures made to the public body and the action (if any) taken in response to those protected disclosures.
In all of the circumstances, I am satisfied that the Council’s interpretation of the request was reasonable and that it properly refused the request under section 15(1)(d) on the ground that the information sought was publicly available. The applicant should note that if he wished to obtain access to records relating to the particular protected disclosure he made, it is open to him to make a fresh request to the Council for those records.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Council to refuse the applicant's request for information on protected disclosures received by the Council in 2016 under section 15(1)(d) of the FOI Act on the ground that the information sought is already in the public domain.
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.