Case number: OIC-101882-W1B7Z6
22 June 2021
In a request dated 28 October 2020, the applicant sought access to a copy of the report drawn up by the Chair of the International Protection Appeals Tribunal (IPAT) into the attendance of a named member of the Tribunal at an event in August 2020. The event in question was a public gathering related to the ongoing restrictions associated with the COVID-19 pandemic.
As the Department did not issue a decision within the required timeframe, the applicant sought an internal review of the deemed refusal of her request on 26 November 2020. The Department issued its internal review decision on 1 December 2020, wherein it refused the request under sections 29(1) and 30(1) of the FOI Act. On 4 January 2021, the applicant sought a review by this Office of the Department’s decision.
During the review, the Department indicated that, in addition to the exemptions already relied upon, section 31, relating to legal professional privilege and court matters, and section 37, relating to personal information, were also relevant. The Investigator notified the applicant of the additional exemptions cited and offered her an opportunity to make further submissions on the matter. The Investigator also notified the Tribunal member who was the subject of the report of the review and offered her an opportunity to make submissions in the matter. In response, the Tribunal member indicated that she objected to the release of the report on the grounds that it contained information provided by her in confidence to the Chair of the Tribunal in circumstances where she had a legitimate expectation that such information would be treated as confidential. The Tribunal member also objected to the release of the report on the grounds that it contained her personal information.
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 applicant in her application for review, to the submissions made by the Department in support of its decision, and to the submission made by the Tribunal member. I have also had regard to the contents of the record at issue. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether the Department was justified in refusing access, under various provisions of the FOI Act, to the report prepared by the Chair of IPAT into the attendance of a named member of the Tribunal at an event in August 2020.
Before I address the substantive issues arising in this case, I would like to set out some preliminary points that are relevant to my review.
First, section 22(12)(b) of the FOI Act provides that a decision to refuse to grant an FOI request shall be presumed not to have been justified unless the FOI body shows to my satisfaction that its decision was justified.
Secondly, section 25(3) of the FOI Act requires the Commissioner to take all reasonable precautions in the performance of his functions to prevent the disclosure of information contained in an exempt record. As such, I am limited in the descriptions I can provide of the contents of the report at issue.
Thirdly, with certain limited exceptions, when a record is released under the FOI Act, it effectively amounts to disclosure to "the world at large" (H.E. v Information Commissioner  IEHC 58). The FOI Act places no restrictions on the type or extent of disclosure or the subsequent use to which the record may be put. Furthermore, the fact that the applicant may be aware of the identity of individuals to whom the withheld information relates, does not mean that the information cannot be withheld under the provisions of the FOI Act.
Finally, section 18 of the FOI Act provides that if it is practicable, records may be granted in part, by excluding the exempt material. Section 18 shall not apply if the copy of the record provided would be misleading. This Office takes the view that the provisions of section 18 do not 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, this Office 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.
The report in question contains an introduction and four discrete parts, namely; Part A (The Tribunal’s Code of Conduct and Rules on Conflict of Interest), Part B (Investigation), Part C (Findings) and Part D (Recommendation). I note that the report references an appendix as comprising correspondence between the Chair and the Tribunal member. While a copy of the appendix was not provided to this Office, I note that various responses of the Tribunal member are cited in the main body of the report.
Having regard to the report’s contents, it seems to me that section 37 of the Act is the most relevant exemption and I propose to consider its applicability first.
Section 37(1) provides for the mandatory refusal of a request where access to the record concerned would involve the disclosure of personal information relating to an individual other than the requester.
Personal information is defined in section 2 of the FOI Act as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or their family or friends or, (b) is held by a public body on the understanding that it would be treated by it as confidential. The FOI Act details fourteen specific categories of information which are included in the definition without prejudice to the generality of the forgoing definition, including "(xiv) the views or opinions of another person about the individual’’.
The report at issue contains information in relation to an event the Tribunal member attended in August 2020 and the activities of the Tribunal member at the event. It also examines whether the member’s attendance was in breach of the Tribunal’s Code of Conduct and Rules on Conflict of Interest. Finally, the report contains recommendations and considerations from Chairperson of the Tribunal to the Minister for Justice.
In its submissions to this Office, the Department indicated that the report contains information relating to the personal and individual circumstances of the Tribunal member that she would not wish to be disclosed and which falls within the definition of personal information set out in the FOI Act.
The Tribunal member argued that release of the report would involve the release of her personal information. In particular, she argued that the definition of personal information, as set out in the FOI Act, encompasses the ‘(xiv) the views of or opinions of another person about the individual’ and that the report in the current case would fall within this definition. In addition, the Tribunal member argued that the report made certain findings in relation to her which she deemed to be untrue, and if released, would be injurious to her character and reputation. The Tribunal member further argued that the nature of the report, which she considers to be fundamentally biased and in certain respects not factually correct, is such that release of it would not be in the public interest.
Having regard to the nature and the contents of the report, I am satisfied that its release would involve the disclosure of personal information relating to the Tribunal member. In particular, I accept that the report, by its very nature, contains the opinions and views of the Chairperson of the Tribunal regarding the Tribunal member’s attendance at the event in question. It also seems to me that the disclosure of Part A of the Report would involve the disclosure of the various specific aspects of the Tribunal’s code of conduct that the Chairperson deemed relevant to the Tribunal member’s attendance at the event. Having regard to this Office’s approach to the interpretation and application of section 18, I find that the section 37(1) applies to the report in its entirety. However, this finding is subject to other provisions of section 37, which I examine below.
Section 37(2) of the FOI Act sets out certain circumstances in which 37(1) does not apply. However, I am satisfied that the relevant circumstances do not arise in this case. That is to say, (a) the information does not relate solely to the applicant; (b) the individuals to whom the information relates have not consented to the release of the information; (c) the information is not of a kind that is available to the general public; (d) the information does not belong to a class of information which would or might be made available to the general public; and (e) the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.
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 information would be to the benefit of the person to whom the information relates.
I find no basis for concluding that the release of the information concerned would be to the benefit of the individual to whom it relates. I therefore find that section 37(5)(b) does not apply.
In relation to the public interest test contained in section 37(5)(a), the applicant argued that the public interest in the release of the report outweighs the privacy rights of the individual concerned. She argued that the withholding of the report threatens to undermine trust in, and the integrity of, the appeals system, including people's right to know they have had a fair hearing. She argued that that the public interest favours release as public funds are involved as they are used to pay Tribunal members to rule on asylum cases. She also argued that the existence of the report and the individual to whom it relates has been widely reported and she suggested that if there are particular details within the report that need to be redacted, they can be.
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. That section recognises the need to enhance public scrutiny and accountability of government and public affairs, particularly the activities and decision making of FOI bodies.
However, in a judgment delivered on 25 September 2020 (The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors, available on our website), the Supreme Court held that general principles of openness and transparency do not provide a sufficient basis for directing the release of otherwise exempt information in the public interest. Rather, a “sufficiently specific, cogent and fact-based reason” is required “to tip the balance in favour of disclosure”. Amongst other things, it found as follows:
“The public interest engaged … cannot be the general public interest in disclosure and transparency in public undertakings…
…there is a public interest in the protection of commercial sensitivity and this may normally be served by the operation of the exemption itself, which provides for the refusal of an FOI request…
… the public interest engaged at this stage of the process must be something more than the general public interest in disclosure and the reason must be found from the scrutiny of the record, and the balancing of the interests of commercial sensitivity or confidentiality against the public interest in the disclosure of that content…
There must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure…
The public interest override contained in the section does not seem to me to be a simple restatement of the overall aim of fostering transparency.”
Moreover, while the Court stated that the public interest balancing test involves a “weighing of the respective private and public interests in the analysis of the records in issue”, it did not disturb the guidance that it previously gave in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner  IESC 26 ("the Rotunda Hospital case") in which it drew a distinction between private and public interests. Relevant private interests are those that are recognised by law and, in particular, through the protection afforded by the exemption provisions. 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.
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.
Having regard to the nature and contents of the report at issue, I am satisfied that its disclosure would involve a significant breach of the privacy rights of the individual concerned. It would involve the disclosure of sensitive personal information that is not currently in the public domain. It seems to me that the applicant’s arguments in favour of release are based on the general public interest in the enhancement of transparency. Having carefully considered its contents, I find no sufficiently specific, cogent and fact-based public interest in granting access to the report that, on balance, outweighs the strong public interest in upholding the right to privacy of the individual concerned. Accordingly, I am satisfied that the Department was justified in refusing access to the report at issue under section 37(1) of the FOI Act.
Having found section 37(1) to apply, I see no need to consider the applicability of the other exemption cited by the Department in support of its decision to refuse access to the report.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the
Department’s decision to refuse access, under section 37(1) of the Act, to a report prepared by the Chair of IPAT into the attendance of a named member of the Tribunal at an event in August 2020.
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.