Case number: OIC-102709-Y3Z0N0
17 October 2022
This case has its background in a previous review before this Office (OIC-53306-W9D11). In that case, the applicant had sought access to records relating to her late mother. The Department granted access to some records and refused access to certain others on the ground that no further relevant records could be found. I found that the Department had not taken all reasonable steps to ascertain the whereabouts of the records sought and I directed it to undertake a fresh decision-making process. I suggested that it would be beneficial for both parties to agree, in the first instance, on the precise nature of the records sought apart from those already released.
Following my decision, the Department and the applicant engaged in further correspondence on the matter. This culminated in a letter from the applicant dated 29 April 2020. In that letter, she stated that she was seeking the following information relating to her late mother and a specified herd number:
The Department issued two decisions in this case, one from the Basic Payment Unit dealing with the Area Aid and SPS parts of the applicant’s request and one dealing with the REPS part of the request.
On 15 June 2020, the Basic Payment Unit identified 46 records as falling within the scope of the applicant’s request. It withheld three of those records under various sections of the FOI Act. It withheld record 1.27 (comprising correspondence between the Department and the Office of the Attorney General) under sections 37(1), 31(1)(a) and 42(f) of the FOI Act. Records 1.28 (a complaint to the Department regarding noncompliance with the terms of a scheme) and 1.29 (comprising six records relating to a third party) were both withheld under section 37(1) of the FOI Act.
On 19 June 2020, the Department refused the relevant part of the request for records relating to REPS under section 15(1)(i) of the FOI Act. It said it had previously released all relevant records to the applicant and that no further records were held.
On 15 July 2020, the applicant sought an internal review of the Department’s decisions. Specifically, she sought a review of the decision not to provide copies of Area Aid applications made from 1996 to 2004; copies of applications for SPS for the years 2005 to 2014; a copy of the Authority which she stated the Department ought to hold in relation to the payment of Area Aid for the years 1994 and 1995, and; details of the outcome of a debt letter relating to the applicant’s late mother’s expulsion from REPS including details of how the debt was resolved.
In two internal review decisions dated 30 July 2020 and 7 August 2020, the Department affirmed its original decisions. It stated that it could not locate further records relating to Area Aid or SPS payments under the relevant herd number and relied on section 15(1)(a) of the FOI Act in refusing the request. The Department again stated that it had previously released all relevant records held relating to REPS.
On 25 January 2021, the applicant applied to this Office for a review of the Department’s decisions. During the course of the review, the Investigating Officer wrote to the applicant to notify her of her view that section 42(m)(i) of the FOI Act may be relevant in relation to record 1.28. The Investigating Officer also provided the applicant with summaries of search details provided by the Department in response to her enquiries. The applicant made a number of submissions to this Office in response to that correspondence.
I have now completed my review in accordance with section 22(2) of the FOI Act. In conducting the review, I have regard to the correspondence between the Department and the applicant as outlined above and to correspondence between this Office and both the Department and the applicant on the matter. I have also had regard to the contents of the records at issue. I have decided to conclude this review by way of a formal, binding decision.
In her request to the Department, the applicant sought certain specific information along with her request for certain records. While the purpose of the FOI 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. Requests for information or for answers to questions, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information or for an answer to a question can reasonably be inferred to be a request for a record containing the information or answer sought.
Furthermore, in the course of this review, the applicant made numerous submissions to this Office enclosing information relevant to the Department’s dealings with her late mother’s estate. The applicant, in some of those submissions, appeared to seek to broaden the scope of this review to include records that were not captured by her request for internal review. This Office is not in a position to extend the scope of the review to consider records that the applicant did not see in her request for internal review, as I have described above. If the applicant considers that the Department holds other relevant records that have not been considered by this Office in this review, it is open to her to submit a fresh request to the Department for such records.
Accordingly, this review is concerned solely with whether or not the Department was justified in refusing access to the information outlined above under sections 31, 37, 42(f) and 42(m)(i) of the FOI Act and whether the Department was justified in refusing access to further records falling within the scope of the request as outlined above under section 15(1)(a) of the FOI Act, on the ground that no further records exist or could be found after all reasonable steps to locate them.
In her submissions to this Office, the applicant made a number of claims relating to the Department’s handling of her late mother’s entitlements to various grants and schemes. It is important to note that this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.
The Department refused access to two letters it referred to together as record 1.27 under sections 37(1), 31(1)(a) and 42(f) of the FOI Act. As section 42(f) serves to restrict the applicability of the FOI Act, I will deal with that section first. Section 42(f) 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.
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 other such matters. It does not refer to records relating to matters concerning the core business of that Office.
The records at issue comprise correspondence between the Department and the Attorney General. In this case, I am satisfied that one of the letters concerned was created by the Attorney General and that it is not a record relating to the general administration of that Office. I find, therefore, that the Department was justified in refusing access to that letter under section 42(f) of the FOI Act.
The second letter, from the Department to the Office of the Attorney General, however, was clearly not created by the Office of the Attorney General and cannot be said to be held by that Office for the purposes of section 42(f). However, the Department also relied on section 31(1)(a) of the FOI Act in refusing access to the record.
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. Legal professional privilege enables the client to maintain the confidentiality of two types of communication:
a. 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
b. 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).
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. In its submissions to this Office, the Department said the letter in question comprised a request for legal advice from the Office of the Attorney General. Having reviewed the letter, I accept that it constitutes a confidential communication made between a professional legal advisor (the Office of the Attorney General) and a client (the Department) for the purpose of obtaining legal advice. As such, I am satisfied that the second letter attracts legal advice privilege and I find that the Department was justified in refusing access to it under section 31(1)(a) of the FOI Act.
While the Department refused record 1.28 under section 37 of the FOI Act, I consider section 42(m)(i) to be of more relevance. That section provides that the Act does not apply to a record relating to information whose disclosure could reasonably be expected to reveal, or lead to the revelation of, the identity of a person who has provided information in confidence in relation to the enforcement or administration of the law to an FOI body.
In essence, the section provides for the protection of the identity of persons who have given information in confidence in relation to the enforcement or administration of the law to ensure that members of the public are not discouraged from co-operating with such bodies or agencies. If the section applies, then that is the end of the matter and no right of access exists.
For section 42(m)(i) to apply, three specific requirements must be met. The first is that release of the withheld information could reasonably be expected to reveal, whether directly or indirectly, the identity of the supplier of information. The second is that the information supplied must have been given in confidence, while the third is that the information supplied must relate to the enforcement or administration of the law.
The record contains a handwritten complaint regarding the use of the applicant’s late mother’s land and claims for Area Aid made in relation to that land. Having reviewed the record, I am satisfied the its release could reasonably be expected to lead to the revelation of the identity of the supplier of the information and that the first condition is therefore met.
The second requirement for section 42(m)(i) to apply is that the information must have been provided in confidence. In its submissions to this Office, the Department said it considers the information was given in confidence. It said it relies on members of the public providing information in relation to non-compliance with the terms and conditions of its various schemes.
The Department argued that the revelation of a complainant’s identity would have a detrimental impact on the flow of information from members of the public giving information to the Department regarding such noncompliance, resulting in overpayments, fraud and the risk of audit fines.
While the record itself is not marked confidential, I accept that, given the nature of the information contained therein, it is unlikely that the complainant would have provided that information had they suspected their identity would be revealed by the Department.
Having regard to the Department's position on the matter, I accept that the information was given in confidence in this case and I find that the second requirement has been met.
The third requirement is that the information provided must relate to the enforcement or administration of the law. In its submissions, the Department said that it had responsibilities under EEC Regulation 1765/92 to administer the Area Aid scheme and to conduct inspections and controls in relation to that scheme. I am satisfied that the third requirement is met in this case.
Having found that each of the requirements for section 42(m)(i) are met, I find that the Department was justified in refusing access to record 1.28. Having found section 42(m)(i) to apply, I do not need to consider the applicability of the other exemptions claimed by the Department.
Record 1.29 comprises six records, which I will refer to as records (a) to (f). The Department refused those records under section 37(1) of the FOI Act. Section 37(1) provides that an FOI body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information relating to an individual or individuals other than the requester, including personal information relating to a deceased individual. Furthermore, section 37(7) provides that an FOI body shall refuse to grant a request if access to the record concerned would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester, commonly referred to as joint personal information.
The Act defines the term "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 the body as confidential. The definition also contains a list of 14 specific types of information that is personal information, without prejudice to the foregoing definition, including information relating to the financial affairs of the individual. Having reviewed records (a) to (f), I am satisfied that their disclosure would involve the disclosure of personal information relating to an individual other than the applicant or her late mother. I find that section 37(1) applies to record 1.29.
There are some circumstances, provided for at sections 37(2) and 37(5), in which the exemptions at section 37(1) do not apply. I am satisfied that none of the circumstances identified at section 37(2) arise in this case. Section 37(5) provides that a request which would fall to be refused under section 37(1) may still be granted where the FOI body considers that, on balance, (a) the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld, or (b) the grant of the request would benefit the individual concerned.
I see no basis for finding that the grant of the request would benefit the individual to whom the information relates. I am satisfied that section 37(5)(b) does not apply in this case.
In relation to the public interest test contained in section 37(5)(a), I wish to emphasise that 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. In sum, section 11(3) 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”.
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.
In considering where the balance of the public interest lies in this case, it is important to note that the release of records under FOI is regarded, in effect, as release to the world at large, given that the Act places no constraints on the uses to which a record released under the Act may be put. I have also had regard to the fact that the information in records (a) to (f) involve a third party’s financial affairs and are inherently private in nature. In the circumstances, I find no relevant public interest in granting access to the records that, on balance, outweighs the public interest in upholding the right to privacy of the individual to whom the records relate. I find that section 37(5)(a) does not apply in this case.
Section 37(8) provides that, notwithstanding subsection (1), the Minister for Public Expenditure and Reform may provide by regulations for the grant of a request where “the individual to whom the record concerned relates is dead and the requester concerned is a member of a class specified in the regulations”. The relevant regulations are the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016, as amended (the 2016 Regulations). The 2016 Regulations provide for the grant of access to the records of a deceased individual where the requester is the spouse or the next of kin of the individual and having regard to all the circumstances, the public interest, including the public interest in the confidentiality of personal information, would on balance be better served by granting than by refusing the request. The Minister for Public Expenditure and Reform has published guidance on the application of the 2016 Regulations (“Minister’s Guidance”), in accordance with section 48(1) of the FOI Act. Section 48(3) of the FOI Act requires FOI bodies to have regard to guidelines published by the Minister in the performance of their functions.
I note that the 2016 Regulations state that “next of kin” means: (a) issue, (b) parent, (c) brother or sister, (d) a niece or nephew, or (e) any other person standing nearest in blood relationship to the individual in accordance with section 71(2) of the Succession Act 1965 (No.27 of 1965). The Minister’s Guidance says “In order to establish his or her claim to be the next of kin of the deceased, the requester would be required to submit an affidavit or other acceptable proof establishing the relationship and showing the necessary State Certificates.”
While the Department has not stated in its submissions to this Office that it considered the Regulations in processing this request, I note that the applicant has made no arguments that she is entitled to the information as next of kin of the third party involved. As such, I am satisfied that it was not necessary for the Department to undertake a consideration of the Regulations in this case.
In submissions to this Office, the applicant made arguments that any information relating to so-called trust entitlements would form part of her late mother’s estate, notwithstanding the fact that the information may be held under a third party’s name. Whether such entitlements were correctly or incorrectly dealt with by the Department is not a matter for this Office. Having examined the records involved, they clearly relate to a third party’s financial affairs and cannot reasonably be said to relate to the applicant’s late mother.
In conclusion, therefore, I find that the Department was justified in refusing access to records (a) to (f) under section 37(1) of the FOI Act.
Section 15(1)(a) of the FOI Act provides that a request for access to records may be refused if the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner’s role in such cases is to review the decision of the FOI body and to decide whether the decision was justified. This Office must have regard to the evidence available to the decision maker in arriving at his/her decision. The evidence in “search” cases generally consists of the steps actually taken to search for the records along with miscellaneous other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.
In its submissions to this Office, the Department provided details of searches conducted in an effort to locate records falling within the scope of the applicant’s request. Given the fact that the Department searched its REPS Unit and Basic Payments Unit separately, I will deal with each unit separately in this decision.
In submissions to this Office, the Department outlined the searches conducted for records relating to details of the outcome of a debt letter relating to the applicant’s late mother’s expulsion from REPS including details of how the debt was resolved.
In the course of the review, the Department explained that in the REPS file provided to the applicant in response to a previous request, three records related to the debt letter and its outcome. The Department stated that despite extensive searches, it could not locate further records relating to this matter. The Department said that at the time of the debt letter, where a REPS debt was established, a REPS Withdrawals file would usually be set up in the Withdrawals Section of the REPS Unit based in the Department’s office in Johnstown Castle Estate, Co Wexford.
The Department said it searched a database of cases which owed debts maintained by its REPS Withdrawals Section using the applicant’s late mother’s surname, It said its search indicated that a REPS Withdrawals file has been set up for the applicant’s late mother with the same reference number as her existing REPS file. It said REPS Withdrawals files from the period are still held in Johnstown Castle in hardcopy, numbering around 7,500 files. It said it conducted a thorough search of the hardcopy files to locate the relevant file, but that it could not be located despite adjacent files being searched to account for possible misfiling. It said there was no other location where the REPS Withdrawals file might be held and it concluded that the file had unfortunately been misplaced.
The Department added that any applications for subsequent REPS applications made by the applicant’s late mother would have been made under the same reference number and would have been apparent from searches conducted in response to the original request. The Department’s position was that no further applications to the scheme were made under the applicant’s late mother’s name. The Department also confirmed that it had no record of a REPS file being established in the name of the third party involved in this case.
It is disappointing that the Department cannot locate the REPS Withdrawals file which, it appears, may well hold records relating to the outcome of the debt letter. However, it is important to note that the FOI Act does not require absolute certainty as to the existence
or location of records, as situations can and do arise where records are lost or simply cannot be found. What section 15(1)(a) requires is that the FOI body takes all reasonable
steps to locate relevant records. Moreover, FOI bodies are not required to search indefinitely for records in response to an FOI request. We may conclude that an FOI body has conducted reasonable searches even where records were known to have existed but cannot be found.
What I am required to consider in this case is whether the Department has taken all reasonable steps to ascertain the whereabouts of the records sought. Given the Department’s explanations of its records management processes in respect of records of the type sought and it explanation of the searches undertaken, I am satisfied that it has taken all reasonable steps to locate the records sought. While the applicant will clearly be disappointed with that outcome, no evidence has been presented to this office to suggest that further specified searches are warranted in this case. Accordingly, I find that the Department was justified in refusing access to additional records relating to details of the outcome of a debt letter relating to the applicant’s late mother’s expulsion from REPS including details of how the debt was resolved under section 15(1)(a) of the FOI Act. I would, however, expect that if the file in question is located at any future stage, it will be considered for release to the applicant.
Basic Payments Unit
The Basic Payments Unit of the Department dealt with the applicant’s request for copies of Area Aid applications made from 1996 to 2004; copies of applications for SPS for the years 2005 to 2014; and a copy of the Authority which she stated the Department ought to hold in relation to the payment of Area Aid for the years 1994 and 1995.
In its internal review decision, the Department stated that while it had located records of Area Aid applications under the relevant herd number for 1993, 1994 and 1995, it could not locate applications for Area Aid for the years 1996 to 2004 or SPS for the years 2005 to 2014.
In submissions to this Office, the Department explained that both Area Aid and SPS payments are held on the same IT system. That IT system holds information relating to name, herd number, year, date application received, area details, townsland, payment details and parcel numbers.
The Department stated that it searched each relevant year. It stated that were an application received in 1996, it would have been scanned and filed onto the IT system. The Department stated that no applications were recovered using the herd number provided. The Department explained that it also searched its payments system and no payments were identified for the years in question.
The Accounts Branch of the Department was asked to conduct a further search for any details of any payments relating to Area/Arable Aid Schemes for the specified herd number, including any information relating to the relinquishing of authority to these payments. The Department explained that a member of staff in the Portlaoise office searched the off-site storage facility where files are stored by scheme, herd number and year. Files were searched first by scheme and then herd number and year. No records from 1995 on were located.
The Department added that staff who would have knowledge of the relevant schemes were consulted in an effort to locate relevant files. It also said that the Department office in Raphoe was consulted as it held some archived records, but searches there located no further records falling within the scope of the applicant’s request. The Department said that in its view, no applications were made under the specified herd number under Area Aid from 1996 to 2004 or SPS from 2005 to 2014. It added that given the passage of time and in the absence of further records, it was unable to establish whether a further irrevocable authority as sought by the applicant may have existed.
In relation to that irrevocable authority, in submissions to this Office the applicant provided a copy of a letter from the Official Assignee involved in her late mother’s case, dated 12 September 1995, which states that the Assignee was in possession of an irrevocable authority addressed to the Department directing that funds relating to Area Aid be paid to him. In further submissions, the applicant said payments for Area Aid in 1994 and 1995 were not made to the Official Assignee.
In further correspondence with this Office, the applicant stated that this enquiry on her part was to show that Area Aid entitlements were held in her late mother’s name in 1995 and should not be held under anyone else’s name as, she argued, the Department held no authority to change the ownership of entitlements nor authority to direct those entitlements elsewhere.
The applicant also stated in correspondence with this Office that she was satisfied that no Area Aid application was made in 1996. She stated that records ought to exist, however, for the years 1997 to 2014. In response to a summary of the Department’s submissions, she argued that the Department ought to have searched by the relevant townland and two folio numbers she provided relating to the land owned by her late mother. The Department’s position, however, is that searches using the herd number would have recovered relevant entries in their IT system, but no entries from 1996 on were recorded relating to the applicant’s request.
I note from correspondence between the applicant and the Department, copies of which the applicant provided to this Office, that the Inheritance Enquiry Unit of the Department also conducted searches for records relating to the applicant’s late mother’s entitlements under the relevant schemes. In an email dated 25 November 2020, that Unit advised the applicant that no entitlements were established for the herd number provided and that her late mother was not a participant in the current schemes and therefore the Unit did not hold the records sought.
It appears to me that the applicant believes the Department should be in a position to provide additional records to support its handling of her late mother’s entitlements. The Department’s position is that the applicant has access to all of the relevant records which can be found after reasonable steps to locate them. The question of whether or not the information held is sufficient to show the Department’s handling of her late mother’s entitlements, or indeed whether or not the Department handled those entitlements correctly, is not a matter to be considered by this Office.
In the circumstances of this case, the applicant has presented no evidence, in my view, to suggest that the Department holds further relevant records falling within the scope of the relevant part of her request. While the Department may well hold further records which might explain the discrepancies noted by the applicant, I am confined in my review to the scope of the internal review request, which I have outlined above.
In the circumstances, having regard to the Department’s explanation of the searches it undertook to search for additional relevant records, I am satisfied that all reasonable steps have now been taken by the Department. I find, therefore, that the Department was justified in refusing the request for additional relevant records under section 15(1)(a) of the FOI Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department’s decision. I find that the Department justified its decision to refuse access to records 1.27, 1.28 and 1.29 under sections 42(m)(i); 42(f); 31(1)(a) and 37(1) of the FOI Act. I also find that the Department justified its decision to refuse access to additional specified records sought under section 15(1)(a) 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.