Case number: OIC-60152-C8V9Q9
23 July 2021
All references to the applicant in this case shall be taken as referring to the applicant organisation or its solicitor, as appropriate. Following an earlier request and various exchanges with the Department, on 2 August 2019, the applicant sought access to all records and correspondence held by the Department since 3 April 2019 relating to the following:
The Department issued its decision on 11 September 2019, wherein it identified 17 records relating to items 1-4 above. It refused to grant access to all of the records pursuant to sections 30(1) (functions and negotiations of FOI bodies), 32(1) (law enforcement and public safety) and 37(1) (personal information of third parties) of the FOI Act.
On 23 September 2019, the applicant requested an internal review of the Department’s decision to refuse access to records relating to the four categories set out above. The applicant was also of the view that additional records should exist relating to its request. The Department’s internal reviewer varied its original decision on 22 October 2019. The Department granted access to records 1-17 in part on the basis of sections 30(1), 32(1) and 37(1). However, the decision did not address the applicant’s view that further relevant records should exist.
On 4 December 2019, the applicant applied to this Office for a review of the Department’s decision. In a submission accompanying its application, the applicant indicated that, as well as requesting a review of the decision to refuse access to the records identified by the Department, it remained of the view that additional records relating to its request should exist.
Following queries from this Office during the course of this review, the Department provided details of searches taken to locate relevant records. It located two additional relevant records (records 18 and 19) when preparing its submission. It also considered these to be exempt from release under sections 30, 32 and 37. It indicated that no further relevant records existed or could be found. This Office’s Investigator informed the applicant of the search details provided by the Department and its position on the additional records located.
During the course of this review, the applicant made a separate FOI request to the Department seeking access to similar records from 1 August 2019 to June 2020. The Department released a number of records in part to the applicant on foot of his later request, despite having refused access to the equivalent records in full in this case. The applicant made an application for a review of the Department’s decision in that case (OIC-99245-W6V9B4), which was assigned to the same Investigator. This Office’s Investigator contacted the Department and asked if it wished to reconsider its decision in this case. The Department indicated that it did not wish to do so.
I have now completed my review in accordance with section 22(2) of the FOI Act. I wish to apologise for the time that it has taken to conclude this matter. In carrying out my review, I have had regard to the correspondence between the applicant and the Department as set out above, as well as correspondence between both parties and this Office. I have also had regard to the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision.
This review is solely concerned with whether the Department was justified in refusing to grant access to records 18 and 19 in full and records 1-17 in part on the basis of sections 30(1), 32(1) and 37(1) of the FOI Act, and in refusing to grant access to additional records on the basis of section 15(1)(a).
In submissions to this Office, the applicant set out the background and context of the records in question. The applicant also explained why it sought the records at issue. It is important to note that section 13(4) of the Act provides that, subject to the Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. Thus, while certain provisions of the Act render the motive of the requester relevant, as a general rule, the actual or perceived reasons for a request must be disregarded in deciding whether to grant or refuse an access request under the FOI Act.
It is also important to note that section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request under section 12 shall be presumed not to have been justified unless the head of the relevant FOI body shows to the Commissioner's satisfaction that its decision was justified. This means that the onus is on the Department to satisfy this Office that its decision to refuse access to the records sought, either in whole or in part, was justified.
Section 15(1)(a) - Whether additional records exist
Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused if the record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts
have been taken. The Commissioner's role in cases such as this is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision and also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.
The evidence in "search" cases consists of the steps actually taken to search for records, along with miscellaneous other evidence about the record management practices of the FOI body, based on which the FOI body concluded that the steps taken to search for records were reasonable. On the basis of the information provided, the Commissioner forms a view as to whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found. It is not normally the Commissioner's function to search for records that a requester believes are in existence.
In its internal review request, the applicant indicated that it was of the view that additional records should exist relating to its request. In its application to this Office, the applicant referred to documents obtained under FOI from the WRC which, the applicant contended, fell within the scope of its request and were also held by the Department.
On 6 March 2020, this Office’s Investigator requested a submission from the Department and asked it to address the applicant’s contention that further records relating to correspondence between the Department and the WRC should exist. She referred to specific records/matters cited by the applicant in this regard.
In its response, the Department provided details of searches taken to locate relevant records. As set out above, it indicated that it had located two additional relevant records when preparing its submission, which it also considered to be exempt from release under sections 30, 32 and 37. Essentially, it stated that these records had been missed initially due to a misunderstanding of where such records are held on the Department’s systems. This Office’s Investigator has informed the applicant of the search details concerned, so I do not intend to repeat them here. The Department’s position is that no further relevant records exist or can be found. The additional records which the applicant believes should exist fall into two categories, which I shall address separately below.
1. Information transmitted to the Department by the WRC and the Department’s responses
The applicant is of the view that 13 referrals were made by the WRC to the Department within the relevant timeframe, but that the records identified only refer to five referrals. The Department stated that it received 14 communications from the WRC, which contained 17 referrals. From a detailed examination of the records identified, I am satisfied that they contain referrals relating to 17 individual vessels.
The applicant also referred to an email dated 18 June 2019 from the WRC to the MSO which confirmed that there had only been one referral to date. When asked why this record was not on the records schedule provided, the Department stated that it had been located during its search for relevant records, but as it was considered not to be a referral, but rather a reference to one, it did not include it in the schedule. It also noted that the referral in question was contained in record 1 on the record schedule provided.
As the applicant sought “all records and correspondence” relating to information from the WRC to the Department concerning referrals, assessment, inspections and prosecutions, I am satisfied that this record was within the scope of the applicant’s request. I therefore direct the Department to make a new decision on this record to the applicant, which I find to be within the scope of its request.
The applicant also referred to an email dated 16 April 2019 from the WRC to the MSO. I am satisfied that this is contained in record 1 in the records schedule provided and will be considered further below. I am also satisfied that the records at issue include responses to the WRC from the MSO, which have not been released to the applicant. I shall consider all of the records withheld in full or in part under the exemptions claimed below.
2. Records relating to Assessments, Inspections and Prosecutions
I note that the applicant’s contention that additional relevant records should exist was partially based on an agreement between the Department and the WRC, which stipulated that referrals under the scheme should be followed up by MSO inspections within two weeks of the referral. The applicant also referred to a letter it received from the Oversight Committee of the Atypical Workers Permission Scheme (Non-EEA Crew) on 21 October 2019, which stated that all referrals received by the MSO from the WRC had been actioned within the required timeframe of two weeks. The applicant concluded that there should have been relevant records identified relating to inspections following on from each referral.
From a close inspection of the original and additional records identified by the Department, and the details provided in the Department’s submission, I can confirm that one referral was made in April, one in June and the remaining 15 in July. In other words, most of the referrals were made shortly before the applicant’s request. From the information provided to this Office, it seems that inspections relating to nine of the vessels took place after the applicant’s request was received. Based on the dates of inspection for the vessels concerned, I am satisfied that records relating to the inspection of nine of the 17 vessels did not exist at the time of the applicant’s request. Accordingly, I find that the Department’s effective reliance on section 15(1)(a) to refuse to grant access to records relating to inspections for nine vessels was justified on the basis that they did not exist at the time of the applicant’s request.
Of the remaining eight vessels, I am satisfied that inspection and enforcement records relating to three of these were included in the records originally identified by the Department. I am also satisfied that records relating to the remaining five were located by the Department during this review and are contained in records 18 and 19. These will all be considered further below.
The applicant was also of the view that additional records should exist relating to parts 2-4 of its request. I am satisfied that the copies of MSO Task Application Forms on the Department’s task management system (TMS) identified by the Department relate to the eight vessels which had been inspected before the FOI request was received. I am also satisfied that the FSI reports and deficiencies lists contained in records 18 and 19 relate to the Department’s inspections of these vessels.
Finally, I note that the Department’s position is that work on the various referrals was in progress at the time it received the applicant’s request and that, essentially, the position in early August differed from the details of progress supplied to the Oversight Committee in October. While I am aware that the applicant does not accept this explanation, I am satisfied that the circumstances at the time of the applicant’s request had materially changed by October.
As noted above, the Department relied on sections 30(1), 32(1) and 37(1) in support of its decision to refuse to grant access to records 1-17 in part and records 18-19 in full. It seems to me that section 37 is the most relevant and I will consider the records concerned under this exemption first.
Section 37- Personal Information
In submissions to this Office, the Department clarified that it was not seeking to withhold the names or official contact details contained in these records of any person who was a member of an FOI body acting in their official capacity. I take this to mean that it is willing to release the redacted portions of records 1-17 where the information solely relates to WRC and MSO staff members. Accordingly, I expect the Department to confirm with the applicant whether it is seeking this information and if so, to make arrangements to release this information.
Section 37(1) provides for the mandatory refusal of a request where access to the record concerned would involve the disclosure of personal information. 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:
(iii) information relating to the employment or employment history of the individual, …
(v) information relating to the individual in a record falling within section 11(6)(a), [i.e. a personnel record]
(vi) information relating to any criminal history of, or the commission or alleged commission of any offence by, the individual,
(viii) information relating to the … racial or ethnic origin,... of, the individual, …
(xi) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to, establish that any personal information held by the FOI body concerned relates to the individual,
(xiii) information relating to property of the individual (including the nature of the individual's title to any property), and
(xiv) the views or opinions of another person about the individual
The records concerned comprise email correspondence from the WRC to the Department enclosing WRC referral forms, the Department’s responses, and various MSO records concerning the inspection of the vessels concerned. The information in the records at issue, other than the details of WRC staff, comprises the names of the relevant fishing vessels, details of the owner(s), the master’s name, the place of inspection, various issues identified and additional notes of inspections which often include details of named individuals, and/or copies of individuals’ signed hours of rest logs.
This case concerns a scheme which relates to non-EEA crew on fishing vessels. The Department stated in its submissions that the release of the records concerned would identify the names of some of the vessels who had non-EEA crew members on board who came under the remit of the Scheme. I understand that most of the vessels concerned have a small crew complement (less than 10).
From a careful examination of the records at issue in this case, I am satisfied that some of the inspection reports contain the names of individual fishers as well as details of their training or certification status, their employment details and, in some cases, their race or ethnic origin. I am also satisfied that where owners or operators of the vessels concerned are named in the documents, this can be said to relate to their financial affairs, employment history and/or their property. I accept that some of the inspector’s comments comprise views or opinions on the various individuals concerned. It also seems to me that where individual fishers are mentioned in the context of them informing MSO inspectors of breaches of regulations that this also relates to “the employment or employment history” of an identifiable individual. Furthermore, my understanding is that a master or owner of a fishing vessel who fails to comply with the requirements of the Scheme is guilty of an offence under the relevant legislation. On that basis, I am satisfied that the name of Masters and Owners of fishing vessels on records which relate to reports and investigations of possible breaches of the Scheme comprise the personal information of those individuals.
In the circumstances of this case, I am satisfied that if the records were released in full, they would reveal the personal information of identifiable individuals, including, but not limited to, various details concerning their employment, nationality and education. I am also satisfied that due to the small number of crew members on board each boat, that the release of records containing the names of the vessels, place of inspection and/or owners’ details, would reveal that at least one crew member was a non-EEA national. On the same basis, it seems likely to me that anyone familiar with the industry or the vessels concerned, would be able to identify the individuals at issue, even if their names were withheld.
I am therefore satisfied that section 37(1) applies to the majority of the information withheld from release by the Department.
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 it has not been argued that the disclosure of the information concerned is necessary to avoid a serious and imminent danger to the life or health of an individual.
The Public Interest
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. This Office has not received any submissions suggesting that the release of the information concerned would be to the benefit of the third party individuals to whom it relates. I find that section 37(5)(b) does not apply.
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 www.oic.ie ), 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”. Although the Court’s comments were made in a case 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 terms of section 37(5)(a), the applicant is of the view that there is a “substantial public interest in ensuring that the Department's enforcement of laws intended to protect workers at sea can be monitored and scrutinised”. The Department itself acknowledged that there is a public interest in seeing that the Department is adhering to the agreed settlement on the Scheme. It also indicated that it considered there to be a public interest in seeing the level of activity of the MSO and in revealing some of the vessels who had crew members from the Atypical Working Scheme for Crew Members working on Fishing Vessels.
However, the Department was also of the view that the release of the records sought would impact on the ability of the MSO to conduct inspections and surveys of vessels. It stated that there was an understanding of confidentiality between MSO inspectors and the operators/fishers who provided information during surveys. The Department considered that the release of the records concerned would negatively affect the level of cooperation provided by operators and fishers engaging with the MSO.
In this case, a number of records have been released to the applicant in part and it is therefore aware that the WRC made a number of referrals to the Department, some of which were followed up with inspections by the MSO during the timeframe in question. I believe that this has addressed the public interest in seeing that the Department is carrying out its functions under the Scheme to a certain extent. I accept that the release of the records sought in full would address the public interest further. However, I find no relevant public interest in granting access to the redacted names and details of the nationality/training/employment history of the fishers, the names of the masters, owners and vessels at issue, or details of the places of inspection, that, on balance, outweighs the public interest in upholding the right to privacy of the third party individuals concerned. Furthermore, I note that the vessels in question are owned privately by individual(s) or companies. They are not owned or operated by FOI bodies, and as far as I am aware, the owners are not in receipt of public funds from the Department.
I note that the applicant has argued that the refusal to release the records in full was “disproportionate in all the circumstances” and that any personal information contained in the records at issue could simply be redacted and the records part-released, referencing section 18.
It is important to note that the release of records under FOI is considered to be the equivalent to the release of records to the world at large. From a review of the records concerned, the crew numbers appear to be very small, 6 or 7 in some cases. Simply redacting a crew member’s name would not render comments about their training or details of their complaint anonymous. It seems to me that anyone who was familiar with these vessels and crew would be able to identify the individual(s) referred to in these records, if only names were redacted. In the context of the records concerned, I do not consider that it would be appropriate in each case to direct their release subject to the redaction of the names of individual crew members or owner/operators.
However, I am satisfied that access could be granted to a number of additional records in part without revealing the personal information of any third party individual. For the reasons stated above, I find that the personal information of the individuals identified in the records are exempt under section 37(1) of the FOI Act. I find no basis for refusing access to the remainder of the information in the records under section 37 of the FOI Act, subject to the relevant redactions.
I will now consider the remaining information contained in the records concerned under section 30(1).
Section 30(1) - functions and negotiations
30(1)(a) of the FOI Act provides that a head may refuse to grant an FOI request if access to the records concerned could, in the opinion of the head, reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct thereof.
Section 30(1)(a) is what is known as a harm-based provision. Where an FOI body relies on section 30(1)(a) it should identify the potential harm in relation to the relevant function, which might arise from disclosure and having identified that harm, consider the reasonableness of any expectation that the harm will occur. The FOI body should also explain how and why, in its opinion, release of the records at issue could reasonably be expected to give rise to the harm envisaged. A claim for exemption under section 30(1)(a) must be made on its merits and in light of the contents of each particular record and the relevant facts and circumstances of the case. A claim for exemption pursuant to section 30(1)(a) which is class-based is not sustainable e.g. a claim for exemption for ‘any’ draft report.
The Department refused access to the records concerned on the basis that the release of the records sought would prejudice the effectiveness of surveys and inspections carried out by the MSO. It considered that release of the records would have a significant adverse effect on its ability to manage and perform its maritime safety function. By way of background, the Department stated that the MSO does not have a traditional policing role, but rather one that has developed over time from maritime practices. In effect, it said that the MSO carries out its regulatory role based on the co-operation of the sector, rather than by the exercise of powers such as those held by An Garda Síochána. While I note that the MSO has various enforcement powers, in essence, the Department said that it depends on fishers and owners of vessels providing information to it so that it can carry out its role effectively.
The Department stated that since the safety scheme was implemented in 2011, safety on fishing vessels in Ireland has improved and the number of fatalities have fallen. It was of the view that trust between the fishers and the MSO is key to this continuing. Essentially, the Department argued that fishers and seafarers would be reluctant to provide MSO surveyors with full and frank information if it was likely to be made public. It considered that this would have a serious impact on maritime safety, as well as the effectiveness of the MSO’s surveys and investigations.
The applicant was of that view that there was no rational connection between the records held by the Department and any alleged harm, which might arise from the release of the records sought. The applicant was also of the view that even if there was a potential reasonable apprehension of harm, the Department could release the records concerned subject to appropriate redactions.
I have carefully considered the remaining content of the remaining records, which I have not already found to be exempt under section 37 above, and the arguments of both parties. I accept that the Department has identified a potential harm to its investigations. I also accept that it is possible that people who work for a private company, which does not conform to certain regulations, may be less likely to report these matters to the MSO if their entire reports are likely to be made public. I consider it possible that owners or operators of boats might be less forthcoming with information, which could damage the reputation or commercial interests of the owner/operator if all such information was likely to be put in the public domain.
However, it is my view that the redaction of the information that I have found to be exempt pursuant to section 37 mitigates against this harm. I do not accept that the release of the records concerned subject to the redaction of any identifying information that could reveal the vessel or crewmembers concerned is reasonably likely to cause the harm identified. Accordingly, I find that the Department was not justified in refusing to grant access to the remaining information in the records on the basis of section 30(1) of the FOI Act. As I have found section 30(1) not to apply, I am not required to consider the public interest test at section 30(2).
Section 32 – law enforcement and public safety
The Department also refused access to the records sought on the basis of section 32(1)(a)(ii), which provides for the refusal of an FOI request if, in the opinion of the head of the FOI body, access to the record concerned could reasonably be expected to prejudice or impair the enforcement of, compliance with or administration of any law.
It is well settled that mere assertions by an FOI body as to harms that might result from disclosure of a record are not sufficient for the Commissioner to find that a particular exemption applies. Where an FOI body relies on section 32(1)(a), it should identify the potential harm to the matters specified in the relevant sub-paragraph that might arise from disclosure and having identified that harm, consider the reasonableness of any expectation that the harm will occur. It should explain why releasing the particular record could reasonably be expected to cause the harm that it has identified. It should consider whether the matter specified could reasonably be expected to be prejudiced (that is to say, injured or potentially injured) or could reasonably be expected to be impaired (that is to say, damaged or weakened). In interpreting the words “could reasonably be expected to”, the Commissioner’s view is that the test is not concerned with the question of probabilities or possibilities. It is concerned with whether or not the decision maker's expectation is reasonable.
The Department made similar arguments to those set out above in relation to section 30 in support of its reliance on section 32. It stated that as well as the Scheme in question, MSO was responsible for the enforcement of, compliance with and the administration of a wide range of secondary legislation for Fishing Vessels and provided a comprehensive list of maritime regulations and legislation.
As noted above, I accept that the Department has identified a potential harm to its enforcement of and administration of various provisions of maritime law. However, from a careful review of the remaining information contained in the records, I am of the view that this harm cannot reasonably be expected to arise where the information that I have found to be exempt under section 37 has been withheld. On this basis, I do not accept that the release of the records in part, subject to the redaction of personal or identifying information, is reasonably likely to cause the harm identified.
Accordingly, I find that the Department was not justified in refusing to grant access to the remaining information in the records on the basis of section 32(1)(a)(ii) of the FOI Act.
Records to be released
In the interest of clarity, I am directing the partial release of records 1-19, including the following: email correspondence between the WRC and the MSO, MSO task management system screenshots, FSI reports, Deficiencies lists and WRC referral reports. I am not directing the release of any scanned hours of rest logs, on the basis that the vast majority of their content constitutes personal information.
The records should be released subject to the redaction of the following: the names of individual vessels, crewmembers, owners and masters; any numbers used to identify the vessels concerned; place names (including place of inspection or registration); and any comments about identifiable crew/owners (see WRC referral reports, comment at point 8, records 5, 10, 11 and 12).
I also direct the redaction of the following specific information contained in the records:
In coming to these findings, I have taken account of the provisions of section 18 of the FOI Act. The Commissioner takes the view that neither the definition of a record under section 2 of the Act, nor the provisions of section 18 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, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent and takes the view that, being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records. I am of the view that the release of the records as set out here is in line with this approach.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Department’s decision. I affirm its decision to refuse to grant access to additional records on the basis of section 15(1)(a) of the FOI Act. I affirm the Department’s decision to refuse to grant access to certain information contained in the records on the basis of section 37(1). I annul the Department’s decision to refuse to grant access to the remaining information in the records on the basis of sections 30 and 32. I direct the release of the records sought in part to the applicant.
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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.