Annual Report of the Information Commissioner 2016

Chapter 3: Decisions

Table of Contents

Formal decisions

My Office reviewed 433 cases in 2016. A formal decision was issued in 285 of those cases, representing 66% of all reviews completed during the year. The remaining 148 reviewed cases were closed by way of discontinuance, settlement or withdrawal.

See Table 15, Chapter 4 for a comparison of all reviews closed in the year.

The table below provides a percentage comparison of the outcomes (affirmed, varied or annulled) of decisions on cases.

Annulment of decisions to which section 38 applies

Section 38 provides for a statutory notification requirement that public bodies must observe in relation to the exemptions contained in section 35 (information obtained in confidence), section 36 (commercially sensitive information) and section 37 (personal information relating to a third party). In the case of each of these exemptions, the FOI body may grant a request if it considers that the public interest is better served by granting than by refusing the request. However, any proposal to release such otherwise exempt material is subject to the provisions of section 38. That section requires the FOI body to notify certain third parties that it proposes to grant the request in the public interest and that the FOI body will consider any submissions from the third parties before deciding whether to grant or refuse the request. It also provides for the processing of such requests within a specified timeframe.

My Office may annul decisions where timelines associated with the provisions of section 38 have not been adhered to by the body concerned. In 2015, I annulled ten such cases. I am pleased to report that just three such cases were annulled by my Office in 2016.

The section 38 notification process is complex and can place an onerous burden on decision makers. However, there are various sources of information available to assist public bodies in processing such requests. The Central Policy Unit has published a manual for FOI decision makers which contains guidance on the application of section 38, including some useful letter templates. It has also published a specific guidance note on the matter (CPU Notice No. 8 - Requests involving third parties - A step by step guide).

Decisions of interest

The following cases represent a sample of cases my Office reviewed during the year that were concluded by way of a formal decision. The full text of all formal decisions issued during 2016 is available at www.oic.ie.

Mr C and the Defence Forces - Case 150243

In this case, the applicant, a member of the Defence Forces, sought access to a military police report relating to a redress of wrongs complaint submitted by him. The Defence Forces refused access to the record under section 42(c)(ii)(II) of the FOI Act. That section provides that the Act does not apply to a record held by the Defence Forces relating to section 170 of the Defence Act 1954. Section 170 of the Defence Act states that “For the prompt suppression of all offences a provost marshal of commissioned rank may from time to time be appointed.” The Defence Forces contended that section 42(c)(ii)(II) was intended to restrict the application of the FOI Act in relation to Defence Forces records held by the Provost Marshal appointed under section 170 of the Defence Act relating to his police function in respect of the suppression of offences.

Having regard to the plain and ordinary meaning of the language used, I concluded that the purpose of section 170 was to provide the statutory authority for the appointment of a provost marshal. Therefore, any records relating to the appointment of a provost marshal were excluded from the FOI Act by virtue of section 42(c)(ii)(II). However, I did not accept the Defence Forces’ argument that records relating to the provost marshal’s functions were also excluded on the basis that such records related to section 170. In my view, there was not a sufficiently substantial link between records “initiated under the direction and authority of the Provost Marshal for the purposes of the investigation of offences under military law”, as described by the Defence Forces, and section 170 of the Defence Act, given that the purpose of that section was simply to provide the statutory authority for the appointment of a provost marshal.

Therefore, I found that section 42(c)(ii)(II) did not operate to restrict the application of the FOI Act to the record sought by the applicant. I annulled the Defence Forces’ decision and directed it to conduct a fresh decision making process on the request.

Siobhán Maguire of The Sunday Times and the Health Products Regulatory Authority - Case 160089

The applicant sought access to all 2015 inspection reports of premises using animals for scientific or educational purposes, together with certain related correspondences. The Health Products Regulatory Authority (HPRA) granted partial access to the records, and refused access to the remaining information under sections 29, 30(1)(a), 32(1)(b), 35(1)(a), 36(1)(b) and 37 of the FOI Act.

During the course of the investigation, my Office notified the 18 affected research establishments of the review and invited them to make submissions. Fifteen establishments replied, the majority of which objected to release of the relevant information.

Section 29 is an exemption that protects the deliberative processes of FOI bodies. In this instance, I did not accept that the HPRA was engaged in a deliberative process, but rather found that it had issued certain correspondence in the exercise of its regulatory responsibilities. Therefore, I found that section 29 did not apply to the records. Section 30 is an exemption that protects the functions and negotiation of FOI bodies. As establishments involved in animal testing for scientific purposes are legally obliged to cooperate and engage with the HPRA, I did not accept the HPRA’s argument that the release of the records could reasonably have been expected to prejudice or harm the effectiveness of future investigations of such establishments. Similarly, I found that the HPRA had not demonstrated that the release of the records would have been likely to prejudice the future supply of information from research establishments, and therefore I concluded that section 35(1)(a), which protects information given to a public body in confidence, did not apply.

Section 32(1)(b) is an exemption that protects records, the release of which could reasonably be expected to endanger the life or safety of any person. I noted that scientific research on animals is an issue that generates much controversy and on which many people hold strong opinions. While I accepted that the vast majority of opponents of animal research are entirely peaceful, I was satisfied that there may be a small minority who are willing to use violence against those involved in such research.

I accepted, therefore, that the disclosure of information revealing the location of the research institutions, and the identities of individuals involved in such research and engaged in inspections, could reasonably be expected to endanger the life or safety of such individuals. While I directed the release of the majority of the information contained in the inspection reports, this was subject to the redaction of certain information that could allow for the identification of the research establishments or the individuals either engaged in such research or in inspecting such establishments.

[Note: This decision has been appealed to the High Court by the HPRA.]

Seán McCárthaigh of The Times and An Garda Síochána – Case 160196

In this case, the applicant sought access to a record of staffing levels of An Garda Síochána (AGS) at sub-district level as at 31 December 2015. AGS argued that the information sought was exempt under section 32(1)(a), a discretionary, harm-based exemption which applies where access to the record concerned could reasonably be expected to prejudice or impair certain aspects of law enforcement and public safety. AGS contended that the disclosure of the staffing levels at sub-district level would disclose detailed operational policing information which would allow for an assessment of the operational policing capabilities in any location at any given time, and that this would prejudice and impair the personal safety of Gardaí and their ability to employ methods to prevent criminal activity, and would put the local community at risk of being subjected to crime sprees.

While acknowledging that AGS has a special and unique expertise in relation to the enforcement of the law and the prevention of criminal activity, I found that its own internal review decision had demonstrated that the disclosure of the information sought would not, in fact, allow for an accurate assessment of operational policing capabilities in any location at any given time. I also noted that similar information has been placed into the public domain in the past, including by the previous Minister for Justice and Equality in July 2013, and no argument had been made that the harms envisaged arose. I concluded that AGS had failed to demonstrate that it was justified in refusing access to the information sought by the applicant, and I directed its release to him.

Mrs X and the Rotunda Hospital - Case 150389

The applicant made a request for any records held by the Rotunda Hospital in relation to her late son. Her son was born at home in 1960, attended by midwives from the Hospital. Sadly, he died later that day in the Hospital.

The Hospital found and released a small number of relevant records to the applicant. The applicant sought a review by this Office because she was not satisfied with the extent of the records found, and particularly because a paediatric chart could not be found.

The Hospital submitted that if the paediatric chart existed, it would be in external archives, in a particular box. It stated that when looking for an archived file, it normally asks the external archive company to check the box that would be expected to hold the file. If the company does not find the file, the Hospital normally then asks for the box concerned to be delivered to the Hospital, so that Hospital staff can re-examine it. The Hospital’s submission said it had “called in” and “reviewed” all charts in the appropriate box but that the file was not found.

The Hospital agreed, at this Office’s suggestion, to search two other particular boxes of archived paediatric charts, to rule out the possibility that it had been misfiled. However, the paediatric chart was subsequently found in the box in which it should have been. It seems that the Hospital gave the wrong box number to the archive company at the outset, and so the archive company checked the wrong box. Furthermore, the Hospital did not retrieve the box concerned from the archive company, and the internal reviewer failed to review the searches conducted for the paediatric file. Finally, the Hospital had prepared its submission to this Office based on an assumption that procedures for searching and retrieving boxes held in external archives had been complied with.

An Investigator from this Office met with the Hospital to discuss what had happened and to carry out spot checks of some other records that the Hospital’s submission said were searched. I was satisfied, on foot of this meeting, that the paediatric file was not found at the outset because of a mistake that anyone could make. However, this was compounded by failures to follow procedures, and by assumptions being made.

The Hospital was very frank with this Office about why there was a delay in finding the chart. Its staff cooperated fully with this review. It apologised for the errors and assured this Office that it will review its procedures for searching for records and that, in particular, it will comply with its own procedures for checking externally archived records. It has also said it will ensure that internal reviewers will examine all aspects of the appeal before them (which the Hospital says is normally the case). Accordingly, I do not expect similar issues to arise in future reviews. I should also say that, over the years, the Hospital has taken its obligations under the FOI Act very seriously, and I am satisfied it continues to do so. Furthermore, the Hospital seemed to have gone to great lengths to assist the applicant in this case.

Mrs X and the Department of Justice and Equality - Case 160157

In this case, the Department failed to meet the deadlines for issuing both the original and internal review decisions. Furthermore, my decision on this case, which issued on 25 July 2016, directed the Department to release certain records. Section 24(4)(b)(ii) of the FOI Act requires a public body to release records within four weeks of such a decision (unless an appeal to the High Court is made, which was not the case here).

However, the applicant contacted my Office in September to say that she had not received any records. Further to contacts from this Office, the Department released the records on 6 October 2016. The Department, and all FOI bodies, should bear in mind that section 45(8) of the FOI Act gives me the power to apply for a court order to require compliance with a binding decision from this Office.

Mr Y and the Central Statistics Office - Case 150292

The Central Statistics Office (CSO) refused the applicant’s request for access to information about him contained in the 2006 and 2011 Census of Population forms. It based its refusal on a provision of the Statistics Act 1993. Under section 41(1)(b) of the FOI Act 2014, a public body must refuse a request if the non-disclosure of the record is authorised by any enactment other than a provision specified in Schedule 3 of the Act and the case is one in which the body would refuse to disclose the record pursuant to that enactment.

The CSO primarily relied on sections 32 and 33 of the Statistics Act which provide for restrictions on the use of information gathered for statistical purpose and a prohibition on the disclosure of such information.

The CSO argued that statistical confidentiality is a core value of official statistics and that the quality of official statistics depends on public trust that statistical information returned by individuals and businesses will be treated as strictly confidential and used only for statistical purposes. It claimed that the only section of the Statistics Act explicitly providing for disclosure is section 35, which provides for access to the Census of Population after 100 years and that it is the policy of the CSO that census records are not released in advance of this 100 year period.

I fully appreciate the CSO’s concern to ensure the confidentiality of statistical information provided by individuals and businesses. However, the question before me was whether the CSO was justified in its decision to refuse access to the information sought by the applicant under section 41(1)(b) of the FOI Act on the ground that the non-disclosure of the records is authorised by the Statistics Act 1993.

I accepted that section 33(1) of the Statistics Act generally prohibits the disclosure of information obtained under the Act that can be related to an identifiable individual or undertaking. However, I noted that the prohibition on disclosure is not absolute. The section provides that no information that can be related to an identifiable individual or undertaking shall, except with the written consent of that person or undertaking or the personal representative or next-of-kin of a deceased person, be disseminated, shown or communicated to any person or body.

I took the view that it is implicit in the wording of the section that the general prohibition on disclosure of information that can be related to an identifiable individual or undertaking does not apply where the identifiable individual or undertaking or the personal representative or next-of-kin of the individual, if deceased, has given written consent for its disclosure.

Accordingly, I found that section 41(1)(b) of the FOI Act does not apply in the circumstances of the case as the prohibition on disclosure in the Statistics Act is not absolute and does not authorise the CSO to refuse to disclose to an individual information relating to that same individual. I annulled the CSO’s decision and directed it to undertake a fresh decision making process on the request.

Mr X and the Department of Transport, Tourism and Sport - Case 160187

The background to this case is the crash of an Aer Lingus Viscount plane (St. Phelim) in 1968 near Tuskar Rock, Co. Wexford, in which 61 passengers and crew lost their lives. The applicant sought access to the witness statements taken during investigations into this matter. However, many of the witness statements predated FOI legislation. If requesters seek access to “pre-commencement records” which do not relate to personal information about them, they must show that access is necessary or expedient in order to understand later records. On reviewing the records, my Office decided that the later witness statements could be understood independently of, and without reference to, the older ones and that there was no right of access to the older ones. My Office went on to decide that the later witness statements were exempt from release, as the information which they contained was either confidential or personal information.

Dara Bradley, Connacht Tribune Group and Galway City Council - Case 160047

The Connacht Tribune asked the Council for the names of hotels/B&Bs providing emergency accommodation to homeless people and the amounts being paid to them. The Council released details of its total expenditure on the hotels/B&Bs for the period concerned but refused to give the hotels/B&Bs’ names or the individual amounts payable to them.

In its submissions to my Office the Council emphasised the very serious challenges which it faces in providing emergency accommodation for homeless people. In my decision, I emphasised that I did not underestimate the gravity of the housing situation, but that I had to consider the matter within the framework of the FOI Act.

In that respect, I did not accept that releasing the information concerned could have a serious, adverse effect on the Council’s functions. This was not least because none of the hotels/B&Bs had told my Office they would stop doing business with the Council if the information were released, despite having been invited to make submissions. Moreover, although I recognised the possibility that releasing the information could prejudice the hotels/B&Bs’ competitive positions, I believed that the public interest required the disclosure of this information. In my view, real transparency about achieving value for money required access not only to the total expenditure, but also the number and identities of the hotels/ B&Bs concerned and the amounts being paid to each of them.

Mr X and Limerick City and County Council - Case 150322

The applicant sought Council records about the maintenance of a street on which she had fallen. The Council believed that she was looking for this information in order to bring a personal injury claim against the Council. Its correspondence indicated that it did not believe that the applicant should be allowed to access records under FOI which could relate to future litigation. However, my Office’s decision emphasised that the applicant’s motive was not relevant to whether she was entitled to the records under FOI. It referred to a finding of my predecessor in Case 020179 (‘Organisation A and the Department of Arts, Sport and Tourism’): “I am aware of no restrictions on the use of the FOI Act as a means of obtaining documents held by a public body which might otherwise be available through the process of discovery”. In the circumstances, my Office found that the Council had not justified its position that releasing the records could prejudice future legal proceedings or negotiations.

Ms X and the Health Service Executive - Case 160190

This case concerned information about applications for temporary appointments in the HSE. Given the nature of the information, it should have been a fairly straightforward matter. However, the HSE’s handling of the request was among the poorest my Office has experienced in several years. The HSE issued no original or internal review decision to the applicant. During the FOI review, it made no submissions to my Office on the exemptions or public interest tests. Despite the fact that my Office issued it with a statutory notice requiring information, nobody within the HSE took responsibility for this case. It is incumbent on public bodies, including the HSE, to ensure that sufficient resources are in place to facilitate compliance with FOI legislation.

Ms L and the Department of Finance - Case 150348

In this case the applicant submitted a request for correspondence between the Department and the management of the IBRC concerning the special liquidation process. The Department failed to issue an original decision or an internal review decision within the required timeframes.

The applicant expressed concerns as to the manner in which the Department processed her FOI request as well as possible resourcing issues within the Department that led to the delays. I noted in my decision that while it is a matter for the Department to ensure that it has afforded adequate resources to the FOI function, the administration of the FOI Act is a statutory function which should be afforded as much weight as any other statutory function. I also noted that in response to a PQ on the matter of resources and delays, the Minister for Finance had explained that there has been a significant increase in requests to the Department since the FOI Act 2014 came into force, many of which had been broad in terms of ambit and relate to complex issues. I welcomed the Minister’s statement that additional decision makers were retained to work exclusively on the backlog of requests and the Department’s decision to afford additional resources to the FOI function which I hoped would allow the Department to more readily meet the statutory time-frames in the future.

However, my decision was quite critical of the Department’s handling of this request. The FOI Act provides that where an FOI body cannot meet the statutory time-frame for issuing a decision, the body is deemed to have refused the request and the requester is entitled to apply for an internal review. Similarly, where the body fails to issue an internal review decision within the required time-frame, the Act provides for an application for review to be submitted to this Office. Notwithstanding the fact that the Department has been subject to FOI for almost eighteen years, it did not appear to have been aware of these provisions in this case.

In my decision I also pointed out that the applicant had rightly sought an internal review of the deemed refusal of her original request, but that rather than process the internal review request as such, the Department informed this Office that it was not possible to conduct an internal review within the required time-frame as the original decision had not been made at that stage. I also noted that when the decision eventually issued, it purported to represent an original decision and offered a right of internal review as opposed to a right of review by this Office. This was clearly incorrect. I drew the Department’s attention to the support available from the Central Policy Unit (CPU) of the Department of Public Expenditure and Reform for FOI bodies. I also stated that I expected the Department to take note of my concerns and to put appropriate procedures in place to ensure that similar issues do not arise in the future.

Ms M and TUSLA: Child and Family Agency – Case 160233

This case concerned an application for personal records from TUSLA: Child and Family Agency. TUSLA refused access to the records on the basis of section 15(1)(i) of the FOI Act, which provides that access to records may be refused where they have already been released to the same requester and the records are available to the requester concerned. In this case, the applicant had previously submitted requests for some of the records the subject of the review. Records had been released to her on those previous occasions. However, she stated that they were no longer available to her at the time of the review.

The Senior Investigator found that the records previously released to the requester were not available to her and that, thus, the conditions necessary for that provision to apply did not exist and section 15(1)(i) did not apply. However, he shared TUSLA’s concerns regarding the applicant’s failure to safeguard sensitive and personal records. He annulled the decision and directed TUSLA to make a fresh decision.

Mr & Mrs X and National Asset Management Agency – Case 160078

The National Asset Management Agency (NAMA) is a partially included agency under the FOI Act 2014. Part 1(x)(iii) of Schedule 1 of the Act states that section 6 does not include a reference to NAMA, and certain other agencies, insofar as it relates to records concerning “purchasers or potential purchasers of any asset or loan or of any other asset securing loans held or managed by any of these bodies”.

This was the first case addressing the question of whether records relating to the sale and purchase of an asset securing a loan, held or managed by NAMA, fell within Schedule 1, Part 1(x)(iii) of the FOI Act so that the Act did not apply to them. The question arose in the context of a request for access to records relating to the sale and purchase of Kilcooley Abbey Estate in Thurles, Co. Tipperary.

At the time of its sale and purchase, Kilcooley Abbey Estate was an asset securing a loan held or managed by NAMA. NAMA refused access to the majority of the records concerned on the basis that Schedule 1, Part 1(x)(iii) applied, but it did not challenge my jurisdiction to review the matter. In carrying out the review, my Office accepted that the Oireachtas has determined that the FOI Act does not apply to NAMA in relation to the records it holds which concern purchasers or potential purchasers of any asset or loan or of any other asset securing loans held or managed by NAMA. Based on an examination of the records concerned, my Office was satisfied that Schedule 1, Part 1(x)(iii) applied as claimed.

Ms X and the Department of the Environment, Community and Local Government – Case 140108

In this case, the review was carried out under the provisions of the FOI Acts 1997 & 2003 notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

In November 2005, the State granted a lease to a private company under the Foreshore Act 1933 for the development of what was described by the Department as “a major strategic infrastructure project, an 1100 MW windfarm (200 turbines), at Codling Bank off the coast of County Wicklow”. Previously, the company had been granted a foreshore licence for the purpose of allowing it to assess the suitability of the proposed Codling site for the construction of an off-shore electricity generating station. The question at issue in this case was whether the Department’s decision to refuse to grant access to certain records concerning the project was justified under sections 26 (information obtained in confidence) and 27 (commercially sensitive information) of the FOI Act 1997.

In my decision, I noted that I do not accept, as a general matter, that information that a licensee is required to provide on the natural and archaeological resources of the State in relation to a proposed development of a major infrastructure project with significant environmental impacts, could properly be regarded as information of a confidential nature. I also did not accept that the State is obliged, as a matter of law, to treat as confidential the information that it requires in order to determine whether a particular foreshore site owned by the State is suitable for a major infrastructure development project such as a wind farm. Likewise, I did not accept that the Department could reasonably be expected, as a matter of law, to treat the terms and conditions governing the use of a public asset such as the foreshore of this country as confidential. Moreover, given the acknowledged importance of public participation in relation to environmental matters affecting the foreshore, I did not accept that an enforceable obligation of confidence may exist with respect to information relating to environmental conditions or to the environmental impacts of proposed activities in the foreshore.

In relation to the public interest, I had regard to the need for transparency and accountability in relation to the use of public property and public assets, as recognised in previous decisions of this Office. I also had regard to the public interest principles of openness and transparency recognised under the Access to Information on the Environment regime in relation to environmental matters. At the same time, I noted that the purpose of the public interest test is to strike a balance between competing interests insofar as they are relevant and that, generally speaking, the FOI Act was not designed as a means to open up the operations of private enterprises to scrutiny.

In the circumstances, I directed the release of bi-monthly reports containing information on the natural and archaeological resources of the foreshore site concerned, the records directly relating to the terms and conditions of the foreshore lease, and records relating to certain pre-construction surveys, while protecting certain other records containing details of the third party company’s business operations and approach to the project, on the basis of section 26(1)(a) of the FOI Act.

Mr X and Galway County Council – Case 160150

This case has its background in legal action taken by the applicant against the Council. The matter was handled by the Council’s insurer and the case was settled out of court. The Council refused to release information relating to the settlement under section 15(1)(a) of the FOI Act on the ground that it held no relevant records containing that information.

The Council’s position was that it had no formal record of the settlement reached and had no information relating to a breakdown of the monies paid, as the claim was handled in its entirety by its insurer and the settlement was paid by its insurer.

The question my Office had to consider was whether any relevant records that might be held by the Council’s insurers might also be deemed to be held by the Council for the purposes of the FOI Act. Section 11(9) of the Act provides that a record in the possession of a service provider shall, if and in so far as it relates to the service, be deemed for the purposes of the FOI Act to be held by the FOI body. A service provider is defined, at section 2, as a person who, at the time the request was made, was not an FOI body but was providing a service for an FOI body under a contract for services.

The Council’s insurance policy stated that, subject to certain specified limits, the insurer would indemnify the Council against all sums which it was legally liable to pay as damages in respect of accidental bodily injury to any person or accidental loss of or damage to property. The insurer was responsible for all costs and expenses of litigation recovered by any claimant in connection with any accident to which the indemnity expressed in the policy applies, again subject to certain specified limits. The policy further provided that the insurer would be entitled to take over and conduct in the name of the Council for its own benefit any claim and would have full discretion in the conduct of any proceedings and in the settlement of any claim.

My Office formed the view that any records held by the insurer relating to the applicant’s claim were held by it in its own right. The contract that the Council had entered into with its insurer involved the indemnification of the Council by the insurer against valid claims. It was entirely a matter for the insurer to determine how it processes such claims. The Council had no role to play in such matters. For this reason, my Office did not accept that records relating to the processing of the applicant’s claim that may be held by the insurer could reasonably be described, in the context of the FOI Act, as relating to a service that the insurer was providing for the Council as a service provider under a contract for services. Thus, my Office found that section 11(9) did not apply in this case and that the Council was justified in refusing the request on the ground that it held no relevant records.




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