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Case Number: 170173

Whether the Department was justified in refusing access certain records relating to the applicants under sections 15(1)(i), 32(1)(a)(i), 35(1)(a), and 37(1) of the FOI Act

Conducted in accordance with section 22(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

The applicants are a married couple who made a request through their solicitors, dated 13 October 2016, for access to records relating to the male applicant's application for a Residence Card (Form EU1) as the spouse of an EU citizen. The Department granted the request in part, but refused access to eight records from an EU Treaty Rights Investigation file (Schedule 1) and to a further five records from an EU1 Application file (Schedule 2). On 12 April 2017, the applicants applied to this Office for a review of the Department's decision.

I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the comments made in the application for review, the submissions made by the Department, and the contents of the records at issue. I note that in the course of the review, this Office considered it necessary to verify the letters of consent/authority submitted on behalf the female applicant authorising the firm of solicitors to act on her behalf. Accordingly, at a meeting held on 19 June 2017, officials of this Office verified the female applicant's identity and confirmed that her consent to the disclosure of her personal information was duly informed. I have now decided to conclude this review by way of a formal, binding decision.

Scope of the Review

In their application for review, the applicants accepted the Department's decision in part, but (adopting the numbering system used by the Departments in its schedule of records) they sought a review in relation to the following:

• Schedule 1, records number 1 and 2 (pages 1 to 6);
• Schedule 2, records number 1, 4, and 5 (pages 1 to 16, 23, and 24 to 46).

My review in this case is concerned solely with the question of whether the Department's decision to refuse access to the records listed above was justified under the FOI Act.

Analysis and Findings

Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant access to a record "shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified." Thus, the onus is on the Department to satisfy me that its decision to refuse access to the records at issue was justified.

Section 15(1)(i)
Section 15(1)(i) states that a head may refuse to grant a request where the request relates to records already released, either to the same or a previous requester where (i) the records are available to the requester concerned or (ii) it appears to the head concerned that that requester is acting in concert with a previous requester. The Department refused access to the Schedule 2 records at issue based on its assertion that the records should be in the possession of the male applicant's former solicitors. However, in their application for review, the applicants stated that the records at issue were never requested previously nor are they available to them. In its submissions to this Office, the Department has referred to the "normal practice" of issuing a copy of an asylum application file to both the client and the solicitor, but it is not clear how this practice is relevant to the male applicant's EU1 Application file. In any event, the Department has not presented any evidence to show that the Schedule 2 records at issue are in fact available to the applicants or their current solicitors. In the circumstances, and having regard to the burden of proof under section 22(1)(b) of the Act, I am not satisfied that section 15(1)(i) applies.

Section 32(1)(a)(i)
Access to records 1 and 2 of Schedule 1 was refused under section 32(1)(a)(i) of the FOI Act. The records relate to a decision by the Irish Naturalisation and Immigration Service (INIS) to seek to revoke the male applicant's permission to remain in the State under EU Treaty Rights. Section 32(1)(a)(i) provides that a request may be refused if access to the record sought could reasonably be expected to prejudice or impair the prevention, detection or investigation of offences, the apprehension or prosecution of offenders or the effectiveness of lawful methods, systems, plans or procedures employed for the purposes of such matters. Where an FOI body relies on section 32(1)(a), it should, firstly, identify the potential harm to the functions covered by the exemption that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur. To justify its decision to refuse access to a record under section 32(1)(a), the FOI body must show how or why releasing the record concerned could reasonably be expected to cause the harm which it has identified.

In this case, the Department has made detailed submissions describing the background to a certain Garda operation that has been set up to investigate illegal immigration and identify marriages of convenience for immigration purposes, which are otherwise referred to as "sham marriages". I note that the Schedule 1 records at issue are reports from the Garda National Immigration Bureau (GNIB) which relate to this operation. I also note that the Department's submissions refer to a particular Garda investigation that is currently ongoing. Nevertheless, it has not been shown how the release of the particular records at issue could result in any harm to any of the functions specified in section 32(1)(a)(i) of the Act. Indeed, the contents of the reports were largely disclosed to the male applicant by the INIS in a letter dated 3 September 2016 informing him of the reasons for seeking to revoke his permission to remain in the State. Moreover, An Garda Síochána itself has issued a press release about the operation concerned. I therefore find no basis for concluding that section 32(1)(a)(i) applies.

Section 35
While it is unclear, the Department's submissions to this Office indicate that it also wishes to claim exemption under section 35(1)(a) of the FOI Act in relation to the Garda records at issue. Section 35(1)(a) provides for the protection of information given to a public body in confidence. For the exemption to apply, it is necessary to show the following;

• that the information was given to an FOI body in confidence,
• that the information was given on the understanding that it would be treated by the FOI body as confidential,
• that disclosure of the information would be likely to prejudice the giving to the body of further similar information from the same person or other persons, and
• that it is of importance to the body that such further similar information should continue to be given to the body.

Section 35(1)(a) does not apply if the public interest would, on balance, be better served by granting rather than by refusing to grant the request (section 35(3) refers).

I note that, in Case 120291 (Mr. X and The Department of Justice and Equality), available at www.oic.ie, this Office did not consider it plausible in light of section 41 of the Garda Síochána Act 2005 that the release of a Garda report would be likely to prejudice the giving of further similar information to the Department in future if it were important to the Department to have access to the such information. In this case, as noted above, the Department has referred to a certain Garda operation relating to sham marriages, but it has not shown how the Garda records at issue meet the criteria for exemption under section 35(1)(a). Moreover, again as noted above, the contents of the reports were largely disclosed to the male applicant in a letter dated 3 September 2016 informing him of the reasons for revoking his permission to remain in the State. In the circumstances, even assuming that the reports themselves were given to the Department in confidence and on the understanding that they would be treated by the Department as confidential, I am not satisfied that disclosure of the information contained in the reports would be likely to prejudice the giving to the Department of further similar information from the Gardaí or other such sources. For the sake of completeness, I also note that no case has been made to show that a duty of confidence exists for the purposes of section 35(1)(b) of the FOI Act. I find that section 35(1) does not apply.

Section 37
The records at issue include information relating to individuals other than the applicants. The Department therefore claims that section 37(1) of the Act applies to the records concerned, at least in part.

Section 37(1) is a mandatory exemption that applies where the grant of a request would involve the disclosure of personal information (including personal information relating to a deceased individual). 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 twelve specific categories of information which are included in the definition without prejudice to the generality of the forgoing definition. I further note that section 2 excludes certain information from the definition of personal information, such that the definition does not include, in pertinent part, in a case where an individual occupies or occupied a position as a member of staff of a public body, the name of the individual or information written or recorded by the individual in the course of and for the performance of his or her functions.

In this case, I accept that the identifying details of the third party private individuals referred to in the records at issue, such as the name of the individual who is said to have introduced the applicants and the names, addresses and mobile numbers of the person listed as the female applicant's employer and/or the male applicant's cousin and the person identified as the applicants' landlord, qualify as personal information within the meaning of the Act. With certain limited exceptions, the FOI Act does not provide for the limiting of access to records to particular individuals only. Rather, when a record is released under the FOI Act, it effectively amounts to disclosure to "the world at large" (H.(E.) v Information Commissioner [2001] IEHC 58). The FOI Act places no restrictions on the type or extent of disclosure or the subsequent use to which the record may be put. I therefore find, having regard to the context in which the information appears, that section 37(1) applies to the identifying details of the third party private individuals referred to in the records concerned.

Section 37(2) of the FOI Act sets out certain circumstances in which 37(1) does not apply. However, I am satisfied that none of those circumstances arises in this case. 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.

As I find no basis for concluding 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 considering the public interest test contained in section 37(5)(a), it is important to have regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner[2011] IESC 26 ("the Rotunda Hospital case"). It is noted that a public interest ("a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest. In this case, I find that the public interest in granting access to the identifying details of the private individuals concerned does not outweigh the public interest in upholding the right to privacy of those individuals. Accordingly, I find that the records at issue should be released to the applicants subject to the redaction of the identifying details of the third party private individuals referred to therein.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of the Department in this case by directing the release of the records concerned subject to the redaction of the identifying details of the third party private individuals referred to therein.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated 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.

Elizabeth Dolan
Senior Investigator