Whether the Department was justified in refusing to release parts of an audit report relating to a particular Embassy

27 February 2020

Background

In a request to the Department dated 19 July 2019, the applicant sought access to reports of all internal audits completed between 1 July 2018 and 19 July 2019.  In a decision dated 13 August 2019, the Department fully released seven audit reports, partially released two others and withheld a further report in full under various provisions of the FOI Act.

On 18 August 2019, the applicant sought an internal review of the Department’s decision on the fully withheld report. On 10 September 2019, the Department released the report in part. The Department relied on sections 29 (deliberative process), 30 (functions and negotiations of an FOI body) and 32 (law enforcement and public safety) in withholding the remainder.

On 26 September 2019, the applicant applied to this Office for a review of the Department’s decision on the report. I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges and correspondence between this Office, the Department and the applicant. I have also examined the record at issue and had regard to the provisions of the FOI Act.

Scope of the Review

This review is confined to whether the Department was justified under the FOI Act in refusing to fully release the report.

Findings

I can give only a very limited description of the withheld parts of report to ensure that I do not disclose exempt information.

The released parts of the report reveal that the audit’s objectives were to identify fraudulent (irregular) transactions on a particular Embassy’s bank account and to gather evidence to establish whether staff members have been involved and, if so, to what extent. Further objectives were to establish the extent of financial loss to the Embassy due to fraudulent transactions, identify control weaknesses regarding how the Embassy managed its finances and make recommendations for their improvement (which the report noted may also have wider application to other missions).

Appendix Three, which is a summary of the audit report’s recommendations, was released in full. It is largely concerned with the management of the embassy’s payments and banking arrangements. The released details also reveal that a report was filed with local police and that the Department will seek to recover misappropriated funds or assets.

Finally, while the Department released a heading entitled “Scale of the loss identified”, it withheld all details under this heading.

Section 37 - personal information

It seems to me that the most appropriate provision to consider in this case is section 37 of the FOI Act, given the overall circumstances and the mandatory nature of the provision. Section 37(1), subject to other provisions of section 37, requires the refusal of access to a record containing personal information.

This Office’s Investigator put the applicant on notice of the potential relevance of this exemption provision and invited his comments. He accepts the thrust of the Department’s position but says that further details could be released, such as the amount of any loss, without disclosing the identity of any individual. He also says that media articles often contain details of matters before the Courts and of police investigations.

Section 18(1) provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the public body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). While the Department has released parts of the report, this Office takes the view that, generally, neither the definition of a record 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.

The possibility that some of the withheld details may become public outside of FOI in the future is not relevant to my consideration now of whether the report falls to be released under the FOI Act.

For the purposes of the FOI Act, personal information is defined as information about an identifiable individual that (a) would ordinarily be known only to the individual or members of the family, or friends, of the individual, or (b) is held by a public body on the understanding that it would be treated by it as confidential. The definition also includes a list of 14 non-exhaustive examples of what must be considered to be personal information, including (ii) information relating to the financial affairs of the individual, (iii) information relating to the employment or employment history of the individual and (vi) information relating to any criminal history of or the commission or alleged commission of any offence by the individual. Having examined the remainder of the report, I am satisfied that it contains information of a type that is captured by the various examples of what comprises personal information about identifiable individuals.

The applicant appears to accept that names are exempt under section 37. However, it would not be sufficient in this case to simply redact names from the report in order to protect personal information. I am satisfied that individuals would be identifiable from the context and content of all of the other withheld information particularly when, as the applicant is aware, the Embassy concerned has fewer than 10 directly employed and contracted personnel. In the particular circumstances, I am satisfied that all of the withheld details, including the scale of any loss, comprise personal information about identifiable individuals for the purposes of the FOI Act.

I find that the remainder of the report is exempt under section 37(1) of the FOI Act. While this is subject to the consideration of sections 37(2) and (5), I am satisfied that only section 37(5)(a) has potential relevance in this case.

Section 37(5)(a) – the public interest

Section 37(5)(a) provides that a record that is otherwise exempt under section 37(1), may be released if on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of an individual to whom the information relates should be upheld.

On the matter of where the public interest lies, I have had 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] 1 IR 729, [2011] IESC 26) (the Rotunda case).

It is noted that in considering the public interest tests the Commissioner may only have regard to "true public interest[s] recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law." Although these comments were made in relation to a provision other than section 37 of the FOI Act, I consider them to be relevant to consideration of public interest tests generally.

The applicant says that that public monies fund the embassy and that the level of redactions mean that the report has effectively been withheld in full. He says that this does not serve the public interest in ensuring accountability. He says that the report should be released in the public interest, either in full or only subject to a few key redactions, so that the general public can understand what happened. In particular, he says that the scale of any loss should be released.

The FOI Act recognises a public interest in promoting the openness and accountability of FOI bodies. This is entitled to particular weight when public monies are at issue. In this case, it seems to me that there is a public interest in establishing how the Department carried out this audit and arrived at its recommendations. It seems to me that the public interest has been served to a certain extent by the details that have been released from the report, particularly Appendix Three. However, I accept that the public interest would be further served by granting access to the report in full.

On the other hand, both the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy (which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution). It is also relevant that the release of a record under the FOI Act is understood, effectively, to be equivalent to its release to the world at large. In my view, the sensitive content of the withheld information adds further weight to the public interest in refusing access. I am satisfied that placing the remainder of the record in the public domain, including the scale of any loss, would significantly breach the rights to privacy of identifiable individuals.

Having considered the matter carefully, I find that the public interest in favour of granting access to the remainder of the report does not outweigh the public interest that the right to privacy of individuals should be upheld.

Given the above, there is no need for me to consider the application of sections 29, 30 and 32 of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department’s refusal to fully grant the report under section 37(1) of the FOI Act.

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 not later than four weeks after notice of the decision was given to the person bringing the appeal.

 

 

Elizabeth Dolan

Senior Investigator