Ms Z and Department of Justice [2024] IEIC 144271 (22 August 2024)

Background
Scope of Review
Preliminary Matters
Analysis and Findings
Decision
Right of Appeal

Whether the Department was justified in refusing access to certain records relating to the applicant's late son, under sections 42(f) and 42(j) of the FOI Act, and on the basis that information fell outside the scope of the request

22 August 2024

Background

As the circumstances surrounding this case are sensitive and traumatic for the applicant and her family, I will not set them out in this decision in order to avoid the inadvertent disclosure of their identity. For the same reason, I am not setting out the full details of the applicant's FOI request of 9 January 2023 except to say that it was for access to various records held by the Department of Justice dating from 27 March 2021 to 13 August 2021 relating to her late son.

On 8 February 2023, the Department wrote to the applicant stating that under section 14 of the FOI Act it was extending the standard four-week time period for making a decision on the FOI request. No reason was given for this extension. On 13 April 2023, the Department issued a decision part-granting the request. It identified 72 relevant records. Of these, it released some in full or in part, while others were refused. The Department relied on sections 15(1)(d), 15(1)(i), 28, 29, 30, 31, 37 and 42(j), 15(1)(d) as a basis for refusing the records. The applicant sought an internal review of this decision on 9 May 2023. The Department affirmed its decision on 31 May 2023.

On 30 November 2023, the applicant applied to this Office for a review of the Department's decision, specifying the ten records that she wished to be considered in the review. In the course of the review, the Department released further parts of some of these records.

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 submissions made by the Department and by the applicant, and to the correspondence between the parties as set out above. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

In her application for review, the applicant specified ten records that were refused in full or in part that she wished to be considered: records 3, 4, 17, 2(a), 12(a), 3(c), 5(c), 6(c), 13(c), and 17(c). Access to these records was refused by the Department under sections 28, 29, 31(1)(a), and 37, and on the basis that the information contained in the record fell outside the scope of the FOI request.

In relation to the information that was redacted on the basis that it was outside the scope of the FOI request, having examined the records I am satisfied that the information refused on this basis is indeed related to completely separate issues and falls outside the scope of the FOI request. I informed the applicant of my view on this, and she accepted that position. I will give it no further consideration.

The applicant also stated that she was not interested in other people's personal information. I will therefore exclude the redactions, under section 37, of mobile phone numbers of Department of Justice staff members and names and contact details of third parties from the scope of the review.

As the redactions made to records 2(a), 12(a) and 17(c) were made only on the basis of the information being outside the scope of the FOI request and/or being personal information refused under section 37, there is nothing further to adjudicate in these records and I will remove them from the scope of the review.

During the review, the Department released some additional records to the applicant.

It released the outstanding parts of records 3 and 4, with some small redactions of personal information. I will give these records no further consideration.

It said that having reviewed record 17, it had identified an additional part of the record as relevant to the FOI request and that it would release this. Having reviewed this record, I note that both it and record 17(c) contain copies of the same email (dated 16 June 2021), albeit with the top email in the chain differing across the two records. Whether or not the Department has yet released this additional part of record 17, I note that the applicant has already been provided with this information in record 17(c) anyway. I am satisfied that the remaining redacted parts of record 17 are either outside the scope of the FOI request or contain personal information of a person other than the applicant/her son. I will give record 17 no further consideration.

It released record 3(c) apart from material that I am satisfied is outside the scope of the review or constitutes personal information of third parties; I will give this no further consideration.

During the review, the Department also altered its position as to why certain records were refused. The applicant was advised of this and invited to comment, which she did.

In relation to records 5(c) and 6(c), the Department said that it was no longer relying on section 31, but said instead that section 42(f) applied to the email attachments (the same documents are attached to both records 5(c) and 6(c)). It also said that the cover emails were outside the scope of the request as they do not refer to the surname of the person who carried out a scoping exercise, or the surname of the applicant/her son.

In relation to record 13(c), it said that it was no longer relying on section 28, but that section 42(j) applied.

Taking all of the above into account, the scope of this review is therefore narrowed down to just three records that remain refused, as follows: records 5(c) and 6(c) under section 42(f) and on the basis that information falls outside the scope of the request; and record 13(c) under section 42(j).

Preliminary Matters

Before looking at the substantive matters, I wish to make some preliminary comments.

Firstly, it is important to note that a review by this Office is considered to be de novo, which means that in this case it is based on the circumstances and the law as they pertain at the

time of the review decision. While the applicant queried the Department's change in position in respect of some of the exemptions relied upon, a review by this Office is not confined to the original basis upon which the FOI body reached its decision.

Secondly, the applicant expressed frustration with the Department's approach and criticised it for what she described as a culture of "delay, defend, deny and cover up". 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.

Thirdly, section 25(3) of the FOI act requires the Information Commissioner to take all reasonable precautions in the performance of his functions to prevent the disclosure of information contained in an exempt record or that would cause the record to be exempt if it contained that information.

Analysis and Findings

Records 5(c) and 6(c)

Records 5(c) and 6(c) are both described on the Schedule as "Email from Sec Gen's Office re: Legal Note", and they are dated two days apart. Both records contain an email (the same email) sent from the Chief State Solicitor's Office (CSSO) to the Secretary General with two attached letters from the CSSO to the Secretary General, which was then forwarded to other relevant colleagues in the Department. The Schedule describes record 6(c) as having an attachment of 6 pages. The Department acknowledged that this was an error: the attachments are the same as those attached to record 5(c) i.e. two attachments of two pages each.

Outside scope of request

As set out earlier, the Department changed its position on these records in the course of the review and said that the cover emails (i.e. the top emails in the chain in each record) were outside the scope of the request as they do not refer to the surname of the person who carried out a scoping exercise, or the surname of the applicant/her son. It seems to me that where the attachments to an email fall within the scope of an FOI request, to then deem the text of the email itself to be outside the scope of the request, unless it explicitly refers to a clearly separate subject matter, represents an unnecessarily narrow interpretation of the request. Such an interpretation is not in keeping with the purpose and intent of the FOI Act, which is to enable members of the public to obtain access, to the greatest extent possible, to information in the possession of public bodies. For this reason, I do not accept that the emails are outside the scope of the FOI request.

Section 42(f)

Section 42 provides that the FOI Act does not apply to the various categories of records described in the section. In other words, such records are excluded from the scope of the

Act. There is no public interest provision in section 42. If the record is captured by one or more of the categories of records described in section 42, that is the end of the matter.

Section 42(f) provides that, with the exception of a record relating to general administration, the FOI Act does not apply to a record held or created by the Attorney General or the Office of the Attorney General. The CSSO is a constituent office of the Office of the Attorney General. 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 the like. I am satisfied that it does not refer to records relating to matters concerning the core business of the Office, which includes, but is not limited to, advising on legislation and litigation.

The applicant queried how the emails could have been created by the CSSO when they were described as being sent by the Secretary General's office. Having carefully examined the records, I accept that the original email was sent by the CSSO, and that it, and the two attached documents (all dated 7 April 2021), were created by the CSSO and are concerned with legal cases and not general administration. These parts of records 5(c) and 6(c) are therefore excluded from the scope of the FOI Act pursuant to section 42(f) and I am satisfied that the Department was justified in its decision to refuse them.

The emails forwarding on the CSSO emails internally were not, however, created by the CSSO and nor are they held by the CSSO. Section 42(f) cannot serve to make these records exempt and no other exemptions or arguments have been put forward by the Department. Having examined the records, neither is it apparent to me that they would be exempt from release under the FOI Act. I direct release of these parts of records 5(c) and 6(c), subject to redacting the subject lines of these emails, and the names of the attached documents, both of which disclose personal information of third parties which the applicant has confirmed she is not seeking.

Record 13(c)

The Department refused record 13(c) under section 42(j).

Section 42(j)

As previously stated, section 42 provides that certain categories of records are excluded from the scope of the FOI Act. Section 42(j) provides that the Act does not apply to a record given by an FOI body to a member of the Government or a Minister of State for use by him or her for the purposes of any proceedings in either House of the Oireachtas or any committee of either or both of such Houses or any subcommittee of such a committee. Proceedings include proceedings in relation to questions put by members of either such House to members of the Government or Ministers of State, whether answered orally or in writing.

The first part of record 13(c) was released with the remaining part redacted. The record is an email from a member of staff of the Department to the Secretary General relating to a specified parliamentary question (PQ) for answer in June 2021. The applicant queried how such an email could fall for exclusion under section 42(j).

The part of the email that was released contains the PQ and the Minister's reply. In its submissions, the Department said that the part of the record refused contains the supplementary material prepared for the Minister in relation to the PQ. It said that the Department's process in preparing responses for PQs is for the draft to be sent to relevant senior managers and then sent to the relevant Assistant Secretary General, Deputy Secretary General and/or Secretary General depending on the clearance required for the specific question. It said that when the response is cleared, it is then sent on to the Minister and their advisors.

Having examined the record and taken into account the explanation by the Department of its process for clearing PQs, as well as reviewing the transcript from the Dáil of the relevant day on the Oireachtas website, I accept that while the email itself was sent to the Secretary General, the record was then given by the Department to the Minister for use by her in answering a question orally in Dáil Eireann in June 2021. I am satisfied that section 42(j) applies.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Department's decision. I find that the Department was justified, under section 42(j) in refusing access to record 13(c). While I find that it was justified in refusing access to most of records 5(c) and 6(c) under section 42(f), I find that it did not justify its refusal of the covering emails and I direct their release, subject to the redaction of personal information of third parties.

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.

Emer Butler

Investigator

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