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Whether the Department was justified in its decision to grant partial access to the applicant's letters to the Department expressing an interest in participating in the Garda Síochána Ombudsman Commission (GSOC) Inquiry undertaken by Judge Cooke

Conducted in accordance with section 34(2) of the FOI Act, by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

This review arises from a decision made by the Department to release records following a request to which section 29 of the FOI Act applies. Section 29 of the FOI Act applies to cases where the public body has considered at some stage in the decision making process that the record in question qualifies for an exemption under one or more of the relevant exemptions in the FOI Act (i.e. sections 26, 27 and 28 - relating to information that is confidential, commercially sensitive or personal information about third parties, respectively) but that the record should be released in the public interest. Where section 29 applies, the public body is required to notify the affected third parties before making a final decision on whether or not the exemption(s), considered to apply, should be overridden in the public interest. The applicant or affected parties, on receiving notice of the final decision of the public body, if they so wish, may apply for a review of that decision to the Office of the Information Commissioner directly.

On 19 June 2014 a request was made to the Department under the FOI Act for a copy of the letter mentioned in Page 62 (Appendix III) of the Inquiry into Reports of Unlawful Surveillance of GSOC (the Cooke Report). The Department's decision maker identified two records as relevant to the request, namely a letter dated 24 February 2014 from the applicant to the Attorney General expressing an interest in working for the GSOC inquiry and a second letter from the applicant to the Department attaching a copy of that letter. As the decision maker was considering the release of the records in the public interest, he notified the applicant of his right to make a submission if he did not wish the records to be released on 1 July 2014.

On 20 July 2014 the applicant wrote to the Department outlining his objection to the release of the record on the ground that the information contained in the records is personal information relating to him. On 13 August 2014 the Department wrote to the applicant advising him of its decision to release the records in question subject to the redaction of certain personal information relating to the applicant, i.e. his name, address, phone number, and employment history details. On 18 August 2014 the applicant made an application to this Office for a review of the Department's decision.

In conducting this review, I have had regard to the submissions and decisions of the Department and to the correspondence between the applicant and the Department. I have also had regard to the records in question, copies of which have been provided to this Office by the Department for the purposes of this review, and to the submissions of the applicant, and the original requester.

In the interests of clarity, I should point out that this 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.

Scope of Review

This review is concerned solely with the question of whether the Department was justified in its decision to grant part access to the two records at issue.

Preliminary Matters

Before I proceed to consider the question of whether the Dpeatrment's decision was justified in this case, there are a number of preliminary points I wish to make.

Firstly, while I am required by section 34(10) of the FOI Act to give reasons for decisions, this is subject to the requirement of section 43(3) that I take all reasonable precautions during the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the information contained in the records at issue is somewhat limited.

Secondly, the applicant stated in his submissions of 24 September 2014 to this Office that the letters he sent to the Department were intended for Judge Cooke's consideration and that he was not informed that copies of the letters would be retained by the Department. Be that as it may, the FOI Act provides for a right of access to records held by the Department, as is the case for the records at issue and as such, they fall to be considered for release under the provisions of the FOI Act.

Finally, the applicant has raised significant concerns as to the potential damage to his reputation arising from the interpretation and description of the records in the Cooke Report. I wish to make it clear that this Office has no role in considering the accuracy, or otherwise, of how the records at issue were described in the Cooke Report.

Analysis and Findings

In its decision, the Department decided to grant partial access to the records at issue with the redaction of what it considered to be personal information relating to the applicant under section 28(1) of the FOI Act. I should add at this stage that a decision to release records with the redaction of information which would otherwise cause the records to be exempt is, on the face of it, in keeping with the provisions of section 13 of the Act. Section 13(1) provides for the deletion of exempt information and the granting of access to a copy of a record with such exempted information removed, where it is practicable to do so.

Section 28(1) provides that a public body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information. However, section 28(5)(a) provides that a record, which is otherwise exempt under section 28(1), may be released in certain limited circumstances where it can be demonstrated that on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld. Accordingly, the question I must consider is whether the disclosure of the redacted versions of the records at issue would involve the disclosure of personal information relating to the applicant and if so, whether the public interest in releasing such information outweighs, on balance, the public interest in protecting the privacy rights of the applicant.

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 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 Act goes on to include twelve categories of information that are considered to constitute personal information.

It is clear that much of the information contained in the records is already in the public domain, through the publication of the Cooke Report and the subsequent addendum to the Report. In his submission of 3 November 2014 to this Office, the applicant identified three further pieces of information contained in those parts of one of the records that the Department decided to release. He argued that the release of that information would make him identifiable to certain individuals. Of the three pieces of information he identified, one is contained in the addendum to the Cooke Report. In respect of the remaining two pieces, it seems to me that they are not specific enough to allow for the disclosure of the applicant's identity, notwithstanding the arguments he made to the contrary.

Accordingly, I am satisfied that the disclosure of the records, as redacted by the Department, would not involve the disclosure of personal information relating to the applicant. I find, therefore, that section 28 does not apply to the records as redacted. Accordingly, there is no need for me to consider whether the public interest in releasing the records as redacted outweighs, on balance, the public interest in protecting the privacy rights of the applicant.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997 (as amended) I hereby affirm the Department's decision in this case.

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator