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Whether the Department's decision to refuse access to certain records relating to the applicant was justified under section 22(1A) of the FOI Act on the basis that the records relate to the business or proceedings of a Commission of Investigation

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

On 13 May 2014, the applicant submitted a Freedom of Information request to the Department seeking copies of any documentation related to her held by the Department. In its decision, dated 12 June 2014, the Department identified two records coming within scope of the applicant's request, but refused access to these records under sections 20, 22(1A), 23(1)(iv) and 26(1)(a) of the FOI Act. The applicant sought an internal review of this decision on 18 June 2014. By way of letter dated 4 July 2014, the Department informed the applicant that the internal reviewer had upheld the decision. On 9 July 2014, the applicant sought a review by this Office of the Department's decision.

I note that Mr Niall Mulligan, Investigating Officer, informed the applicant by way of email dated 16 September 2014 that the Department's decision was justified in his view. The applicant's solicitor indicated that she did not accept Mr Mulligan's conclusions and provided further submissions. I consider that the review should now be brought to a close by the issue of a formal, binding decision.

In conducting my review, I have had regard to details of the submissions of the Department, to correspondence between the applicant and the Department and to correspondence between this Office and the applicant. I have also had regard to the provisions of the FOI Act and to the records in question.

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the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.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 the Review

This review is concerned solely with the question of whether the Department was justified in its decision to refuse access to records coming within the scope of the applicant's request under sections 20, 22(1A) and 23(1)(iv) and 26(1)(a) of the FOI Act.

Analysis and Findings

Section 22(1A) of the FOI Act provides that:-

A head may refuse to grant a request under section 7 if the record concerned relates to the appointment or proposed appointment, or the business or proceedings, of --

(a) a tribunal to which the Tribunals of Inquiry (Evidence) Act 1921 applies,
(b) any other tribunal or other body or individual appointed by the Government or a Minister of the Government to inquire into specified matters at least one member, or the sole member, of which holds or has held judicial office or is a barrister or a solicitor, or
(c) any tribunal or other body or individual appointed by either or both of the Houses of the Oireachtas to inquire into specified matters,

and the request is made at a time when it is proposed to appoint the tribunal, body or individual or at a time when the performance of the functions of the tribunal, body or individual has not been completed.

Section 22(1B) provides that subsection (1A) does not apply to "a record in so far as it relates to the general administration of, or of any offices of, a tribunal..."

In the case of EH and the Information Commissioner [2001] IEHC 182, the High Court considered the meaning of the term "relates to" in the context of whether a record relates to personal information about the requester. O'Neill J. held that the test to be applied to determine whether or not a record "relates to" is ...... "whether there is a sufficiently substantial link between the requester's personal information (as defined in the Act) and the record in question". I consider it appropriate to apply a similar test to the question of whether the records at issue in this case can be said to relate to the business or proceedings of any of the bodies listed in section 22(1A), i.e. whether there is a sufficiently substantial link between the business or proceedings of such bodies and the records.

The records at issue each relate to an incident, involving the applicant, that was considered by Seán Guerin SC in his report to the Taoiseach following a review of the action taken by An Garda Síochána pertaining to certain allegations made by Sergeant Maurice McCabe. Mr Guerin recommended that the incident should be referred to a Commission of Investigation established pursuant to the Commissions of Investigation Act, 2004 (the "2004 Act"). The Cabinet agreed on 13 May 2014 to establish a Commission of Investigation to investigate these matters, and the Taoiseach confirmed the position to the Oireachtas on that same date.

On 19 December 2014, the Government approved the establishment of the Commission of Investigation, and the appointment of O'Higgins J to act as its chairman. The incident to which the records relate falls within the terms of reference of the Commission. Having carefully considered the matter, I am satisfied that the Commission of Investigation is a body to which section 22(1A)(b) of the FOI Act applies, that the records relate to the business or proceedings of the Commission of Investigation, that the request was made at a time that it was proposed to appoint the Commission and that the performance of the functions of the Commission has not been completed. Furthermore, I satisfied that the records do not relate to the general administration of the Commission and that section 22(1B) does not apply. I find, therefore, that section 22(1A) applies.

Section 22(1A) is what may be described as a class based exemption. Once a record falls within a certain class or category, the FOI Act provides that the record can be exempted by the public body without the need to show that the disclosure would be likely to lead to a particular harm. In a submission to this Office, the applicant argued that the exemption in section 22(1A) is discretionary and that it is open to the Department to release the records regardless of whether the exemption might apply. In her judgment in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner[2011] 1 IR 729, [2011] IESC26 (known as "the Rotunda judgment"), Macken J. considered that a right holder in information corresponding to the various exemptions is fully entitled to refuse to grant the information sought, provided the conditions set out in the particular corresponding section are met and that the only further issue to be considered is whether (in the sections where provided for) there is an overriding public interest which can be invoked notwithstanding proper refusal of a request. Section 22(1A) contains no such public interest considerations. Accordingly, I am satisfied that the Department can seek to rely upon this exemption.

Having carefully considered the submissions in this case, I am satisfied that the Department was justified in refusing access to the records in question under section 22(1A) of the FOI Act. In addition to relying upon section 22(1A) of the FOI Act to seek the exemption of the records concerned, the Department also sought to rely upon sections 20, 23(1)(iv) and 26(1)(a) of the Act. As I have found that section 22(1A) applies, it is not necessary for me to consider whether the other exemptions cited are also applicable.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of the Department.

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 after notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator