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Case Number: 160075

 

Whether the Department was justified in its decision to refuse access to a record concerning the applicant on the basis of section 33(1)(a) 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

On 23 October 2015, the applicant, through his solicitor, made an FOI request to the Department seeking access to all documents relating to his "immigration matters in the State". The Department issued a late decision on 14 December 2015 partially granting the request. It refused access to record number 10 (comprising five pages) on the basis of section 33(1)(a) of the FOI Act as identified on the schedule provided to the applicant. On 17 February 2016, the Department affirmed the original decision. This internal review decision also issued outside the statutory timeframes specified in the Act.

The applicant wrote to this Office on 18 February 2016 seeking a review of the Department's decision.

This Office received a submission from the Department on 28 April 2016 and I consider that the review should now be finalised by way of a formal, binding decision. The applicant's solicitors were invited to make a submission but none was received. However, the application for review did address the circumstances of the applicant.

In conducting my review I have had regard to the submission from the Department, the application from the applicant and to correspondence between the applicant and the Department. I have examined the contents of records provided to this Office for the purposes of this review and had regard to the provisions of the FOI Act.

Scope of the Review

This review is concerned solely with whether the Department was justified in its decision to refuse access to record number 10 under section 33(1)(a) of the FOI Act.

Analysis and Findings

Section 18
Firstly I should draw attention to section 18 of the FOI Act which provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. However, the Commissioner takes the view that 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. Generally speaking, therefore, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent.

Section 22(12)(b)
It is relevant to note that section 22(12)(b) of the Act provides that a decision to refuse a request under section 12 shall be presumed not to have been justified unless the head of the FOI body shows to the Commissioner's satisfaction that its decision was justified. This means that the onus is on the Department to satisfy the Commissioner that its decision to refuse access to the records was justified.

Section 25(3)
Although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in 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 records at issue and the material that I can refer to in the analysis is limited. The release of a record under the FOI Act is considered, effectively, as release to the world at large.

 

Section 33 -Security, defence and international relations
In its decision, the Department relied on section 33(1)(a) to refuse access to record number 10. Subsequently, in its submission to this Office, the Department argued that section 33(3)(a) also applied to exempt this record. Section 33(1)(a) provides for the refusal of a request where the FOI body considers that access could reasonably be expected to affect adversely the security of the State while section 33(3)(a) provides that an FOI body must refuse to grant a request if the record concerned contains information that was obtained or prepared for the purpose of intelligence in respect of the security or defence of the State. In my view, section 33(3)(a) is the more appropriate exemption for records of this type. The Investigator brought this issue to the attention of the applicant's solicitors.

A record falling within any class or category of records described in section 33(3) is subject to a mandatory exemption and access must be refused. Thus, the relevant test to apply in considering whether subsection (3) applies is whether the record meets the description of any of the classes or categories of records set out in subsection (3). Unlike subsection (1), the FOI body does not have to identify a potential harm that might arise from disclosure of the record. In addition there is no public interest override which would allow for the consideration of whether the public interest would be served by release.

In his application for review, the applicant said that failure to provide the records results in serious adverse affect to his application for naturalisation which has been delayed. However, the mandatory nature of this exemption means that I cannot take this into account.

An FOI body relying on section 33(3)(a) for its refusal to grant access should satisfy the Commissioner that the record concerned contains information that was obtained or prepared for the purpose of intelligence in respect of the security or defence of the State. Having examined the information at issue, I am satisfied that it can be categorised as information which was obtained or prepared for the purpose of intelligence in respect of the security or defence of the State. Taking account of section 25(3) above, I cannot comment further on the contents of this record. I find, therefore, that section 33(3)(a) of the FOI Act applies and that the Department was justified in deciding to refuse access to record 10.

 

Having found that section 33(3)(a) applies, I do not consider it necessary to examine the Department's claims for exemption under section 33(1)(a).

 

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the Department to refuse access to the withheld record.

 

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