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Case Number: 160240

Whether the Board was justified in its decision to refuse access to records relating to the applicant's deceased mother under sections 35(1)(b) and 37(1) 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 12 November 2015, the applicant made an FOI request to the Board for access to records relating to its legal representation of her deceased mother. The applicant requested the following records:
1. Annual case review and case progression notes of the deceased's Solicitor (2002-2010);
2. Annual case review and case progression notes of the relevant Managing Solicitor (2002-2010);
3. Records of all telephone calls to and from the Board regarding the deceased's case (2007-2010);
4. Any notes regarding the legal advice, representation and action taken by the Board on the deceased's behalf from August 2007 to September 2010;
5. Any notes regarding the legal advice, representation or services provided to the deceased and her family members from May to September 2010;
6. Any notes regarding the Board's decision not to prioritise or act on the deceased's behalf prior to and following her death (2010);
7. Any notes regarding the legal advice given by the deceased's Solicitor to a named family member following her death (2010).

On 14 December 2015, the Board refused the applicant's request. On 4 January 2016, the applicant sought an internal review of the Board's decision. On 2 February 2016, the Board affirmed its original decision. On 28 May 2016, the applicant applied to this Office for a review of the Board's decision.

I consider that this review should now be brought to a close by the issue of a formal, binding decision. In conducting this review, I have had regard to the correspondence between the applicant and the Board, to correspondence between the Board and this Office, to correspondence between the applicant and this Office, to the contents of the records at issue and to the provisions of the FOI Act 2014.

Scope of Review

In addition to requesting the above records, the applicant also attached an appendix to her FOI request with a list of 30 questions, which she asked the Board to reply to. Section 10 of the FOI Act entitles applicants to a statement of reasons for administrative decisions or acts affecting them in certain circumstances. To avail of this right, which is separate from a right of access to records (section 12), the request must be stated to be one made under section 10 of the FOI Act 2014. The applicant's request was not stated as being made under section 10 of the Act. I do not, therefore, propose to address the applicant's questions in this review. It seems to me that there is no valid application for review before me in relation to the questions posed.

This review is solely concerned with whether the Board was justified in refusing access to the above mentioned records on the basis of the exemptions claimed.

Preliminary Matters

Section 13(4) of the FOI Act does not allow this review to have regard to any reasons as to why the applicant is seeking the withheld records (although such reasons may be relevant to consideration of the public interest).

Section 22(12)(b) of the FOI Act provides that a decision to refuse a request 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 Board to satisfy the Commissioner that its decision to refuse access to the records was justified.

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.

Analysis and Findings

The Board refused the applicant's request on the basis that release of the records would result in a breach of a duty of confidence (section 35(1)(b) of the Act) and on the basis that the records contain personal information (section 37(1) of the Act). However, in refusing the applicant's request, the Board did not consider section 37(8) of the Act. Section 37(8) provides that the Minister may provide by regulations for the grant of an FOI request, where the individual to whom the record concerned is deceased. The Minister made Regulations on 27 April 2016, however, the transitional provisions in the 2016 Regulations provide that any action commenced under the previous (2009) Regulations shall continue to be performed and shall be completed as if the 2009 Regulations had not been revoked. In this case the request was commenced under 2009 Regulations (S.I. No. 387 of 2009). The 2009 Regulations provide at article 4(1) that:-

Notwithstanding section 28(1) a request under section 7 in relation to a record access to which involves the disclosure of personal information (including personal information relating to a deceased individual) shall, subject to the other provisions of the Freedom of Information Act, 1997, be granted where...

(b) the individual to whom the record concerned relates is dead ("the individual") and the requester concerned belongs to one of the following classes of requester:

(i) a personal representative of the individual acting in due course of administration of his or her estate or any person acting with the consent of a personal representative so acting,

(ii) a person on whom a function is conferred by law in relation to the individual or his or her estate acting in the course of the performance of the function, and

(iii) the spouse or the next of kin of the individual where in the opinion of the head, having regard to all the circumstances and to any relevant guidelines published by the Minister, the public interest, including the public interest in the confidentiality of personal information, would on balance be better served by granting than by refusing to grant the request.

There is no indication that the Board considered section 37(8) or the 2009 Regulations in its original or internal review decisions. It appears that the applicant may be seeking the records as next of kin, however it is a matter for the Board to establish this. I am satisfied that, in the circumstances of this case, the Board should have considered the 2009 Regulations. I am satisfied, therefore, that the appropriate course of action is to annul the decision of the Board and direct that it undertake a fresh decision making process, having due regard to the provisions of the Freedom of Information Act, 1997 (Section 28(6)) Regulations, 2009. I find accordingly.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the Board in this case. I direct it to undertake a fresh decision making process in respect of the applicant's request, having due regard to the provisions of the Freedom of Information Act, 1997 (Section 28(6)) Regulations, 2009.

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