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Case Number: 160511

Whether the Department was justified in refusing access, in full or in part, to 86 records relating to the applicant under sections 15(1)(i), 32(1)(a)(i), 35(1)(a), 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

In a request made through his solicitor on 20 May 2016, the applicant sought access to all records relating directly or indirectly to him. The Department granted the request in part, but refused access to 80 records in full and to a further 6 records in part. On 18 November 2016, the applicant applied to this Office for a review of the Department's decision.

I have now completed my review in accordance with section 22(2) of the FOI Act. I note that the Department made an unsolicited submission dated 10 January 2017 that largely concerned the issue of "sham marriages" for immigration purposes, but the relevance of the issue to the exemptions claimed by the Department was unclear. On 7 February 2017, this Office invited the Department to make further submissions in support of its decision having regard to the issues identified by the Investigator as relevant based on her initial examination of the case file. The Department was given until 21 February 2017 to reply, but no further submissions have been received to date. I have decided to conclude this matter by way of a formal, binding decision.

Scope of the Review

This review is concerned solely with the question of whether the Department's decision to refuse access, in full or in part, to 86 records relating to the applicant was justified under the FOI Act.

Analysis and Findings

Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant access to a record "shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified." Thus, the onus is on the Department to satisfy me that its decision to refuse access to the records at issue was justified.

Section 15(1)(i)
Section 15(1)(i) states that a head may refuse to grant a request where the request relates to records already released, either to the same or a previous requester where (i) the records are available to the requester concerned or (ii) it appears to the head concerned that that requester is acting in concert with a previous requester. Access to the majority of the records at issue was refused on the basis that the applicant "should be in possession of the relevant correspondence". In its submission dated 10 January 2017, the Department referred to the "normal practice" of issuing a copy of an asylum application file to both the client and the solicitor. Thus, the Department's refusal seems to be based on the first clause of section 15(1)(i), i.e. that the records are available to the applicant. However, in his application for review, the applicant denied that the records were ever released to him or anyone acting for him pursuant to the Act. He also stated unambiguously that he does not have copies of the records concerned. The Department has not presented any evidence to show that the applicant's asylum application file is in fact available to the applicant or his solicitor. In the circumstances, and having regard to the burden of proof under section 22(1)(b) of the Act, I am not satisfied that section 15(1)(i) applies.

Section 32(1)(a)(i)
Access to six records was refused under section 32(1)(a)(i) of the FOI Act. Section 32(1)(a)(i) provides that a request may be refused if access to the record sought could reasonably be expected to prejudice or impair the prevention, detection or investigation of offences, the apprehension or prosecution of offenders or the effectiveness of lawful methods, systems, plans or procedures employed for the purposes of such matters. Where an FOI body relies on section 32(1)(a), it should, firstly, identify the potential harm to the functions covered by the exemption that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur. To justify its decision to refuse access to a record under section 32(1)(a), the FOI body must show how or why releasing the record concerned could reasonably be expected to cause the harm which it has identified.

In this case, as noted above, the Department has made a submission focused on the issue of "sham marriages" for immigration purposes, but it has not shown how the issue is relevant to the records at issue. Having examined the records, I note that the applicant was married to an EU national who reportedly returned to her country of origin, but there is nothing to indicate that any harm to any of the functions specified in section 32(1)(a)(i) of the Act could arise from the release of the records concerned. I therefore find no basis for concluding that section 32(1)(a)(i) applies.

Section 35(1)(a)
Two items of correspondence from the Garda National Immigration Bureau (GNIB) and two of the applicant's GNIB Registration Details Reports were refused under section 35(1)(a) of the FOI Act. Section 35(1)(a) provides for the protection of information given to a public body in confidence. For the exemption to apply, it is necessary to show the following;

• that the information was given to an FOI body in confidence,
• that the information was given on the understanding that it would be treated by the FOI body as confidential,
• that disclosure of the information would be likely to prejudice the giving to the body of further similar information from the same person or other persons, and
• that it is of importance to the body that such further similar information should continue to be given to the body.

Section 35(1)(a) does not apply if the public interest would, on balance, be better served by granting rather than by refusing to grant the request (section 35(3) refers).

I note that, in Case 120291 (Mr. X and The Department of Justice and Equality), available at www.oic.ie, this Office did not consider it plausible in light of section 41 of the Garda Síochána Act 2005 that the release of a Garda report would be likely to prejudice the giving of further similar information to the Department in future if it were important to the Department to have access to the such information. In this case, the Department has referred to a certain Garda operation relating to sham marriages, but it has not shown that there is any connection between this Garda operation and the four records concerned. The two records of correspondence refer to a case before the criminal courts involving the applicant, but the criminal case appears to be unrelated to the issue of sham marriages. I further note that none of the records concerned appears to contain any sensitive operational information. In the circumstances, I am not satisfied that the third requirement of section 35(1)(a) has been met. Accordingly, I find that section 35(1)(a) does not apply.

Section 37
Certain details relating to third parties were redacted from a number of the released released records under section 37(1) of the FOI Act. Section 37(1) is a mandatory exemption that applies where the grant of a request would involve the disclosure of personal information (including personal information relating to a deceased individual). 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 their family or friends or, (b) is held by a public body on the understanding that it would be treated by it as confidential. The FOI Act details twelve specific categories of information which are included in the definition without prejudice to the generality of the forgoing definition, including "(viii) information relating to the religion, age, racial or ethnic origin, sexual orientation or civil status . . . of, any disability of, or the political opinions or the religious or philosophical beliefs of, the individual". I further note that section 2 excludes certain information from the definition of personal information, such that the definition does not include, in pertinent part, in a case where an individual occupies or occupied a position as a member of staff of a public body, the name of the individual or information written or recorded by the individual in the course of and for the performance of his or her functions.

In this case, the details redacted from the records released to the applicant all fall within the exclusion to the definition of personal information and therefore section 37(1) does not apply. However, the records that were withheld in full contain identifying and other personal details of certain private adult individuals, including but not limited to the names of the individuals that the applicant was married to. Numerous other personal details relating to the applicant's second spouse are also included, such as her PPS and passport numbers, date of birth, employment information (including payslips), tax records (including tax records from her country of origin at pages 12-15 of schedule 1, record 2), and a bank account statement. With certain limited exceptions, the FOI Act does not provide for the limiting of access to records to particular individuals only. Rather, when a record is released under the FOI Act, it effectively amounts to disclosure to "the world at large" (H.(E.) v Information Commissioner [2001] IEHC 58). The FOI Act places no restrictions on the type or extent of disclosure or the subsequent use to which the record may be put. I therefore find, having regard to the context in which the information appears, that the identifying and other personal details of the private individuals referred to in the records concerned qualify as personal information for the purposes of section 37(1) of the Act.

Section 37(2) of the FOI Act sets out certain circumstances in which 37(1) does not apply. However, I am satisfied that none of those circumstances arises in this case. Section 37(5) provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance:

(a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or
(b) the grant of the information would be to the benefit of the person to whom the information relates.

As I find no basis for concluding that the release of the information concerned would be to the benefit of the third party individuals to whom it relates, I find that section 37(5)(b) does not apply. In considering the public interest test contained in section 37(5)(a), it is important to have regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner[2011] IESC 26 ("the Rotunda Hospital case"). It is noted that a public interest ("a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest. In this case, I find that the public interest in granting access to the identifying details of the private individuals concerned does not outweigh the public interest in upholding the right to privacy of those individuals. Accordingly, I find that the records at issue should be released to the applicant subject to the redaction of the relevant identifying and other personal details.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of the Department in this case by directing the release of the records concerned subject to the redaction of the identifying and other personal details of the private adult individuals referred to therein.

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.

Elizabeth Dolan
Senior Investigator