Whether the Department was justified in refusing access to records of any correspondence between the Department or the Reception and Integration Agency (RIA) and the operators of a named direct provision centre for the period 1 January 2019 to 3 February 2020

18 May 2021

Background

In a request dated 3 February 2020, the applicant sought access to records of any correspondence between the Department or the Reception and Integration Agency (RIA) and the operators of a named direct provision centre for the period 1 January 2019 to date of the request.  On 27 March 2020, the Department refused the request under section 36(1) of the FOI Act.  It did not provide any indication of the number or nature of the relevant records, nor was any schedule of records provided to the applicant.

The applicant sought an internal review of that decision following which the Department affirmed the refusal of the request. It refused access to the contract with the centre under section 36. It said that details in relation to current contracts are not published and that this is in accordance with the RIA's policy on disclosure of financial information which was agreed with the Office of the Information Commissioner. It said that under this policy, a table of Contract Values is published on the RIA website but excludes the most recent previous two years.

The Department also gave a description of the types of records held by the International Protection Accommodation Service (IPAS) that relate to residents of the centre. It refused access to all information relating to the residents under section 37. Again, no indication of the number of records held was given, nor was a schedule provided.  The Department referred to the unprecedented challenge of COVID 19 at the time and measures put in place by it as a result, as the reason why it was unable to provide a schedule to the applicant at that time.

On 29 April 2020, the applicant sought a review by this Office of the Department’s decision. The application for review was accepted by this Office on 30 April 2020, and in accordance with our normal procedures, a copy of the records relevant to the review was sought from the Department, with the records to be provided by 15 May 2020. Despite a number of reminders, it was not until 24 June 2020 that the Department engaged in any meaningful way with the request for records.  On that date, it provided a schedule of 180 records, in which it indicated that access was being granted in full to 24 records and four in part. Access to the remaining records was refused. The Department also suggested that a sample of records would be provided, having outlined its difficulties in providing all of the records. In the circumstances outlined by the Department relating to the impact of COVID 19 public health measures, this Office agreed to accept a sample of relevant records. On 3 July 2020, the sample records as well as the records to which access was being granted in full or in part were provided to this Office. 

On 30 July 2020, the Investigator sought a submission from the Department. Among other things, the Investigator asked the Department if the schedule that had been given to this Office could be provided to the requester, and if the records or part records to which it was now granting access had been or could be released to the requester. It was explained to the Department that these steps would be helpful in progressing the review and an early response was sought.  Despite further engagement and reminders, the Department did not respond until 7 September 2020, at which point it indicated that the schedule and records had been provided to the requester on 3 September 2020. 

The Investigator contacted the applicant on 8 September 2020 and advised him of her view that, based on the sample records provided and the description of the refused records on the schedule, the refused records contained personal information of residents of the centre. One of the sample records provided was a weekly report to the Department of which there are over 50 listed on the schedule.  In response, the applicant confirmed that he wanted a formal decision on the matter.  He also indicated that, while he accepted that much of the information was personal information, he was of the view that some could be released with redactions.

At that stage, the Investigator informed the Department that a full copy of the refused records was now required and should be provided by 23 September 2020, along with the submission which was still outstanding. The Department’s submission was not received until 6 October 2020, along with most of the records listed on the schedule. However, the Department said that some records could not be located, though they had been included in the schedule of records prepared in June 2020. Following further correspondence, the remaining records were provided to this Office on 9 October 2020, some five months after they were first requested and more than three months after a schedule was prepared. 

In summary, the Department identified 182 records relevant to the review, as the contract and an associated extension letter were not included on the schedule. It granted access to 24 records in full and partial access to four records. Access to the remaining 154 records was refused. Two were withheld under section 36, while the remainder were refused, in full or in part, under section 37.

The Investigator notified the contractor of the review and invited it to make a submission. No response was received from the third party.

I have now completed my review in accordance with section 22(2) of the FOI Act.  In carrying out my review, I have had regard to the applicant’s comments in his application for review and subsequent correspondence and to the submissions made by the Department in support of its decision.  I have also examined the records at issue. I have decided to conclude the review by way of a formal, binding decision. In referring to the records at issue, I have adopted the numbering system used by the Department in the schedule of records provided.

Scope of Review

During the course of the review, the applicant agreed to remove the four part granted records from the scope of the review (records 12, 29, 40 and 93). As record 147 is an internal email within the Department, rather than correspondence with the named centre, I have excluded it from the scope of the review. I also note that the contract identified by the Department to which access as refused under section 36 was created before the date range of records sought by the applicant. A such, I have also excluded that record from the scope of the request.

Accordingly, this review is concerned solely with whether the Department was justified, under sections 36(1) and 37(1) of the Act, in refusing access to the remaining 152 records at issue.  question. For the avoidance of doubt, the records remaining in scope are records 1-11, 13-17, 19-24, 27-28, 30-39, 41-46, 48-50, 52-59, 61-92, 95-96, 98-101, 103-108, 110-111, 114-123, 125-128, 130-133, 135-141, 143-146, 149-154, 156 - 167, 169, 171-175, 177, and a contract extension letter. 

Preliminary Matters

Before I consider the substantive issue arising I would like to make a number of preliminary comments. The first concerns the identity of the Department that has responsibility for complying with the decision to be made in this case. This request was originally made to the Department of Justice. Following the General Election in 2020, responsibility for the relevant area transferred to the Department of Children, Equality, Diversity, Integration and Youth in October 2020. The Department of Justice continued to liaise with this Office on all matters relating to the review.  However, the formal decision is issued to the Department with responsibility for the function, and which now holds the relevant records.

Secondly, the handling of this request by the Department of Justice fell well short of what would be expected of a FOI body that has been subject to the FOI Act for many years. The original decision issued almost four weeks late. Furthermore, in its internal review decision, it referred to the impact of COVID 19 as a reason for not providing the applicant with a schedule of records. It should be noted that had the Department processed the request within the statutory time-frame, the decision would have predated the implementation of measures to address the impact of COVID 19.  It appears from the Department’s decisions that it did not attempt to identify the specific records of relevance to the request and instead appears to have claimed a blanket exemption based on the type of records which might be relevant.

The Central Policy Unit of the Department of Public Expenditure and Reform (see www.foi.gov.ie) has published a Code of Practice on FOI for public bodies. The Code states a schedule should be included with decisions providing details of those records being released in full, of those to which partial access is being given, and of those being refused and setting out the reasons why access is not being granted in full or in part and referencing relevant sections of the Act where refusals are made.  Neither the original nor internal review decisions complied fully with the Code of Practice.

Thirdly, section 18 of the FOI Act 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.

Finally, while the contract with the direct provision centre no longer forms part of this review, I must point out that this Office has no knowledge of any agreement having been reached with the RIA in relation to its policy on the disclosure of financial information relating to direct provision centres, as was suggested by the Department in its internal review decision. Indeed, when this Office sought to clarify the basis on which the department made that statement, it was not in a position to point to any such agreement or to throw any further light on the matter.

Analysis and Findings

Section 36 – Commercial Sensitivity

The Department refused access to one record, a contract extension letter under subsections (a) and (b) of section 36(1). Subsection (1)(a) provides for the refusal of a request where the record sought contains trade secrets of a person other than the requester. This Office accepts that a trade secret is information used in the trade or business which, if disclosed to a competitor, would be liable to cause real (or significant) harm to the owner of the secret and that the owner must limit the dissemination of it or at least not encourage or permit wide-spread publication.  

The Department has not identified any information in the records as trade secrets, nor has it provided any information as to the basis on which it considered this exemption to apply.  Having examined the records, I have not been able to identify any information which meets the criteria for a trade secret.  I find that subsection (1)(a) does not apply.

Subsection (1)(b) provides for the refusal of a request where the record sought contains financial, commercial, scientific or technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation. 

In its internal review decision and submission, the Department referred to RIA’s policy on disclosure of financial information, and that under this policy, a table of contract values excluding the most recent two years are published on the RIA website.  It said that it is not appropriate to provide values for current contracts entered into by the Department and that it is not in the interests of yielding best value for the taxpayers that details of current contracts are made available to parties that are or maybe engaged in negotiations for provision of accommodation services.  This does not appear to be an argument that the release of the information would cause harm to the service provider but rather to the taxpayer.

The most recent table of contract values published by RIA includes the name of the centre, the name of the company operating the centre, the period of the contract, the capacity of the centre and the value of payments made to 31 December 2018.  It is evident from the schedule of records and records to which access was granted that the centre continued to be used for a period after the end of the contract.

I note that the contract extension letter contains no financial information. Having examined the record and in view of the information published by the Department, I cannot see how any harm can arise from the release of this record such that subsection (1)(b) applies.  As noted above, the third party did not respond to this Office’s notification to it of the review.  I find that subsection (1)(b) does not apply to the record.

Section 37 Personal Information

The Department refused access to the remaining records under section 37(1). That section provides, subject to the other provisions of section 37, for the mandatory refusal of a request where access to the records sought would involve the disclosure of personal information relating to an individual or individuals other than the requester. The FOI Act defines the term "personal information" as information about an identifiable individual that either (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 an FOI body on the understanding that it would be treated by the body as confidential. The definition also contains a list of 14 specific types of information that is personal information, without prejudice to the foregoing definition, including information relating to the medical history of an individual and the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to, establish that any personal information held by the FOI body concerned relates to the individual.  

The records at issue include weekly registers which were sent to the Department by all accommodation centres and contain details of the residents including name, date of birth, nationality and other information. The other records to which access was refused include correspondence about residents’ transfer requests and access to medical and other support services for residents, records relating to incidents which occurred at the centre involving residents, and records relating to arrival and departure of residents from the centre.  Having examined all of these records, I am satisfied that their disclosure would involve the disclosure of personal information relating to identifiable individuals other than the applicant and that section 37(1) applies. 

I am also satisfied that the name of the recipient of the contract extension letter is personal information to which section 37(1) applies. 

Section 37(2)

There are some circumstances, provided for at section 37(2), in which the exemptions at section 37(1) do not apply. I am satisfied that none of the circumstances identified at section 37(2) arise in this case. That is to say, (a) the information contained in the records does not relate solely to the applicant; (b) the third parties have not consented to the release of their information; (c) the information is not of a kind that is available to the general public; (d) the information at issue does not belong to a class of information which would or might be made available to the general public; and (e) the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual. I find that section 37(2) does not apply to the withheld information.

Section 37(5)

Having found that section 37(1) applies to certain of the withheld information, I must also consider section 37(5). That section provides that a request which would fall to be refused under section 37(1) may still be granted where the FOI body considers that, on balance, (a) 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, or (b) the grant of the request would benefit the individual concerned.

In my view, the release of the information to which I have found section 37(1) to apply would not benefit the third parties to whom the information relates. I am satisfied that section 37(5)(b) does not apply.

In relation to the public interest test contained in section 37(5)(a), I wish to emphasise that in carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. In sum, section 11(3) recognises the need to enhance public scrutiny and accountability of government and public affairs, particularly the activities and decision making of FOI bodies. However, in a judgment delivered on 25 September 2020 (The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors, available on our website), the Supreme Court held that general principles of openness and transparency do not provide a sufficient basis for directing the release of otherwise exempt information in the public interest. Rather, a “sufficiently specific, cogent and fact-based reason” is required “to tip the balance in favour of disclosure”.

Moreover, while the Court stated that the public interest balancing test involves a “weighing of the respective private and public interests in the analysis of the records in issue”, it did not disturb the guidance that it previously gave 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") in which it drew a distinction between private and public interests. Relevant private interests are those that are recognised by law and, in particular, through the protection afforded by the exemption provisions. Although the Court’s comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.

The FOI Act recognises the public interest in the protection of the right to privacy both in the language of section 37 and the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with the right to privacy). It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. Moreover, unlike other public interest tests provided for in the FOI Act, there is a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. Privacy rights will therefore be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy.

The information at issue in this case is clearly personal information about individual residents in the centre. In the circumstances, and given that the release of records under the FOI is regarded, in effect, as release to the world at large, I find no relevant public interest in granting access to the withheld information that, on balance, outweighs the public interest in upholding the right to privacy of the third party individuals concerned. I find that section 37(5)(a) does not apply in this case.

In conclusion, therefore, I find that the Department was justified in refusing access to the records it withheld under section 37(1) of the Act and that the name of the recipient of the contract extension letter is also exempt from released under section 37(1).

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the decision of the Department in this case and direct the release of the contract extension letter apart from name of the recipient.

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.

 

Stephen Rafferty

Senior Investigator