Freedom of Information Case Law Update

In a recent decision, the High Court has once again confirmed that compliance with Freedom of Information (FOI) is part of the statutory functions of FOI bodies and their staff. In addition, the Court has held that information on the terms of employment of staff of FOI bodies is not exempt “personal information” under FOI legislation. A further decision of the Court of Appeal has helpfully clarified that identifying additional relevant records after making an FOI decision does not invalidate the FOI body’s earlier decision.

Health Service Executive v Information Commissioner

The High Court’s recent decision[1] related to an FOI request from RTÉ. The request was directed to the Health Service Executive (HSE). It sought access to records on whether designated employees had complied with their disclosure obligations under the Ethics in Public Office Act 1995 (the Ethics Act). The HSE refused the request initially and on internal review. RTÉ appealed this decision to the Information Commissioner (OIC).

The OIC found that the HSE was not justified in refusing access to the requested records. The HSE appealed the OIC’s decision to the High Court on three points of law, each of which were dismissed by the High Court:

The HSE argued that the OIC was incorrect in its interpretation of and interaction between section 35 of the Ethics Act and section 41(1)(a) of the Freedom of Information Act 2014 (FOI Act). Section 35(1) of the Ethics Act prohibits disclosure of information obtained under the Ethics Act except in certain circumstances which are set out in section 35(2) of the Ethics Act. Section 35(2)(c)(i) of the Ethics Act provides that this prohibition does not apply to the disclosure of information by a person in the performance of his or her “functions”. Both the OIC and High Court understood the reference to “functions” as to include functions under the FOI Act. Section 41 of the FOI Act requires a decision maker to deny access to information if a law prohibits its release. The High Court agreed with the OIC on the interpretation of the Ethics Act. The prohibition on disclosure in section 35(1) of the Ethics Act was disapplied. This was done under section 35(2)(c)(i) of the same Act. As a result, the disclosure of information by the FOI decision maker in the performance of their functions under the FOI Act was permitted by section 35(2)(c)(i) of the Ethics Act. Therefore, section 41(1) of the FOI Act, which would have required the decision maker to refuse access to the request, did not apply.
The HSE argued that the requested records did not come within the exclusions to the definition of “personal information”. As a result, the HSE noted that the records were exempt from release under section 37 of the FOI Act. Section 2(1) of the FOI Act provides that “personal information” does not include certain information relating to current and former members of staff and office holders of FOI bodies, including “…the terms upon and subject to which the individual holds or held that office or occupies or occupied that position…”. The High Court disagreed finding that section 18 of the Ethics Act obliges the HSE’s designated employees to prepare and submit a statement of interest as part of the terms of their employment. Therefore, information about compliance with this requirement was clearly related to the terms of their employment. As a result, it is excluded from the definition of “personal information” under section 37 (1) of the FOI Act.
Finally, the HSE argued that the requested records were exempt under section 35(1)(b) of the FOI Act. They claimed that disclosure would breach a legal duty of confidence owed to third parties identified in the relevant statements of interests, such as spouses and children. Section 35(2) of the FOI Act disapplies this exemption where the record is prepared by a person during the performance of their duties, unless disclosure would breach a legal duty of confidence owed to a third party outside the HSE. The HSE argued that furnishing the information sought about their designed employees’ compliance or non-compliance could render a third-party related to the employee vulnerable to a line of inquiry concerning their personal finances. The High Court found no basis in fact for this argument.

Patrick McGreal v The Information Commissioner

The Court of Appeal’s decision[2] concerned an FOI request to Westmeath County Council (WCC). The requestor sought access to his housing file and records relating to his housing application and Housing Assistance Payment. This request was granted by WCC initially. However, Mr McGreal internally reviewed this decision alleging that other relevant information existed and WCC had not justified its non-disclosure. The original decision was upheld by WCC on internal review. Mr McGreal then appealed to the OIC. However, before a decision could be delivered, WCC released an additional 280 records to Mr McGreal. Based on the facts that existed at the time the OIC took its decision, it was satisfied that there were no further relevant records and so decided to uphold WCC’s internal review decision.

Mr McGreal appealed to the High Court on the basis that WCC’s previous decisions were invalidated by the subsequent release of the additional 280 records. The High Court disagreed and dismissed the appeal.

Mr McGreal then appealed to the Court of Appeal. He argued that the OIC was not entitled to affirm a decision that had been shown to be incorrect by the subsequent release of additional records. He claimed that the OIC had acted ultra vires, meaning outside its statutory powers.

The Court of Appeal was satisfied that the appeal must fail purely on the basis that Mr McGreal sought to rely on issues not raised in the High Court. However, it also found that:

The subsequent release of additional documents did not invalidate an earlier FOI decision or require the entire FOI request process to be restarted.
While one might have sympathy for the argument that the OIC cannot affirm a decision which has been shown to be incorrect, the OIC had authority under section 22(2) of the FOI Act to make the decision it did. In theory, the OIC might have varied the original decision to take account of the subsequently found records, or the original decision could have been annulled and a new decision made incorporating the subsequently found records.
There was no irrationality in the OIC’s decision.

Conclusion

These recent court decisions provide welcome confirmation and clarification for all FOI bodies and requestors of the following:

The disclosure of records required under FOI is part of a public employee's functions.
The definition of “personal information” does not include information on whether public employees have complied with statutory requirements, which form part of their terms of employment.
Finding additional records after making an FOI decision does not invalidate the earlier decision or require the FOI body to restart the FOI process.

For more information and expert advice on Freedom of Information matters, please contact a member of our Public, Regulatory & Investigations team.

Catherine Allen

Partner

+353 86 382 1009 callen@mhc.ie

Aoiffe Moran

Consulting Partner