May 2024 Decisions Roundup

In May 2024, the Information Commissioner received 8 new applications and closed 4 cases (1 resolved, 1 invalid, 2 decisions). As of 31 May 2024, public authorities’ compliance was pending for 7 decisions.

Decision 16/2024, Ministry of Legal Affairs Headquarters

What was requested: records related to legal aid.

In her Decision, the Information Commissioner: considered the Ministry Headquarters’ refusal to disclose the number of cases assigned to two specific counsel, their work contracts, and the Legal Aid Committee’s guidance on counsel assignment.

What was the outcome: the Information Commissioner found that the Ministry Headquarters was justified in administratively denying the request for the number of cases assigned to two specific counsel and the counsel assignment guidance. She was satisfied that the Ministry Headquarters had taken reasonable steps before concluding that statistical records and counsel assignment guidance did not exist. She was also satisfied that while the Legal Aid Office (which came under the Ministry Headquarters) held the underlying records that could be used to create a statistical record, retrieving and examining them from each individual client file would have resulted in substantial and unreasonable interference with the Legal Aid Office’s other work.

For the contracts, the Information Commissioner found that the Ministry Headquarters was not justified in denying access to the consultancy contract with one counsel under the breach of confidence exemption in the PATI Act. But the Information Commissioner concluded that parts of the consultancy contract, as well as the other responsive employment contract in its entirety, contained exempt personal information and their disclosure was not in the public interest.

As a result, the Information Commissioner ordered the Ministry Headquarters to disclose the consultancy contract, minus certain personal information of the counsel, by 12 June 2024. The Ministry Headquarters complied in a timely manner.

Decision 17/2024, Ministry of National Security Headquarters

What was requested: records related to payments to the 2 December 2016 protesters, including a ministerial statement, communications about the payments, and a payout list with amounts and recipients.

In her Decision, the Information Commissioner: considered the reasonableness of the Ministry Headquarters’ search for responsive records as well as its claim that certain records were exempt under various provisions in the PATI Act. (To learn about the Information Commissioner’s review of the Ministry Headquarters’ original response to the same PATI request, read Decision 14/2022.)

What was the outcome: the Information Commissioner found that the Ministry Headquarters’ initial search (which it said resulted in over 125,000 responsive records, including 5,100 encrypted emails) was not reasonable. But during the Information Commissioner’s review, corrective steps were taken to meet the reasonable search requirements. It was then clarified that not all 125,000+ records were responsive to the PATI request and that only 18 in the narrowed set of records were in fact encrypted.

When she considered the responsive records, the Information Commissioner agreed with the Ministry Headquarters that certain records should have been withheld as Cabinet documents or because they contained personal information. Upon inspection of the records, she also found that some fell outside the scope of the PATI Act because they were created or obtained by the Attorney General’s Chambers while performing its functions as the Government’s legal advisor.

The Information Commissioner disagreed that two withheld records were exempt under the deliberations of public authorities exemption in the PATI Act. She also found that certain personal information of an elected official and an individual who held a senior role within a public authority should have been disclosed under the public interest test. Given their roles and positions, these individuals should have expected that some personal information relating to their work would be made available to the public, for transparency and accountability purposes.

As a result, the Ministry Headquarters was ordered to disclose a limited number of records by 12 June 2024. The Ministry Headquarters complied in a timely manner.

As at 31 May 2024, the Information Commissioner had:

Total applications: 325

Pending investigations: 33

Applications pending validation: 3

Closed reviews – decided: 204

Closed applications – resolved (settled): 44

Closed applications – invalid: 34

Closed applications – abandoned: 7

Decisions pending compliance: 7 Information Commissioner’s Decision (or other request) subject to judicial review: 0