Conor O'Carroll

The FOI Files is a series from our team at The Journal Investigates. Each week, one of our investigative journalists brings you inside the fight for information that we’re all entitled to. They’ll share their documents, their stories – and tips on how to take the journey for yourself.

This week’s file is from investigative journalist Conor O’Carroll.

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TWO YEARS AGO, the Department of Equality paid €35,000 to Cambridge University Technical Services to review the process by which children under 16 would be allowed to legally change their gender.

Currently, changing your gender in Ireland is only permitted for those aged 18 or over, though an adult can apply for a court order to allow a 16 or 17-year-old to receive a Gender Recognition Cert.

But despite spending for this report to be produced, no change in the law has been made for under-16s.

So I set about trying to find out what was in this report and what the department concluded in its aftermath.

My request for a copy of the report was refused under Section 29 of the Freedom of Information Act, with the department arguing that “the report is undergoing the deliberative process” even though years had passed since they’d commissioned it.

They also refused the second part of my request seeking any correspondence, such as letters or emails, on the report under Section 15 of the Act. The decision maker added:

The extent of the searches and examination of records required under this request would cause substantial and unreasonable interference with or disruption of work.

A regular reader of this series will probably know I wasn’t going to take this lying down, and so I appealed the decision.

Internal Review fee waived

The basis for my appeal was not just that I disagreed with their decision, but that they had also incorrectly applied the two exemptions.

That’s because to rely on Section 29, an FOI body must show that releasing the record would actually be contrary to the public interest.

But the department did not make any of these arguments to me; they just claimed that it was a deliberative process and that was that.

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A screenshot of the decision letter outlining the reasons why my request was refused by the department. The Journal Investigates The Journal Investigates

I also pointed out in my appeal that this report was produced under a previous government and that a decision not to change the law had already been made, which certainly appears to me like ‘deliberations’ are at an end.

As for Section 15, the Information Commissioner has made it clear that an FOI body cannot rely on this exemption “unless it has assisted, or offered to assist, the requester in an effort to amend the request”.

But I never heard from anyone about refining my request, and so I pointed out in my appeal that this exemption couldn’t be used either.

Initially, I thought that the department had seen the error of their ways when they waived the €30 internal review fee.

I believed that with a more senior official now making a new decision on the request, who was aware of my complaints with the original decision, that I would at least get a response in line with the FOI Act, even if I still didn’t get the report.

But alas, dear reader, it wasn’t to be.

The decision maker of the internal review stated that they were “satisfied that the records are covered by the exemptions in the Act”.

There was no further explanation under Section 29 or offer to amend under Section 15, which left me with only one option.

In June, I appealed to the Information Commissioner to review this decision and, at the time of writing, await their decision.

If the Commissioner rules in my favour and annuls the department’s decision, it is likely that they will have to make a third decision on the request.

I guess they always do say third time’s the charm.

If you have a burning FOI question about how to get certain records or why your request was refused, you can get in touch with our team at investigates@thejournal.ie. The Journal Investigates team will be back with another instalment of The FOI Files next Tuesday.