Case number: 120059
Whether the Department was justified in deciding to refuse access to certain records relating to the decision of the Irish Prison Service to ban the applicant from prison visits.
The applicant made a request to the Department in April 2011 for all records relating to the decision of the Irish Prison Service (IPS) to ban her from visiting prisons. In its original decision of November 2011, the Department identified four items as relevant to the request and refused access to all but part of one record. The applicant sought an internal review of that decision and in its internal review decision, some further access was granted. The applicant submitted an application for review to this Office in March 2012. During the course of the review, the applicant informed this Office that she wished to limit the scope of the review to Item 4 only. Item 4 is CCTV footage from a prison.
In her letter of 10 January 2013, Ms. Brenda Lynch, Investigator, informed the applicant and the Department of her preliminary view that the decision of the Department to refuse access to the CCTV footage was justified. The applicant's solicitor responded with observations on Ms. Lynch's preliminary views, further to issues raised previously on behalf of the applicant. I have decided to bring this review to a conclusion by issuing a binding decision.
In conducting this review, I have had regard to relevant matters raised in the submissions on behalf of the the applicant, to the submissions of the Department, and to the provisions of the FOI Acts. I have also had regard to the contents of the records at issue.
The scope of the review relates to whether the Department was justified in its decision to refuse access to the parts of the CCTV footage in which the applicant appears. There are some 21 separate excerpts, each of which is 40 - 45 minutes long. The footage contains visual images only and no sound. Of the 21 excerpts, the applicant was identifiable in 17 only. The remaining four excerpts are therefore not relevant to the review and do not come within the scope of the review.
The applicant's solicitor has raised a number of matters during the course of the review. Those directly relevant to the review are dealt with below in this decision. However, I wish to point out that release of a record under FOI is regarded as equivalent to releasing the record to the world at large, as no restrictions can be placed on the use of the information contained in the record following its release. The provisions of Sections 28(3) which provide for restricted access to particular types of records in certain circumstances are not relevant to this case. Nor is it relevant if material such as the records relevant to this review might be available through other means for particular purposes. This Office is charged with implementing the provisions of the FOI Acts and making a determination on whether the decision of a public body was justified in accordance with the provisions of the FOI Act.
The question which arises in the first instance is whether the applicant appears in the footage and if she does, if the material should be released or if any of the exemptions provided for in the FOI Act apply to prevent the release of the records. The Department has provided this Office with relevant information so as to be able to identify the applicant where she appears in the CCTV footage. Access to the information has been refused on the grounds of Sections 23 and 28 of the FOI Act.
Section 28(1) of the FOI Act provides:
"Subject to the provisions of this section, a head shall refuse to grant a request under section 7 if, in the opinion of the head, access to the record concerned would involve the disclosure of personal information".
Joint Personal Information
In a situation where a record contains personal information about a requester, which is closely intertwined with personal information about another party, and where it is not feasible to separate the personal information about the requester from that relating to the other party, it can be described as joint personal information and the provision at section 28(5B) of the FOI Act applies. Section 28(5B) provides that, subject to the other provisions of section 28, a request shall be refused where access to the record concerned would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual other than the requester. Having examined the CCTV footage, I am satisfied that substantial proportion of it contains joint personal information.
The provisions of Section 28(2)(b) allow for the release of personal information where the person (or persons) to whom the information relates has consented to its release. The applicant's solicitor asked my Investigator, Ms. Lynch, to consider seeking the consent of other persons captured in the CCTV footage and also to consider pixelating the footage so as to obscure the identities of persons other than the applicant. I will address the question of pixelation in my consideration of the applicability of Section 13 below. On the matter of consent, Ms. Lynch conveyed to the applicant's solicitor that she did not consider it reasonable to attempt to identify and contact each of the individuals, apart from the applicant, who appear in the footage. She also indicated that she considered it unlikely that, even if this was to be done, that all of these individuals would consent to the release of their personal information to the applicant. I agree with Ms. Lynch that it is not reasonable or appropriate in the circumstances of this review to to seek the consent of other individuals to the release of their personal information.
Section 28(5)(a) provides for the release of personal information relating to third parties where the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates. In her preliminary views, Ms. Lynch advised the applicant's solicitor that she was not satisfied that the public interest served by the disclosure of other parties' personal information would, in this instance, be of sufficient weight as to displace the public interest served by respecting the right to privacy of the individuals concerned. I have not been able to identify any public interest factor in favour of the release of personal information of third parties in this case. Nor has the applicant's solicitor put before me any factors in favour of the release of the information in the public interest.
No evidence has been put before me, nor do I have any reason from the information which is before me, to indicate that any of the other provisions of Section 28 apply in relation to the joint personal information contained in the CCTV footage. I find that those parts of the records that disclose joint personal information are exempt by virtue of section 28(5B).
Section 23(1)(a)(iii) provides that a request may be refused if it is considered that access to the record sought could "... reasonably be expected to prejudice or impair lawful methods, systems, plans or procedures for ensuring the safety of the public and the safety or security of persons and property".
This section is not directly concerned with protecting against the disclosure of information which could be prejudicial to the safety of the public or the safety or security of persons and property. Rather, it is concerned with the protection of lawful methods, systems, plans or procedures for ensuring the safety of the public or the safety or security of persons and property. Accordingly, the Commissioner, whilst expressing no opinion on its appropriateness or efficiency, has always accepted that the Department operates a policy of not disclosing the names of officials working in certain areas and that the purpose of such a policy is to ensure the safety and security of its officials. Consistent with previous decisions taken by the Commissioner regarding the Department's policy of not disclosing names of officials working in certain areas, I am satisfied that the disclosure of the identities of the officials who appear in the records at issue in this case could reasonably be expected to prejudice or impair that policy or system. I find that section 23(1)(a)(iii) applies to the identities of the officials who appear in the CCTV footage.
Section 13(1) 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, where it is practicable to do so. There are some very short passages in the footage in which the applicant appears alone. None of these passages are longer than a few seconds at a time, and include for example footage of her making her way through a lobby area. My Investigator made enquiries regarding the practicability of "pixelating" the CCTV footage as suggested by the applicant's solicitor. I am satisfied that it is not practicable to do so in the circumstances of this case, on the basis of the likely cost of such an undertaking and other concerns raised by the Irish Prison Service. I do not consider it necessary to provide more details as to these concerns, save to state that I am satisfied that these concerns provide a valid basis for the application of Section 13. I am also satisfied that it is not practicable to isolate very short parts of the footage where the applicant appears alone.
Having carried out a review under Section 34(2) of the FOI Act, I affirm the decision of the Department to refuse access to the CCTV footage on the basis that Sections 28(5B) and 23(1)(a)(iii) apply.
A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Any such appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.
20 February 2013