Case number: 99449

Records relating to the applicant or records where his name appears - whether personal information - section 28(1) - whether exempt on the grounds of legal professional privilege - section 22(1)(a) - whether information from An Garda Síochána given in confidence - section 26 - whether disclosure could adversely affect the security of the State - section 24(1)(a).

Case Summary

Facts

The requester applied to the Defence Forces for access to records which referred to him either directly or indirectly, including information supplied by An Garda Síochána where his name appeared. The Defence Forces released some records in full, granted partial access to some records and refused access to other records. Mr. X then made an application to the Commissioner for a review of that decision.

Decision

The Commissioner was satisfied that section 22(1)(a) applied to five records which were withheld on the grounds of legal professional privilege as he considered that the records were created for the purpose of obtaining/giving legal advice.

The Commissioner found that a number of deletions in accordance with section 28 were justified and that the public interest in releasing this information did not outweigh the right to privacy of the third parties.

The Commissioner accepted that three communications from An Garda Síochána were given in confidence and on the understanding that they would be treated confidentially. He also accepted that it is of importance to the Defence Forces that it continues to receive such information. However, he did not accept that disclosure of these three records would prejudice the giving of similar information by An Garda Síochána in the future. He found that the three records were not therefore exempt under section 26.

The Defence Forces withheld the identities of a number of Garda and Defence Forces personnel on the grounds that the information was exempt under section 24 of the FOI Act and that disclosure could reasonably be expected to adversely affect the security of the State. The Commissioner noted that the FOI Act provides clear protection in relation to the identities of sources of information given in confidence in relation to the enforcement of the criminal law (section 46(1)(f)) but that the records in this case did not disclose any such sources. He was not satisfied that the harm identified by the Defence Forces ie. the damage to the future supply of information by informants, could reasonably be expected to occur. He also considered that any restriction by An Garda Síochána on the disclosure of intelligence information to the Defence Forces would only materialise in circumstances in which genuinely sensitive material were released under the FOI Act, which did not arise in this case. The Commissioner also considered that, given the nature of the information in the records, it was not reasonable to expect that disclosing the identities of the Defence Forces and An Garda Síochána personnel referred to in the records could reasonably be expected to affect adversely the intelligence operations of An Garda Síochána or of the Defence Forces and thus adversely affect the security of the State. He found that none of the records were exempt under section 24 and that four records from which the names of Garda and Defence Forces personnel had been deleted should be released in full.

Date of Decision: 06.06.2002

Our Reference: 99449

06.06.2002

Mr X

Dear Mr X

I refer to your application to my Office under the Freedom of Information Act 1997 ("the FOI Act") for a review of the decision of the Defence Forces on your FOI request of 10 July 1999 for access to certain records which relate to you. At the outset, please accept my apologies for the delay in bringing this matter to a conclusion. I appreciate that you would have wished to obtain a decision on your application at an earlier date. Unfortunately, due to the volume of work on hands in this Office, we have not been able to deal with applications as quickly as we would like. I have now completed my review of the Defence Forces' decision and my findings and decision are as set out below.

Background

In your request of 10 July 1999, you sought access to "all information held by your department, where my name appears"; you specified that the request covered:

  • "information ... that refers to me directly or indirectly";
  • "information ... that implicates me in the theft of the machine gun from [place] in 1973, also the attempted shooting down of a British army helicopter Feb-72";
  • ""Anonymous letters, where my name appears";
  • "Correspondence received by Comd. P.J. O'Brien, military police, where my name appears from 1972 to date" and
  • "Information supplied by An Garda Síochána, where my name appears, from 1972 to date."

According to the Defence Forces, the records covered by your request consist of those records held on your medical file, your personnel file and on the Director of Intelligence file in relation to you. Access was granted in full to records held on your medical file. In the case of your personnel file, access was granted to all records with the exception of two which were withheld on the ground that "they were written by Legal Experts giving their legal advice to a higher authority" and exemption was claimed under section 20(a). In the course of my review the Defence Forces identified a further three such records, making a total of five records, which they are withholding on this basis. It would seem that the intention was to claim exemption for these five records on grounds of legal professional privilege which is, in fact, a claim under section 22(1)(a).

Intelligence File

The remaining records, of which there are 61 in all, are held on the Intelligence file. For the purposes of identifying these records, I have adopted the numbering used by the Defence Forces in its schedule dated 26 July 1999. Of the 61 records, those numbered 1, 53 (which is a duplicate of 21), 60 (which is a copy of 1) and 61 were released to you in full. During the course of the review, the Defence Forces agreed to the full release of records numbered 11, 12, 16-20, 22, 33, 34, 36, 37, 41, 42, 44, 46, 47, 48 and 50 and these records do not therefore come within the scope of my review. I also note that the record numbered 21 has already been released to you by the Department of Defence on foot of a previous FOI request and I do not believe it is necessary to consider it in the context of this review.

The Defence Forces initially decided to give you partial access to certain records and, following the internal review decision, a number of additional records were released with deletions. In the course of this review, the Defence Forces agreed to give partial access to a number of other records. Taking all of these decisions together, the position now is that partial access has been granted to the records numbered 2, 5, 6, 8, 10, 13, 14 (and 59 which is a copy of 14), 24, 26, 38, 52, 54 - 58.

The Defence Forces refused access outright to a number of records from the Intelligence file. The present position, allowing for agreement reached in the course of this review, is that access to the following records is still being refused: records numbered 3, 4, 7, 9, 15, 23, 25, 27 - 32, 35, 39, 40, 43, 45, 49, 51.

Summary

The present position in relation to the 61 records on the Intelligence file is that 24 have been released in full; 17 have been released with deletions and 20 have been refused outright. All of the records on the medical file have been released. As regards the personnel file, five of the records have been refused outright and the rest have been released in full.

*** In carrying out my review, I have had regard to the correspondence between you and the Defence Forces on this matter, to your application of 15 September 1999 to this Office, to your submission entitled 'X' which you delivered personally to this Office on 11 May 2001 and to your submission of 21 June 2001 in response to Ms. O'Connor's letter of 29 May 2001. I have had regard to the Defence Forces' submission of 22 June 2001, its responses to various queries raised by my Office and to the Garda Síochána's submission of 12 September 2001. I have also examined the records at issue.

Scope of Review

The issue arising in this review is whether or not the Defence Forces is justified, in terms of the provisions of the FOI Act, in its present position (as summarised above) regarding the refusal or part refusal of records relevant to your request. This review is also concerned with the issue of whether further records exist which fall within the scope of your request but which have not yet been released to you.

I note that there is some uncertainty as to which records from the Intelligence file were, in fact, provided to you on foot of the initial and internal review decisions of the Defence Forces. There is also some uncertainty regarding the deletions made in the case of records to which partial access has been granted. This arises because the Defence Forces did not provide you with a comprehensive schedule of the records at issue (giving a brief description and indicating clearly which records were considered exempt and which deletions were made). In the circumstances, and for the avoidance of doubt, I attach a schedule describing the sixty one records in the Intelligence file and summarising their status following this decision.

Findings

Before dealing with the exemptions claimed by the Defence Forces, I wish to make two points. The first is that, while I am required by section 34(10) of the FOI Act to give reasons for my decisions, this is subject to the requirement of section 43 that I take all reasonable precautions to prevent disclosure, during the course of a review, of information contained in an exempt record. I must also refrain from disclosing information which a public body contends is contained in an exempt record so as to preserve that party's right of further appeal. These constraints mean that, in the present case, I am somewhat limited in the extent to which I can give the reasons for my decision. They also mean that I can give no further details of the nature of the records at issue beyond the descriptions given below and in the schedule.

The second point I wish to make is that, where a public body refuses access to records under the FOI Act, then in any subsequent review by me that refusal is presumed not to have been justified unless the public body satisfies me to the contrary [section 34(12)(b) of the FOI Act].

Records Created before 21 April 1998

All the records at issue predate the commencement of the FOI Act, i.e. 21 April 1998. Section 6 of the Act provides that the right of access to records normally only applies to records created after 21 April 1998. Public bodies are only required to grant access to records created before the commencement of the Act (a) if access is necessary or expedient in order to understand records created after commencement [section 6(5)(a)] or (b) if the records relate to personal information about the person seeking access to them [section 6(5)(b)]. I am not aware of any records created after the commencement of the Act in respect of which it could be said that access to the present records is necessary or expedient in order to understand them and I note that you have not identified any such record created after 21 April 1998. It follows that you can only have a right of access to the records at issue if they relate to personal information about you.

On 21 December 2001, in his judgement in the case EH and the Information Commissioner, O'Neill J. set out the approach to be taken in construing the term "relate to personal information" as contained in section 6(5)(b) of the FOI Act. He noted that it is "absolutely clear from the use of the phrase 'relates to' that a document need not itself contain 'personal information' about the requester". He identified the relevant test to be applied, in determining whether or not a record relates to personal information, as:

“... 'whether there is a sufficiently substantial link between the requester's personal information (as defined in the Act) and the record in question'. I do not think one should go further than this in formulating a test in this regard."

O'Neill J. further elaborated:

"If the record contains an express reference to the requester, be it however insubstantial or trivial then clearly it 'relates to personal information', about the requester. Here one would have in mind records such as letters which contained no personal information but are about or refer to the requester, such as holding type letters or pro forma or replies. Where the record does not name or has no express reference to the requester a substantial link will be established, if the record relates to something in which the requester has a substantial personal interest, as distinct from something in which he has an interest as a member of the general community or of large scale class of the same"

As might be expected, and applying the above test, I am satisfied that most of the records in the files do, indeed, relate to personal information about you. However, there is a small number of records in the Intelligence file which in my view do not meet this test. These are as follows:

Record 5

This record is a confidential Intelligence summary which contains information about a number of individuals. There is no apparent link between the individuals mentioned in this summary. Having examined the record, I note that one paragraph [para 1.a.(ii)] relates to you and the Defence Forces have agreed to release this paragraph to you. I am satisfied that the remaining paragraphs do not relate to personal information about you.

Record 10

This record is similar to record 5 in that it is an Intelligence summary on a number of individuals. Only paragraphs 4c and 4d relate to personal information about you but, as they also relate to personal information about third parties, I will deal with your right of access to these paragraphs when dealing with your right of access to personal information about third parties. I am satisfied that the remainder of the record does not relate to personal information about you.

Record 31

This is a confidential Defence Forces record detailing deficiencies in relation to weapons and equipment. One of the entries relates to the weapon (GPMG) with whose loss you have been associated and I find that this specific entry only does relate to personal information about you. However, as the content of this specific entry is also contained in Record 32 (which is considered below), I find it is unnecessary to deal further with Record 31 in this decision.

Record 39

This is a two page memo dealing with the discovery of Defence Forces documents in a bus depot. Page one of this memo does not relate to you; the second page contains details on three individuals and only the final paragraph relates to you.

Record 52

I note that you have been given access to two paragraphs from the journal entries of the Governor of the Military Detention Barracks; the dates in question are 3 and 5 April 1973. I am satisfied that the remaining parts of this record do not relate to you.

In the circumstances I find that, apart from paragraph 1.a.(ii) of record 5, paragraphs 4c and 4d of record 10, the final paragraph of record 39 and the two paragraphs of record 52 already released, you are not entitled to access to these records. I should also say that even if I were to find that the remaining parts of records number 5 and 10 related to personal information about you, I would also find that they were exempt under section 28 for the reasons given below.

Legal Professional Privilege

Section 22(1)(a) of the FOI Act creates a mandatory exemption in the case of records to which legal professional privilege attaches. In my decision of 18 November 1998, concerning your request to the Department of Defence, I explained the operation of this exemption.

In other cases, such as Case No. 99017 - Mr ABM & others and the Office of the Revenue Commissioner ( 3 OIC Dec 150) I have found that the scope of legal professional privilege covers two separate matters. The first limb of the rule covers confidential communications between lawyer and client (which would include the seeking and giving of legal advice). The second limb of the rule covers documents prepared in contemplation of litigation apprehended or threatened provided the dominant purpose of the communication, or the coming into existence of the document, was in preparation for litigation, apprehended or threatened.

The Defence Forces argue that access to five particular records on your Personnel file should be refused on the basis that the records were written by legal experts and that they contain legal advice. I have examined carefully the five records in question and note that four of the records consist of correspondence giving advice from the Office of the Deputy Judge-Advocate General and one record is from the Office of the Chief State Solicitor also giving advice. In my view, the records were created for the purpose of obtaining/giving legal advice. I am satisfied that these communications would be exempt from production in a court on the ground of legal professional privilege. Accordingly, I find that section 22(1)(a) applies and that the Defence Forces is entitled to claim exemption in respect of these five records.

Personal Information about Third Parties

The FOI Act provides that a public body should refuse to grant a request where access to the record would involve the disclosure of personal information about someone other than the requester [section 28(1)]. However, such information can be released if the person to whom it relates consents to release. 'Joint' personal information about two or more individuals can be released to any one of them, only with the consent of the other(s).

Personal information about an individual can be released to a third party without the individual's consent only where 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. There are some other limited circumstances in which personal information about a third party can be released, e.g. where the information is of a class which is normally made publicly available or where its disclosure is needed to protect the life or health of an individual [section 28(2)]. It is clear that these very limited circumstances are not relevant to this review.

'Personal information' includes information about an identifiable individual which is held by a public body on the understanding that it would be treated by it as confidential. It includes views or opinions about an individual.

Some of the records at issue contain information about third parties. In some cases this information consists of views or suspicions held by the Defence Forces about the individuals concerned and it is information which was collected as part of the intelligence function of the Defence Forces and An Garda Síochána. I am satisfied that all such information is personal information about the parties concerned because it is understood by the public bodies concerned, and by the public, that such information will be treated as confidential. In other cases little or no direct information is given about the individuals concerned but they are mentioned in records or in contexts which, if revealed to you or to anyone else, would disclose that these persons were the subject of suspicion on the part of the authorities. I am satisfied that the disclosure of all such references would involve the disclosure of personal information about these individuals.

The public interest in release

In relation to these records which disclose personal information about third parties, the question arises as to whether the public interest that your request should be granted outweighs the public interest that the right to privacy of the individuals concerned should be upheld. In my view, there is a significant public interest in facilitating a person who believes his/her reputation has been damaged by the State (as you believe is the case in relation to yourself ) in the vindication of his/her good name. In appropriate cases this public interest could outweigh the right to privacy of other persons so as to require the release under the FOI Act of personal information about such parties. However, I am not satisfied that this is such a case, for two reasons.

The first reason is that the potential damage to some of the parties mentioned in the records is significant. Knowledge that they had been the subject of suspicions, whether well founded or not, could affect their reputations and/or their livelihoods. The second, and more important reason, is that I am not at all satisfied that disclosure of the personal information about those other persons would facilitate you in restoring your reputation. It is clear from an examination of the file that you were made aware of the identities of the persons concerned at the time of your discharge from the Defence Forces. If, in the intervening period, you have been unable to vindicate your good name, even with that knowledge available to you, I do not see how the disclosure of their names and other details under the FOI Act will be of any benefit to you at this stage. The records to which section 28 applies are as follows:

Record 3

This is a letter from the Gardaí about a third party. The only information about you contained in the record (and this is in an unsigned annotation) is that you and a number of other named people are associates of this third party. I find, in relation to this record, that the public interest that your request should be granted does not outweigh the public interest that the right to privacy of the individual concerned should be upheld.

Record 6

This record is a hand-written note with information relating to a number of individuals of whom you are one. I have examined the record and I find that the third line (which mentions you by name) and the final two paragraphs (beginning with the words "Ex-Cpl " and ending with the date "1974") relate to personal information about you. The Defence Forces have agreed to release the information which pertains to you. I find that you are not entitled to access to the balance of the record which would disclose personal information about third parties.

Record 7

This is a three paragraph memo headed "Soldier's Union". I note that you have already been given access to the contents of paragraphs 1 and 2 of this record on foot of my previous decision in relation to the Department of Defence. I find that you are also entitled to access to paragraph 3 but with the deletion of the name of the third party mentioned in lines 2/3 and 6 and the deletion of the first part of the final sentence up to the word "X". (This is subject to consideration below of the relevance of the section 24 exemption to this record.)

Record 8

This is a letter dated 17 June 1975 to the Gardaí. I note that you have already been given access to this record with certain deletions. I find that the record should be released subject to the following deletions as required by section 28: :

  • the name in the reference section,
  • the five lines of details about a third party immediately below the date;
  • the name of a third party in the penultimate paragraph, and
  • the names and addresses of the third parties in the final paragraph.
Record 9

This is a letter from the Gardaí in response to the letter at Record 8 above. I find this record should be released with the deletion, in accordance with section 28, of the name and address of the third party mentioned therein. (This is subject to consideration below of the relevance of the exemptions at sections 24 and 26 to this record.)

Record 10

As set out above, the only parts of this record which relate to personal information about you are paragraphs 4c and 4d. However, these paragraphs contain 'joint' personal information which relates to you and to other parties. I find that paragraphs 4c and 4d should be released. (This is subject to consideration below of the relevance of the section 24 exemption to this record.) However, in accordance with section 28, the following deletions should be made from these paragraphs :

  • the names of the third parties in line one of paragraph 4c between the words "The" and "are", and
  • the details of the third party in paragraph 4d between the words "that" and "was".
Record 13

This record, dated 28 July 1976, contains a number of allegations about you and also contains information in relation to a number of other people. The Defence Forces have agreed to release the record with the deletion of any material which relates to third parties. In accordance with section 28, the part of the record between the words "associate of the following:" and "In May 1975" should be deleted as well as the name and details of the third party contained in the first line of the third last paragraph between the words "and" and "approached".

Record 15

This is a hand-written and undated note. I find that it should be released to you with the deletion, in accordance with section 28, of the name of the third party mentioned. (This is subject to consideration below of the relevance of the section 24 exemption to this record.)

Record 24

This record, dated 15 December 1981, is an internal Defence Forces memo arising from contact from a Sunday World journalist. Primarily, it relates to you but it also contains information which relates to third parties. The Defence Forces have decided to release this record with the deletion of all information relating to third parties. It is clear from your submission (page 45) that you are aware of the incident in relation to the Sunday World article and that the journalist concerned approached the authorities on your behalf. I am satisfied that the record would not disclose personal information about that person (journalist). The following deletions are required in accordance with section 28 :

  • in the first bullet point, in the group of two bullet points, delete the second and third sentences (which contain references to third parties)
  • in the first bullet point, in the group of four bullet points, delete all of the entry except for the first three words,
  • in the second bullet point, in the group of four bullet points, delete the name and address of the third party mentioned,
  • in the third bullet point, in the group of four bullet points, delete the name of the third party mentioned,
  • in the fourth bullet point, in the group of four bullet points, delete the name of the third party mentioned.
Record 26

This record is a memo from the Defence Forces to the Gardaí dated 20 June 1989. I note that you have already been given access to this record with deletions. I agree with the Defence Forces that the deletions made to paragraph 2 of the record are required by section 28.

Record 28

This is a one page photocopy of a fax message from Pat Rabbitte TD. Subject to further consideration below, in the context of the relevance of the section 24 exemption to this record, I find that this record should be released. In accordance with section 28, four separate mentions of the name of a third party should be deleted.

Record 38

This record is a note of a conversation with a third party. I note that the Defence Forces has decided to release part of this record. In accordance with section 28 the following deletions are required :

  • the name of the person mentioned in the heading,
  • all of the first paragraph except the first and last sentences, and
  • the final paragraph.
Record 40

This is a one page hand-written note relating to the "Bus Depot" incident. Subject to further consideration below, in the context of the relevance of the section 24 exemption to this record, I find that this record should be released. In accordance with section 28, two separate mentions of the name of a third party should be deleted.

Record 49

This is an unsigned and undated Defence Forces' memo relating to you. I find that this record should be released. (This is subject to consideration below of the relevance of the section 24 exemption to this record.) However, I also find that certain deletions are required in accordance with section 28 :

  • points 2a, 2b, 2c, 2f and 2d (except for the first five words of 2d),
  • in point 4, the name of the third party on the first line between the words "and" and "approached" ,
  • in point 6, the second sentence in full and the references to a third party in the fourth and seventh sentences.
Record 54

This is an internal Defence Forces' memo dated 3 February 1976. I find that this record should be released but, in accordance with section 28, the name of the third party in line one of this record should be deleted .

Record 55

This is a note of your interview by the military authorities dated 25 April 1975. I find that this record should be released but, in accordance with section 28, the following deletions are required :

  • the names of the third parties mentioned in questions 2, 3, 10, 16, 17, 18, 19 and 22, and
  • the names of the third parties mentioned in answers 9 and 11.

Information given in Confidence

The FOI Act provides that access must be refused to records which contain information given in confidence and on the understanding that it would be treated as confidential, where disclosure would be likely to prejudice the giving of similar information to the public body in the future, and where it is of importance to the public body that it continues to receive such information [section 26(1)(a)].

The Defence Forces have claimed this exemption in relation to certain communications from An Garda Síochána viz. records 4, 9 and 25. I accept that some of the information in these communications was given to the Defence Forces in confidence. I also accept that the content of the material is such that it was not intended to be disclosed to other parties. I further accept it was given for the limited purpose of assisting the Defence Forces in its own intelligence operation. I also accept that it is of importance to both An Garda Síochána and the Defence Forces that each continues to receive information of this kind from the other. However, I am not satisfied that the release of the information in these records, at this stage, would be likely to prejudice the giving of similar information by An Garda Síochána to the Defence Forces in the future. The fact is that both bodies have a common interest in combating subversive activities and in preventing the infiltration of the Defence Forces by subversives. In that context, I do not consider it likely that intelligence information gathered by the Gardaí, which could be of assistance to the Defence Forces in achieving this aim, would be withheld. In the circumstances I find that the records numbered 4, 9 and 25 are not exempt by virtue of section 26.

Adverse Effect on the Security of the State

In its submission of 22 June 2001, the Defence Forces contends that section 24(2)(a)(i) applies to records 3, 4, 5, 6, 9, 10, 13, 24, 25, 31 and 38. I also note that while they are not specifically referred to in the Defence Forces' submission, access was refused to records 7, 14, 15, 21, 23, 27-30, 32, 35, 39, 40, 43, 45, 49, 51 and 59 (copy of record 14) on the grounds that section 24(2)(a)(i) applies. Where section 24(2)(a)(i) is invoked this is, in essence, a claim that section 24(1) applies.

The application of section 24

In my previous decision (Reference 98036) involving your request to the Department of Defence, I explained the provisions of section 24 of the FOI Act which, among other things, permits a public body to refuse access where disclosure of the record could reasonably be expected to affect adversely the security of the State. Briefly, my approach is that for this exemption to apply the decision maker must be of the opinion that disclosure could reasonably be expected to affect adversely the security of the State. This means that the decision maker must first of all identify the particular adverse effect on the security of the State and then consider the reasonableness of any expectation that the effect will occur. For the public body to succeed in its arguments, I have to be satisfied that granting access to the records, in respect of which the exemption is claimed, could reasonably be expected to have the adverse effect so identified. I do not have to be satisfied that such an outcome will definitely occur. It is sufficient for the public body to show that it expects such an outcome and that its expectations are reasonable in the sense that there are adequate grounds for them.

Having carefully considered the submission of the Defence Forces dated 22 June 2001, it seems to me that the essential point being made is that a fundamental principle in gathering information and intelligence is that the source of such information is adequately protected. The Defence Forces claim that, if these records were released in their entirety, this could deter sources from supplying information in the future and this could reasonably be expected to result in a deterioration in the quality of information provided; this, in turn, would hinder the Defence Forces' ability to carry out its responsibilities in relation to the security of the State. More particularly, the Defence Forces argue that it is necessary to ensure the continued supply of information from the Gardaí. It also argues that, because of the sensitive and confidential nature of the intelligence records, the names of the officials involved should not be released. It states that the members of the Defence Forces who either supply information for intelligence purposes, or are involved in intelligence operations and activities, should be afforded the same rights as every other citizen who supplies information for intelligence purposes.

The Protection of Sources Generally

At a general level I accept the argument that it is necessary to protect the sources of intelligence and that the need to do this continues regardless of the age of the records. If it became known that sources would be revealed, even at some possibly far future date, then it is reasonable to expect that this would deter some informants from providing information. On this point, I note that the FOI Act provides very clear protection for records the disclosure of which could reasonably be expected to reveal, or lead to the revelation of, the identity of a person who has given information in confidence to a public body in relation to the enforcement of the criminal law [section 46(1)(f)]. However, I think that it is important to point out that the records at issue in this review do not, in fact, identify any such sources. In the circumstances, I am not satisfied that the harm identified by the Defence Forces viz. damage to the future supply of information by informants, could reasonably be expected to occur.

Protection of the Flow of Information from the Gardaí

As regards the future supply of information by the Gardaí, it seems to me that the argument made by the Defence Forces in relation to section 24 is essentially the same as its argument in relation to section 26 and I must reject it for the same reason as I rejected it in relation to section 26. It does not follow that all Garda intelligence reports provided to the Defence Forces are accessible under the FOI Act. There are numerous circumstances in which such reports might be exempt; these include instances where release would identify an informant or disclose sensitive Garda operations such as secret surveillance or disclose some secret or unknown system or procedure for detection or prevention of crime or endanger the safety of Garda personnel. No case has been made that any harm along these lines or any other specific harm might be occasioned by release.

In its submission on the matter An Garda Síochána argued that, while release of the records at issue would not have the effect of prejudicing the giving by Gardaí of similar information to the Defence Forces in the future, "the content of any future information given to the Defence Forces may well be restricted if it is to become the norm that records such as these are to be disclosed". According to An Garda Síochána, the relevance of this in relation to section 24 is that any restriction on the disclosure of intelligence "may well lead to a situation where it would be more difficult to combat subversive activity."

In relation to this Garda submission, I feel obliged to point out that the release of the records at issue in this case does not mean that it would "become the norm that records such as these are to be disclosed". As set out above, I accept fully that there are, and will continue to be, many instances in which the FOI Act will not require the release of this type of record. There can be no "class" type approach - either a class exemption or a class release situation - to this category of record; it will always be necessary, in the context of section 24, to consider the specific records before reaching a conclusion either way.

I am not satisfied that the Garda argument is a sufficient basis to invoke section 24 of the FOI Act. The restriction on disclosure of intelligence information, anticipated by An Garda Síochána, would only materialise in circumstances in which genuinely sensitive material were released under the FOI Act. My view is that the FOI Act will protect such genuinely sensitive material and that, in these circumstances, there will be no necessity on the part of Gardaí to restrict the disclosure of intelligence to the Defence Forces. In the case of the records at issue here, I am not satisfied that at this stage they continue to be genuinely sensitive. In the circumstances, I find that these records are not exempt by virtue of section 24 of the FOI Act.

Protection of the names of Garda and Defence Forces Personnel

The protection of the names of Gardaí and Defence Forces personnel, who are or were involved in intelligence operations, arises in relation to a number of records and, in particular, in the case of records 2, 56, 57 and 58 of the Intelligence file. The question of the release of such records has to be looked at in the light of the circumstances of each particular case. There will be situations in which the release of such names could reasonably be expected to result in harm. One is the situation in which release may endanger the safety of such personnel. It may be more reasonable to expect such harm in relation to current personnel but, depending on the role of the persons concerned (for example, if they were engaged in undercover operations) it may also be reasonable to expect such harm in relation to former personnel.

Another possible harm which needs to be considered is the possibility of revealing the identity of a source through the disclosure of the identity of Garda or Defence Forces personnel who may have been in contact with that source. Having examined the records at issue it is clear that the Garda and Defence Forces personnel involved in creating these records were not exchanging intelligence material which they had gathered directly from informants. The exchanges (although not the material itself) were of a routine nature and were undertaken as part of the normal duties of the persons concerned. In all the circumstances, and in the absence of any other factor identified by the Defence Forces, it does not seem to me that it is reasonable to expect that disclosing the identities of the personnel concerned could reasonably be expected to affect adversely the intelligence operations of An Garda Síochána or of the Defence Forces and thus to adversely affect the security of the State. In the circumstances I am not satisfied that the Defence Forces was justified in relying on section 24(1)(a) to refuse access to any of the records to which a right of access exists by virtue of section 6. I find in particular that records 2, 56, 57 and 58 of the Intelligence file - from which the names of Garda and Defence Forces personnel have been deleted - should be released in full.

Records do not Exist or Cannot be Found

I note your view that further records exist which fall within the scope of your request but which have not been identified by the Defence Forces. Section 10(1)(a) of the FOI Act provides:

"(1) A head to whom a request under section 7 is made may refuse to grant the request if - (a) the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken."

The function of this Office in this type of case is to be satisfied that the public body's decision is well founded, i.e. based on a proper search and taken in the light of normal record keeping practices in relation to records of the kind in question. It is not the function of this Office to conduct its own search for records. Accordingly, in the course of this review, staff of this Office made specific enquiries with the Defence Forces relating to the details of the searches it undertook, as well as to the general practice in relation to record keeping as regards these kinds of records.

I understand from the Defence Forces that the searches carried out are as follows:

  • the records of the Medical Corps and Personnel Section were searched and records relating to you were identified and have been scheduled;
  • Intelligence files in relation to you and five other individuals were searched and all records relating to you have been scheduled;
  • a search of the records of the General Officer Commanding 2 Eastern Brigade, the Deputy Judge Advocate General, Provost Marshall's Office and the Director of Military Police revealed no records relating to you.

It should also be noted that the Defence Forces maintains that no Military Police notebooks for the period in question are available. In addition, it maintains that it is not in a position to confirm whether or not a file was created on the theft of a GPMG from [place] in 1973 as no such file can be located and the ledgers which might record any such file cannot be located. The Defence Forces state however that it would be normal practice for an investigation to be carried out following an incident of that nature and the military police investigation file would normally contain statements taken from individuals and interim and final reports as required. The Defence Forces have also stated that it regrets that not all of the records relating to you can now be located; they point out that many of the records would have been created almost 30 years ago.

I consider that this is a situation in which it is reasonable to conclude, in the light of the efforts made to locate them, that any further records either cannot be found or no longer exist. On this basis, I find that the Defence Forces are justified in deciding, in accordance with section 10(1)(a) of the FOI Act, that further records either cannot be found or no longer exist.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, I hereby vary the decision of the Defence Forces in the following terms:

  • I uphold the decision to withhold the five records from the Personnel file in relation to which legal professional privilege has been claimed;
  • I uphold the decision to withhold Record 3 in the Intelligence file;
  • in relation to the remaining records concerned in the Intelligence file, I direct that they be released subject to deletions in certain cases as specified in the body of this decision above.

For ease of reference, I attach a schedule of all 61 records from the Intelligence file which identifies the records which the Defence Forces agreed to release in the course of this review as well as those records to be released or part-released as a result of this decision.

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. Such an appeal must be initiated not later than four weeks from the date of this letter.

Yours sincerely





Information Commissioner