Case number: IC-142120-M3Y1V8

Whether the DPP was justified in refusing to provide the applicant with two statements of reasons pursuant to section 10 of the Act, in relation to his potential inclusion in statistics in the DPP’s 2003 annual report, and a second statement of reasons pertaining to the prosecution of lesser and more serious offences

 

13 December 2023

 

Background

In a request dated 12 August 2023, the applicant made a request under section 10 of the FOI Act for two statements of reason, the first related to the Director of Public Prosecution’s (DPP) 2003 published annual report and a list of “lesser” and “more serious” offences within, the applicant stated that he was seeking a statement of reasons “pertaining to if the lesser offences and more serious offences are prosecuted by members of An Garda Síochána as Common Informers or in the name of the DPP.”

The second statement of reasons also pertained to the 2003 annual report and the applicant’s identity, and a summary prosecution which took place in Portlaoise District Court in September 2003. He specifically sought a statement of reasons relating to whether this case was included within any data or stats which appeared in 2003 annual report.

On 22 August 2023, the DPP issued a decision. It refused the first statement of reasons under section 15(1)(d), stating that the information sought was in the public domain, it linked the applicant to the Guidelines for Prosecutors available on the DPP’s website, and specifically pointed the applicant to sections 2, 7 and 13 of those guidelines.

In relation to the second part of the applicant’s request, the DPP stated that although the FOI Act 2014 asserts the right of the public to obtain access to information held by public bodies, including by the DPP’s Office, the Act also provided for restrictions and these are included under section 42 of the FOI Act. It highlighted that section 42(f) provides that the Act does not apply in relation to any record held or created by the Director of Public Prosecutions, other than a record concerning the general administration of the Office. It stated that this meant that records concerning criminal case files are not accessible under the FOI Act.

On 22 August 2023, the applicant submitted a request for internal review. The applicant argued that the information sought as part of the first request was not in the public domain, and requested that the source of such information be provided. In relation to part two of the request, the applicant argued that annual reports were already in the public domain and that the corresponding data within the reports could not be considered criminal case information but rather the publicised statistical data that pertains to the Criminal Case files. He also sought to extend the scope of his request to cover all statistical data relating to any of his Criminal Court cases between 2002 – 2005.

On 30 August 2023, the DPP issued its internal review decision. The internal review decision upheld the original decision. In relation to the first request, the decision pointed the applicant to additional online sources containing the information sought, and further pointed out specific paragraphs in which this information could be sourced. 

On 6 September 2023, the applicant applied to this Office for a review of the DPP’s decision. The applicant specifically sought to appeal the part of the DPP’s decision relating to his own criminal case information.

I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the submissions made by the applicant and the DPP. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned with whether the DPP was justified in refusing to provide the applicant with two statements of reasons requested under section 10 of the FOI Act: the first in relation to how serious vs lessor offences were prosecuted and the second in relation to whether data relating to him appeared in the 2003 annual report.

Preliminary Matters

Before I deal with the substantive issues arising, I should explain for the benefit of the applicant that this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.  As such, we cannot examine the appropriateness, or otherwise, of the acts or decisions taken by public bodies for which the statements of reasons are sought.

Analysis and Findings

Section 10

Section 10 of the FOI Act provides that a person who is affected by an act of an FOI body, and has a material interest in a matter affected by the act or to which it relates, is entitled to a statement of reasons for the act as well as a statement of any findings on any material issues of fact made for the purposes of the Act. Taking section 10 as a whole, this Office considers that the word “act” must be interpreted as the exercise (or refusal to exercise) of a power or function which may result in the conferring or withholding of a benefit. In addition, the reasons for the act must have a bearing on the outcome of whether a person receives or does not receive a benefit or suffers a loss or a penalty or other disadvantage.

Section 10(5) provides that a person has a material interest in a matter affected by an act of an FOI body or to which it relates if the consequence of effect of the act may be to confer on or withhold from the person a benefit without also conferring it on or withholding it from persons in general or a class of person which is of significant size having regard to all the circumstances and of which the person is a member. Before I can consider whether the applicant has identified an act within the meaning of section 10 or has a material interest within the meaning of section 10(5), I consider it appropriate to examine the nature of the application made to the DPP in the first instance. 

An application for a statement of reasons under section 10 of the Act must identify the particular act for which a statement of reasons is sought. Section 10 does not provide a mechanism for seeking answers to questions about what actions an FOI body did or didn’t take. Having regard to the correspondence between the applicant and the DPP, I am not satisfied that the applicant has properly identified any particular act of the DPP for which a statement of reasons must be provided. It seems to me that in essence, the applicant submitted two requests for information, as opposed to requests for a particular set out of reasons. In his correspondence with the DPP, he sought a statement of reasons pertaining to the method of prosecution for different offences, and whether his data was included with statistics in the 2003 annual report. In my view, and having regard to the correspondence between the DPP and the applicant, the applicant’s objective appeared to be an attempt to clarify whether or not information pertaining to him was used in the creation of statistics for an annual report, or more broadly whether the DPP held information relating to his court cases. This is not the purpose of section 10.  However, it is also clear that the DPP attempted to deal with the request as a request for information, and sought to provide the applicant directly with the information sought as part of the first request.

The applicant’s request for a statement of reasons pertaining to a list of “lesser” and “more serious” offences and whether they are prosecuted by the DPP or as An Garda Síochána, sought a list, the DPP pointed the applicant to their “Guidelines for Prosecutors” and specific sections in which they claimed the relevant information could be found, it refused the applicant’s request under section 15(1)(d). It appears that the applicant was not looking for a statement of reasons relating to an act of the DPP of which he had a material interest in, but rather was looking for a list of information.

In the circumstances of this case, I consider that the DPP processed with the applicant’s request as a request for information/records.  During the course of his engagement with this Office, the applicant expressed his view that it was his belief that the DPP should hold the information in question relating to his cases. The DPP throughout the course of their engagement with this Office, clarified that they never held records relating to the applicant. The DPP stated that checks were carried out for the applicant’s name and date of birth on their case management system and confirmed that no record relating to the applicant was held by the Office of the DPP. It clarified that any criminal case file that was recorded during the period stipulated by the applicant, the DPP prosecuted itself would have been recorded on the case management system. It clarified that there is no possibility that any such record was destroyed as criminal case files are never destroyed. It noted that An Garda Síochána often prosecute in the DPP’s name and in such circumstances they would hold the record not the Office of the DPP.

I consider that the DPP insofar as possible, attempted to answer the questions set out by the applicant, even in circumstances where information would have been exempt from release anyway under section 42(f), a mandatory exemption which provides that the FOI Act does not apply to a record held or created by the Attorney General, or the Director of Public Prosecutions unless it relates to “general administration”. The DPP has set out very clearly in submissions that the information sought by the applicant does not relate to general administration, as held by this Office in decision 93027 Ms Y and Office of Director of Public Prosecutions, where the definition is provided as:

“records relating to personnel, pay matters, recruitment, accounts, information technology, accommodation, internal organisation, office procedures and the like. It does not refer to the core business of the DPP.”

The requirement to provide a statement of reasons does not apply to every action of an FOI body. There are many acts/decisions taken by FOI bodies where section 10 has no relevance. The Oireachtas could not have intended that FOI bodies should be required, on demand, to provide a written statement of reasons and findings on any material issues of fact made for the purposes of every single action of the body. There will be many instances where a number of secondary actions/decision are taken in the course of making a substantive decision which affects a person and where that person has a material interest in a matter affected by that substantive decision or to which it relates. However, section 10 does not entitle a person affected by the substantive decision to a statement of reasons in respect of each and every action which was taken in arriving at that decision.

I also do not consider that the applicant has identified a material interest in a matter affected by either of the “acts” for which reasons are sought. As I have outlined above, section 10(5) provides that a person has a material interest in a matter affected by an act of an FOI body or to which it relates if the consequence or effect of the act may be to confer on or withhold from the person a benefit without also conferring it on or withholding it from persons in general or a class of persons which is of significant size having regard to all the circumstances and of which the person is a member

Section 10(5) excludes acts which have general applicability. The act for which a statement of reasons is sought must affect a person particularly, albeit not necessarily exclusively. Where the act of an FOI body affects a wide class of people (i.e. a class of significant size having regard to all the circumstances) and applies equally to all members of the class, an applicant who is a member of that class does not have a material interest in a matter affected by the act for the purposes of the FOI Act. In respect of the second statement of reasons sought, the inclusion in data relating to district court prosecutions in the annual report, cannot be said to be specific to the applicant, notwithstanding the fact that the DPP have clarified that they hold no data relating to the applicant at all. In addition, it cannot be argued that the provision of a list of lesser and more serious offences, and how they are prosecuted could be described as a matter for which a statement of reasons could be provided, or which the applicant has a material interest in.

In conclusion, therefore, I find that the DPP was not required to provide a statement of reasons to the applicant in relation to either matter raised. 

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the DPP’s decision. I find that the DPP was not required to provide a statement of reasons in the circumstances.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.
 

Rachael Lord
Investigator