Case number: OIC-53243-G5W8T5 (180456)
1 August 2019
In a request dated 15 August 2018 the applicant sought access to all information relating to him held by the IPS. As the IPS failed to issue a decision within the required timeframe the applicant sought an internal review of the deemed refusal of his request.
As the IPS again failed to issue a decision within the required timeframe, the applicant sought a review by this Office on 22 October 2018 of the deemed refusal of his request. On 25 October 2018 the IPS belatedly issued its internal review decision in which it part granted the request. It released three records in full and granted partial access to a fourth record entitled “Operations Summary Report” with redactions under sections 32(1)(b) and 35(1)(a) of the FOI Act.
During the course of the review, this Office notified An Garda Síochána (AGS) of the request and invited it to make a submission on the matter in light of the arguments presented by the IPS for redacting certain information from the record at issue.
In its correspondence with this Office AGS stated that it had no objection to the release of information it had provided to the IPS relating to the applicant but that it objected to the release of certain personal information relating to third parties and to the name of the member of AGS who had provided the information.
Furthermore, Mr O’Gorman of this Office also notified the applicant of his view that certain of the redacted information was exempt from release under section 37, which is concerned with the protection of personal information relating to third parties. He invited the applicant to make a submission on the matter but no such submission has been received to date.
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 IPS and AGS and to communications between this Office and the applicant during the course of the review. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether the IPS was justified in refusing access to the names of IPS members and information provided by AGS within an Operation Summary Report under sections 32(1)(b), 35(1)(a) and 37(1) of the FOI Act.
While I am required to give reasons for my decisions, this is subject to the requirement, under section 25(3), that I take all reasonable precautions in the course of a review to prevent the
disclosure of exempt material. This means that the reasons I can give for my decision in this case are somewhat limited.
Section 32 – Law enforcement and public safety
The IPS relied upon section 32(1)(b) to refuse access to the names of its staff members who are recorded on pages 12 to 18 of the relevant record as decision makers/reviewers on matters concerning the applicant, such as applications for temporary release. AGS also argued that the name of the Garda staff member who is identified at page 10 as having provided information to the IPS should be refused under that same section.
That section provides for the refusal of a request where the body considers that access to the record concerned could reasonably be expected to endanger the life or safety of any person.
The IPS stated that its Operations Directorate has responsibility for the running of the country’s penal institutions and that it has long been its practice to refuse to release staff details as it could pose a security threat to them in the course of their working and normal lives. It argued that were such details to get into the wrong hands staff could be put at a potential risk of being targeted by prisoners upon release, or family and/or associates of prisoners. It argued that staff in the Operations Directorate are decision makers/processors on prisoner requests and release of their details could lead to intimidation or pressure on them to make alternative decisions.
The IPS added that Operations Directorate staff are fully aware of the potential for threats made by prisoners as the Directorate is responsible for the processing of applications for security assistance from Governors and prison based staff who have been the subject of threats made by prisoners. It stated that it is also the case that prisoners are not advised of the full names of operational/discipline staff working with them in prisons.
The IPS further argued that decision makers within the Operations Directorate have always made objective and informed decisions in the clear understanding that their identities will not be released to prisoners adversely affected by those decisions. It added that some of these decisions relate to prisoners convicted of the most serious and violent of crimes and it argued that by releasing the identity of individual officials making those decisions has the potential to expose those officials to unjustified, unwarranted and unnecessary heightened risk of serious threat or harm. It argued that it could not meet its statutory obligations if staff became risk-averse in the knowledge that their identities could be made known to prisoners.
It seems to me that the arguments of the IPS are of particular relevance to the exemption set out in section 32(1)(a)(iii). That section provides for the refusal of a request where the body considers that access to the record concerned 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. According to its submission, the IPS operates a procedure of not disclosing the names of officials working in certain areas and that the purpose of such a procedure is to ensure the safety and security of its officials. Having regard to that submission, it seems to me that releasing the names of the officials withheld from the relevant record in this case would, indeed, prejudice that procedure.
However, the IPS did not rely on section 32(1)(a)(iii), which is a discretionary exemption, to withhold the information at issue and instead chose to rely on section 32(1)(b). As I have outlined above, the exemption applies where the release of the record concerned could reasonably be expected to endanger the life or safety of any person. In interpreting the words “could reasonably be expected to”, this Office considers that the test is not concerned with the question of probabilities or possibilities. It is concerned with whether or not the decision maker's expectation is reasonable. As such, a decision maker must firstly identify the potential harm to the functions covered by the exemption that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur.
The exemption is not commonly used and it should not be applied without careful consideration having been given to whether the expectation of endangerment is a reasonable one in all the circumstances. An assessment of the expected consequences of releasing particular records in terms of endangering life or safety is required. It is not necessary, or indeed possible, to establish that such physical harm will definitely occur, but the FOI body must show that there is a reasonable expectation of such harm arising.
It is also relevant, in my view, that the release of records under FOI effectively amounts to disclosure to the world at large, as the Act places no restrictions on how they are subsequently used.
In the particular circumstances of this case and having regard to the details of the IPS submissions and to the fact that release is considered as release to the world at large, I am satisfied that the disclosure of the names of IPS staff members and the name of the Garda staff member could reasonably be expected to endanger the safety of individuals. I find, therefore, that section 32(1)(b) applies.
Under section 32(3), section 32(1)(b) does not apply to a record in certain limited circumstances and where the body considers that the public interest would, on balance, be better served by granting the request. I am satisfied that none of the limited circumstances arises in this case. I find, therefore, that the IPS was justified in withholding the information concerned under section 32(1)(b).
Section 35 - Confidential Information
The IPS withheld certain information provided by a member of AGS relating to the applicant from the relevant record under section 35(1)(a). That section provides for the mandatory refusal of a request where the record concerned contains certain information given to an FOI body in confidence.
However, section 35(2) provides that subsection (1) does not apply to record that is prepared by a member of the staff of an FOI body or a service provider in the course of the performance of his or her functions unless disclosure of the information concerned would constitute a breach of a duty of confidence owed to a person other than an FOI body or a service provider or to a member of the staff of an FOI body or a service provider.
In essence, the IPS argued that it treats all information received from AGS in confidence. However, as AGS is an FOI body, for section 35(1) to apply the disclosure of the information at issue must constitute a breach of a duty of confidence owed to a person other than an FOI body or a service provider or a member of the staff of a public body or a service provider.
No argument has been made by the IPS or AGS that a duty of confidence is owed to any other party. As such, I find that the disclosure of the information sought would not constitute a breach of a duty of confidence owed to a person other than an FOI body or a service provider or to a member of the staff of an FOI body or a service provider. I find, therefore, that section 35(1) does not apply to the information at issue.
In any event, I note that in a submission to this Office on the applicability of section 35 to the information in question, AGS had no objection to the release of the information provided to the IPS, apart from personal information relating to third parties and the name of the Garda. I will address the question of personal information relating to third parties separately below.
Section 37 – Personal Information
Section 37(1) of the FOI Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information. This does not apply where the information involved relates to the requester (section 37(2)(a) refers). However, section 37(7) provides that, notwithstanding section 37(2)(a), an FOI body shall refuse to grant a request if 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 or individuals other than the requester (commonly known as joint personal information).
Having examined the information at issue, I am satisfied that the second and third sentences at point 3 (after “…family background”) comprises either personal information relating solely to individuals other than the applicant or joint personal information relating to the applicant and third parties. Accordingly, I find that section 37(1) applies to such information.
Section 37(2) sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of those circumstances arises in this case. Furthermore, section 37(5) provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the information would be to the benefit of the person to whom the information relates.
As no evidence has been presented to this Office to suggest that the release of the information at issue would be to the benefit of the third parties concerned, I find that section 37(5)(b) does not apply. On the matter of whether section 37(5)(a) applies, the question I must consider is whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the person to whom the information relates.
In considering where the public interest lies, I have had regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner  IESC 26 (the Rotunda case). It is noted that a public interest (“a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law”) should be distinguished from a private interest.
The FOI Act acknowledges that there is a public interest in promoting the openness and accountability of FOI bodies in the manner in which they perform their functions. However, the FOI Act also recognises the public interest in the protection of the right to privacy both in the language of section 37 and the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with the right to privacy). It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. Privacy rights will therefore be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy.
While I accept that there is a public interest in promoting openness and accountability of the IPS, the release of the redacted information would involve the disclosure of personal information relating to third parties. Therefore, the question I must consider is whether the public interest in support of release of the information outweighs, on balance, the public interest in protecting the privacy rights of the individuals to whom the information relates. Having regard to the nature of the information concerned, I am satisfied that it does not. In holding this view, I am particularly cognisant of the fact that release under FOI is, in effect, release to the world at large. I find therefore, that section 37(5)(a) does not apply.
Consequently, I find that section 37(1) applies to the second and third sentences at point 3 of the part of the record named “Latest Garda View Details”.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of the IPS in this case. I find that it was justified, under section 32(1)(b), in refusing access to the identities of IPS staff members contained in pages 12 to 18 of the relevant record and to the identity of the Garda staff member contained in page 10.
I find that it was not justified in refusing access to the remaining information withheld from pages 10 and 11 under the heading “Latest Garda View Details” apart from the second and third sentences at point 3 which I find to be exempt from release under section 37(1).
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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.