Case number: OIC-61128-H8P7L0
11 June 2020
The applicant’s FOI request of 30 April 2019 sought access to four tables of statistical information concerning St Patrick’s Progression Unit (the Unit) in Mountjoy Prison (the Prison) for 2017 and 2018. He sought details for One Third Remission applications under the headings of “Category of Offence”, “Category of Offence Description”, “Number of Applications”, “Number of Applications Granted” and “Number of Applications Denied”. He sought the same details in relation to applications for Temporary Release (TR) under the Community Return Scheme (CRS), transfers to Open Prisons and TR for Work, as well as “Remainder of Sentence Left XX of XX Months”. He said that it was important for “Section 3 assaults” to be separated from “Section 3 assaults (Domestic Violence)” in the categories listed. In addition, he requested a list of members of the review board at the Prison and their positions on that board. He also sought written confirmation of the IPS’s position on certain matters.
The IPS did not issue a decision on the applicant’s request within the timelines set out by the FOI Act which meant that the decision was a deemed refusal. The applicant sought an internal review of this effective decision on 14 June 2019. The IPS issued its internal review decision on 22 July 2019. It provided the total numbers of applications received, approved and refused for One Third Remission and the number of those cases where no decision was required. It provided the total numbers of applications received, approved and refused for transfer to an Open Prison/Centre. It provided the total numbers of applications received, approved and refused for TR to work outside prison/in a work party as well as the number of such applications on which a decision had been deferred. It gave such details for the Prison as a whole for 2017 and 2018. It also gave such details for the Training Unit until its closure in 2017 and explained that many of the prisoners in the Unit had transferred from the Training Unit. It also provided the total of prisoners that were approved for TR under the CRS in 2017 and 2018. It withheld the remaining statistical information under sections 15(1)(c) (voluminous request) and 37(1) (personal information) and the details concerning the review board under section 32(1)(b) (endanger the life and safety of any person) of the FOI Act.
On 21 January 2020, this Office received the applicant’s application for a review of the IPS’s decision. I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges and correspondence between this Office, the IPS and the applicant. I note also that the applicant’s letter to this Office of 5 May 2020 sought an oral hearing of his case before the Commissioner. There is no provision in the FOI Act for an oral hearing and while a hearing is not ruled out should circumstances warrant it, it is the Commissioner’s practice to make his decisions based on written submissions. He is satisfied that this meets the requirements of fair procedure. I see no need for an oral hearing in this case in which the applicant has made several submissions and the IPS has responded to queries posed by the Investigator. I have also examined records as provided by the IPS in relation to that part of the request that concerns the review board and had regard to the provisions of the FOI Act.
It is important to note at the outset that while the purpose of the Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from a public body must make a request for records that contain the information sought. Requests for information, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information can reasonably be inferred to be a request for records containing the information sought.
Part of the applicant’s request sought written confirmation of the IPS’s position on certain matters. This is not a valid request under the FOI Act and I will not consider it further. Furthermore, this Office has no powers under the FOI Act to direct the IPS to provide the applicant with the confirmation that he is seeking or to otherwise clarify the matter for him.
The rest of the applicant’s request seeks various types of information and must be taken as a request for access to records that would provide him with such information. The scope of this review is confined to whether the IPS’s decision to refuse some of those parts of the applicant’s request was justified under the provisions of the FOI Act.
I note that the applicant’s letter to this Office of 5 May 2020 says that insofar as he “can see some of [the IPS’s] concerns” for refusing to disclose certain details about the review board, he is willing to change the scope of that part of his request to instead seek “all minutes of my requests by the board with all names and positions redacted”. While I appreciate the applicant’s intention to be helpful, it is not possible at this stage to effectively broaden the scope of that part of his request.
I should also say that I have no remit under the FOI Act to examine any complaints that the applicant may have about either the IPS or the Prison generally or about the IPS’s compliance with the timeframes in the FOI Act, or take such matters into account in carrying out my review.
At the outset, I reject the applicant’s assertion that this Office acts unfairly and seeks to protect the interests of FOI bodies. Each review by this Office is treated on its own merits and has regard to the relevant circumstances and the provisions of the FOI Act. My role is to review the decision of the IPS and to decide whether the FOI Act entitles the applicant to access the records sought.
FOI and creation of records
I have already explained that the FOI Act is concerned with access to records rather than information. Furthermore, the Act does not require public bodies to create records if none exist, apart from a specific requirement, under section 17(4), to extract records or existing information held on electronic devices.
Under section 17(4), where a request relates to data contained in more than one record held on an electronic device by the body concerned, the body must take reasonable steps to search for and extract the records to which the request relates. The reasonable steps are those that involve the use of any facility for electronic search or extraction that existed on the date of the request and was ordinarily used by the FOI body. Where these reasonable steps result in the creation of a new record, that record is, for the purposes of considering whether or not such a new record should be disclosed in response to the request, deemed to have been created on the date of receipt of the request.
However, there is no corresponding requirement on an FOI body to extract relevant information from hard copy files in order to compile the information sought. Such an exercise would involve the creation of a new record, which is not required under the Act. In summary, if the body does not hold a record containing the information sought and cannot search for and extract the electronically held records by taking reasonable steps, then that is the end of the matter. In such an instance, section 15(1)(a) applies.
Section 15(1)(a) provides that an FOI body may refuse to grant a request where the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. In considering this provision in this case, this Office has no remit to examine, or make findings on, whether or not the IPS should as a matter of course hold records of the sort requested or its record management practices generally.
Whether the requested records exist – section 15(1)(a)
The IPS appears to have taken it that the applicant is seeking the relevant statistical information in relation to both the Prison and the Unit. This Office’s Investigator told the applicant that his request appeared to her, however, to seek such information only for the Unit. She invited him to tell her if her understanding was wrong. The applicant’s reply of 5 May 2020 did not clarify the matter other than to say that, if the IPS’s systems cannot distinguish between the Unit and the Prison, a “simple solution [is to] give me the whole jail.” This suggests to me that the Investigator’s interpretation of the scope of the applicant’s request is correct.
The Investigator also gave the applicant details of the steps that the IPS says it has taken to look for records containing the remaining requested information, and the steps that the IPS says it would need to take to provide him with such information. I see no need to repeat the details concerned in this decision but will refer to them as necessary.
The applicant’s reply largely concerns why the IPS should not have relied on sections 15(1)(c) and 37(1). These comments are, however, not relevant to the primary issue of whether the IPS holds records containing the information. It is also not relevant to the primary issue that the applicant is prepared to remove from the scope of the request details of “any category of offence that has less than 5 or a reasonable number as you may pick”.
The applicant says that he has been looking for the information for a year. He says that it is available at the Prison and that as an Irish citizen he is entitled to it under the FOI Act. He says that the requested details will show whether the IPS is in compliance with the 2007 Prison Act. He says that the IPS is biased against him because he is an inmate. He says that the internal review decision on his request only issued after his complaint to the Data Protection Commissioner was screened (within the Prison, I presume). The applicant believes that the IPS can retrieve the information from its electronic systems and says that if it cannot, the IPS is wasting public monies by not keeping accurate records. He says that the information should be available under section 8 of the FOI Act and that it is not true that the IPS computer systems cannot tell what he is in prison for, or for how long.
The FOI Act provides that any reasons given by a requester shall not generally be taken into account in deciding on an FOI request. While the FOI Act enables members of the public to obtain access to records in the possession of FOI bodies, its provisions also allow FOI bodies to refuse to release those records. Information that a requester may seek may be held by an FOI body throughout various different records or on electronic systems. However, the FOI Act does not require bodies to create records in response to an FOI request except in the very limited circumstances that I have set out above. Furthermore, section 8 is concerned with publication schemes of FOI bodies i.e. the classes of information or records that an FOI body has published or intends to publish. It is not relevant to my review that the applicant believes that the information he has requested should be so publicly available. Finally, his request does not seek information about his own sentence, but rather much broader information concerning other prisoners.
The Investigator outlined to the applicant the steps that the IPS says it took to search for stand-alone records containing the information. Its position is that such records do not exist. I have no reason, based on the applicant’s arguments, to dispute the IPS’s position. I am satisfied that the IPS does not collate the remaining information and that no standalone record(s) containing such information exists.
The Investigator also explained to the applicant why the IPS maintains that section 17(4) is not relevant in this case. In summary, it says that the Unit is actually a wing of the Prison rather than a separate prison. While its computer system enables the IPS to identify the wing on which any prisoner is currently held, it generally holds information for the Prison as a whole rather than in relation to its specific wings. It also says that it cannot run reports containing the remaining types of requested statistical information using existing facilities for electronic searching and extraction of information even in relation to the Prison as a whole. The applicant’s belief that this should not be the case does not provide me with any basis to dispute what the IPS says. I am satisfied that section 17(4) is not relevant.
The Investigator has also given the applicant details of the various steps that the IPS says it would have to take if it were to provide him with the information. For instance, it says that individual prisoners can be sentenced for a number of offences. Accordingly, in order to establish the details of the category of offence and the category of offence description, it says that it would have to look at the warrants on each individual prisoner’s record. Having identified relevant records, it would then have to collate the information to arrive at the relevant totals. I note that the applicant is willing to exclude “any category of offence that has less than 5 or a reasonable number as you may pick”. However, neither this nor the fact that the IPS can identify the wing in which a prisoner is held change the fact that the IPS would have to examine individual prisoner records in the first instance. Given that category of offence and the category of offence description are common to the four sets of the requested information, this alone seems to me to determine the matter.
However, by way of further examples, I note that to arrive at figures for “remainder of sentence left xx of xx months” (which is common to three of the four sets of requested statistics), the IPS says that it would have to find out each relevant prisoner’s sentence and calculate how much time remained on it. Again, it would have to collate relevant totals. I also note that while the IPS says it holds electronic records relating to applications that approved for TR under the CRS, records relating to denied applications may be held on individual prisoner files. It says that in order to determine the total number of such applications received and denied, it would firstly have to examine relevant files to identify any records indicating that the prisoner had been denied TR under the CRS, from which it would again calculate the relevant totals.
Having considered the IPS’s submission, it appears to me that in order to grant the request in full, the IPS would have to (i) analyse hard copy files of individual prisoners in the Unit to identify records containing information relevant to the request, (ii) extract the relevant details from those records, and (iii) manually create a record containing the requested information. I have no reason, further to the applicant’s comments, to dispute what the IPS says in this regard. Such manual processing of hard copy records to extract relevant information and create a record that did not previously exist is not required by the FOI Act. I find that the IPS is not obliged to take such steps.
I find that the IPS was justified in refusing the remaining statistical information under section 15(1)(a) on the ground that the records sought are not held and do not exist.
Endanger life or safety – section 32(1)(b)
While the applicant says that he “can see some of [the IPS’s] concerns” for refusing to grant that part of his request relating to the review board at the Prison, he has not indicated that he is withdrawing that part.
The IPS has provided this Office with records parts of which identify the attendees at a number of sentence management meetings. It says that the attendee details concerned should be found to be exempt under section 32(1)(b) of the FOI Act, which provides that an FOI body may refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, reasonably be expected to endanger the life or safety of any person.
The IPS says that sentence management meetings are meetings that take place between various staff from the Operations Directorate in IPS Headquarters and personnel/services from within the Prison on a regular basis. However, I note that it says there is no formally appointed board/committee responsible for sentence management. Rather, the various prison staff and services give input into how a prisoner’s sentence is progressing, which is taken into account in decisions concerning that prisoner’s sentence management.
Given the IPS’s position that there is no formally appointed board or committee responsible for sentence management, it seems to me that a discrete record containing the specific details that were requested by the applicant does not exist. The applicant’s comments do not provide me with any basis to dispute this. I am satisfied that the requested record does not exist and I find that section 15(1)(a) applies.
For the sake of completeness, I will consider the IPS’s arguments in relation to the identifying details. It says that IPS staff have always made objective informed recommendations and decisions on the clear understanding that their identities would not be disclosed to prisoners who are affected by those decisions. Some of these decisions concern prisoners who have been convicted of the most serious and violent crimes. It says that it is reasonable to protect its staff by ensuring that prisoners are not made aware of which staff attended sentence management meetings and who made particular or unfavourable decisions. The IPS says that disclosing the identities of the officials concerned has potential to expose them to unjustified, unwarranted and unnecessary increased risk of serious threat or harm.
It seems to me that the IPS’s arguments are reasonable. I accept that disclosing the relevant details could reasonably be expected to endanger the life or safety of any person. I find that section 32(1)(b) applies. I should make it clear that this finding does not mean that either the IPS or this Office is implying that the applicant would cause any harm to IPS staff. However, I must have regard to the fact that the release of a record under FOI is generally accepted to be equivalent to disclosing it to the world at large. Section 32(3) provides that the exemptions contained in section 32(1) do not apply in certain limited circumstances. In my view, no such circumstances arise in this case. I find that the parts of the records identifying the attendees are exempt under section 32(1)(b).
Finally, I note from the IPS’s correspondence with this Office that some of the information it provided to the applicant at internal review stage is incorrect as a result of a clerical error. It says that the relevant correction is available on the Department of Justice and Equality website under Parliamentary Questions. It is a matter for the IPS to clarify the matter with the applicant and I would expect it to do so without delay. I note in this regard that the applicant says that he no longer has internet access.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the IPS’s refusal to fully grant the applicant's request under sections 15(1)(a) and 32(1)(b) of the FOI Act.
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.