Whether IPS was justified in refusing access to a note concerning the applicant’s suspension from employment by a named body under section 42(j) of the FOI Act
8 September 2021
In a request dated 23 March 2021, the applicant sought access to all records held by the Irish Prison Service (the IPS) concerning him, including records relating to his suspension from employment by a named body for a specified period. He referred in particular to an email that was sent on a given time and date to two named officials in the IPS.
The IPS issued its decision on the request on 19 May 2021. It located the email referenced in the applicant’s original request and granted partial access to the email. The body of the email and the file names of the attachments to the email were redacted, apart from one line in the email and one file name of an attachment. While it said it had not released the named attachment pursuant to section 42(f) of the FOI Act, it quoted section 42(j) in its decision letter. It also said the remaining redacted material was outside the scope of the applicant’s request.
The applicant sought an internal review of that decision on 22 May 2021. On 3 June 2021, the IPS affirmed the original decision. It acknowledged that the reference to section 42(f) was a typing error and confirmed that the record was being withheld under section 42(j) of the FOI Act. On 8 June 2021, the applicant sought a review by this Office of the decision of the IPS.
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 IPS and I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.
Scope of the Review
The scope of this review is concerned solely with whether IPS was justified in refusing to release the email attachment, under section 42(j) of the FOI Act. The remaining redacted information does not relate to the applicant or to his request and, as such, I am satisfied that this can be excluded from the scope of the review.
Analysis and Findings
Section 42(j) provides that the FOI Act does not apply to a record:
- given by an FOI body to a member of the Government or a Minister of State
- for use by him or her for the purposes of any proceedings in either House of the Oireachtas or any committee of either or both of such Houses or any subcommittee of such a committee.
Proceedings include such proceedings in relation to questions put by members of either House of the Oireachtas to members of the Government or Ministers of State (whether answered orally or in writing).
The appellant contended in his submissions that as he is a “stranger” to the IPS, it could not have had any input into the record in question and that IPS, as an FOI body, did not provide the record to a member of the Government or a Minister of State. He also stated that in order for the record to be “given” to a member of the Government or a Minister of State, it would have had to be physically handed over or emailed directly to him or her whereas in this case, the records were emailed between officials at the Department of Justice and officials at IPS.
The email to which the record at issue was attached was sent from a Leaders’ Questions e-mailbox at the Department of Justice with the subject line “LQ Request”. The attachment at issue is called “LQ Note re [applicant’s] suspension”. The body of the email states that these notes were furnished to the office of the Taoiseach the previous week.
I accept that the record at issue was given by the Department of Justice (an FOI body) to the Taoiseach for use by him for "the purposes of any proceedings" in the Dáil i.e. Leaders' Questions. I have no reason to consider that the record was not provided to the Taoiseach. The question of who created the record is not relevant. I find that the IPS was justified in refusing access to the record under section 42(j) of the Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the IPS to refuse to release the email attachment, pursuant to section 42(j) of the FOI Act.
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.