Case number: OIC-135263-K8Q0N9
23 May 2023
In a request dated 29 December 2022, the applicant made a five-part request for access to various records relating to and stemming from an incident that occurred on 18 May 1988 at a specific prison. I understand that the applicant was employed by the IPS at the time of the incident in May 1988, but that he was dismissed from his position in 1989. In a decision dated 13 January 2023, the IPS refused the request under sections 11(4) and 15(1)(a) of the FOI Act. It stated that the records requested were pre-commencement records created before the effective date of the FOI Act – i.e. 21 April 1998.
On 16 January 2023, the applicant requested an internal review wherein he referred to various aspects of the incident that occurred on 18 May 1988 and his involvement in it. The IPS upheld its original decision on 26 January 2023, on the same basis. On 8 February 2023, the applicant applied to this Office for a review of the IPS’s decision.
During the course of this review, the Investigating Officer invited the applicant to make submissions in relation to whether relevant pre-commencement records, if they existed, contained his personal information and/or whether they were required in order to understand records created after the effective date. In his response, the applicant included copies of correspondence in support of his position that the records concerned were subject to FOI. The Investigating Officer invited the IPS to comment on the applicant’s response, which it duly did. The IPS’s position was that the records relating to the applicant’s request did not contain his personal information and that they were not subject to the FOI Act.
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 in support of its decision and to the applicant’s correspondence with this Office and with the IPS. 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 its decision to refuse the applicant’s request for records under the provisions of the FOI Act.
The IPS relied on sections 11(4) and 15(1)(a) to refuse the applicant’s request in this case. In its submissions to this Office, it also indicated that if neither section was found to apply, that it would argue that a number of exemptions would apply to the records sought. Having regard to the date of the incident concerned, it seems to me that section 11(4) is of most relevance, so I shall consider its application in the first instance.
Section 11 – Access to records
Section 11 of the FOI Act provides for a right of access to records held by public bodies that were created on or after the effective date. The relevant part of section 2 of the FOI Act provides that “effective date” means “(a) in the case of an entity that immediately prior to enactment of this Act was a public body within the meaning of the Act of 1997 … 21 April 1998”. I am satisfied that the effective date in respect of the Department is 21 April 1998. In its submissions to this Office, the IPS argued that any records relating to the applicant’s request were created before the enactment of the FOI legislation and, as they were not personal records relating to him, they were exempt from release. I am satisfied that the records sought in this case were created before the effective date.
Section 11(5) provides for a right of access to records created before the effective date in certain limited circumstances, namely where: “a) access to records created before the effective date is necessary or expedient in order to understand records created after such date, or b) records created before the effective date relate to personal information about the person seeking access to them.” As the applicant’s request in this case mainly referred to records which would have been created before the effective date, no right of access to such records exist unless either paragraph a) or b) applies.
For section 11(5)(a) to apply, I would expect an applicant to identify a record or records created after 21 April 1998 that cannot be understood without access to earlier records. This Office considers that section 11(5)(a) is directed not at the question of whether a record can be understood in a literal sense without reference to earlier records but at whether its substance (or gist or subject matter) can be understood. This Office considers that the release of a record created before the effective date is justified only to the extent that such access is a suitable means to achieving the end of understanding the substance of the later record created after the effective date.
In his submission to this Office relating to section 11(5), the applicant stated that the information he sought was discussed by “several departments, including the Taoiseach himself”. He also provided copies of two letters, as follows: a letter from a TD to the then Minister for Justice on 1 February 2011, referring to the applicant’s dismissal and requesting a review of his file; and a letter dated 20 November 2014 from the then Taoiseach to the applicant, stating that an independent panel had been established to consider certain matters arising.
Essentially, the applicant appeared to be arguing that more recent reviews or inquiries into the matters concerned meant that the records sought no longer fall to be considered as pre-commencement records. I do not agree. Whether or not the matters referred to in relevant records were considered more recently, it seems to me that the records sought, if they exist, were created in or around 1988, some 10 years before the effective date in question.
The IPS was of the view that the section 11(5)(a) did not apply in this case.
I have had regard to the applicant’s arguments, and to the correspondence provided by him as set out above, as well as to the IPS’s response. I note that the letters provided by the applicant refer to his dismissal, but do not refer directly to the incident that occurred on 18 May 1988. I also note that the applicant has not identified any record created after 21 April 1998 that cannot be understood without access to records created before this date. Without an identified record that was created after 21 April 1998, I cannot find that section 11(5)(a) applies. In the circumstances of this case, I am satisfied that the applicant has not identified a record or records created after 21 April 1998 that cannot be understood without access to the records sought. I find that section 11(5)(a) does not apply.
I have taken the applicant’s reference in his FOI request to an attempt to end his career and references in his internal review request to his involvement in the incident concerned as an indication that he is of the view that the records concerned contain personal information relating to him.
I note that, in its submissions to this Office, the IPS’s position was that all records relating to the incident in May 1988 were operational records. It stated that “[a]ny personal records relevant to the requester” would be held on his HR File. The IPS also stated that the applicant had submitted “several requests for his personal records”, which had “been released to him”. Furthermore, the IPS’s position was that the applicant’s dismissal in 1989 did not relate to the incident in 1988.
Section 2 of the FOI Act defines personal information as information about an identifiable individual that, either (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or (b) is held by an FOI body on the understanding that it would be treated by that body as confidential. Section 2 goes on to specify 14 categories of information that, without prejudice to the generality of (a) or (b), is personal information for the purposes of the Act.
Certain information is excluded from the definition of personal information. I note that the applicant has made a number of applications for review to this Office relating to decisions on requests he made to various bodies concerning records relating to the incident that occurred in May 1988, when he was employed as a staff member of the IPS. Where the individual holds or held a position as a member of the staff of an FOI body, the name of the individual is excluded, as is information relating to the position held or its functions or the terms upon and subject to which the individual occupies or occupied that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of the functions stated.
I have had close regard to the wording of the applicant’s request in this case, and to the nature of the incident concerned, as well as to the likely nature of any records that exist relating to these matters. In the absence of any arguments to the contrary, and having regard to the fact that no specific arguments were made by the applicant to support a position that the records contain his personal information, I am not satisfied that section 11(5)(b) applies to the information sought by the applicant in this case. I find, therefore, that section 11(5) in its entirety does not apply.
Accordingly, I find that the IPS was justified in refusing the applicant’s request on the ground that any records containing the information sought were created before the effective date of the FOI Act and that the FOI Act does not provide a right of access to such records.
Finally, as noted above, the IPS was of the view that if the records sought existed and were considered to be within the scope of the FOI Act, that a number of exemptions might apply. However, as I have found that there is no right of access to the records concerned by the applicant, I do not need to consider the application of any other provisions of the FOI Act, including its reliance on section 15(1)(a).
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the IPS’s decision. I find that the IPS was justified in refusing the applicant’s request on the ground that any relevant records were created before the effective date of the FOI Act; and that the FOI Act does not provide for a right of access to such records.
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.