Whether the Council was justified in refusing access to a report containing details of the applicant’s previous criminal history under section 32(1)(a)(x) of the FOI Act
18 June 2020
All references to the applicant in this decision can be taken to refer to the applicant and/or his solicitors, as appropriate. On 20 November 2019, the applicant submitted a request to the Council for access to all documentation, concerning his application to be added to the tenancy of an identified premises, including the vetting document considered by the Council.
On 20 December 2019, the Council issued a decision in which it purported to grant the request and it released three records to the applicant, one of which was an internal email dated 7 November 2019 containing details of the applicant’s previous convictions. On 3 February 2020, the applicant sought an internal review of that decision as he was of the view that he had not been provided with all documentation relevant to his request, specifically the documentation which was used to prepare the internal email released.
The Council issued its internal review decision on 25 February 2019 in which it refused access to the record used to prepare the internal email under section 32(1)(a)(x) of the FOI Act. On 26 March 2020, the applicant sought a review by this Office of the Council’s decision.
I have now completed my review in accordance with section 22(2) of the FOI Act. In conducting the review, I have had regard to the correspondence between the Council and the applicant as outlined above and to correspondence between this Office and both the Council and the applicant on the matter. I have also had regard to the content of the record at issue.
Scope of the Review
The record at issue comprises a report provided by An Garda Síochána (AGS) to the Council in connection with the Council’s vetting process as part of its housing allocations process. The record contains details of the previous criminal history of the applicant and of individuals other than the applicant. I am satisfied that the information relating to individuals other than the applicant falls outside the scope of this review.
Accordingly, the review is concerned solely with whether the Council was justified in refusing access under section 32(1)(a)(x) of the FOI Act to that part of the record relating to the applicant that was used to prepare an internal email dated 7 November 2019 containing details of his previous criminal history.
Analysis and Findings
Section 32(1)(a)(x) of the FOI Act provides that a request may be refused if access to the record sought could reasonably be expected to prejudice or impair the security of any system of communications, whether internal or external, of the Garda Síochána, the Defence Forces, the Revenue Commissioners or a penal institution. Where an FOI body relies on any part of section 32(1)(a), it should, 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. It must show how the release of the record concerned could reasonably be expected to cause the harm which it has identified.
In its submission to this Office, the Council said the record at issue is a confidential communication between it and AGS in accordance with Section 15 of the Housing (Miscellaneous) Act 1997, to support its housing allocation responsibilities. In essence, it argued that all such information provided by AGS is treated as strictly confidential and that the release of the record would compromise those confidential communications.
Section 32(1)(a)(x) is concerned with the protection of the security of communication systems of AGS and other specified bodies. As such, I would expect the Council to be in a position to identify the specific system of communications of AGS and to explain how the release of the record might prejudice or impair the security of that system.
While the Act does not define what is meant by a system of communications, this Office considers that the type of record that would be covered by the exemption is, for example, one that gives technical details of the location and/or type of equipment used by AGS for their electronic communications or one that gives details of codes or waveband frequencies used in the transmission of communications.
In the present case, all that is being disclosed is the fact that information is passed between AGS and the Council for the purposes of a vetting process relating to the discharge of the Council’s functions regarding the allocation of local authority housing. I consider that this represents an administrative practice rather than a system of communication as envisaged by the Act. As such, I find that the Council has not identified a relevant communications system of AGS, nor has it explained how the security of any such system might be prejudiced or impaired by the release of the record at issue. As such, I find that section 32(1)(a)(x) does not apply.
It seems to me that the Council sought to rely on the wrong exemption to support its concerns about the release of the record. It would appear that its key concern is that AGS provided information such as the type at issue in confidence and that the release of the record might result in AGS refusing to supply similar such information to it in the future. Section 35 provides for the protection of information provided to a public body in confidence.
If this is the Council’s true concern, then I do not accept that the release of the record at issue would prejudice the future supply of such information by AGS. The information comprises nothing more than the individual’s previous criminal history. It seems to me that AGS would readily make such information available to an individual if requested to do so. In my view, there is nothing inherently confidential about the information that would cause AGS to reconsider providing such information in the future if it was released to the individual about whom the information relates.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the Council in this case. I direct release of the report, subject to the redaction of information relating to individuals other than the applicant that falls outside the scope of this review.
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.