Decision
Ms. X and the Irish Prison Service (the IPS)
From Office of the Information Commissioner (OIC)
Case number: OIC-155504-J9P2C2
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-155504-J9P2C2
Published on
Whether the IPS was justified in refusing access, under section 37(1) of the FOI Act, to records relating to a prisoner who died in custody on the ground that release of the relevant records would disclose personal information
1 July 2025
In a request dated 1 November 2024, the applicant sought access to ‘all internal correspondence and documents discussing an inmate who was facing deportation in Cloverhill and subsequently died in custody between 1 September 2024 to the present (1 November 2024)’. In a decision dated 18 December 2024, the IPS refused the applicant’s request under section 37(1) of the FOI Act on the ground that release of the records concerned would disclose personal information. The applicant sought an internal review of the IPS’s decision that same day and said the onus was on the IPS to prove that it is impossible to release information without revealing the person’s identity. On 16 January 2025, the IPS affirmed its original decision. On 17 January 2025, the applicant applied to this Office for a review of the IPS’s decision.
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 correspondence referred to above and to the submissions made to this Office by both parties. 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 solely concerned with whether the IPS was justified in refusing access, under section 37 of the FOI Act, to all internal correspondence and documents discussing the inmate in question who died in custody.
Although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent the disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the records is limited.
Section 37(1)
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, including personal information relating to a deceased individual.
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 also details 14 specific categories of information which, without prejudice to the generality of the above definition, constitute personal information, including, but not limited to (i) information relating to the medical history of the individual, (vi) information relating to any criminal history of, or the commission or alleged commission of any offence by, the individual and (xii) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to, establish that any personal information held by the FOI body concerned relates to the individual.
As noted above, section 25(3) requires that I take precautions to not disclose information contained in an exempt record. However, I believe it would not be in breach of section 25(3) to state that the withheld records primarily concern communications about the death of the inmate in question. It is important to note that while the death may have been reported in the media and the applicant may be aware of certain information about the inmate in question, this does not mean that it cannot be regarded as personal information for the purposes of the FOI Act.
In its submissions to this Office, the IPS said that the records at issue in this case are printouts from the Prisoner Information Management System (PIMS) and consist of the personal prison records of the individual prisoner. It said that a personal record is created and maintained on PIMS for each prisoner while they are imprisoned, and all records relevant to their imprisonment are recorded on the system. The IPS said that release of a redacted version of the records would disclose the late prisoner’s personal information as he would be easily identifiable from the records concerned. It said that the records in question are not records relating to deaths in custody in general but concern a single individual and are held on his personal prison record.
Having regard to the nature of the information contained in the records at issue, I am satisfied that the information in the record comprises personal information of the prisoner in question. I therefore find that section 37(1) applies to the records refused by the IPS. However, that is not the end of the matter as section 37(1) is subject to the other provisions of section 37, which I will consider below.
Section 37(2)
Section 37(2) of the FOI Act sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances in section 37(2) apply to the information which I have found to be exempt under section 37(1). That is to say, (a) the information contained in the records does not relate to the applicant; (b) the third parties have not consented to the release of their information; (c) the information is not of a kind that is available to the general public; (d) the information at issue does not belong to a class of information which would or might be made available to the general public; and (e) the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual. I find, therefore, that section 37(2) does not serve to disapply section 37(1) in this case.
Section 37(5)
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(s) to whom the information relates. I am satisfied that the release of the records in question would not be to the benefit of the individual(s) concerned and that section 37(5)(b) does not apply.
Before I consider the applicability of section 37(5)(a), there are a number of important points to note. Firstly, section 13(4) provides that, subject to the Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. In relation to the question of the public interest, this means that I cannot have regard to the applicant’s motives for seeking access to the information at issue, except in so far as those motives reflect, or overlap with, what might be regarded as true public interest factors in favour of the release of records, i.e. in so far as the concerns raised in relation to the request may also be matters of general concern to the wider public.
Secondly, it is important to note that the release of records under the FOI Act must be regarded, in effect, as release to the world at large, given that the Act places no constraints on the uses to which a record released under the Act can be put. With certain limited exceptions provided for under the Act, FOI is not about granting access to information to particular individuals only and as noted above, a requester’s reasons for making a request are generally not of relevance. Thus, records are not released under FOI for any limited or restricted purpose.
All of this means that in considering whether a right of access exists to records under section 37(5)(a) of the FOI Act, any decision to grant access would be on the basis that there is an overriding public interest in the release of the records effectively to the world at large that outweighs the privacy rights of the third party individuals concerned.
In considering where the balance of the public interest lies in this case, I have had regard to section 11(3) of the FOI Act which provides that in performing any functions under the Act, an FOI body must have regard to, among other things, the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI Bodies. However, in doing so, I have also had regard to the judgment of the Supreme Court in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (“the Enet case”). In that case, the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and “there must be sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure”. Although the Court’s comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.
In her submissions to this Office, the applicant said that the death of the individual in question followed previous reports of deaths in Cloverhill Prison. She referred to recommendations of a Death in Custody report, which she said explored the death of another man in Cloverhill Prison and called for better clarification of staff roles, including healthcare personnel at the prison in question. She said that release of the records in this case would help restore confidence in the public authority, and in the case of shortcomings, would encourage them to address it thanks to broader public scrutiny. She also said that the individual that is the subject of the records, due to their background, would not have an advocate in the state to follow up on the circumstances of their death and that this makes the release of the information all the more critical.
In its submissions, the IPS said it considers the public interest in preserving the privacy of the prisoner outweighs the public interest that would be served in releasing the records. It said it also considered that the prisoner may not have consented to the release of the records to the requester when living and the damage that may done to the good name and character of the deceased by the release of these records. It argued there are no exceptional circumstances in this case that would warrant the release of these particular personal records.
The FOI Act recognises the public interest in the protection of the right to privacy both in the language of section 37 of 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. Moreover, unlike other public interest tests provided for in the FOI Act, there is a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. 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.
The records at issue contain sensitive personal information of the prisoner, as well as personal information of other third parties. While I accept that there is a public interest in allowing for scrutiny of the processes/procedures by which the IPS deals with deaths in custody, it is not apparent to me that the release of the information at issue would serve that public interest to any real extent. While the records show that next-of-kin, An Garda Síochána, and the Office of Inspector of Prisons were notified about the prisoner’s death, they contain little or no other information that would offer any insight into the actions of the IPS or how it dealt with the death in custody that in my view would warrant release of the prisoner’s personal information.
Having considered the matter carefully, and bearing in mind the strong public interest in protecting the right to privacy, I do not accept that the public interest in releasing the records at issue outweighs, on balance, the privacy rights of the relevant third parties. In particular, I am not satisfied that any sufficient specific, cogent and fact-based reason to tip the balance in favour of disclosure of the information at issue exists in this case. I find, therefore, that section 37(5)(a) does not apply in this instance. Accordingly, I find that the IPS was justified in refusing access to the records under section 37(1) of the FOI Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the IPS’s decision. I find the IPS was justified under section 37(1) of the FOI Act in refusing access to the records relating to the prisoner in question.
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.
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Richard Crowley
Investigator