Decision
Mr. Y and Irish Prison Service
From Office of the Information Commissioner (OIC)
Case number: OIC-154146-H7C0S6
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-154146-H7C0S6
Published on
Whether the IPS was justified in refusing access, under section 15(1)(a) of the FOI Act, to the scale of gravity of offences used by the IPS in assessing applications for temporary release, enhanced remissions or open prison, on the ground that the record sought does not exist
8 April 2025
In a request dated 26 August 2024, the applicant sought access to a copy of the scale of gravity of offences used by the IPS, the quantum of which precludes those committed of such an offence from all forms of temporary release, enhanced remissions or open prison and the genesis of such scale. In a decision dated 16 September 2024, the IPS refused the applicant’s request under section 15(1)(h) of the FOI Act on the basis that he had not paid a fee in respect of a previous request he had made. On 30 September 2024, the applicant sought an internal review of the IPS’s decision. On 21 November 2024, the IPS affirmed its original decision. On 25 November 2024, the applicant applied to this Office for a review of the IPS’s decision. In his application to this Office, the applicant said that he was not recommended for temporary release because of the “nature and gravity of offence” and that many other prisoners had been refused enhanced remission on the same grounds. The applicant said it is apparent that such a list (of offences) exists.
During the course of this review, the IPS made submissions to this Office saying it had reviewed its position and wished to rely on section 15(1)(a) of the FOI Act as the record sought does not exist. The Investigating Officer provided the applicant with details of the IPS’s submissions and invited him to make submissions in the matter, which he duly did.
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 outlined above and to the submissions made by the IPS and the applicant. 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 refusing, under section 15(1)(a) of the FOI Act, the applicant’s request for the scale of gravity of offences on the basis that the record sought does not exist.
Before I address the substantive issue in this case, I wish to make a number of preliminary comments. Firstly, it is important to note that section 13(4) of the FOI Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for that request shall be disregarded. This means that this Office cannot have regard to the applicant’s motives for seeking access to the information in question, except in so far as those motives reflect what might be regarded as public interest factors or release of the information where the Act requires a consideration of the public interest (not relevant in this case).
Secondly, in his submissions to this Office the applicant referred to a previous decision in case OIC-154143 which found the IPS was not justified in refusing his request under section 15(1)(h) of the Act. As the IPS subsequently relied on section 15(1)(a) for refusing the applicant’s request in this case, it is not necessary for me to consider its initial refusal under section 15(1)(h). A review by this Office is considered to be “de novo", which means that in this case, it is based on the circumstances and the law as they pertain at the time of the decision and is not confined to the basis upon which the FOI body reached its decision.
Section 15(1)(a) of the FOI Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. Our role in a case such as this is to review the decision of the FOI body and to decide whether the decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at their decision and also must assess the adequacy of the searches conducted by the public body in looking for relevant records.
The evidence in “search” cases generally consists of the steps actually taken to search for the records along with miscellaneous and other information about the record management practices of the FOI body, insofar as those practices relate to the records in question. It is important to note that the FOI Act is concerned with access to records that a public body holds as opposed to records that a requester considers ought to exist. It is also worth noting that the Act does not require FOI bodies to create records if none exist, apart from a specific requirement under section 17(4) of the Act, which is not relevant in this case, to extract records or existing information held on electronic devices.
In its submissions to this Office, the IPS stated that the record requested does not exist. The IPS stated that the legislative basis for temporary release is set out in the Criminal Justice Act 1960, as amended by the Criminal Justice (Temporary Release of Prisoners) Act 2003. It said all applications for temporary release are assessed on a case-by-case basis. The IPS said that it is important to note that the safety of the public is paramount when decisions on temporary release are being made. The IPS stated that before a final determination is made a number of factors are taken into account including:
• the nature and gravity of the offence to which the sentence relates
• the sentence concerned and any recommendation made by the Court in relation to the sentence imposed
• the person's previous criminal record
• the potential threat to the safety and security of the public should the person be released
• the risk that the person might commit an offence during any period of temporary release
• the risk of the person failing to comply with any of the conditions of temporary release.
The IPS said that all temporary releases are subject to conditions and anyone who breaches his or her conditions may be refused a further period of temporary release. It said that a prisoner can reapply for temporary release throughout their sentence and again is assessed on its own merits.
The IPS said that the principles governing the awarding of remission are contained within Rule 59 of Statutory Instrument no. 252 of 2007 (the Prison Rules), as amended by Statutory Instrument No. 385 of 2014. In sum, the IPS said prisoners sentenced to a term of imprisonment qualify for one quarter remission on the basis of good behaviour. Further, prisoners may also receive remission of greater than one quarter but not exceeding one third of their sentence if they –
i. demonstrate good behaviour by engaging in authorised structured activity, and
ii. satisfy the Minister that as a result of (i) they are less likely to re-offend and would be better able to re-integrate into the community.
The IPS said all applications are assessed on a case-by-case basis. It said, in considering whether a prisoner's engagement in authorised structured activity is likely to lead to the prisoner being less likely to re-offend or better able to reintegrate into the community, the Minister will take into account a number of factors including the following:
• the manner and extent to which the prisoner has engaged constructively in authorised structured activities;
• the manner and extent to which the prisoner has taken steps to address his or her offending behaviour;
• the nature and gravity of the of the offence to which the sentence of imprisonment being served by the prisoner relates;
• the sentence of imprisonment concerned and any recommendations of the Court that imposed the sentence;
• the period of the sentence served by the prisoner;
• the potential threat to the safety and security of members of the public (including the victim of the offence to which the sentence of imprisonment being served by the prisoner relates);
• any offence of which the prisoner was convicted before being convicted of the offence to which the sentence of imprisonment being served by him or her relates;
• the conduct of the prisoner while in custody or during a period of temporary release;
• any report or recommendation made by the Governor, the Garda Síochána, Probation Officer or any other person whom the Minister considers would be of assistance in enabling him or her to make a decision on such an application.
The IPS said that the criteria for transfer to an open centre are included in the IPS Open Centre Policy, a copy of which, was provided to the applicant during the course of this review.
As outlined above, the Investigating Officer provided the applicant with details of the IPS’s submissions, an offered the applicant the opportunity to provide submissions. In his submissions the applicant stated that the subject of his request is paramount in the decision making of early release for thousands of persons. The applicant stated that prisoners in Ireland have two mechanisms for early release, the Criminal Justice (Temporary Release of Prisoners) Act 2003 and rule 59 of Statutory Instrument No. 252 of Prison Rules 2007. He said that in both cases one of the factors which is taken into account is “the nature and gravity of the offence”, a phrase widely used in refusal of both forms of early release by officials in the IPS. The applicant said that to suggest that the record he requested could not be found would be gross misrepresentation and is misleading.
My Analysis
The applicant is of the view that a scale of gravity of offences should exist, as the legislation and statutory instrument refer to a number of factors considered by the IPS before a final determination is made including the nature and gravity of the offences to which the sentence relates. As noted above, the IPS has explained the factors taken into consideration when assessing applications for temporary release and remission. While I note one of those factors is the “the nature and gravity of the offence”, it is the IPS’s position that it does not hold a scale of gravity of offences sought by the applicant. Essentially, the IPS said that each case is considered on its own merits and that while factors such as the nature and gravity of the offence are considered, a record of the scale of gravity does not exist.
Having regard to the information before this Office, and in the absence of any evidence to the contrary, I am satisfied that the IPS has provided adequate reasons for its conclusion that the record sought by the applicant does not exist. In the circumstances, I find that the IPS was justified in refusing access, under section 15(1)(a) of the FOI Act, to a record of the scale of gravity of offences used by the IPS in assessing applications for temporary release and remission.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the IPS to refuse the applicant’s request under section 15(1)(a) 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.
Richard Crowley
Investigator