Decision
Ken Foxe, Right to Know and Irish Prison Service
From Office of the Information Commissioner (OIC)
Case number: OIC-151214-C3K9K6
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-151214-C3K9K6
Published on
Whether the IPS was justified in refusing access, under section 37(1) of the FOI Act, to certain information about prisoners who were on temporary release on a specified date in 2024
13 May 2025
In a request dated 26 June 2024, the applicant sought a database/spreadsheet from the Irish Prison Service (IPS) indicating the number of prisoners on temporary release on 20 June 2024, to include the prisoner’s gender, the length of sentence (in bands e.g. 3 to 6 months), the nature of their offence, their date of sentencing, and the institution in which they were serving their sentence. In a decision dated 22 July 2024, the IPS part-granted the request, with certain information withheld under section 37(1) of the FOI Act. It provided details of the number of prisoners falling within various “Sentence Length” bands, and the establishments captured by each of those bands, apart from one case where it withheld details of the sentence length and establishment involved. It provided an overall gender breakdown of the total number of prisoners and a disassociated list of the various offences. It did not release sentencing dates for any prisoners. It said that due to the small number of prisoners involved when broken down by location or by offence, and in conjunction with the sentencing date, the release of the detailed records may allow the individuals to be identified.
On 22 July 2024, the applicant sought an internal review of that decision. He said the IPS had released information of the nature sought many times in the past and that it has never led to the identification of an individual prisoner, nor could it be used for that reason. On 12 August 2024, the IPS issued its internal review decision, in which it affirmed the original decision. On 13 August 2024, the applicant applied to this Office for a review 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 both parties during the course of the review. I have also had regard to the contents of the record at issue. I have decided to conclude this review by way of a formal, binding decision.
During the course of the review, the applicant clarified that he wanted the information in the same form as provided to him previously. The record at issue comprises a spreadsheet with anonymised details of 508 instances of temporary release under the headings “Establishment”, “Gender”, “Admission Date”, “Sentence Overall Length Groups”, and “Offence Group Description”. This review is concerned solely with whether the IPS was justified in refusing access to the record under section 37(1) of the FOI Act.
Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant an FOI request shall be presumed not to have been justified unless the FOI body concerned shows to the satisfaction of the Commissioner that the decision was justified. This means that the onus is on the IPS of satisfying this Office that its decision to refuse access to the record at issue was justified.
Section 37(1) of the FOI Act provides for the mandatory refusal of a request if the FOI body considers that access to the record sought would involve the disclosure of personal information relating to an individual other than the requester. 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 the 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 which, without prejudice to the generality of the above definition, constitute personal information, including (vi) any criminal history of, or the commission or alleged commission of any offence by, the individual and (vii) information relating to any proceedings for an offence committed, or alleged to have been committed, by the individual, the disposal of such proceedings or the sentence imposed by any court in such proceedings.
I am satisfied that the information contained in the record at issue is of a type that is captured by the categories of information referenced above. However, it is important to note that such information may be regarded as personal information only if it is about an identifiable individual. Moreover, section 37(1) applies only where the FOI Body is of the view that disclosure of the record sought would involve the disclosure of personal information. The key question I must consider in this case, therefore, is whether the release of the record at issue would allow for the identification of the individuals concerned.
Applicant Submissions
In his correspondence with both the IPS and this Office, the applicant said the IPS has released the relevant information to him many times in the past and that it has never led to the identification of an individual prisoner. He provided links to a number of media articles he wrote in 2017, 2021, 2023, and 2024 based on the information previously provided. One of the articles on the number of prisoners on temporary release on New Year’s Eve 2023 was written in March 2024, only three months before the request at issue in this review was submitted. Two of the articles included tables provided by the IPS under FOI, which included precisely the same type of information that is contained within the record at issue in this case. The wording of the two other articles would similarly imply that the IPS previously provided the applicant with the detailed information requested on two other occasions. The applicant said he did not believe it was possible to identify any individual prisoners from the release of the information, due to the high-level and general nature of the information. He also referred the IPS to a previous decision of this Office, OIC-136347, which he described as discussing the relevant issues in terms of identifying people from aggregate or highly anonymised data.
IPS Submissions
In its submissions to this Office, the IPS said it part-granted the request on the basis that the release of the information requested could possibly allow the identification of persons concerned, owing to the small number of prisoners when the information is broken down by the sentencing date, type of offence, or location. It said the record includes very small numbers of individuals in some locations. It said the combination of the location of the prisoner, the nature of the offence, the duration of the sentence, and the high-profile nature of some of the prisoners, would make the individuals readily identifiable to others. The IPS added that while a similar report was released in 2023, no high-profile prisoners were included in the report and as such, no prisoners would have been readily identifiable.
Following his consideration of the IPS submissions, the Investigator asked the IPS to demonstrate how individuals would be identified if the information at issue was released. He also noted that the IPS appeared to have a concern that certain prisoners would be readily identifiable due to their high-profile, as opposed to other prisoners who are not considered high-profile. He asked it to clarify its position on that point and to identify any particular entries on the record about which it had such concerns. He also asked the IPS to indicate if it would be willing to release the record with the parts relating to any high-profile prisoners of concern redacted.
In response, the IPS said the record includes very small numbers of individuals in some locations and that the combination of the location of the prisoner, the nature of the offence, the date of sentencing, the duration of the sentence, and the high-profile nature of some of the prisoners, would make the individuals readily identifiable to others, for example, through news sources, or to members of the public or persons involved in the court case. It said that in some instances, the location of the prisoner combined with either the length of the sentence or the nature of the offence would provide a considerable amount of information about the prisoner. It said this information combined with the date of sentencing would in many cases make the prisoner identifiable through news sources, for example. It said the information would also make the prisoners identifiable to persons involved in the court case, or to members of the public, e.g. other prisoners, prison visitors, prison officers, members of An Garda Síochána, family members, friends of the prisoners, etc. Noting the applicant’s comment that he can “categorically state that there is no way to definitively identify any individual from these only high-level identifiers for the types of crime committed”, the IPS said it does not accept that the applicant can categorically state the release of the information has never led to the identification of a prisoner.
On the matter of the report having previously been released to the applicant, the IPS said it now considers that it is more appropriate to issue the information requested in a summarised format in order to ensure the personal records of identifiable individuals are not inadvertently released to the world at large.
I fully accept that where information may not, on the face of it, be about an identifiable individual, it may still be personal information if it allows the individual to be identified and that an individual may not be named in a record and yet may still be identifiable. However, where it is not apparent, and in circumstances where the onus rests with the FOI body of justifying its refusal of the request pursuant to section 22(12)(b), I would expect the body to be in a position to show clearly how the disclosure of the information would allow specific individuals to be identified. Although it was given the opportunity to do so, the IPS failed to provide any specific examples of how the release of the record at issue would allow for the identification of individuals. For example, it did not identify any specific entries in the record whose disclosure would allow for the identification of specific prisoners through, say, specified internet searches. Nor did it suggest that the disclosure of similar information in the past resulted in the disclosure of information about identifiable individuals. Rather, its position on that point is that the applicant cannot say that it did not. Such an approach appears to improperly place the burden on the applicant of showing that the information is not exempt, which is not in accordance with the requirements of section 22(12)(b). I note also that the Investigator conducted some open-source searches but was not in a position to readily determine the identities of specific prisoners.
In my view, the arguments advanced by the IPS amount to mere assertions and it is well settled that mere assertions by an FOI body, as to harms that might result from access to a record, are not sufficient for this Office to find that a particular exemption provision applies. Indeed, it is notable that the IPS sought to distinguish its release of the 2023 report from the current request based on the fact that “no high-profile prisoners were included in the [2023] report and as such no prisoners would have been readily identifiable.” It seems to me that this is an explicit acknowledgement by the IPS that it did not consider the release of similar information in 2023 to involve the disclosure of information about identifiable individuals. Moreover, it suggests that the primary concern of the IPS in this case is that the disclosure of the details of the one case where it withheld details of the sentence length and establishment involved would allow for the identification of the individual concerned. However, it is noteworthy that while it was invited to do so, the IPS failed to identify any particular entries on the record at issue whose release would involve the disclosure of the identity of any specific prisoner or to explain how release would involve such disclosure. Indeed, the Investigator was not in a position to identify the prisoner whose details were withheld from the summarised information that was released from online searches conducted.
Having considered the matter carefully, I find that the information in the record at issue is not personal information for the purposes of the FOI Act on the ground that it is not information about identifiable individuals. Accordingly, I find that section 37(1) does not apply.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the IPS to refuse access, under section 37(1) of the FOI Act, to the record at issue and I direct its release in full.
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.
Stephen Rafferty
Senior Investigator