Office of the Information Commissioner

Chapter 3: Decisions

Formal decisions

A total of 228 cases were dealt with by my Office in 2010. As outlined in chapter 1 of my Report, this total is comprised of formal decisions, settlements, withdrawals, invalid and discontinued cases. In this chapter, I will deal with the 43% of cases which went to formal decision. The table below compares the outcome of the cases which went to formal decision for the years 2008, 2009 and 2010.

Percentage comparison of formal decisions 2008-2010

Percentage comparison of formal decisions 2008-2010

It can be seen, in cases which went to formal decision, that the Office completely over turned the decision of public bodies in a greater percentage number of cases in 2010, than it had in comparative years (15% in 2010, compared with 6% in 2009 and 9% in 2008). In addition, the Office affirmed the decision of the public body in fewer cases during 2010 than it had in the comparative years (67% of cases in 2010, compared with 77% in 2009 and 73% in 2008).

I focus here on a small number of the 99 formal decisions issued during 2010 to highlight points of interest to public bodies and FOI users alike. The full text of these decisions and, indeed, other decisions of interest, is available on my Office website (www.oic.gov.ie).

Significant decisions

Medical Bureau of Road Safety (MBRS)

I issued decisions on two cases concerning records relating to the functions of the MBRS under the Road Traffic Acts. The MBRS is a public body whose functions include analysing blood, breath and urine specimens for the presence of alcohol and drugs, in the context of the road safety legislation. It also issues certificates for presentation in connection with prosecutions for alleged intoxicated driving and provides expert forensic evidence to assist the courts.

In these cases, the MBRS asserted that FOI should not be allowed to “provide a parallel system whereby the defence could obtain what is in effect disclosure in a criminal case”. Effectively, the MBRS claimed that the FOI Act should not apply to records relating to its functions under the Road Traffic Acts, despite the fact that, in 2006, through the passing of Regulations by the Oireachtas, the MBRS was prescribed as a body coming within the remit of that Act.

Mr. H and the MBRS - case no. 090073

The applicant sought access to all documentation pertaining to the receipt, analysis and certification of urine samples provided by him at a certain Garda station. The MBRS argued that a distinction should be made between administrative information and information related to the criminal investigation of an individual. In its view, the disclosure of information relating to its forensic investigative procedures over and above what is required under the Road Traffic Acts should be a matter solely for the courts. According to the MBRS, the creation, through FOI, of a “parallel process for disclosure of information in criminal proceedings….would undermine and interfere with [its]statutory obligations under the Road Traffic Acts”, “would also undermine and interfere with the function of the prosecution Services in their duty to put before the court evidence in relation to an alleged criminal offence as they deem proper” and “would also undermine and interfere with the jurisdiction of the Judges of the criminal courts”.

In my decision, in releasing the records, I observed that the MBRS had statutory functions under the Road Traffic Acts, but it was also under a statutory obligation to make records available upon request under the FOI Act, unless it met its burden of proof under section 34(12)(b), of showing that an exemption was applicable, which is not overridden by any public interest test attaching to the exemption in question. I found that the MBRS did not show how any of the harms under sections 23(1)(a) (i), (ii) and (iv) could reasonably be expected to occur based on the contents of the records at issue. Moreover, based on my own examination of the records, I found nothing in the contents of the records that could reasonably be expected to impair any of the law enforcement and public safety measures protected under sections 23(1)(a)(i), (ii) and (iv).

Mr. W and the MBRS - case no. 080260

The applicant sought general information concerning the intoxilyzer machine, used to measure the concentration of alcohol in the breath, including details of its manufacture, installation, programming, testing, maintenance repair and operation. In refusing to release any of the records, the MBRS pointed out that it is a matter for the courts to determine what information must be made available to the defence and prosecution in order to ensure the fairness of criminal proceedings. It argued that no records relating to its forensic investigative role, including records relating to the testing, maintenance etc. of the intoxilyzer should be made available outside of court proceedings (or otherwise as required under the Road Traffic Acts).

In my decision, I found that the MBRS and Lion Laboratories were justified in refusing access to the source code of the Lion Intoxilyzer 6000IRL on the basis that it was commercially sensitive as it was a trade secret and also that confidentiality provisions applied. With regard to the records at issue relating to the installation, testing, maintenance and repair of the intoxilyzer, procedures for testing of the intoxilyzer evidential breath testing systems, similar arguments to those advanced by the MBRS in case no. 090073, as outlined above, were relied upon to refuse the applicant access to the records in question. In this case, I similarly found that the MBRS had not met its burden of proof with respect to the particular records at issue and, therefore, that the claims for exemption under sections 23(1)(a)(i) to (iv) had not been justified. In addition, I found that no reasons had been advanced to support the assertion made by MBRS that disclosure of the records at issue would constitute contempt of court. Therefore, I directed that the records should be released.

[Note: Shortly after the making of these decisions, the then Minister for Transport introduced legislation which was enacted by the Oireachtas in July 2010 exempting the functions of the MBRS – as opposed to the general administration of the MBRS – from the scope of the FOI Act.]

Incorporeal meeting of Government

Sunday Times and the Department of Finance (the Department) – case no. 090028

The applicant sought certain records relating to the decision announced on 30 September 2008 concerning the Government guarantee for Irish banks. The Department released many records administratively and a formal decision was required on just two records. These records related to two meetings held in the early hours of 29/30 September 2008 concerning the introduction of a bank guarantee. The issue to be decided was whether the records concerning these meetings should be withheld under section 19(1)(c) on the basis that they contained information for a member of Government for use by him primarily for the purpose of the transaction of business of the Government at a meeting of Government – in this case an incorporeal Government meeting. The Department advised my Office that it understood from the Government Secretariat that “the procedures used for incorporeal meetings of the Government are used very sparingly and only in circumstances where a decision of the Government is urgently required and the circumstances preclude the convening of a normal meeting of the Government. Incorporeal meetings involve Ministers being briefed, usually by telephone about the matter to be decided upon”.

In view of the fact that the relevant Government meeting did not involve the normal physical gathering of members of the Government, the standard records associated with a Government meeting, such as a Memorandum of Government etc., did not exist in this case.

The key question was whether the information in the two records was used primarily for the purpose of Government business. I considered that due to the unprecedented circumstances of this case and the extraordinarily tight timelines involved that the records did contain information for use primarily at the incorporeal meeting of Government that was held by telephone on the night in question. As section 19 of the FOI Act does not contain any public interest provision, I did not have any discretion to apply public interest tests in this case, but rather, once I decided that section 19(1)(c) applied, I was obliged to find that the records in question were exempt from release.

Remuneration of former Chief Executive Officer (CEO) of the National Treasury Management Agency (NTMA)

A public Service body (“Body”) and former Chief Executive Officer (CEO), C/O a firm of solicitors (“the applicants”) and the Department of Finance (“the Department”) – case no. 090149

The applicant sought access to records held by the Department of Finance concerning the remuneration of the former Chief Executive of the NTMA. It should be noted that the NTMA is not prescribed, under the First Schedule of the FOI Act, as a body which comes within the remit of the FOI Act. The Department, in its original decision, found that the information contained in the records, which were identified as being relevant to the request, constituted the personal information of the former CEO of the NTMA but that the records should be released in the public interest. This decision was appealed to my Office by the representatives of the former CEO under section 29 of the FOI Act.

I found that the information in question was the personal information of the former CEO, but I was satisfied that, on balance, it should be released in the public interest. With regard to section 29 of the FOI Act, I found that the representatives of the former CEO had failed to meet the burden of proof under section 34(12)(a) of the FOI Act necessary to show that the decision of the Department to grant access to the information at issue was not justified. Accordingly, the relevant records were released.