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Mr John Deely v The Information Commissioner

This judgement was given by the High Court on an appeal by Mr John Deely against the Commissioner's decision in Case Number 000101 - Mr X and the Director of Public Prosecutions. (The Commissioner's decision in this case was issued by means of letter decision).

Note: The judgement on this appeal was given by Mr. Justice McKechnie on 11 May 2001. A copy of the judgement is reproduced below, the text of which has been approved by the Courts Service.

THE HIGH COURT

2000 No. 95 MCA

IN THE MATTER OF FREEDOM OF INFORMATION ACT 1997

BETWEEN

JOHN DEELY

APPELLANT

AND
THE INFORMATION COMMISSIONER

RESPONDENT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS]

NOTICE PARTY

JUDGEMENT of Mr. Justice McKechnie delivered the 11th day of May, 2001.

1. On the 1st day of April, 1999 at approximately 2 p.m., there was a road traffic accident at Caherulla, Ballyheigue in the County of Kerry. On the occasion in question the Appellant was driving his motor vehicle, in the direction of Ballyheigue when a collision occurred between an oncoming vehicle and one immediately behind him. Though not involved either by reason of personal injury or by way of impact damage, the Appellant on the instructions of the Director of Public Prosecutions was subsequently charged, by way of Summons, with an offence under Section 52 (1) of the Road Traffic Act, 1961 as amended. Being aggrieved at being so prosecuted and being further aggrieved at being the only driver to face any criminal charge, Mr. Deely sought to invoke the provisions of the aforesaid Act of 1997, in order to get from the Notice Party the reason or reasons why this prosecution was proffered against him. It is arising out of this request that the within Judgment is given.

2. The 1997 Act, apart from minor exceptions not here relevant, came into force on the 21st day of April, 1998. It’s passing, it is no exaggeration to say, affected in a most profound way, access by members of the public to records held by public bodies and to information regarding certain acts of such bodies which touch or concern such persons. The purpose of it’s enactment was to create accountability and transparency and this to an extent not heretofore contemplated let alone available to the general public. Many would say that it creates an openness which inspires a belief and trust which can only further public confidence in the Constitutional organs of the State.

3. In it’s long title, the intention of the Act is said to enable members of the public (a) to obtain access, to the greatest extent possible, consistent with the public interest and the right of privacy, to information in the possession of public bodies, (b) to have personal information in the possession of such bodies corrected if the need arises and accordingly (c) to have a right of access to records held by such bodies subject to necessary exceptions to that right.
To ensure that such rights can be availed of, in an informal, impartial and expeditious manner the title goes on to refer to the availability of assistance for persons who may wish to exercise these rights, to provide for the independent review both of the decision of such bodies and the operation of the Act and most importantly, of course, for the establishment of the office of the Information Commissioner. Other related matters are also recited.

4. As can thus be seen the clear intention is that, subject to certain specific and defined exceptions, the rights so conferred on members of the public and their exercise should be as extensive as possible, this viewed, in the context of and in a way to positively further the aims, principles and policies underpinning this statute, subject and subject only to necessary restrictions.....
It is on any view, a piece of legislation independent in existence, forceful in its aim and liberal in outlook and philosophy.

5. The structure of the Act is evident from the manner in which it is set out. Part II, which deals with Access to Records, inter alia, establishes the right of access, specifies the mechanism by which that right may be availed of, provides for notification of the resulting decision and gives an entitlement to have such decision internally reviewed. In addition Section 18 deals with the right to information regarding acts of public bodies which affect the person concerned.
Part III, headed “Exempt Records”, sets out amongst other things, how, to what extent and in what way, the bodies therein referred to, should deal with a request for records and in particular it specifies the grounds upon which a refusal to grant may be justified.

Part IV, establishes the Office of the Information Commissioner, and provides for a review by that Commissioner of a decision given by a public body in a variety of circumstances. It obliged the Commissioner to keep the operation of the Act under review as well as directing the Commissioner, not later than three years after the commencement of the Act, to carry out an investigation into public bodies generally, this, in order to assess their compliance with the provisions of the Act. He or she in addition, must publish an Annual Report and cause copies thereof to be laid before each House of the Oireachtas.

Part V, though headed miscellaneous, contains important provisions such as Section 42 which permits an appeal to the High Court on a point of law from the Commissioner’s review under Section 34, and Section 46 which declares that the Act shall not apply to certain records, a section of some importance in this case.

There then follows three Schedules. Schedule No. 1 sets out what bodies shall be public bodies for the purposes of the Act and also empowers the appropriate Minister to prescribe, other bodies, organisations and groups to stand for the time being as being included within that Schedule. The Second Schedule deals with the Information Commissioner and the Third with what enactments are excluded from the application of Section 32.

6. For the purposes of the issues presently at hand the following would appear to be the relevant provisions of the Act:-
(a) Section 2 (I) defines “exempt record” as meaning -
“(a) a record in relation to which the grant of a request under Section 7 would be refused pursuant to Part III or by virtue of section 46, or (b) .........”
(b) Section 4 permits a head of a public body to delegate in writing to a
member of his or her staff, any of the functions of that head under the Act save for a limited number of exceptions not material to this case
(c) Section 6, which is headed Right of access to records, at subsection
(I) and (7) read:-
(1) Subject to the provisions of this Act, every person has a right to and shall, on request therefor, be offered access to any record held by a public body and the right so conferred is referred to in this Act the right of access.
“(7) Nothing in this section shall be construed as applying the right of access to an exempt record.
(d) Section 7 entitled “Request for access to records”, at subsection (I) reads:-
7(1) A person who wishes to exercise the right of access shall make a request, in writing or in such other form as may be determined, addressed to the head of the public body concerned for access to the record concerned
(a) stating that the request is made under this Act,
(b) containing sufficient particulars in relation to the information concerned to enable the record to be identified by the taking of reasonable steps, and
(c) if the person requires such access to be given in a particular form or manner........”
(e) Section 8, which deals with decisions on requests under Section 7 and notification of such decisions, is as follows:-
8 - (I) Subject to the provisions of this Act, a head shall, as soon as may be, but not later than 4 weeks, after the receipt of request under Section 7
(a) decide whether to grant or refuse to grant the request or to grant it in part,
(b) .........
(c) cause notice, in writing .................................. of the decision and determination to be given to the requester concerned.
(2) A notice under subsection (1) shall specify -
(a) ............
(b) .............
(c) ...............
(d) if the request aforesaid is refused, whether wholly or in part
(i) the reasons for the refusal, and
(ii) unless the refusal is pursuant to ...... any provision of this Act pursuant to which the request is refused and the findings on any material issues relevant to the decision and particulars of any matter relating to the public interest taken into consideration for the purposes of the decision,
(3) ...........................
(4) In deciding whether to grant or refuse to grant a request under section 7
(a) any reason that the requester gives for the request, and
(b) any belief or opinion of the head as to what are the reasons of the requester for the request,
shall be disregarded” (f) Section 14 provides for an internal review, inter alia, of a decision to refuse to grant access under Section 7 which review, if not carried out by the head of the public body, must, by way of delegation, be carried out by a person whose rank is higher than that of the person who made the original decision under Section 7. Following the decision made on review, notice under subsection (4) must be sent to the relevant person and others if considered appropriate which notice is subject to subsection (6) which reads
“ (6) This section shall not be construed as requiring the inclusion in a notice under subsection (4) of matter that, if it were included in a record, would cause the record to be an exempt record”.

7. Section 18, because of its importance to this case should be cited a little more extensively than the other provisions mentioned above. Headed, “Right of person to information regarding acts of public bodies affecting the person”, it reads as follows

’18 -- (1) The head of a public body shall, on application to him or her in that behalf, in writing or in such other form as may be determined, by a person who is affected by an act of the body and has a material interest in a matter affected by the act or to which it relates, not later than 4 weeks after the receipt of the application, cause a statement, in writing or in such other form as may be determined, to be given to the person --
(a) of the reasons for the act, and
(b) of any findings on any material issues of fact made for the purpose of the act.
(2) Nothing in this section shall be construed as requiring
(a) the giving to a person of information contained in an exempt record, or
(b) ................................
(3) ......................................
(4) If, pursuant to subsection (2) or (3) the head of a public body decides not to cause a statement to be given under subsection (1) to a person, the head shall not later than 4 weeks after the receipt of the application concerned under subsection (1), cause notice, in writing or in such other form as may be determined, of the decision to be given to the person.

(5) .....................
(6) In this section - “act” in relation to a public body, includes a decision (other than a decision under this Act) of the body”.

8. Under Section 34 a decision given under Section 14 can be reviewed by the Commissioner. As with the decision under review, the Commissioner, under SS (2) (b)

following the review, may as he or she considers appropriate
(i) - affirm or vary the decision, or
(ii) annul the decision and, if appropriate, make such decision in relation to the matter concerned as her or she considers proper”

On a point of law the party to a review under Section 34 or any other affected person may appeal to the High Court from the decision of the Commissioner. Under subsection 8 the determination of the High Court on appeal shall be final and conclusive.
And finally Section 46. It is headed “Restriction of Act”. It read’s

“ 4 6 - (1) This Act does not apply to --
(a) a record held by --
(i) The Courts,
(ii) ......
(iii) ......
(b) a record held or created by the Attorney General or the Director of Public Prosecutions or the Office of the Attorney General or the Office of the Director of Public Prosecutions (other than a record concerning the general administration of either of those Offices)”.

9. In addition to these said provisions of the 1997 Act there is one Statutory Instrument which, in the manner hereinafter set forth, is relevant to this case and so to complete the legislative framework it should be referred to. It is the Freedom of Information Act, 1997 (Section 18) Regulations, 1998: SI 519 of 1998. Under paragraph 6 thereof it is stated that in the case of a decision to refuse to grant an application under Section 18 of the Act, the notice under subsection (4) thereof, in relation to the decision, “shall comply with Section 8 (2)(d)”, again of course of the said Act.

10. Following the issue and service of the Summon referred to at paragraph 1 above, but prior to it’s determination in the District Court, Mr. Deely, by letter dated the 26th day of November, 1999 wrote to the office of the Director of Public Prosecutions and having referred to the decision to prosecute him under Section 52 of the 1961 Act he sought “ the most detailed information on the reasons for this decision, in accordance with Section 18 of the Freedom of Information Act.
The decision on this request, made by Maureen Stokes the FOI officer with the DPP, is contained in two letters, the first dated the 23rd December, 1999 and the second the 13th January, 2000. There is no material difference between the content of either letter. The decision was to refuse the request as made, on the grounds that the information sought was contained in records to which the 1997 Act did not apply, this by virtue of Section 46 1(b) thereof. Accordingly, Mr. Deely was informed, that given the nature of such records, Section 18 did not require the giving of information as contained therein. Being dissatisfied with this response the Appellant, as was his right, sought, what is termed, as an internal review under Section 14 of the Act. That review was carried out by the Deputy Director, Mr. Barry Donohue, who in the resulting notice addressed to the Appellant and dated the 10th February, 2000 affirmed the decision of Ms. Stokes. Both the said Ms. Stokes and Mr. Donohue were duly and properly delegated to carry out these respective functions, with the Deputy Director holding a rank higher than that of Ms. Stokes within the office of the Notice Party.

11. On the 23rd February, 2000 Mr. Deely, by way of an appeal, sought a review of that decision from the Information Commissioner under Section 34 of the Act. In a discursive letter dated the 3rd August Mr. Fintan Butler, a senior investigator with the Commissioner, expressed an opinion, by way of a preliminary view, that the decision as given by the office of the DPP was correct. Accordingly, he invited a withdrawal of the application for review. In response Mr. Deely, disagreeing with this preliminary view, expressed a concern that “to discuss it with the DPP’s office”, did not constitute a review within the meaning of the Act and accordingly requested a decision from the Commissioner himself. That decision issued on the 5th September, wherein the Commissioner affirmed the decision of the DPP’s office. Hence the appeal to this Court pursuant to Section 42 of the Act.

12. In the Commissioners notice he sets out what findings were made by him as well as concluding with his decision. Such findings he describes as follows

Findings

Section 18 of the FOI Act provides for a right, in the case of a person affected by an act of a public body, to be given reasons for that act. However this is not an absolute right as Section 18 (2)(a) qualifies it to the extent that reasons need not be given where to do so would involve the giving of information contained in an exempt record. Whatever the wording of its initial response, I am satisfied that the decision of the DPP’s office rests on its view that the giving of reasons in your case would inevitably require the giving to you of information which is contained in an exempt record.

The term “Exempt Record” is defined in Section 2 of the FOI Act to include “ a record in relation to which the grant of a request under Section 7 would be refused pursuant to the Part III or by virtue of Section 46”. Accordingly, Section 18 does not require the giving of reasons where to do so would involve revealing information contained in a record which is exempt under Section 46.

Under Section 46 (1)(b), the FOI Act “does not apply” to a record held or created by the DPP’s office other than a record concerning the “general administration” of that office. In your case, the information required to provide the reasons requested by you is contained on a specific file created in connection with the decision on whether or not to prosecute. No case has been made by you that the records on this file are records concerning the general administration of the DPP’s office and I am satisfied that the records are exempt records by virtue of Section 46. Accordingly, I am satisfied that the DPP’s office could only have granted your request by the release of information contained in an exempt record.

Having considered the matter carefully, I find as follows:
That your request for reasons for the decision to prosecute you can only be met by the giving to you of information contained in an exempt record:
That the FOI Act does not require the giving of reasons where to do so involves the giving of information contained in an exempt record:
That the DPP’s office was within its rights in deciding not to grant your application under Section 18 of the FOI Act.”

Download the Judgement

Having thus set out his findings he then recalls his decision:-

Decision

Having completed my review under Section 34 of the FOI Act, I affirm the decision of the DPP’s office to refuse to give the reasons for its decision to proceed with a prosecution in your case arising from a road traffic accident on the 1st April, 1999.”

13. Before outlining the submissions made by the respective parties it should be observed that the evidential base upon which the DPP’s response was founded and indeed, that on which the Information Commissioners decision was based, is not in dispute. By a combination of the matters set forth in the letters referred to at paragraph 10 above it is clear that the DPP was alleging that the information sought was contained in, and could only be obtained and supplied from, records which records by reason of Section 46 (1) (b) of the Act were exempt records and furthermore were records to which the Act itself, did not apply. Though it is not so stated in as many words, it must follow from this assertion that such records are held or created by the DPP or his office and are records other than those concerning the general administration of such office. That this is the correct view, espoused by the Notice Party is confirmed by the Commissioner’s decision wherein he says
“I am satisfied that the decision of the DPP’s office rests on its view that the giving of reasons in your case would inevitably require the giving to you of information which is contained in an exempt record”.

14. In addition and necessarily of importance, the said Commissioner in his review document, independently finds that in this case “the information required to provide the reasons requested by you is contained on a specific file created in connection with the decision on whether or not to prosecute. No case has been made by you that the records on this file are records concerning the general administration of the DPP’s office and I am satisfied that the records are exempt records by virtue of Section 46. Accordingly I am satisfied that the DPP’s office could only have granted your request by the release of information contained in an exempt record ”.
As is evident from this extract, the Appellant has not suggested that the information is contained in records dealing with general administration, and otherwise has not, in the passing documentation or by way of submission, in any way, challenged the accuracy of this part of the DPP’s response or the justifiable basis upon which the Commissioner so concluded.

15. Mr. Deely’s appeal to this Court is presented on the basis of the relevant documentation exchanged between him, and the DPP and the Information Commissioner respectively, and also on the Affidavits sworn to ground this application. Submissions were made in support thereof. Therefrom he asserts as follows:-
(a) that the request made by him under Section 18 (1) cannot be refused on the grounds set forth at Section 18 (2)(a): it being his view, that the subsection last mentioned, merely preserves the integrity of the exemptions afforded to records covered by Part III and Section 46 of the Act and then only on a request made under Section 7, which of course, his request is not.
(b) that if however, Section 18 (2)(a) can be relied upon as a legitimate basis for refusal, the notice in writing containing that decision must comply with the provisions of S.I. 519/1998. This instrument has the effect of compelling such a notice, which issues under section 18 (4), of complying with the requirements of Section 8 (2)(d) of the Act. As the notice which issued in this case, being in the form of the letters dated the 23rd December, 1999 and the 13th January, 2000, did not so comply with Section 8 (2)(d), the preceding decision to refuse and communicated therein, was null and void and of no effect,
(c) that Section 46 (1)(b) of the Act cannot be invoked as a means of lawfully refusing the request as made. This he claims follows on from the said Section 8 (2)(d) of the Act, and furthermore is supported, in a cogent way by paragraph 6.2 of a Guide to the Act published by the DPP under Sections 15 and 16 thereof. In addition he submits that Section 46 (1)(b) can only be used where there are compelling reasons for so doing, as for example where sensitive information may damage key interests of the state or third parties, and finally,
(d) he claims that in any event he is entitled, as a matter of case law, following the decision of Cowzer -v- District Justice Kirby, HC, U/R, 11/2/1991 to have the information sought, supplied to him.

16. By way of response, both under Section 7 and on internal review under Section 14, the Notice Party, whom I shall firstly recite only because of the event sequence in this case, alleges:-

(a) That the information as requested is and is only contained in an exempt record and therefore, by virtue of Section 46 (1)(b), the Act has no application to the request so made and,
(b) That by reason of this non application it must follow that Section 18 cannot be relied upon as compelling the supply of the information as sought.

These said reasons, as so advanced, were elaborated upon and indeed added to by way of later correspondence between the said Notice Party and the Information Commissioner as well as by Affidavit evidence and through the submissions made. The additional points as canvassed were:-

(c) That Section 46 (1)(b) is absolute in its terms and if any given circumstances come within this subsection, then, it automatically follows that the Act had no application,
(d) That in any event Section 18 (2) (a) offers a valid basis for refusal with the resulting notice, in the form of the aforesaid letters, being a sufficient compliance with Section 8 (2)(d), there being no matters relating to the public interests which were required to be, or were in fact taken into account in issuing the refusal as aforesaid
(e) That the interpretation suggested by Mr. Deely, of the guide document issued by the DPP’s office was incorrect and finally,
(f) A new point, namely that the decision of the DPP to prosecute or not to prosecute as the case may be, was not “an act” within the meaning of Section 18 (1), and accordingly, in any event on that ground alone, the request was misguided.

17. The Respondent in his submission, supports the factual and legal basis upon which the decision of the 5th of September was both arrived at and made. He says that the Commissioner is given power under Section 34 (2), on review, to affirm or vary the decision or to annul the decision and if appropriate make such decision in relation to the matter concerned as he or she considers appropriate. It is said that he was justified in the conclusions of law arrived at and in his findings of primary fact, which findings should not be interfered with by this Court. In addition it is claimed that the Commissioner is given a broad discretion as to the procedures to be followed when conducting such a review. Furthermore he asserts that the finding made by him as to compliance by the Notice Party with Section 8 (2)(d) of the Act is such a finding, that, as with any finding of primary fact, it ought not to be interfered with by this Court, but that in any event, even if separately considered, this conclusion as
to compliance is fully justified. Finally the Commissioner has reservations, if not a contrary view as to the correctness of the submission advanced on behalf of the DPP in relation to the point referred to at paragraph 16 (f) above. In conclusion it is pointed out that the appeal to this Court is on a point of law only and that in all of the circumstances the Appellant has failed to present any case which would justify any variation or annulment of the decision reached by the Information Commissioner.

18. Prior to identifying what I think are the core issues in this case there are a number of matters, all of which, at least are of some importance, which it might be helpful and convenient to deal with at this point. In no particular order of priority these are as follows:-

1. (a) Being a creature of the Oireachtas, of a type without direct or parallel precedent, it is not possible to cite Acts, pari passu, upon which the Courts have expressed a view as to the correct method of statutory interpretation. The primacy of the test of any statute, is of course, an approach which pervades the commencement of any interpretative process, which is, to ascertain the will of parliament and to identify the intention of the legislature; this from the wording of the provision or provisions in question. Howard -v- the Commission of Public Works in Ireland 1994 1 I.R. 101, and in particular the Judgment of Blayney J, is a decision on point.

(b) However that approach may not in all cases be a complete answer to the exercise demanded. Different statutes may require additional methods to be adopted. Certainly, one is entitled to look at the Act as a whole and if there is any doubt or ambiguity, the purpose, intention and objects of the Act, may also be considered. As may the title. See People (DPP -v- Quilligan 1986 IR 495 and in particular at p. 523 thereof. An interpretation, which if otherwise is consistent with accepted cannons of construction, and is one which recognises the different roles of the legislature and the judiciary, can, nevertheless, be positively and actively adopted for the purposes of furthering the declared aims and intention of parliament as expressed or found in the Act in question.

(c) I am not therefore certain that given the vision of the 1997 Act, it is altogether a complete statement to suggest, that, the provisions thereof in their entirety can adequately be interpreted, for the purpose of implementation, simply by a straightforward application of Howard.

(d) In Minister for Agriculture and Food -v- Information Commissioner 2000 1 I.R. 309 Mr. Justice O’Donovan at page 319 of the report, having quoted a passage from the Judgment of Denham J in Howard, immediately goes on to refer to the Preamble of the Act and the intention of the legislature, and does so, very much in a way which embraces both, as being of considerable importance in indicating how one should construe, not only the section which the learned Trial Judge was then specifically dealing with it, but also the entirety of the Act. Furthermore, at page 312 he impresses the importance of this Preamble and in addition having refereed to Section 34 (12)(b) and Section 8 (4) emphasises the status of the rights conferred by this Act, and so<

(e) I would simply caution as to how in a complete way this Act might be interpreted.

2. It was submitted on behalf of both the Respondent and Notice Party that findings made by the Commissioner on questions of primary fact should not be reviewed by this Court as part of the appeal process under Section 42 of the Act. There is no doubt but that when a Court is considering only a point of law, whether by way of a restricted appeal or via a case stated, the distinction in my view being irrelevant, it is, in accordance with established principles, confined as to its remit, in the manner following:-
(a) it cannot set aside findings of primary fact unless there is no evidence to support such findings
(b) it ought not set aside inferences drawn from such facts unless such inferences were ones which no reasonable decision making body could draw,
(c) it can however reverse such inferences, if the same were based on the interpretation of documents and should do so if incorrect, and finally,
(d) if the conclusion reached by such bodies shows that they have taken an erroneous view of the law, then that also is a ground for setting aside the resulting decision. See for example Mara (Inspector of Taxes) -v- Hummingbird Limited 1982 2 I.R.L.M. 421, Henry Denny and Sons (Ireland) Limited -v- Minister for Social Welfare 1998 1 I.R. 34 and Premier Periclase -v- Valuation Tribunal HC 24th June, 1999 U/R. However, an Income Tax Appeals Commissioner is quite a different statutory creature than is the Commissioner under the 1997 Act and his conception likewise. So also is the Chief Appeals Officer in the Social Welfare case as of course is the Valuation Tribunal. These are but examples of bodies, tribunals and statutory persona from whom the Superior Courts have addressed references purely on points of law. There are of course many others. In this case however, it is unnecessary to express any view as to whether or not, a Court under Section 42, is so circumscribed. This because there is no challenge
and never has been to any of the material facts as alleged by the DPP, or and obviously of more immediate importance, to the findings made by and upon which the appeal Commissioner arrived at his decision. Therefore I would prefer to express no concluded view on this point.

3. Under Section 34 (12)(b) of the Act, a decision to refuse access to records “shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified”. That presumption does not appear to apply when a person exercises his right to request information under Section 18. This omission however may not altogether mean that, on a request to the Commissioner, the public body concerned, can passively await the discharge by an Applicant of some sort of onus and then only react. A fuller engagement, as happened in this case, would indeed be much more desirable and certainly much more in keeping with the spirit of the legislation. In any event, the instant appeal to this Court was conducted with the Appellant, assuming the onus and obligation of proving that the impugned decision of the Commissioner was erroneous on a point of law. This would appear correct and necessarily to follow from the relevant provisions.

4. As appears from the correspondence referred to, Mr. Butler wrote to the Appellant on the 3rd August, 2000, wherein, amongst other things he indicated that he had discussed Mr. Deely’s request with the DPP’s office. The response, by letter of the 14th August, may be construed as expressing displeasure at the contact, or in fairness, the author may simply have been mistaken in his belief that this contact amounted to and was in fact the review as sought. If the latter, he was of course mistaken. If the former he had no grounds for complaint. It seems to me that under Section 37 (6) of the Act, the Commissioner, in conducting a review under Section 34 or an investigation under Section 36, has an extensive discretion as to the procedures which he may adopt or follow. Certainly, when dealing with a refusal the Commissioner can only be encouraged to pursue a solution to the joint satisfaction of the public body and the requester, and in so doing he must be free, in accordance with the underlying intentio
n of the Act, to perform the preparatory work to his decision in whatever way he wishes, informally if that be his choice. It need hardly be said, however, that in so doing he must not compromise the due and proper performance of his function.
5. There is no doubt and it has not been challenged that Mr. Deely is within the meaning of Section 18 (1) of the Act, he being a person who is affected by the decision of the DPP to prosecute and he being a person who has the required material interest as therein specified.
6. Section 18 (2) commences with the following words “nothing in this Section shall be construed as requiring ........” (emphasis added). The words emphasised, namely “as requiring”, do not in Mr. Deely’s view, amount to a prohibition on the giving of the information sought. Such words cannot, I feel, be treated in isolation from the rest of this subsection and in any event should, more properly be looked at and considered, in the context of the more fundamental submission which is hereinafter dealt with.
(7) (1) As appears from the submission above outlined, the Appellant strongly relies upon a certain entry contained in the DPP’s “Guide to the Functions of and Records held by his Office”. Compilation and publication of this document is a statutory requirement under Sections 15 and 16 of the Act. At p.9, paragraph 6 it is to be found. It is headed
“6.1 Access to Information within the Office”.
6. 1. Applications under the FOI Act

Under the FOI Act, anyone is entitled to apply for access to information held in this office relating to the general administration of the office which is not otherwise publicly available. Each person had a right to:
access records held by this office:
correction of personal information relating to oneself held by this office which is inaccurate, incomplete or misleading:
access to reasons for decisions made by this office directly affecting oneself”.

It is the last which Mr. Deely relies upon.
(2). On its own and without reference to any other part of the document, one can understand how a person, in particular a lay person like Mr. Deely, could come to the conclusion which he asserts. However, such isolation gives a distorted feel for the overall text. At p.2 it is stated
Most importantly access to information is also subject to the restriction provided for under Section 46 of the Act:
Records created or held by the Office of the Director of Public Prosecutions are exempt, other than records concerning the general administration of the office”
At p. 3 it is recorded
“It should be borne in mind that only those records concerning the general administration of the office come within the scope of the Act, and in that context the office of the Director of Public Prosecutions undertakes to hold any information provided to it by individuals or others, not relating to the general administration of the office, on a confidential basis”
And finally, at p. 4 it is stated
“Records not within the range of general office administration are excluded from the scope of the Act.
It must be emphasised that the office is precluded, both as a matter of natural justice and because of legal constraints, from giving reasons for decisions not to initiate a prosecution”

3. There are other entries also to like effect. When therefore the document is read as a whole one can readily see that, on access to information as well as access to records, these are statutory restrictions which in the DPP’s view prevent the giving of certain information or the making available of certain records.
Consequently I do not believe that support, as such, is in fact found in these passages for the proposition as advocated by Mr. Deely, though the contrary view as expressed by him is indeed understandable.
However, even if Mr. Deely was correct, that, in itself, could not in any way be conclusive as to the proper interpretation of the relevant Statutory provision, this being a matter, ultimately for this Court.

19. There are two further related matters which though, strictly, not germane should, in difference to Mr. Deely be dealt with. The first is a claim that by virtue of the common law a person prosecuted is entitled to demand and get from the DPP, the reasons why the latter decided to embark upon such a prosecution. Logically it might be argued that an aggrieved victim, where no prosecution follows might also be entitled to insist upon a similar entitlement. In my view, from several decided cases in both of the Superior Courts, it is beyond doubt that this is not so. In the State (McCormack) -v- Curran 1987 I.L.R.M. 225 at 237 the then Chief Justice, Finlay C.J. said
In regard to the DPP I reject also the submission that he has only got a discretion as to whether to prosecute or not to prosecute in any particular case related exclusively to the probative value of the evidence laid before him. Again, I am satisfied that there are many other factors which may be appropriate and proper for him to take into consideration. I do not consider that it would be wise or helpful to seek to list them in any exclusive way. If, of course, it can be demonstrated that he reaches a decision mala fides or influenced by an improper motive or improper policy then his decision would be reviewable by a court. To that extent I reject the contention again made on behalf of this Respondent that his decisions were not of a matter of public policy ever reviewable by a Court.

In the instant case, however, I am satisfied that no prima facie case of mala fides has been made out against either of the Respondents with regard to this matter. Secondly, I am satisfied that the facts appearing from the affidavit and documents do not exclude the reasonable possibility of a proper and valid decision by the DPP not to prosecute the Appellant within this jurisdiction and that that being so he cannot be called upon to explain his decision or to give the reasons for it nor the sources of the information upon which it was based”.

In H -V- DPP 1994 2 I.R. 589 this matter was also dealt with in the Judgment of O’Flaherty J where at 603 the learned Judge stated
Thus, Blayney J starts from the premise that the decision of the Minister is open to full Judicial Review. However, it is clear from the decision in theState (McCormack) -v- Curran1987 I.L.R.M 225 that the discretion of the Director of Public Prosecutions is reviewable only in certain circumstances as set out by Finlay C J at page 237 of the report...... It would seem then that as the duty to give reasons stems from a need to facilitate full Judicial Review, the limited intervention available in the context of the decisions of the director obviates the necessity to disclose reasons”.

Therefore there can be no question of Mr. Deely, in this case or a like person in a similar case, being in a position, at common law to compel the DPP to give reasons as to why in any given set of circumstances he did or did not decide to prosecute.

20. The second related matter arises as a result of and following upon an application to the learned District Judge dealing with the Road Traffic prosecution. That judge, having heard both parties acceded to a request that prior to the hearing, the Appellant should receive copies of the statements made by intended witnesses at his then forthcoming trial. By way of extension and analogy it is claimed that on this principle of law Mr. Deely is also entitled to reasons. In DPP -V- Doyle 1994 2 I. R. 286 the Supreme Court, having considered a number of authorities, including Cowzer -v- Kirby HC 11th February, 1991 U/R decided through the Judgment of Denham J at 302

“That where an indictable charge is being disposed of by way of summary trial in the District Court, there is no general obligation on the prosecution to furnish, on request, the statements of the proposed witnesses for the prosecution. The trial is summary, it is not a halfway house between an indictable and summary trial. Thus, the answer to the first question is in the negative. However, the Applicant retains at all times his constitutional rights to fair procedures and if he requires, and it is in the interests of justice, that he be furnished with statements, or indeed other documents held by the prosecution, which will be evidence in his trial, then he is so entitled. It is a matter for the trial judge to determine in each case”. From the context in which this issue arose and from the aforesaid passage itself it is abundantly clear that this principle of law is totally distinguishable from and is quite separate from any claim pursuant to or pursuable under the 1997 Act. The exercise therefore by the District Judge of his discretion in making available the aforesaid statements is in my view quite extraneous in the live matters in this case”.

21. From the context in which this issue arises and from the aforegoing passage itself, it is abundantly clear that this principle of law is totally distinguishable from and is quite separate to any claim pursued on pursuable under the 1997 Act. The exercise of the District Judges discretion, therefore in having available the aforesaid statements is, in my view quite extraneous to the live issue in this case.

22. The core issues in this case centre on the correct interpretation of and the interplay between certain Sections of the Act. Section 6 (1) which creates the statutory basis for the Right of access to records, commences with these words “Subject to the provisions of this Act”. Therefore, the of right of so created is subject not only to the remainder of Section 6 but also to the other provisions contained in the Act. Section 7 indicates the manner in which this right may be exercised. Section 8 deals with the decision made on such requests and the notification of such decision. Section 12 concerns itself with the manner of exercising the right if of access granted and Section 14 deals with internal reviews.
It should be noted that the provisions referred to at Sections 7 onwards are all dependant upon the existence of the right of access created by Section 6 and are designed to facilitate the implementation of that right. So unless in the first instance, the right itself exists, any further reference to or consideration of the other Sections would not appear to be relevant.

23. Section 2, which is the definitive Section, at subsection (1) defines “exempt record” as meaning

“(a) a record in relation to which the grant of a request under Section 7 would be refused pursuant to Part III or by virtue of Section 46, or
(b) .........”

Section 6 (1), it will be recalled, created the right but as I have previously indicated that is subject to the other provisions of the Act which quite obviously include the remainder of Section 6. Subsection (7) of this Section reads
Nothing in this Section shall be construed as applying the right of access to an exempt record”.
Consequently in relation to an “exempt record” Section 6 (1) cannot be relied upon as conferring a right of access to such records. So once it can be established what an “exempt record” is, it would appear to follow that, subject only to the manner in which it becomes an exempt record, such document cannot form the subject matter of a request for a right of access.

24. For present purposes Part III of the Act is not in point given the accepted nature of the documents in issue in this case. But Section 46 is. As appears from paragraph 8 above subsection (1) of that Section reads

(1) This Act does not apply to
(a) .........
(b) a record held or created by the Attorney General or the Director of Public Prosecutions or the Office of the Attorney General or the Office of the Director of Prosecutions (other than a record concerning the general administration of either of those offices)”.

What then is the effect of the aforesaid recited parts of Sections 2,6 and 46 respectively?

25. The essence of the Act is that when a person comes within Section 6 (1) he may exercise that right, not out of grace and favour of the public body in question, but rather pursuant to the force of law. It is a legal right which he is exercising, indeed under Section 8 (4) of the Act the reasons why he wishes to exercise that right are entirely immaterial. So what is crucial is that a requester must show that his request for access is made pursuant to a right of access, this right being one founded on, and contained within, the provisions of the 1997 Act itself.

26. Section 46 (1)(b) in my view, has both a stand alone independent existence as well as having a direct relationship with Section 2 (1). Under the former heading, the introductory words of the Section are in my opinion clear beyond any dealt, uncertainty or ambiguity. “The Act does not apply to ........”. This can only mean that the provisions of the 1997 statute, obviously to include Section 6 (1), have no application to the documents listed therein save only as to the qualification contained within such listing. In my view those words can have no other meaning. Subsection (1)(b) expressly includes a “record”, held or created by the DPP or his office, unless that record relates to the only qualification mentioned, namely the general administration of that office. If this be correct it must follow that the Act, by virtue of this Section alone can have no application to the relevant record in this case, it not being one covered by general administration.
It must also follow therefore that since the Act does not apply, the head of the public body concerned, in this case the DPP, cannot be compelled to abide by any Section thereof and that accordingly he can refuse a request for such documents made to him under Section 7.

27. In addition to the relevance of Section 46 (1) (b) in this way, it also has a relevance by virtue of the definitive section, namely Section 2 (1). It will be recalled this section defers An “Exempt Record” ; as meaning inter alia, a record, the access to which can be refused under Section 46. So once a request for access to a record can be refused under the section last mentioned it would seem to me that such record, by virtue of this right to refuse becomes, under Section 2 (1), an Exempt Record . Having been thus so classified subsection (7) of Section 6 negates any application of Section 6 (1). Accordingly, in this way Section 46 operates on and in conjunction with Section 2 (1). Hence both the independent and interactive role of Sec 46.

28. So being records within Section 46 (1)(b), the Act does not apply and being exempt records by virtue of that Section and Section 2 (1) the right created by Section 6 (1) if such right otherwise exists is specifically excluded from applying to such documents by virtue of Section 6 (7). Whilst the above deals with access to records, nonetheless it is highly relevant to Mr. Deely’s request under Section 18.

29. Subsection (2) of Section 18 reads
“Nothing in this Section shall be construed as requiring -
(a) The giving to a person of information contained in a exempt record or
(b) ..............”

Given that the Appellant is attempting to establish a right which compels the DPP to furnish the information sought, he must in my view also establish that such right is enforceable by or under the provisions of this Act. It is quite insufficient to say that the DPP is not prohibited by Section 18 (2) from giving the information requested. That may be the case and indeed, thought I express no view on it, the DPP may not by law be injuncted from supplying such information. But once he decides against the request Mr. Deely must be able to demonstrate a compulsion arising from law which removes any discretion which the DPP might otherwise have. Very definitely in my opinion he cannot do so in this case. Subsection (2) qualifies the Section itself. It commences with the words quoted above. These can only mean that whatever rights are otherwise contained in Section 18, such rights do not and cannot extend to a requirement to give information which is contained in an exempt record as above defined. This I b
elieve is the correct interpretation of this Section and not that as suggested by Mr. Deely for if it was that, as submitted, it would render the entire section futile.
As, without debate it is accepted that the requested information is contained within an exempt record it must follow that also under Section 18 (2) the request can be refused.

30. It seems to me that when one looks at the relevant provisions a clear policy view emerges which is, in the context of this case, that no record or information contained in a record which is exempt pursuant to Section 46 can be obtained under the provisions of this Act.

31. As an alternative to his primary submission, Mr. Deely asserts that if his request can be refused under Section 18 (2) the resulting notice, containing such decision under subsection (4), must comply, by virtue of the statutory instrument above mentioned, with S.8 (2)(d). So it is claimed, the notice must give the reasons for the refusal, must set out the findings on any material issues relevant to the decision and must particularise any matters relating to the public interest which were taken into consideration for the purposes of this decision. Whilst he may accept that the relevant letters contained the reasons for the decision, he claims that there is no mention of public interest considerations as is necessary and accordingly there has been a breach of Section 8 (2)(d) of the Act.

32. In my view this submission is not well founded. Firstly, as previously stated Section 18 (2) qualifies this Section in the manner indicated. The Section, of course includes subsection (4), which is the basis for the notice requirement which must issue following upon a decision to refuse. This notice requirement does not arise by virtue of Section 8 (2)(d) or by virtue of Statutory Instrument 5/9/98. What the instrument does is simply to import into subsection (4) the notice requirement specified in Section 8 (2)(d). This method of applying Section 8 (2)(d) cannot in my view have greater effect than if the original subsection (4) specified, in precise detail, what the notice should contain. As the entirety of the Section, which obviously must include obviously subsection (4), whether as originally drafted or as amended, is qualified by displacing any obligation to give information contained in an exempt record, it must follow in my view that this notice does not have to contain such information
.
Secondly, I have grave reservations whether Section 8 (2)(d)(ii) can have any application to a record, which becomes an exempt record in the manner applicable to this case. It may very well have an important role to play if the exemption arises from Part III but, that of course is not the situation here.

Thirdly, if however the requirement did apply to an exempt record as established by Section 46 (1)(d) of the Act, it can only have relevance is in fact there were matters of public interest considered by the public body in making its decision. In this case the evidence shows that there was no such matters. Accordingly, one cannot say that there was any breach of the relevant subsection, particularly where there is no compulsory provision making it necessary to take such matters into account.

Fourthly, again even if the requirement did apply and there was a breach thereof, there is no subsequent provision in the Act dealing with the effect of non compliance.

Fifthly, this appeal is from the decision of the Information Commissioner who has reviewed the decision of the DPP and whose own decision procedurally is unchallenged and finally it may very well be that as the Commissioner has found the notice did efficiently comply with Section 8 (2)(d).

33. In conclusion therefore for the reasons as outlined above, I do not believe that any of the submissions advanced by and on behalf of Mr. Deely are such as would entitle the Appellant to any relief as claimed. Given this view it is I think unnecessary to consider whether or not a new point like that set forth at paragraph at par. 16 (f) above which was not raised by the public body or on review at the Section 34 stage, can for the first time be raised on an Appeal to this Court. Because of this, quite obviously, I should not express any view on the point itself.

 

Annual Report 2016