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Mark Tighe of The Sunday Times and An Garda Síochána (FOI Act 2014)

Case Number: 160257

Whether AGS was justified in refusing access to 5 specific audit reports and in granting only partial access to two others

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 12 February 2016, the applicant sought access to the following records from AGS:

1. The Garda internal audit of the Serious Crime Review Team following allegations of financial irregularities from 2013 and the 2014 joint audit with GPSU of the Serious Crime Review Team.
2. The audit of the Fixed Charge Processing Office - Non-discretionary cancellations from January 2014 and the Report of the Fixed Charge Penalty System from September 2014.
3. The audit of DMR South Central from 2014 and the joint audit with GPSU of DMR South Division also from 2014.
4. The report to the Commissioner in relation to Financial Controls in 2014.
5. The 2013 audit of salary and pension overpayments.

As AGS did not make a decision within the required time frame the applicant sought an internal review of the deemed refusal of his request on 13 April 2016. On 5 and 6 May 2016, AGS issued five separate internal review decisions, granting partial access to the reports described at 4 and 5 above with the redaction of certain parts of the reports on the ground that they fall outside the scope of the FOI Act, and refusing access to the remaining reports on the same basis. On 11 June 2016, the applicant sought a review by this Office of the decision of AGS.

I have decided to conclude this review by way of a formal binding decision. In conducting this review, I have had regard to the contents of the records, to the submissions of the parties, and to the provisions of the FOI Act.

Scope of the Review

This review is concerned with whether AGS was justified in deciding to redact certain reports and to refuse access to the remaining reports, on the ground that the withheld information falls outside the scope of the FOI Act and/or is exempt from release.

Preliminary Matters

It should be noted that while I am required by section 22(10) of the FOI Act to give reasons for decisions, this is subject to the requirement of section 25(3) that I take all reasonable precautions during the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the records at issue and of the reasons for my decision is limited.

Additionally, section 18(1) of the Act provides that if it is practicable to do so, access to an otherwise exempt record shall be granted by preparing a copy, in such form as the body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). I take the view that neither the definition of a record under section 2 of the Act nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, I am not in favour of the cutting or "dissecting" of records to such an extent. Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.

Finally, it is important to note that section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request under section 12 shall be presumed not to have been justified unless the head of the relevant FOI body shows to the Commissioner's satisfaction that its decision was justified. This means that the onus is on AGS of satisfying this Office that its decision to refuse access to the records sought, either in whole or in part, was justified.

Findings

In its submissions to this Office, AGS stated that the applicant had incorrectly described some of the records being sought, and that the titles of the reports under review are as follows:

1. Examination of Systems of Controls, Processes and Procedures of the Serious Crime Review Team, NBCI by the Garda Professional Standards Unit and Garda Internal Audit Section November 2014
2. Audit Report Fixed Charge Processing Office Non-discretionary Cancellations January 2014
3. Audit Report Fixed Charge Processing System September 2014
4. Garda Professional Standards Unit and Garda Internal Audit Section Report of the Examination of Audit Systems and Processes in DMR South Division
5. Audit Report DMR South Central Division April 2015
6. Report to the Garda Commissioner in relation to Financial Control in 2014
7. Audit Review Salary and Pensions Overpayments August 2013

Using this numbering system, access to records 1, 2, 3, 4 and 5 was refused while partial access was granted to records 6 and 7.

Before considering each record, it is important to bear in mind the limited extent to which AGS is subject to the FOI Act. The vast majority of bodes are deemed to be public bodies for the purposes of the Act by virtue of their inclusion in the categories set out in section 6 of the Act. Section 6(2) states that an entity specified in Part 1 of Schedule 1 shall, subject to the provisions of that Part, be a public body for the purposes of the Act.

Part 1(n) of Schedule 1 of the Act provides that section 6 does not include a reference to AGS "other than insofar as it relates to administrative records relating to human resources, or finance or procurement matters". In Case 160054, I stated my view that the purpose of Part 1(n) is to restrict the right of access to those functions or processes of AGS that relate to the administration or management of the organisation, and only in relation to matters concerning human resources, or finance or procurement matters. Records relating to the core functions of AGS, such as the investigation of criminal activity, are excluded from the ambit of the Act.

 

Record 1
AGS refused access to this record on the basis that it is not an administrative record and is therefore excluded from the scope of the FOI Act. In the alternative, it argued that the report is exempt from release under sections 30(1)(a), 32(1)(a)(i) and (iv), 35(1)(a) and 37(1) and furthermore that the Act does not apply by virtue of section 42(m).

In its submissions to this Office, AGS argued as follows:

"The entire basis of the report was to determine the level of adherence to organisational policies, processes and procedures, and associated responsibilities of management within the SCRT. A one-off forensic investigative examination was required to uncover any acts of criminality or disciplinary breaches within SCRT. The final report forms part of both the disciplinary and criminal investigations into certain activities at the SCRT. The report itself is not an administrative record for the purposes of finance, human resources or procurement and is an internal investigative report to inform management of the validity of the allegations of criminality being made against members of the SCRT...".

The Introduction to the report states that the Deputy Commissioner, Operations, requested the Garda Professional Standards Unit (GPSU) in conjunction with the Garda Internal Audit Section (GIAS) to undertake an examination of the systems of control, including adherence to organisational policies, processes and procedures and associated roles and responsibilities within the Serious Crime Review Team (SCRT) in the National Bureau of Criminal Investigation (NBCI) Division. It states that the request emanated from the receipt of a report from a member of AGS detailing specific allegations against named members of the SCRT.

The terms of reference for the joint examination are described as follows:

"To ensure compliance with the Department of Finance/Department of Public Expenditure and Reform (DPER) circulars, directives and guidelines, Garda Code Regulations and HQ Directives relative to the processing of claims and leave.
To ensure that robust controls are in place and complied with regarding Financial and Leave management.
To identify potential risks to the Garda Vote.
To consider reputational risks to the Garda Organisation."

The report contains, inter alia, an analysis of the financial and administrative management of the SCRT, including a study of travel and subsistence claims, overtime and allowances, and annual leave. The report has a number of appendices, containing details of the findings of the examination team in respect of specific claims by members of the SCRT. While I fully accept that one of the purposes for the report may well have been to inform management of the validity of the allegations of criminality being made against members of the SCRT, the report introduction and the terms and conditions for the joint examination clearly state that the examination to be undertaken was in respect of compliance with and adherence to controls, policies and procedures regarding financial and leave management. As such, it seems to me that the report is, indeed, an administrative record relating to human resources and finance matters.

AGS also argued that the report is part of the evidence regarding both current criminal and disciplinary investigations and that it falls outside the scope of the Act as it is akin to a statement of evidence from a complainant whereupon further investigations are conducted to prove or disprove its validity and that it is not, therefore, an administrative records. In my view, the fact that the report may have been put to further subsequent uses does not alter the fact that it is an administrative record relating to human resources and finance matters. I find, therefore, that it is not excluded from the scope of the Act by virtue of Part 1(n) of Schedule 1.

Of the alternative exemptions claimed by AGS, it seems to me that section 32(1)(a) is of most relevance. This provides that an FOI body may refuse to grant a request if access to the record could reasonably be expected to prejudice or impair "(i) the prevention, detection or investigation of offences, the apprehension or prosecution of offenders or the effectiveness of lawful methods, systems, plans or procedures employed for the purposes of the matters aforesaid" or "(iv) the fairness of criminal proceedings in a court or of civil proceedings in a court or other tribunal".

AGS stated that a file is currently with the Director of Public Prosecutions (DPP), who has yet to make a decision as to whether criminal prosecutions will be brought against certain members of the SCRT. It argued that the release of the report at this stage could reasonably be expected to influence public opinion and that it would be reckless to release the evidential value contained in the report prior to a decision by the DPP as it would inevitably impair the ability of the DPP to prosecute any alleged offences in a fair manner.

In Case 98086 (AAU & Department of Agriculture and Food), which concerned records relating to alleged interference with cattle tags, the then Commissioner stated that "I find that in this case an investigation is still ongoing and a prosecution has not commenced. However, there is a strong possibility that a criminal prosecution will result. In such cases, I think that the arguments in favour of release of relevant records are weak and remain weak until such time as the investigation has been completed and a prosecution has been concluded or a decision has been taken not to institute a prosecution. In cases where the prosecution has taken place or there is not going to be a prosecution, the bias moves in favour of release of the record. In such cases there is far less likelihood of prejudice or impairment to the investigation or prosecution." Furthermore, in Case 020481, the Commissioner accepted that there are many instances where the release of information could prejudice or impair the fairness of proceedings, including, for example, if disclosure of the information were to result in prejudicial pre-trial publicity.

In my opinion, similar considerations apply to this record. I am conscious that any detailed description of the record could result in the occurrence of the harm that the exemption is intended to prevent. However I am satisfied that much of its contents are such that its release at this time could reasonably be expected to give rise to the harms identified in subsections (i) and (iv). Furthermore, given the nature of the report, I do not consider it practicable to consider the partial release of the report pursuant to section 18. Therefore, I find that the exemption is applicable to the record in its entirety (including its appendices).

Section 32 is subject to a limited public interest balancing test, set out in subsection (3). If any of the circumstances set out in subsection 3 apply, then the body is required to consider whether the public interest would, on balance, be better served by granting than by refusing the request. One such circumstance is where the record contains information concerning "the performance of the functions of an FOI body whose functions include functions relating to the enforcement of law or the ensuring of the safety of the public". I am satisfied that the report at issue contains such information and that I am therefore required to consider whether the public interest would, on balance, be better served by the release of the record. In my view, it would not. While there is a public interest in enhancing the openness and transparency of AGS in connection with the processing of travel and subsistence expense claims and of annual leave, the public interest in ensuring that any potential criminal prosecution and/or the fairness of such proceedings is not prejudiced is much more compelling at this point in time. Consequently, I find that AGS was justified in refusing access to the record under section 32(1)(a).

Records 2, 3, and 4
Records 2 comprises an audit of the adequacy of controls in place in the Fixed Charge Processing Office relating to the cancellation of non-discretionary fixed charge notices. Record 3 comprises an audit of the implementation of previous recommendations concerning the Fixed Charge Processing System and of the effectiveness of the changes and enhancement to controls. Record 4 comprises an examination of property and exhibit management relating to cash and drugs, retention, security and disposal of property, and the use of PULSE to record property.

AGS argued that the reports in question are not administrative records relating to human resources, or finance or procurement matters. While there are financial aspects to the three reports and the first two in particular, I am satisfied that they are not administrative records relating to finance. In my view, the records concern core functions of AGS. For example, one of the functions of AGS is to process fixed charge penalties. In my view, this is not a process relating to the administration or management of AGS. Accordingly, I find that AGS was justified in refusing access to records 2, 3 and 4 on the ground that they are excluded from the scope of the Act by virtue of Part 1(n) of Schedule 1.

Record 5
AGS refused access to this audit report on the ground that it was excluded from the scope of the FOI Act. In the alternative, it argued that sections 30, 32(1)(a), 35(1)(a) and 37 apply to the record.

The record comprises an audit of the management and control systems applied by the DMR South Central Division across a range of matters. I am satisfied that a substantial number of the matters considered comprise core functions that are excluded from the scope of the FOI Act, such as drugs storage and reporting, property and evidence management, court warrants management and execution etc. However, I am also satisfied that a number of the matters considered comprise administrative matters relating to human resources, or finance or procurement and that certain parts of the report are, therefore, subject to the provisions of the Act. Those matters include management of attendance, overtime and allowances, management of travel and subsistence, procurement of goods and services, sickness absence records, and financial management. I am also satisfied that those parts of the report which essentially cover all aspects of the audit, such as audit methodology and scope for example, are not confined to administrative matters relating to human resources, or finance or procurement and are therefore excluded.

Having carefully considered the contents of the record, I find that the following parts of the record are subject to the provisions of the FOI Act:

  • Page 2: Second sentence and points 3 and 4 under section headed "Audit Opinion"
  • Pages 2/3: All text under section headed "1. Management of Attendance, Overtime and Allowances"
  • Page 3: All text under section headed "2. Management of Travel & Subsistence"
  • Page 4: Opening paragraph and bullet points 1 and 2 under section headed "Divisional Resources"
  • Pages 6/7/8: All text under section headed "1. Management of Attendance, Overtime and Allowances"
  • Pages 8/9: All text under section headed "2. Management of Travel & Subsistence"
  • Pages 22/23/24: All text under section headed "6. Procurement of Goods and Services"
  • Pages 34/35/36: All text under section headed "14. Sick Absence Records"
  • Pages 37/38: All text under section headed "16. Financial Management".

 

The report also contains a 34 page appendix entitled 'Record of Control Failures', which comprises a table of specific issues discovered during the audit process. I am satisfied that much of the appendix concerns operational matters (e.g. warrants, property) and is therefore outside of scope. However, certain parts of the appendix detail findings on administrative matters relating to human resources, or finance or procurement. I find that the following parts of the appendix are subject to the provisions of the FOI Act:

  • All rows in the table relating to the management of overtime and allowances, prompt payments, imprest account, procurement, sickness absence, and management of travel and subsistence.

 

I must now consider whether any of the exemptions claimed are applicable to those parts of the record that I have found to be subject to the provisions of the Act.

Section 30
This is a discretionary exemption that applies where the release of a record could reasonably be expected to prejudice the functions and negotiations of FOI bodies. AGS argued that the release of the record would prejudice the auditing process and techniques employed by the Garda Internal Audit Section and would be "detrimental" to current and future examinations of a similar nature. I do not accept this argument. In my opinion, the relevant sections of the record contain a high-level assessment of certain aspects of the performance of AGS in the relevant region. In my view, they contain no information about specific processes or techniques that, if released, could reasonably be expected to prejudice the effectiveness of future audits. Therefore, I find that AGS has not shown, to the satisfaction of this Office, that its decision to refuse access to the relevant parts of the report under section 30 was justified.

 

Section 32(1)(a)(i)(ii)(iii)&(ix)
This is a discretionary exemption that allows an FOI body to refuse access to a record where its release could reasonably be expected to prejudice or impair law enforcement and public safety. AGS submitted that the release of the record "will impair the ability of [AGS] to conduct its business of policing methods, plans and procedures effectively." In my view, AGS has failed to show how the release of the sections of the record within scope (as opposed to some sections that I have found to be out of scope) could result in the harms identified. I am satisfied that the release of the relevant sections, which concern human resources, finance and/or procurement matters and do not relate to the core functions of AGS, could not reasonably be expected to prejudice or impair law enforcement and public safety, and therefore I find that section 32(1)(a) does not apply.

Section 35(1)(a)
Section 35(1)(a) provides for the mandatory refusal of a request if

the record sought contains information given to an FOI body in confidence, and
on the understanding that the information would be treated by it as confidential, and
in the opinion of the head, its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons, and
it is of importance to the body that such further similar information as aforesaid should continue to be given to the body.

Each of the four criteria must be satisfied for this exemption to apply. However, section 35(2) provides that the exemptions at section 35(1) do not apply to a record prepared by a member of staff of an FOI body in the course of the performance of his or her functions unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than the FOI body or its staff.

AGS argued that its Internal Audit Section provided the report to senior Garda management in confidence. As the report was prepared by staff of AGS and AGS has not argued that the release of the report would constitute a breach of a duty of confidence owed to a person other than its staff, I find that section 35(1)(a) does not apply.

Section 37
Section 37(1) of the FOI Act provides for the mandatory refusal of a request where access to the record sought would involve the disclosure of personal information relating to a person other than the requester. For the purposes of the Act, personal information is information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or his/her family or friends, or (b) is held by an FOI body on the understanding that it would be treated by it as confidential. Section 2 of the Act details fourteen specific categories of information which is personal information without prejudice to the generality of (a) and (b) above. Section 2 of the Act also excludes certain information from the definition of personal information. In particular, paragraph (I) provides that personal information does not include the following information relating to an employee of an FOI body:

"... the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or occupies or occupied that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of the functions aforesaid"

Having regard to the definition of personal information, I am satisfied that the disclosure of the following information contained in the relevant parts of the appendix would involve the disclosure of personal information relating to third parties and that section 37(1) applies:

  • all member reg. numbers and the rank of the member where it is included with the reg. number, and
  • expense claim numbers and amounts.

 

Section 37(2) of the FOI Act sets out certain circumstances in which 37(1) does not apply. However, I am satisfied that none of those circumstances arise in this case. Section 37(5) provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance, the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or the grant of the information would be to the benefit of the person to whom the information relates. I am satisfied that the release of the information in question would not be to the benefit of the individuals to whom the information relates and that the public interest in the release of the information would not, on balance, outweigh the privacy rights of those individuals.

I am also satisfied that the disclosure of the remainder of the information contained in the relevant parts of the appendix, with the information identified above deleted, would not involve the disclosure of personal information relating to identifiable individuals, and that it is therefore not exempt under section 37(1).

Record 6
This record, comprising a report to the Garda Commissioner in relation to financial control, has been partially released to the applicant. AGS argued that the redactions applied to the report concerned operational matters within the force that are outside the scope of the FOI Act. I agree that the majority of the redactions have been appropriately applied under Part 1(n) of Schedule 1. However, section 4.4 refers to the SCRT, and I consider that the issues discussed are administrative matters relating to human resources and/or finance, and therefore subject to the provisions of the Act.

AGS argued that this section is exempt from release under section 32(1)(a)(i) & (ii). It argued that "The SCRT audit report and any reference to its findings are the subject of a criminal investigation and are expected to form part of the disciplinary investigation also. In accordance with current investigative practices nothing of possible evidential value is released into the public domain prior to a court hearing."

I am satisfied that similar considerations apply to this section as apply to record 1, and I agree with AGS that the release of the section relating to the SCRT could reasonably be expected to prejudice any potential criminal or disciplinary process. Therefore I find that section 32(1)(a)(i) applies to the relevant section. Additionally, I consider that the public interest balancing test set out in subsection (3) is applicable. As with record 1, I am satisfied that the public interest in ensuring that any potential criminal prosecution is not prejudiced is much more compelling than the public interest in favour of openness and transparency in this instance. Consequently, I am satisfied that access to this section should be refused.

Record 7
Record 7 comprises an audit review of discovered cases of overpayments of salary and pension. The majority of the record was released to the applicant, with a limited number of redactions under section 37(1) on the ground that the redacted information comprised personal information relating to third parties. The question I must consider is whether the release of the redacted information would involve the disclosure of personal information relating to identifiable individuals. It is noteworthy that the report is not confined to a specific area of AGS. Rather it is concerned with the entire organisation, including both current and retired members and certain retired civil service personnel.

Having carefully considered each of the redactions made, I find that the disclosure of the redactions made to pages 8, 12, and 16 and of the first redaction on page 17 of the report would not involve the disclosure of personal information relating to identifiable individuals. Two of those redactions contain the name of a member of staff of the Department of Justice and Equality. As I have outlined above, for the purposes of the FOI Act, personal information does not include the name of staff members of FOI bodies. Accordingly, I find that AGS was not justified in redacting those parts of the record under section 37(1). I am, however, satisfied that the redactions to pages 17 to 19, all concerning the same individual, would involve the disclosure of personal information relating to an identifiable individual. I find that none of the other provisions of the section serve to disapply the exemption in respect of those redactions in this case and that they are exempt from release under section 37(1).

 

Decision

Having carried out a review under section 22(2) of the Act, I hereby vary the decision of AGS in this case.

I affirm the decision of AGS to refuse access to records 1, 2, 3, 4, and the redacted parts of record 6.

I direct AGS to release the following information from record 5:

  • Page 2: Second sentence and points 3 and 4 under section headed "Audit Opinion"
  • Pages 2/3: All text under section headed "1. Management of Attendance, Overtime and Allowances"
  • Page 3: All text under section headed "2. Management of Travel & Subsistence"
  • Page 4: Opening paragraph and bullet points 1 and 2 under section headed "Divisional Resources"
  • Pages 6/7/8: All text under section headed "1. Management of Attendance, Overtime and Allowances"
  • Pages 8/9: All text under section headed "2. Management of Travel & Subsistence"
  • Pages 22/23/24: All text under section headed "6. Procurement of Goods and Services"
  • Pages 34/35/36: All text under section headed "14. Sick Absence Records"
  • Pages 37/38: All text under section headed "16. Financial Management".

 

I also direct AGS to release all information contained in all rows in the table in the Appendix to record 5 relating to the management of overtime and allowances, prompt payments, imprest account, procurement, sickness absence, and management of travel and subsistence, apart from details of all member reg. numbers and the rank of the member where it is included with the reg. number, and details of expense claim numbers and amounts.

Finally, I direct AGS to release the text redacted from pages 8, 12, and 16 and the text of the first redaction on page 17 of record 7.

 

Right of Appeal

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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

 


Stephen Rafferty
Senior Investigator