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Mr C and the Department of Justice and Equality (FOI Act 2014)

Case Number: 160044

Whether the Department's decision to refuse the applicant's request for records of correspondence relating to the possible release of segregated prisoners was justified

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 10 July 2015, the applicant sought access to all records relating to segregated republican prisoners in Portlaoise Prison for the period 1 July 2014 to date. On 30 July 2015, the Department informed the applicant that the request was voluminous in light of the number of records coming within its scope and that it would refuse the request under section 15(1)(c) of the FOI Act unless the applicant agreed to amend the request.

On 29 January 2016, the applicant submitted a refined request for records from the Parole Board or the Irish Prison Service relating to the possible release of segregated prisoners on any grounds including on compassionate grounds, illness grounds, temporary release or permanent release and the responses of the Minister for the period 1 July 2014 to date, excluding the legal files and the parole board accompanying files. He stated his understanding that personal information would be redacted from the records.

On 11 December 2015, the Department stated that his request was dealt with by two Divisions, namely Crime 3 Division and Prisons Policy. It refused access to all 163 records identified by Crime 3 Division as coming within the scope of the request and all four records identified by Prisons Policy Section.

On 14 December 2015, the applicant sought an internal review of the Department's refusal. On 19 January 2016, the Department affirmed its original decision. The applicant sought a review by this Office of the Department's decision on 22 January 2016.

During the course of the review both parties were invited to make a submission to this Office on the matter. While the Department made submissions, the applicant did not do so. Accordingly, I have decided to conclude the review by issuing a formal binding decision. In conducting the review, I have had regard to the contents of the relevant records, copies of which were provided to this Office for the purposes of the review, to the correspondence between the applicant and the Department as set out above, and to the correspondence between this Office and both the Department and the applicant on the matter.

Scope of the Review

The scope of this review is concerned solely with whether the Department was justified in its decision to refuse access to the records sought.

Preliminary Matters

I note that the applicant made it clear in his request that he did not expect personal information relating to prisoners to be released. 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.

Secondly, it is important to note that that the courts have taken the view that, under FOI, records are released without any restriction as to how they may be used and, thus, FOI release is regarded, in effect, as release to the world at large. This is of particular relevance where the question of the release of information relating to third parties is at issue.

Findings

Access to the Crime 3 Division records was refused under sections 31(1)(a), 32(1)(a)(i) & (iii), 33 and 37 of the FOI Act, while access to the Prisons Policy records was refused under sections 31(1)(a) and 37. Given the contents of the records, I consider it appropriate to address the Department's arguments in relation to the applicability of section 37 in the first instance.

Section 37
Section 37(1) of the FOI Act provides that an FOI body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information relating to an individual other than the requester. In its submission in respect of the records held by Crime 3 Division, the Department argued that the records relate to personal information pertaining to individual sentenced persons and that sentenced persons have the same right to the privacy of personal data as other categories of individual. It argued that the right to personal privacy is not compromised by the fact of imprisonment.

For the purposes of the FOI Act, personal information is defined at section 2 as information about an identifiable individual that, either (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or (b) is held by an FOI body on the understanding that it would be treated by that body as confidential. Section 2 proceeds to list 14 categories of information that constitute personal information, including, at relevant parts, (i) information relating to the educational, medical, psychiatric or psychological history of the individual...(vi) information relating to the criminal history of, or the commission or alleged commission of any offence by, the individual...(vii) information relating to any proceedings for an offence committed, or alleged to have been committed, by the individual, the disposal of such proceedings or the sentence imposed by any court in such proceedings...(xiv) the views or opinions of another person about the individual.

The records before me concern, for the most part, applications from individual prisoners for temporary release (TR) from Portlaoise Prison. Consequently, the records contain information such as the reasons for the TR request (e.g. family occasions, health issues, upcoming full release) together with the Department's consideration of the requests. These considerations typically include details of the prisoner's conviction(s), including details of the offence and the length of the sentence, together with observations on his behaviour while in prison, previous TR applications, and the merits of the TR request. A small number of the records relate to a (then) pending court hearing relating to a named prisoner. Apart from pages 2 and 3 of record 85, which I consider separately below, I am satisfied that the release of all of the remaining records would involve the disclosure of personal information relating to identifiable individuals.

I have considered the applicant's view that the records might be released with the redaction of personal information. I am satisfied that such a measure is not practicable in this case given the nature of the information contained in the records and given that the contents of the records concern inherently private personal details relating to the prisoners concerned.

However, that is not the end of the matter as section 37(1) is subject to the other provisions of the section. While section 37(2) sets out a number of exceptions to this exemption, I am satisfied that none of the circumstances identified at section 37(2) arise in this case. Section 37(5) also provides for the release of certain information to which section 37(1) applies. It provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) 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 at issue would not be to the benefit of the individuals concerned and that section 37(5)(b) does not apply. In relation to paragraph (a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the right of privacy of the individuals to whom the information relates.

The records at issue contain personal and sensitive details about the private lives of prisoners. The right to privacy has a constitutional dimension, as one of the unenumerated personal rights under Article 40.1 of the Constitution. Privacy rights will therefore be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy. In my opinion, the public interest in favour of release of the records is not strong in this instance. While the FOI Act, at section 11(3), requires an FOI body to have regard to, among other things, the need to achieve greater openness in its activities and to promote adherence by it to the principle of transparency in government and public affairs in performing any function under the Act, it seems to me that the release of the records, which concern individual prisoners and TR requests would not, in any meaningful way, contribute to public understanding of the activities of the Department or the operation of the TR system. Consequently, I am satisfied that the public interest does not favour the release of the records, and I find that the Department's decision to refuse access to them was justified.

Record 85
The sole remaining record for consideration is Crime 3 Division record 85 (pages 2 & 3). This is a copy of a letter sent by the Irish Prison Service to the Governor of Portlaoise Prison in 2006 setting out the circumstances in which general approval had been obtained, at the time, for the Minister to consider granting temporary release to subversive prisoners and the factors the Minister would take into account in considering such applications. There is nothing in the record that relates to any identifiable individual and I find that section 37(1) does not apply. The Department also cited sections 32(1)(a)(i) and (iii), 33(1)(a) in refusing access to the record.

Section 32(1)(a) provides that an FOI body may refuse a request for access to records if release 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 "(iii) lawful methods, systems, plans or procedures for ensuring the safety of the public and the safety or security of persons and property." Section 33(1)(a) allows an FOI body to refuse a request if access to the record could reasonably be expected to adversely affect the security of the State.

Having considered the contents of the letter at pages 2 and 3 of record 85, I am not satisfied that its release could reasonably be expected to have the effect envisaged by section 32(a) or section 33(1)(a). While the Department has made submissions as to the applicability of these exemptions to the entirety of the records generally, it seems to me that none of the argument's presented support a claim that the release of this letter could reasonably be expected to give rise to any of the harms identified. Having regard to the provisions of section 22(12)(b) which require the Department to satisfy this Office that a decision to refuse access was justified, I find that the Department has not demonstrated that its refusal of pages 2 and 3 of record 85 was justified.

Decision

Having carried out a review under section 22(2) of the Act, I hereby vary the decision of the Department. I direct the release of pages 2 and 3 of record 85. I affirm the Department's decision to refuse access to the remaining records under section 37(1) of the FOI Act.

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