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Mr. X and Department of Justice and Equality (FOI Act 2014)

Case Number: 150383

Whether the Department was justified in its decision to refuse access to records concerning the applicant under sections 15(1)(a), 32(1)(a)(iii), 32(1)(a)(v), 35(1)(a), 35(1)(b) and 37(1) of the FOI Act

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

Background

On 8 February 2015, the applicant made an FOI request to the Department for the following records relating to him:

1. The prison file held by the Irish Prison Service;
2. The file (if any) held by the Department of Justice or Minister for Justice (if different);
3. The file held by the Welfare and Probation Department;
4. The file held by the Health Board re psychiatric "containment" (if not included in no.3);
5. The psychiatric file held by the Eastern Health Board;
6. The psychology Department's file including any applications for courses;
7. All files held by the Parole Board including recommendations to the Department of Justice;
8. All directions from the Minister for Justice (if not included in files);
9. All communications between the Irish institutions and institutions in another jurisdiction regarding repatriation applications made and the finalised documents agreed upon during the first application;
10. All adoption files sent to the Welfare and Probation Department at the applicant's request if not included in the Welfare and Probation files.

On 17 April 2015, the Department wrote to the applicant and explained that records relevant to his request were located in a number of divisions of the Department. The Department issued separate decisions in relation to records held in the following seven divisions on the dates indicated below:

1. Medical records - 17 April 2015;
2. Psychology records - 21 April 2015;
3. Parole Board records - 24 April 2015;
4. Education records - 3 June 2015;
5. Transfer of Sentenced Persons records - 12 June 2015;
6. Prison Policy records - 2 July 2015;
7. Prison File records -15 July 2015.

On 14 July 2015, the applicant sought an internal review of the decisions issued in relation to education and psychology records on the basis that he believed that further records existed. The applicant also sought a review in relation to prison file records on the basis that the Department had not responded to this part of his request. The Department issued its decision in relation to the prison file records the following day (15 July 2015). On 17 and 20 August 2015, the Department upheld its original decisions. However in doing so it considered records other than those which the applicant had sought to have reviewed. On 2 November 2015, the applicant applied to this Office for a review of the Department's decision. On 24 February 2016, the Investigator wrote to the applicant and explained that this Office does not have jurisdiction to review an FOI Body's decision in relation to particular records where an applicant has not sought to have these decisions reviewed. The applicant was informed that, in accordance with his internal review request, the scope of the review would be confined to education, psychology and prison file records.

Both the applicant and the Department made submissions in the course of the review. At this stage, I must bring the review to a close by the issue of a formal binding decision as the applicant requires this. In conducting my review, I have had regard to correspondence between the applicant and the Department, to correspondence between the applicant and this Office, to correspondence between the Department and this Office, to the records at issue and to the provisions of the FOI Act.

Scope of the review

The scope of this review is confined to the following issues:

- Whether the Department was justified in deciding that section 15(1)(a) of the Act applies to the applicant's request for education and psychology records as it has claimed that no further records exist or can be found after reasonable steps to ascertain their whereabouts have been taken.
- Whether the Department was justified in partially refusing the following prison file records on the basis that section 32(1)(a)(iii) and (v) of the Act apply to the withheld information: 10, 15, 44, 48, 49, 50, 54, 59, 61, 62, 64, 77, 80, 83, 84, 85, 88, 94, 100, 106, 108, 149, 175. Section 32(1) protects certain security and safety related information.
- Whether the Department was justified in refusing or partially refusing the following prison file records on the basis that section 35(1)(a) of the Act applies to the withheld information: 57, 63, 114, 115, 116, 117, 130, 151, 161 and 228. Section 35(1) protects certain confidential information.
- Whether the Department was justified in refusing or partially refusing the following prison file records on the basis that section 37(1) of the Act applies to the withheld information: 29, 30, 118, 154, 209, 211, 219, 221, 222, 231, 235, 244, 246, 247, 249, 253, 254, 257, 260 and 263. Section 37(1) protects personal information of individuals other than the applicant.

Preliminary matters

Section 13(4) of the FOI Act does not allow this review to have regard to any reasons as to why the applicant is seeking the withheld records (although such reasons may be relevant to consideration of the public interest).

Section 18 of the FOI Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading.

Section 22(12)(b) of the FOI Act provides that a decision to refuse a request shall be presumed not to have been justified unless the head of the FOI body shows to the Commissioner's satisfaction that its decision was justified. This means that the onus is on the Department to satisfy the Commissioner that its decision to refuse access to the records was justified.

Although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in 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 the material that I can refer to in the analysis is limited. The release of a record under the FOI Act is considered, effectively, as release to the world at large.

Analysis and Findings

Section 15(1)(a) - "Search" issues

The applicant argues that further education and psychology records ought to exist. The Department argues that it has conducted comprehensive searches and that it cannot locate any further records. Section 15(1)(a) provides that a request for access to a record may be refused if the record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. In such cases the Commissioner's role is to review the decision of the public body and to decide whether the decision than no further records exist is justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision. The evidence in "search" cases consists of the steps actually taken to search for records along with miscellaneous other evidence about the record management practices of the public body on the basis of which the public body concluded that the steps taken to search for records was reasonable. The Commissioner's understanding of his role in such cases was approved by Quirke J. in the High Court case of Matthew Ryan and Kathleen Ryan and the Information Commissioner (2002 No. 18 M.C.A. available on this Office's website at www.oic.ie).

The applicant states that he completed educational courses and would expect the Department to hold records in relation to these courses. The applicant also states that he would expect further psychology records as he claims that he spent a number of years in treatment during certain periods.

The Department states that staff in the care and rehabilitation section searched for education records and that staff in the psychology section searched for psychology records. It states that staff with a knowledge of the applicant were contacted by decision makers to check if it were possible for records to be in any location other than the appropriate file. The Department provided a letter from the head teacher in a named prison who confirmed that the applicant attended classes regularly in music, computers, art, crafts and pottery. The Department states that the applicant does not appear to have pursued any accreditation and this would explain why there is no further education records. The Department says that the applicant's psychology file was held in the Psychology Services Office of the prison in which he was being accommodated at the time of his FOI request. It states that a named official requested the search and retrieval of the file in order to provide all documentation held by the service to the FOI Unit. According to the Department, inactive files would be stored in the Psychology Service Central Facility in Dublin. The Department says that there is no other location where psychology records might be. Finally, the Department states that searches were conducted manually on individual files and also electronically on computer systems and emails.

The Department provided this Office with details of the areas searched for records and details of its record management practices. I am satisfied, having regard to the detailed information provided by the Department in response to queries from this Office, that the Department has taken reasonable steps to search for education and psychology records. I find therefore, that section 15(1)(a) applies to this part of the applicant's request.

Section 32(1)(a)(iii)/(v) - Security

The Department withheld information contained in 25 prison file records listed above in the "scope" section on the basis that the information withheld is exempt under section 30(1)(b) of the Act. The Department also sought to rely on section 32(1)(a)(iii) and (v) of the Act in withholding information from these records. I am satisfied from the records content and context that section 32 is the appropriate exemption under which to consider the withholding of this information. Section 32(1)(a) provides that a head may refuse to grant an FOI request if access to the record concerned could, in the opinion of the head concerned, reasonably be expected to prejudice or impair:

(iii) lawful methods, systems, plans or procedures for ensuring the safety of the public and the safety or security of persons and property... and
(v) the security of a penal institution.

Section 32(3) provides for limited exceptions to section 32(1). These exceptions only apply if the public interest would, on balance, be better served by granting than by refusing to grant the request concerned. The Commissioner's approach to this exemption is that where an FOI body relies on section 32(1)(a), it should identify the potential harm as specified in the relevant subparagraph and it should consider the reasonableness of any expectation that the harm will occur. In doing this, the FOI body should show how or why releasing the particular record could reasonably be expected to cause the harm which it has identified.

Department's submissions
The Department submits that the material withheld from record 10 relates to how the Irish Prisons Service has designed its database. It states that the database is used for the storage of information and as a conduit for communication between prison management and the Operations Directorate. According to the Department, the design and layout of the database is a highly sensitive security matter and it submits that the disclosure of this information could threaten the ability of the Operations Directorate and the Irish Prisons Service to hold those committed to custody in a safe and secure manner.

The Department submits that the material withheld from the remainder of the records comprises names of staff working in sensitive areas of the Department and the Irish Prisons Service. It states that staff working within these areas make a large number of decisions in relation to applications for early release, transfer to open centres and temporary release. It argues that releasing the identity of staff working in sensitive areas has the potential to expose them to a unnecessary heightened risk of serious threat or harm and the systems for making these decisions would be impaired if decision makers were to become risk adverse.

It is not possible to give a description of the information withheld from record 10 due to the requirements of section 25(3) of the Act. I am satisfied that the information withheld is central to the layout and design of the Irish Prisons Service database and I accept that its release could reasonably be expected to prejudice or impair systems for ensuring the safety or security of persons and the security of a penal institution. I therefore find that section 32(1)(a)(iii) and (v) applies to the withheld information.

Section 32(1)(a)(iii) is not concerned directly with protecting against the disclosure of information which could be prejudicial to the safety of the public or the safety or security of persons and property. Rather, it is concerned with the protection of lawful methods, systems, plans or procedures for ensuring the safety of the public or the safety or security of persons and property. Unlike most public bodies, the Department has a practice of not disclosing the names of officials working in certain Divisions, including Prisons Operations Directorate, in view of the sensitivity of the work generally carried out by those Divisions. I understand that the purpose of this practice is to ensure the safety and security of its officials. While expressing no view on the effectiveness of this practice, I note that, in previous decisions, the Commissioner has accepted the Department's position that disclosing the identities of officials in this area could prejudice systems for ensuring the safety and security of persons. I am satisfied that the disclosure of the identities of the officials named in a number of the records at issue in this case could reasonably be expected to prejudice or impair that practice or procedure. Accordingly, I am satisfied that section 32(1)(a)(iii) applies to the names/signatures/initials and any other identifying information of the officials in the records.

I am also satisfied that none of the conditions necessary for the consideration of the public interest in respect of the release of the withheld information are met in this case.

I find that therefore release of these records are exempt under section 32(1)(a)(iii) of the Act. Given this finding, there is no need for me to examine the same records under section 30(1)(b) also claimed by the Department.

Section 35 - Information in Confidence

The Department has refused to release the following prison file records on the basis that they are exempt under section 35(1)(a) of the Act: 57, 63, 114, 115, 116, 117, 130, 151, 161 and 228. The Department had also sought to rely on section 35(1)(a) in relation to record 55, however it subsequently confirmed that record 55 was released to the applicant. Records 151 and 228 contain correspondence from a third party to the prison service and correspondence concerning a third party. These records contain personal information in relation to a third party and I am satisfied that it is appropriate to review these record under the section dealing with personal information (section 37) below.

Section 35(1) contains two provisions, paragraph (a) and paragraph (b). Section 35(1)(a) provides a mandatory exemption for certain records containing information given to an FOI body in confidence. A number of conditions must be met in order for the exemption to apply. Section 35(1)(b) provides an exemption for records whose disclosure would result in a breach of a duty of confidence. Section 35(2) provides that section 35(1) does not generally apply where a record is prepared by a member of staff of an FOI body or a service provider to an FOI body, unless disclosure would be a breach of a duty of confidence owed to a person other than such a staff member or service provider. Section 35(3) provides that section 35(1)(a) does not apply where the public interest would, on balance, be better served by granting than by refusing to grant the FOI request.

Department's submissions
The Department states that the material withheld on the basis of section 35 consists of information received in confidence such as comments from gardaí, reports from probation services and opinions/recommendations from prison authorities. It submits that the information was received in confidence and on the strict understanding that it would be treated as confidential. According to the Department, it is likely that if comments or recommendations that were given in confidence were disclosed the staff concerned would no longer be frank in the information they supply or would decline to provide such information. The Department states that there is an agreement between the Irish Prison Service and An Garda Síochána that their members views are received in confidence. It submits that this agreement is essential to maintain an open exchange of information relating to prisoners within the prison system. According to the Department, if the continued flow of information is curtailed, there may be unforeseen consequences for the safety of the public and for the needs of prisoners.

The Records
The description which I can give of the records at issue is limited having regard to section 25(3) of the Act. There are, however, a number of general observations which I can make. Records 57, 63, 115, 116, 117 and 161 contain correspondence from prison officials and prison medical officers or doctors concerning medical and psychological matters. I note that all of applicant's medical and psychological records have already been provided and it is not clear what distinguishes these records from other medical/psychological records already provided to the applicant. Record 114 consists of a letter from a prison official to An Garda Síochána. In its submissions, the Department placed particular emphasis on the importance of protecting the confidentiality of information received from Gardaí. The Department cited the High Court decision in Michael Byrne v Governor of Castlerea Prison [2005] IEHC 64 in this regard. However, record 114 does not contain information received from Gardaí; it is a request to Gardaí to provide a form. As outlined above, section 35(1) does not generally apply where a record is prepared by a member of staff of an FOI body or a service provider to an FOI body unless disclosure would be a breach of a duty of confidence owed to a person other than such a staff member or service provider. Therefore, before looking at whether section 35(1)(a) applies, it is necessary to consider section 35(2).

Section 35(2)
The application of section 35(2) involves three steps. First, it must be determined whether the record at issue was prepared by a staff member of, or contractor to, an FOI body. Second, where this turns out to be the case, consideration must be given to whether or not the record was prepared by such a staff member or contractor in the course of the performance of his or her functions. With the exception of record 130, all of the records consist of correspondence concerning the applicant which passed between employees/service providers to FOI bodies. I am satisfied that all of the records (with the exception of record 130) meet the first two requirements. The third requirement of section 35(2) involves considering whether a duty of confidence arises in respect of the record that is owed to someone other than an FOI Body or service provider to an FOI Body. Having examined records 57, 63, 114, 115, 116, 117 and 161 closely, I am not satisfied that their release would result in a breach of a duty of confidence owed to a to a person other than a staff member or service provider to an FOI body. I am satisfied that section 35(2) applies to these records. Accordingly, I find that they are not exempt under section 35(1)(a) of the Act. However, I note that these records contain the names and contact details of staff working in sensitive areas of the Irish Prison Service. I find that the names/contact details of all staff contained in these records are exempt under section 32(1)(a)(iii) and (v) of the Act. I find that the remainder of the records should be released to the applicant.

Records 130 contains two letters. The first letter is to a non FOI Body. The second letter is written by a prison official to the Irish Prison Service. However, this letter makes reference to the first letter. To determine whether there is a duty of confidence owed to the non FOI Body referred to in record 130, it is necessary to demonstrate that the information contained in this record:

- has the necessary quality of confidence about it,
- was communicated in circumstances which impose an obligation of confidence on the person receiving it, and
- it must be wrongfully communicated by the person receiving it or by another person who is aware of the obligation of confidence.

Having regard to the content and context of record 130, I am satisfied it that has the necessary quality of confidence about it and that it was reasonable for the parties to expect that it would be treated as confidential. I am also satisfied that it would be wrongful for the parties to communicate this record. I find therefore that there was a duty of confidence owed to the non FOI body in respect of record 130. I am satisfied that record 130 is exempt under section 35(1)(b). Section 35(1)(b) is not subject to a public interest balancing test in section 35(3). However, it is established that the action for breach of confidence is itself subject to a public interest defence. The Commissioner has acknowledged that the public interest grounds which may justify a breach of a duty of confidence are quite narrow and include, for example, the revelation of wrongdoing or danger to the public. I am not satisfied that any such factors are relevant in relation to record 130. I find therefore that record 130 is exempt under section 35(1)(b) of the Act.

Section 37 - Personal Information

The Department withheld information from the following records on the basis that the information withheld is exempt under section 37(1) of the Act, records - 29, 30, 118, 154, 209, 211, 219, 221, 222, 231, 235, 244, 246, 247, 249, 253, 254, 257, 260, 263. As outlined above, I also consider that it is appropriate to consider records 151 and 228 under this exemption.

Section 37(1) requires an FOI body to refuse a request, subject to the other provisions of section 37, where it considers that access to the record concerned would involve the disclosure of personal information relating to an individual other than the requester. Section 2 of the FOI Act defines the term "personal information" as information about an identifiable individual that either (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual or (b) is held by an FOI body on the understanding that it would be treated by the body as confidential. The definition of personal information contains a list of 14 specific types of information including the name of an individual where it appears with other personal information relating to the individual.

The information withheld from the above records includes the names of third parties relating to prison visits and the names of other prisoners where they are recorded in records concerning disciplinary hearings and parole matters. The Department argues that the information withheld from these records constitutes third parties' personal information and there is no public interest in the disclosure of the information. I am satisfied that the information withheld from records 29, 30, 118, 154, 209, 211, 219, 221, 222, 231, 235, 244, 246, 247, 249, 253, 254, 257, 260, 263 identifies third parties and is personal information relating to those parties. I find that this information is exempt on the basis of section 37(1) subject to the provisions of section 37(2) and section 37(5), which I examine below.

Records 151 and 228 contain correspondence from a third party to the prison service and correspondence concerning a third party. These records contain that third party's personal information and I am satisfied that they are exempt under section 37(1) subject to the provisions of section 37(2) and section 37(5), which I examine below.

Section 37(2) and Section 37(5)
There are some circumstances which are listed at section 37(2) of the FOI Act in which the exemption at section 37(1) does not apply. For example, where the information relates to the applicant or where information of the same kind is available to the public. I am satisfied that none of the circumstances identified at section 37(2) 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, (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. In my view, the grant of the request would not benefit the individuals to whom the information relates. I am satisfied that section 37(5)(b) does not apply in this case.

The Public Interest
Section 37(5)(a) provides for access to the personal information of a third party where the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates. In relation to the question of where the public interest lies, I have had regard to the judgment of the Supreme Court in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner [2011] IESC 26 [more commonly referred to as "the Rotunda Hospital case"]. In the Rotunda Hospital case, the Supreme Court drew a distinction between private interests and public interests. The comments of Fennelly J. indicate that a request made "by a private individual for a private purpose" is not a request "made in the public interest". Moreover, in the opinion of Macken J., the public interest would require "a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law".

The FOI Act itself recognises a public interest in ensuring the openness and accountability of public bodies, regarding how they conduct their business. To a large extent, this public interest has been served by the release of almost all of the records sought, albeit with a small number of redactions. On the other hand, the FOI Act also recognises a very strong public interest in protecting privacy rights in the language of section 37. It is also worth noting that the right to privacy also has a Constitutional dimension as one of the unenumerated personal rights under 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. I find that, in the circumstances of this case, the right to privacy of the third parties whose personal information is contained in these records outweighs the public interest in granting the applicant's request. In summary, I find that sections 37(1) applies and that none of the exceptions under section 37 apply to the withheld information.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I vary the Department's decision. I affirm the Department's decision in relation to section 15(1)(a), 32(1)(a)(iii), 32(1)(a)(v), 35(1)(b) and 37(1) of the Act. I vary the Department's decision to refuse access to records under section 35(1)(a) of the Act as indicated below:

- Record 57, 63, 114, 115, 116, 117, 161 are partially exempt under 32(1)(a)(iii) - (all identifying references to staff are exempt).
- Record 130 is exempt under section 35(1)(b),
- Record 151 and 228 are exempt under section 37(1).

In summary, I direct release of records 57, 63, 114, 115, 116, 117 and 161 with the redaction of all identifying references to staff contained in these records

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.

 

Elizabeth Dolan
Senior Investigator