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Ms. M and Department of Justice and Equality (FOI Act 2014)

Case Number: 160094

Whether the Department was justified in its decision to refuse access to a report by Shane Murphy SC into the trial and conviction of Harry Gleeson on the basis that sections 28(1)(a), 29(1)(a), 31(1)(a), 37(1) and 42(f) of the FOI Act applied

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

In her original FOI request of 20 August 2015, the applicant sought access to "the Senior Counsel's report into the trial and conviction of Harry (Henry) Gleeson". In its decision dated 20 October 2015, the Department refused access to the report by Shane Murphy SC on the basis that sections 28(1)(a), 29(1)(a), 31(1)(a), 37(1) and 42(f) of the FOI Act applied. The applicant sought an internal review on 23 November 2015. The Department's internal review decision of 8 December 2015 affirmed the original decision. The applicant submitted an application for review to this Office, which was received on 29 February 2016.

In conducting this review, I have had regard to the submissions of the applicant, to the submissions of the Department, to the content of the record and to the provisions of the FOI Act. I have decided to conclude the review by making a formal, binding decision.

Scope of Review

The review relates solely to whether the decision of the Department to refuse access to the report sought was justified.

Preliminary Matters

Section 22
Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant access to a record "shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified."

Section 25(3)
Although I am obliged to give reasons for my decision, Section 25(3) of the FOI Act requires the me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the content of the records or give detailed reasons for my decision is limited.

The release of a record under the FOI Act is understood, effectively, to be equivalent to its release to the world at large.

Analysis and Findings

The Department identified one record as relevant to the request and refused access on the basis of a number of sections of the FOI Act. It is appropriate that I deal with section 42(f) first. Section 42(f) of the FOI Act provides that the Act does not apply to a record held or created by the Attorney General (AG) or the Director of Public Prosecutions or the Offices of the Attorney General or the Director of Public Prosecutions, other than a record relating to general administration. While the Act is silent on the meaning of general administration, this Office considers that it clearly refers to records which have to do with the management of the AG's Office such as records relating to personnel, pay matters, recruitment, accounts, information technology, accommodation, internal organisation, office procedures and the like. I am satisfied that it does not refer to records relating to matters concerning the core business of the Office, such as advising on legislation or litigation.

In this case, the one record identified is a review by Shane Murphy SC of the conviction of Mr. Gleeson. A press release issued by the Department on 1 April 2015 on the matter stated that "the Attorney General directed that the case be subject to a final and authoritative review by Mr. Shane Murphy SC." This Office asked the Department for a submission to support its position that section 42(f) applied. In response, the Department provided copies of documentary evidence which clearly shows that the decision to engage Mr. Murphy SC to undertake the review was made by the Attorney General and that Mr. Murphy was instructed by the Office of the Chief State Solicitor (part of the Office of the Attorney General) in this regard. The Department was provided with a copy of the completed report by the Office of the Attorney General.

On the basis of the evidence available to me, I am satisfied that the record in question was created by the Office of the Attorney General. I am also satisfied that the record does not relate to the general administration of that Office. Therefore, I find that the Department was justified in refusing the applicant's request on the basis that section 42(f) of the FOI Act is engaged and the FOI Act does not apply to this record.

As I have found that 42(f) applies to this record so that the FOI Act does not apply, it is not necessary, or appropriate for me to consider the other exemptions claimed by the Department.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the Department and find that the FOI Act does not apply to this record on the basis of section 42(f) 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 not later than four weeks after notice of the decision was given to the person bringing the appeal.

Elizabeth Dolan
Senior Investigator