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Seán McCárthaigh of The Times and An Garda Síochána (FOI Act 2014)

Case Number: 160196

Whether AGS was justified in its decision to refuse access to details of the staffing levels of AGS at sub-district level as at 31 December 2015

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 January 2016, the applicant sought access to a record of staffing levels of AGS at station (sub-district) level for 31 December 2014 and 31 December 2015. In its decision of 8 February 2016, AGS provided details of the number of gardaí within each division but refused access to the details of the levels at sub-district level. On 20 February 2016, the applicant sought an internal review of the decision to refuse the details of the staffing levels at sub-district level as at 31 December 2015. On 14 March 2016, AGS upheld its original decision. The applicant sought a review by this Office of the decision of AGS on 3 May 2016.

In conducting this review, I have had regard to the correspondence between the applicant and AGS as outlined above and to the correspondence between this Office and both AGS and the applicant on the matter.

 

Scope of the Review

The review is concerned with whether AGS's decision to refuse access to the details of the staffing levels of AGS at sub-district level as at 31 December 2015 was justified.

Preliminary Matter

It is important to note at the outset 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 information sought was justified.

 

Analysis and Findings

AGS refused to release the information sought under sections 32(1)(a)(i), 32(1)(a)(ii), and 32(1)(a)(iii) of the FOI Act. Section 32 provides as follows:

"(1) A head may refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, reasonably be expected to --
(a) 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,
(ii) the enforcement of, compliance with or administration of any law,
(iii) lawful methods, systems, plans or procedures for ensuring the safety of the public and the safety or security of persons and property".

Section 32(1)(a) is a harm based exemption. It applies where access to the record concerned could reasonably be expected to prejudice or impair the matters specified in sub-paragraphs (i) to (iii). While each of the above subparagraphs consists of a separate provision, AGS's submissions in respect of each are similar and I consider it appropriate to deal with them together.

The essence of AGS's argument is that the disclosure of the staffing levels at sub-district level would disclose detailed operational policing information which would allow for an assessment of the operational policing capabilities in any location at any given time. It argued that this, in turn, could reasonably be expected to give rise to the harms identified in sub-paragraphs (i) to (iii). It argued that criminal elements would be able to cause a distraction on a measured scale based on the resource information available, such as false alarms or false reports of criminal activity, to ensure Garda resources are occupied elsewhere while crimes are committed unimpeded in different locations. It argued that this would prejudice and impair the personal safety of Gardaí, their ability to employ methods to prevent criminal activity and put the local community at risk of being subjected to crime sprees.

I accept that AGS has a special and unique expertise in relation to the enforcement of the law and the prevention of criminal activity. Nevertheless, as I have outlined above, section 22(12)(b) of the FOI Act provides that there is a presumption in favour of disclosure and AGS carries the burden of demonstrating that the release of the records could reasonably be expected to prejudice or impair the matters set out in sub-paragraphs (i) to (iii) of section 32(1)(a). The Commissioner does not have to be satisfied that the adverse effect will
definitely occur. It is sufficient for the FOI body to show that it expects such an outcome and that its expectations are reasonable.

The harms identified by AGS are all based on its assertion that the disclosure of the information sought would allow for an assessment of the operational policing capabilities in any location at any given time and that by doing so, it is reasonable to expect that the harms will arise. Apart from the fact that I would expect the staffing levels of many of the small stations to be generally known locally, I have a number of other difficulties with this argument. Firstly, in its internal review decision of 14 March 2016, AGS stated that the disclosure of sub-district level of staffing numbers would not reflect on the inter-divisional transfers done on a needs basis, nor would it correctly reflect on policing plans in place to police areas which have no local policing in place during particular hours. It further stated that the information sought would not give a true reflection of other sources of police support in those areas such as Detective Branch, Regional Support Units, Traffic Units, Drugs Units, or Burglary Response Units. In other words, the disclosure of the information sought would not, in fact, allow for an accurate assessment of operational policing capabilities in any location at any given time.

Secondly, I note that similar information has been placed into the public domain in the past and no argument has been made that the harms envisaged arose. I note, for example, that on 18 July 2013, the then Minister for Justice and Equality provided details of "the personnel strength of every Garda Station, District, Division and Region broken down by rank on 30 June 2013". This information is publicly available on the Oireachtas website. Similar information has also been provided at a county/constituency level (e.g. Wexford Garda Division as at 31 December 2015, provided on 26 January 2016).

I note the argument of AGS that it is not obliged to conform to the views of another FOI body on the same or a similar request and I agree that each FOI request must be considered on its own merits. However, given that very similar information to that sought by the applicant has already been placed in the public domain, I would expect AGS to be in a position to explain why it is reasonable to expect that the harms envisaged by section 32(1)(a)(i), (ii) and/or (iii) will arise by the release of the information at issue in this case in circumstances where it has not been argued that the release of similar information in the past has resulted in those harms.

Consequently, I am of the opinion that AGS has failed to demonstrate that it was justified in refusing access to the information sought by the applicant. I find, therefore, that AGS was not justified in refusing to grant access to the details of the staffing levels of AGS at sub-district level as at 31 December 2015.

 

Decision

Having carried out a review under section 22(2) of the Act, I hereby annul the decision of AGS, and I direct it to release details of the staffing levels of AGS at sub-district level as at 31 December 2015.

 

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.

 


Stephen Rafferty
Senior Investigator