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Submission to Director of Public Prosecutions (6 March 2008)

REASONS FOR DECISIONS OF DPP TO PROSECUTE OR NOT TO PROSECUTE

The DPP's Office has invited responses on the questions raised in its Discussion Paper on Prosecution Policy on the Giving of Reasons for Decisions. The Information Commissioner, while not commenting on all of the questions raised in the Discussion Paper, would like to draw attention to the scope available within the Freedom of Information (FOI) Acts 1997 and 2003 for providing reasons for DPP decisions.

Section 18 of the FOI Act confers a right on certain persons, and in certain circumstances, to be given a statement of reasons by a public body for an "act" of that body. To be entitled to a statement of reasons under section 18, the applicant must be a person "who is affected by an act of the body and has a material interest in a matter affected by the act or to which it relates". While the section 18 provision is somewhat complex, the act in question (which includes a decision) must be one which affects the applicant either uniquely or as a member of a small class; put otherwise, the "act" must not be one which affects "persons in general or a class of persons which is of significant size...".

Section 18 has a provision, at sub-section (2)(a), that "[n]othing in this section shall be construed as requiring - (a) the giving to a person of information contained in an exempt record, ...". The DPP's Office has relied on this provision, in at least one instance, to refuse a statement of reasons on the grounds that any such statement in the particular case would inevitably involve disclosing information from its case file and that such information (not being a record "concerning the general administration" of the Office) was an exempt record under section 46(1)(b) of the FOI Act. This particular decision was confirmed on appeal to the Information Commissioner (Case No. 000101) and subsequently by the High Court (Deely and the Information Commissioner and the Director of Public Prosecutions).

While section 18(2)(a) clarifies that a public body need not disclose exempt information in the course of providing a section 18 statement of reasons, it does not prohibit the disclosure of such information. It would seem to be the case that a public body, should it so choose, may include in a section 18 statement of reasons information which is contained in an exempt record. It would seem to be the case that the DPP's Office has the discretion to include in a statement of reasons information which, if it were sought in the form of a record, would be an exempt record [by virtue of being excluded from the scope of the FOI Act under section 46(1)(b) of the FOI Act].

It seems to the Information Commissioner that section 18 of the FOI Act provides a ready-made solution, or at least a partial solution, to the issues raised in the Discussion Paper. Adopting the section 18 mechanism has the advantage that it is a statutory mechanism and it is a transparent mechanism in the sense that it carries a right of appeal to the Information Commissioner and subsequently to the High Court on a point of law. However, section 18 does not deal with the issue of whether the DPP should give reasons "to the public at large" given that the right is confined to persons affected by the "act" ; in practice, and in the context of DPP decisions, one can imagine section 18 being used by individuals who have been prosecuted or by victims (or the families of victims) in cases where the DPP has decided not to prosecute. [S.I. No. 266 of 2003, dealing with section 18 applications, makes provision (a) for parents/guardians to apply on behalf of a minor or person unable to act and (b) in the case of a deceased person, for specified classes of persons to make a section 18 applications. However, the wording of S.I. No. 266 of 2003, in so far as it deals with applications regarding acts which affected a deceased person, is problematic.]

As section 18 stands, it appears to confer on the DPP the discretion to disclose exempt information as part of a statement of reasons or, alternatively, to refuse to disclose such information. It would seem necessary for the DPP to draw up and publish the criteria on which this discretion will be exercised; otherwise, there may be a perception of arbitrariness in such decision making. One suggestion in this regard is that the discretion will be based on a public interest test in which the various public interests will be weighed, case by case, and a decision made on what best serves the public interest. Such an approach will allow for matters such as privacy rights, protection of good name and protection of the prosecutorial system to be weighed against other public interest considerations such as transparency and accountability.

OFFICE OF THE INFORMATION COMMISSIONER

6 March 2008