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Cite as: [2001] 3 IR 439, [2001] IEHC 91
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Deely v. Information Commissioner [2001] IEHC 91 (11th May, 2001)
THE
HIGH COURT
2000.
No.95MCA
IN
THE MATTER OF THE FREEDOM OF INFORMATION ACT, 1997.
BETWEEN
JOHN
DEELY
APPELLANT
AND
THE
INFORMATION COMMISSIONER
RESPONDENT
AND
THE
DIRECTOR OF PUBLIC PROSECUTIONS
NOTICE
PARTY
JUDGEMENT
of Mr. Justice McKechnie delivered the 11th day of May, 2001.
1.
On
the 1st day of April, 1999 at approximately 2 p.m., there was a road traffic
accident at Caherulla, Ballyheigue in the County of Kerry. On the occasion in
question the Appellant was driving his motor vehicle, in the direction of
Ballyheigue when a collision occurred between an oncoming vehicle and one
immediately behind him. Though not involved either by reason of personal
injury or by way of impact damage, the
Appellant
on the instructions of the Director of Public Prosecutions was subsequently
charged, by way of Summons, with an offence under Section 52 (1) of the Road
Traffic Act, 1961 as amended. Being aggrieved at being so prosecuted and being
further aggrieved at being the only driver to face any criminal charge, Mr.
Deely sought to invoke the provisions of the aforesaid Act of 1997, in order to
get from the Notice Party the reason or reasons why this prosecution was
proffered against him. It is arising out of this request that the within
Judgment is given.
2.
The
1997 Act, apart from minor exceptions not here relevant, came into force on the
21st day of April, 1998. It’s passing, it is no exaggeration to say,
affected in a most profound way, access by members of the public to records
held by public bodies and to information regarding certain acts of such bodies
which touch or concern such persons. The purpose of it’s enactment was
to create accountability and transparency and this to an extent not heretofore
contemplated let alone available to the general public. Many would say that it
creates an openness which inspires a belief and trust which can only further
public confidence in the Constitutional organs of the State.
3.
In
it’s long title, the intention of the Act is said to enable members of
the public (a) to obtain access, to the greatest extent possible, consistent
with the public interest and the right of privacy, to information in the
possession of public bodies, (b) to have personal information in the possession
of such bodies corrected if the need arises and accordingly (c) to have a right
of access to records held by such bodies subject to necessary exceptions to
that right.
1. To
ensure that such rights can be availed of, in an informal, impartial and
expeditious manner the title goes on to refer to the availability of assistance
for persons who may wish to exercise these rights, to provide for the
independent review both of the decision of such bodies and the operation of the
Act and most importantly, of course, for the establishment of the office of the
Information Commissioner. Other related matters are also recited.
- As can thus be seen the clear intention is that, subject to certain specific and defined exceptions, the rights so conferred on members of the public and their exercise should be as extensive as possible, this viewed, in the context of and in a way to positively further the aims, principles and policies underpinning this statute, subject and subject only to necessary restrictions.....
2. It
is on any view, a piece of legislation independent in existence, forceful in
its aim and liberal in outlook and philosophy.
1.
The
structure of the Act is evident from the manner in which it is set out. Part II,
which
deals with Access to Records,
inter
alia,
establishes the right of access, specifies the mechanism by which that right
may be availed of, provides for notification of the resulting decision and
gives an entitlement to have such decision internally reviewed. In addition
Section 18 deals with the right to information regarding acts of public bodies
which affect the person concerned.
3. Part
III, headed “Exempt Records”, sets out amongst other things, how,
to what extent and in what way, the bodies therein referred to, should deal
with a request for records and in particular it specifies the grounds upon
which a refusal to grant may be justified.
4. Part
IV, establishes the Office of the Information Commissioner, and provides for a
review by that Commissioner of a decision given by a public body in a variety
of circumstances. It obliged the Commissioner to keep the operation of the
Act under review as well as directing the Commissioner, not later than three
years after the commencement of the Act, to carry out an investigation into
public bodies generally, this, in order to assess their compliance with the
provisions of the Act. He or she in addition, must publish an Annual Report
and cause copies thereof to be laid before each House of the Oireachtas.
5. Part
V, though headed miscellaneous, contains important provisions such as Section
42 which permits an appeal to the High Court on a point of law from the
Commissioner’s review under Section 34, and Section 46 which declares
that the Act shall not apply to certain records, a section of some importance
in this case.
6. There
then follows three Schedules. Schedule No. 1 sets out what bodies shall be
public bodies for the purposes of the Act and also empowers the appropriate
Minister to prescribe, other bodies, organisations and groups to stand for the
time being as being included within that Schedule. The Second Schedule deals
with the Information Commissioner and the Third with what enactments are
excluded from the application of Section 32
.
1.
For
the purposes of the issues presently at hand the following would appear to be
the relevant provisions of the Act:-
(a)
Section 2 (I) defines “exempt record” as meaning -
“(a) a record in relation to which the grant of a request under Section
7 would be refused pursuant to Part III or by virtue of section 46,
or (b) .........”
(b)
Section 4 permits a head of a public body to delegate in writing to a
member of his or her staff, any of the functions of that head under the Act
save for a limited number of exceptions not material to this case
“
(1) Subject to the provisions of this Act, every person has a right to and
shall, on request therefor, be offered access to any record held by a public
body and the right so conferred is referred to in this Act the right of access.
“(7)
Nothing in this section shall be construed as applying the right of access to
an exempt record.”
(d)
Section 7 entitled “Request for access to records”, at subsection
(I)
reads:-
“7(1)
A person who wishes to exercise the right of access shall make a request, in
writing or in such other form as may be determined, addressed to the head of
the public body concerned for access to the record concerned
(a)
stating that the request is made under this Act,
(b)
containing sufficient particulars in relation to the information concerned to
enable the record to be identified by the taking of reasonable steps, and
(c)
if the person requires such access to be given in a particular
form or manner........”
(e)
Section 8, which deals with decisions on requests under Section 7 and
notification of such decisions, is as follows:-
“
8 - (I) Subject to the provisions of this Act, a head shall, as soon as may be,
but not later than 4 weeks, after the receipt of request under Section 7
(a)
decide whether to grant or refuse to grant the request or to grant it in part,
(b)
.........
(c)
cause notice, in writing .................................. of the decision
and determination to be given to the requester concerned.
(2)
A notice under subsection (1) shall specify -
(a)
............
(b)
.............
(c)
...............
(d)
if the request aforesaid is refused, whether wholly or in part
(i)
the reasons for the refusal, and
(ii)
unless the refusal is pursuant to ...... any provision of this Act pursuant to
which the request is refused and the findings on any material issues relevant
to the decision and particulars of any matter relating to the public interest
taken into consideration for the purposes of the decision,
(3)
...........................
(4)
In deciding whether to grant or refuse to grant a request under section 7
(a)
any reason that the requester gives for the request, and
(b)
any belief or opinion of the head as to what are the reasons of the requester
for the request,
shall
be disregarded”
(f)
Section 14 provides for an internal review,
inter
alia,
of
a decision to refuse to grant access under Section 7 which review, if not
carried out by the head of the public body, must, by way of delegation, be
carried out by a person whose rank is higher than that of the person who made
the original decision under Section 7. Following the decision made on review,
notice under subsection (4) must be sent to the relevant person and others if
considered appropriate which notice is subject to subsection (6) which reads
“
(6) This section shall not be construed as requiring the inclusion in a notice
under subsection (4) of matter that, if it were included in a record, would
cause the record to be an exempt record”.
1.
Section
18, because of its importance to this case should be cited a little more
extensively than the other provisions mentioned above. Headed, “Right of
person to information regarding acts of public bodies affecting the
person”, it reads as follows
’18
-- (1) The head of a public body shall, on application to him or her in that
behalf, in writing or in such other form as may be determined, by 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, not later than 4 weeks after the
receipt of the application, cause a statement, in writing or in such other form
as may be determined, to be given to the person --
(a)
of the reasons for the act, and
(b)
of any findings on any material issues of fact made for the purpose of the act.
(2)
Nothing in this section shall be construed as requiring
(a)
the giving to a person of information contained in an exempt record, or
(b)
................................
(3)
......................................
(4)
If, pursuant to subsection (2) or (3) the head of a public body decides not
to cause a statement to be given under subsection (1) to a person, the head
shall not later than 4 weeks after the receipt of the application concerned
under subsection (1), cause notice, in writing or in such other form as may be
determined, of the decision to be given to the person.
(5)
.....................
(6)
In this section - “act” in relation to a public body, includes a
decision (other than a decision under this Act) of the body”.
8.
Under Section 34 a decision given under Section 14 can be reviewed by the
Commissioner. As with the decision under review, the Commissioner, under SS
(2) (b)
“following
the review, may as he or she considers appropriate
(i)
- affirm or vary the decision, or
(ii)
annul the decision and, if appropriate, make such decision in relation to the
matter concerned as her or she considers proper”
7. On
a point of law the party to a review under Section 34 or any other affected
person may appeal to the High Court from the decision of the Commissioner.
Under subsection 8 the determination of the High Court on appeal shall be final
and conclusive.
And
finally Section 46. It is headed “Restriction of Act”. It
read’s
“
4 6 - (1) This Act does not apply to
--
(a)
a record held by --
(i)
The Courts,
(ii)
......
(iii)
......
(b)
a record held or created by the Attorney General or the Director of Public
Prosecutions or the Office of the Attorney General or the Office of the
Director of Public Prosecutions (other than a record concerning the general
administration of either of those Offices)”.
1.
In
addition to these said provisions of the 1997 Act there is one Statutory
Instrument which, in the manner hereinafter set forth, is relevant to this case
and so to complete the legislative framework it should be referred to. It is
the Freedom of Information Act, 1997 (Section 18) Regulations, 1998: SI 519 of
1998. Under paragraph 6 thereof it is stated that in the case of a decision to
refuse to grant an application under Section 18 of the Act, the notice under
subsection (4) thereof, in relation to the decision,
“shall
comply with Section 8 (2)(d)”,
again of course of the said Act.
1. Following
the issue and service of the Summon referred to at paragraph 1 above, but prior
to
it’s determination in the District Court, Mr. Deely, by letter dated the
26th day of November, 1999 wrote to the office of the Director of Public
Prosecutions and having referred to the decision to prosecute him under Section
52 of the 1961 Act he sought
“
the most detailed information on the reasons for this decision, in accordance
with Section 18 of the Freedom of Information Act.”
8. The
decision on this request, made by Maureen Stokes the FOI officer with the DPP,
is contained in two letters, the first dated the 23rd December, 1999 and the
second the 13th January, 2000. There is no material difference between the
content of either letter. The decision was to refuse the request as made, on
the grounds that the information sought was contained in records to which the
1997 Act did not apply, this by virtue of Section 46 1(b) thereof.
Accordingly, Mr. Deely was informed, that given the nature of such records,
Section 18 did not require the giving of information as contained therein.
Being dissatisfied with this response the Appellant, as was his right, sought,
what is termed, as an internal review under Section 14 of the Act. That review
was carried out by the Deputy Director, Mr. Barry Donohue, who in the resulting
notice addressed to the Appellant and dated the 10th February, 2000 affirmed
the decision of Ms. Stokes. Both the said Ms. Stokes and Mr. Donohue were duly
and properly delegated to carry out these respective functions, with the Deputy
Director holding a rank higher than that of Ms. Stokes within the office of the
Notice Party.
- On the 23rd February, 2000 Mr. Deely, by way of an appeal, sought a review of that decision from the Information Commissioner under Section 34 of the Act. In a discursive letter dated the 3rd August Mr. Fintan Butler, a senior investigator with the Commissioner, expressed an opinion, by way of a preliminary view, that the decision as given by the office of the DPP was correct. Accordingly, he invited a withdrawal of the application for review. In response Mr. Deely, disagreeing with this preliminary view, expressed a concern that “to discuss it with the DPP’s office”, did not constitute a review within the meaning of the Act and accordingly requested a decision from the Commissioner himself. That decision issued on the 5th September, wherein the Commissioner affirmed the decision of the DPP’s office. Hence the appeal to this Court pursuant to Section 42 of the Act.
- In the Commissioners notice he sets out what findings were made by him as well as concluding with his decision. Such findings he describes as follows
“Findings
Section
18 of the FOI Act provides for a right, in the case of a person affected by an
act of a public body, to be given reasons for that act. However this is not an
absolute right as Section 18 (2)(a) qualifies it to the extent that reasons
need not be given where to do so would involve the giving of information
contained in an exempt record. Whatever the wording of its initial response, I
am satisfied that the decision of the DPP’s office rests on its view that
the giving of reasons in your case would inevitably require the giving to you
of information which is contained in an exempt record.
The
term “Exempt Record” is defined in Section 2 of the FOI Act to
include “ a record in relation to which the grant of a request under
Section 7 would be refused pursuant to the Part III or by virtue of Section
46”. Accordingly, Section 18 does not require the giving of reasons
where to do so would involve revealing information contained in a record which
is exempt under Section 46.
Under
Section 46 (1)(b), the FOI Act “does not apply” to a record held or
created by the DPP’s office other than a record concerning the
“general administration” of that office. In your case, the
information required to provide the reasons requested by you is contained on a
specific file created in connection with the decision on whether or not to
prosecute. No case has been made by you that the records on this file are
records concerning the general administration of the DPP’s office and I
am satisfied
that
the
records are exempt records by virtue of Section 46. Accordingly, I am
satisfied that the DPP’s office could only have granted your request by
the release of information contained in an exempt record.
Having
considered the matter carefully, I find as follows:
Ÿ That
your request for reasons for the decision to prosecute you can only be met by
the giving to you of information contained in an exempt record:
Ÿ That
the FOI Act does not require the giving of reasons where to do so involves the
giving of information contained in an exempt record:
Ÿ That
the DPP’s office was within its rights in deciding not to grant your
application under Section 18 of the FOI Act.”
“
Decision
Having
completed my review under Section 34 of the FOI Act, I affirm the decision of
the DPP’s office to refuse to give the reasons for its decision to
proceed with a prosecution in your case arising from a road traffic accident on
the 1st April, 1999.”
13.
Before
outlining the submissions made by the respective parties it should be observed
that the evidential base upon which the DPP’s response was founded and
indeed, that on which the Information Commissioners decision was based, is not
in dispute. By a combination of the matters set forth in the letters referred
to at paragraph 10 above it is clear that the DPP was alleging that the
information sought was contained in, and could only be obtained and supplied
from, records which records by reason of Section 46 (1) (b) of the Act were
exempt records and furthermore were records to which the Act itself, did not
apply. Though it is not so stated in as many words, it must follow from this
assertion that such records are held or created by the DPP or his office and
are records other than those concerning the general administration of such
office. That this is the correct view, espoused by the Notice Party is
confirmed by the Commissioner’s decision wherein he says
“I
am satisfied that the decision of the DPP’s office rests on its view that
the giving of reasons in your case would inevitably require the giving to you
of information which is contained in an exempt record”.
14.
In addition and necessarily of importance, the said Commissioner in his
review document, independently finds that in this case
“the
information required to provide the reasons requested by you is contained on a
specific file created in connection with the decision on whether or not to
prosecute. No case has been made by you that the records on this file are
records concerning the general administration of the DPP’s office and I
am satisfied that the records are exempt records by virtue of Section 46.
Accordingly I am satisfied that the DPP’s office could only have granted
your request by the release of information contained in an exempt record ”.
10. As
is evident from this extract, the Appellant has not suggested that the
information is contained in records dealing with general administration, and
otherwise has not, in the passing documentation or by way of submission, in any
way, challenged the accuracy of this part of the DPP’s response or the
justifiable basis upon which the Commissioner so concluded.
15.
Mr. Deely’s appeal to this Court is presented on the basis of the
relevant documentation exchanged between him, and the DPP and the Information
Commissioner respectively, and also on the Affidavits sworn to ground this
application. Submissions were made in support thereof. Therefrom he asserts
as follows:-
(a)
that the request made by him under Section 18 (1) cannot be refused on the
grounds set forth at Section 18 (2)(a): it being his view, that the subsection
last mentioned, merely preserves the integrity of the exemptions afforded to
records covered by Part III and Section 46 of the Act and then only on a
request made under Section 7, which of course, his request is not.
(b)
that if however, Section 18 (2)(a) can be relied upon as a legitimate basis
for refusal, the notice in writing containing that decision must comply with
the provisions of S.I. 519/1998. This instrument has the effect of compelling
such a notice, which issues under section 18 (4), of complying with the
requirements of Section 8 (2)(d) of the Act. As the notice which issued in
this case, being in the form of the letters dated the 23rd December, 1999 and
the 13th January, 2000, did not so comply with Section 8 (2)(d), the preceding
decision to refuse and communicated therein, was null and void and of no effect,
(c)
that Section 46 (1)(b) of the Act cannot be invoked as a means of lawfully
refusing the request as made. This he claims follows on from the said Section
8 (2)(d) of the Act, and furthermore is supported, in a cogent way by paragraph
6.2 of a Guide to the Act published by the DPP under Sections 15 and 16
thereof. In addition he submits that Section 46 (1)(b) can only be used where
there are compelling reasons for so doing, as for example where sensitive
information may damage key interests of the state or third parties, and finally,
(d)
he claims that in any event he is entitled, as a matter of case law, following
the decision of
Cowzer
-v- District Justice Kirby
,
HC, U/R, 11/2/1991 to have the information sought, supplied to him.
16.
By way of response, both under Section 7 and on internal review under
Section 14, the Notice Party, whom I shall firstly recite only because of the
event sequence in this case, alleges:-
- That the information as requested is and is only contained in an exempt record and therefore, by virtue of Section 46 (1)(b), the Act has no application to the request so made and,
- That by reason of this non application it must follow that Section 18 cannot be relied upon as compelling the supply of the information as sought.
11. These
said reasons, as so advanced, were elaborated upon and indeed added to by way
of later correspondence between the said Notice Party and the Information
Commissioner as well as by Affidavit evidence and through the submissions made.
The additional points as canvassed were:-
(a)
That Section 46 (1)(b) is absolute in its terms and if any given circumstances
come within this subsection, then, it automatically follows that the Act had no
application,
(b)
That in any event Section 18 (2) (a) offers a valid basis for refusal with the
resulting notice, in the form of the aforesaid letters, being a sufficient
compliance with Section 8 (2)(d), there being no matters relating to the public
interests which were required to be, or were in fact taken into account in
issuing the refusal as aforesaid
(c)
That the interpretation suggested by Mr. Deely, of the guide document issued by
the DPP’s office was incorrect and finally,
(d)
A new point, namely that the decision of the DPP to prosecute or not to
prosecute as the case may be, was not “an act” within the meaning
of Section 18 (1), and accordingly, in any event on that ground alone, the
request was misguided.
17.
The Respondent in his submission, supports the factual and legal basis
upon which the decision of the 5th of September was both arrived at and made.
He says that the Commissioner is given power under Section 34 (2), on review,
to affirm or vary the decision or to annul the decision and if appropriate make
such decision in relation to the matter concerned as he or she considers
appropriate. It is said that he was justified in the conclusions of law
arrived at and in his findings of primary fact, which findings should not be
interfered with by this Court. In addition it is claimed that the Commissioner
is given a broad discretion as to the procedures to be followed when conducting
such a review. Furthermore he asserts that the finding made by him as to
compliance by the Notice Party with Section 8 (2)(d) of the Act is such a
finding, that, as with any finding of primary fact, it ought not to be
interfered with by this Court, but that in any event, even if separately
considered, this conclusion as to compliance is fully justified. Finally the
Commissioner has reservations, if not a contrary view as to the correctness of
the submission advanced on behalf of the DPP in relation to the point referred
to at paragraph 16 (f) above. In conclusion it is pointed out that the appeal
to this Court is on a point of law only and that in all of the circumstances
the Appellant has failed to present any case which would justify any variation
or annulment of the decision reached by the Information Commissioner.
18.
Prior
to identifying what I think are the core issues in this case there are a number
of matters, all of which, at least are of some importance, which it might be
helpful and convenient to deal with at this point. In no particular order of
priority these are as follows:-
1.
(a)
Being a creature of the Oireachtas, of a type without direct or parallel
precedent, it is not possible to cite Acts,
pari passu
,
upon which the Courts have expressed a view as to the correct method of
statutory interpretation. The primacy of the test of any statute, is of
course, an approach which pervades the commencement of any interpretative
process, which is, to ascertain the will of parliament and to identify the
intention of the legislature; this from the wording of the provision or
provisions in question.
Howard
-v- the Commission of Public Works in Ireland
1994 1 I.R. 101, and in particular the Judgment of Blayney J, is a decision on
point.
(b) However that approach may not in all cases be a complete answer to the
exercise demanded. Different statutes may require additional methods to be
adopted. Certainly, one is entitled to look at the Act as a whole and if there
is any doubt or ambiguity, the purpose, intention and objects of the Act, may
also be considered. As may the title. See
People
(DPP -v- Quilligan
1986 IR 495 and in particular at p. 523 thereof. An interpretation, which if
otherwise is consistent with accepted cannons of construction, and is one which
recognises the different roles of the legislature and the judiciary, can,
nevertheless, be positively and actively adopted for the purposes of furthering
the declared aims and intention of parliament as expressed or found in the Act
in question.
(c) I am not therefore certain that given the vision of the 1997 Act, it
is altogether a complete statement to suggest, that, the provisions thereof in
their entirety can adequately be interpreted, for the purpose of
implementation, simply by a straightforward application of
Howard.
(d) In
Minister
for Agriculture and Food -v- Information Commissioner
2000 1 I.R. 309 Mr. Justice O’Donovan at page 319 of the report, having
quoted a passage from the Judgment of Denham J in
Howard,
immediately goes on to refer to the Preamble of the Act and the intention of
the legislature, and does so, very much in a way which embraces both, as being
of considerable importance in indicating how one should construe, not only the
section which the learned Trial Judge was then specifically dealing with it,
but also the entirety of the Act. Furthermore, at page 312 he impresses the
importance of this Preamble and in addition having refereed to Section 34
(12)(b) and Section 8 (4) emphasises the status of the rights conferred by this
Act, and so
(e) I would simply caution as to how in a complete way this Act might be
interpreted.
2.
It
was submitted on behalf of both the Respondent and Notice Party that findings
made by the Commissioner on questions of primary fact should not be reviewed by
this Court as part of the appeal process under Section 42 of the Act. There is
no doubt but that when a Court is considering only a point of law, whether by
way of a restricted appeal or via a case stated, the distinction in my view
being irrelevant, it is, in accordance with established principles, confined as
to its remit, in the manner following:-
(a)
it cannot set aside findings of primary fact unless there is no evidence to
support such findings
(b)
it ought not set aside inferences drawn from such facts unless such inferences
were ones which no reasonable decision making body could draw,
(c)
it can however reverse such inferences, if the same were based on the
interpretation of documents and should do so if incorrect, and finally,
(d)
if the conclusion reached by such bodies shows that they have taken an
erroneous view of the law, then that also is a ground for setting aside the
resulting decision. See for example
Mara
(Inspector of Taxes) -v- Hummingbird Limited
1982 2 I.R.L.M. 421,
Henry
Denny and Sons (Ireland) Limited -v- Minister for Social Welfare
1998 1 IR 34 and
Premier Periclase -v- Valuation Tribunal
HC 24th June, 1999 U/R. However, an Income Tax Appeals Commissioner is quite a
different statutory creature than is the Commissioner under the 1997 Act and
his conception likewise. So also is the Chief Appeals Officer in the Social
Welfare case as of course is the Valuation Tribunal. These are but examples of
bodies, tribunals and statutory persona from whom the Superior Courts have
addressed references purely on points of law. There are of course many others.
In this case however, it is unnecessary to express any view as to whether or
not, a Court under Section 42, is so circumscribed. This because there is no
challenge and never has been to any of the material facts as alleged by the
DPP, or and obviously of more immediate importance, to the findings made by and
upon which the appeal Commissioner arrived at his decision. Therefore I would
prefer to express no concluded view on this point.
3.
Under Section 34 (12)(b) of the Act, a decision to refuse access to records
“shall be presumed not to have been justified unless the head concerned
shows to the satisfaction of the Commissioner that the decision was
justified”. That presumption does not appear to apply when a person
exercises his right to request information under Section 18. This omission
however may not altogether mean that, on a request to the Commissioner, the
public body concerned, can passively await the discharge by an Applicant of
some sort of onus and then only react. A fuller engagement, as happened in
this case, would indeed be much more desirable and certainly much more in
keeping with the spirit of the legislation. In any event, the instant appeal
to this Court was conducted with the Appellant, assuming the onus and
obligation of proving that the impugned decision of the Commissioner was
erroneous on a point of law. This would appear correct and necessarily to
follow from the relevant provisions.
4.
As appears from the correspondence referred to, Mr. Butler wrote to the
Appellant on the 3rd August, 2000, wherein, amongst other things he indicated
that he had discussed Mr. Deely’s request with the DPP’s office.
The response, by letter of the 14th August, may be construed as expressing
displeasure at the contact, or in fairness, the author may simply have been
mistaken in his belief that this contact amounted to and was in fact the review
as sought. If the latter, he was of course mistaken. If the former he had no
grounds for complaint. It seems to me that under Section 37 (6) of the Act,
the Commissioner, in conducting a review under Section 34 or an investigation
under Section 36, has an extensive discretion as to the procedures which he may
adopt or follow. Certainly, when dealing with a refusal the Commissioner can
only be encouraged to pursue a solution to the joint satisfaction of the public
body and the requester, and in so doing he must be free, in accordance with the
underlying intention of the Act, to perform the preparatory work to his
decision in whatever way he wishes, informally if that be his choice. It need
hardly be said, however, that in so doing he must not compromise the due and
proper performance of his function.
5.
There is no doubt and it has not been challenged that Mr. Deely is within
the meaning of Section 18 (1) of the Act, he being a person who is affected by
the decision of the DPP to prosecute and he being a person who has the required
material interest as therein specified.
6.
Section
18 (2) commences with the following words “nothing in this Section shall
be construed
as
requiring
........” (emphasis added). The words emphasised, namely “as
requiring”, do not in Mr. Deely’s view, amount to a prohibition on
the giving of the information sought. Such words cannot, I feel, be treated in
isolation from the rest of this subsection and in any event should, more
properly be looked at and considered, in the context of the more fundamental
submission which is hereinafter dealt with.
(7)
(1) As appears from the submission above outlined, the Appellant strongly
relies upon a certain entry contained in the DPP’s “Guide to the
Functions of and Records held by his Office”. Compilation and
publication of this document is a statutory requirement under Sections 15 and
16 of the Act. At p.9, paragraph 6 it is to be found. It is headed
“6.1
ACCESS TO INFORMATION WITHIN THE OFFICE”.
“6.
1. Applications under the FOI Act
Under
the FOI Act, anyone is entitled to apply for access to information held
in
this office relating to the general administration of the office which is not
otherwise
publicly available. Each person had a right to:
access
records held by this office:
correction
of personal information relating to oneself held by this office
which
is inaccurate, incomplete or misleading:
access
to reasons for decisions made by this office directly affecting oneself”.
2.
On
its own and without reference to any other part of the document, one can
understand how a person, in particular a lay person like Mr. Deely, could come
to the conclusion which he asserts. However, such isolation gives a distorted
feel for the overall text. At p.2 it is stated
“Most importantly access to information is also subject to the restriction
provided
for under Section 46 of the Act:
Records
created or held by the Office of the Director of Public Prosecutions
are
exempt, other than records concerning the general administration of the
office”
“It
should be borne in mind that only those records concerning the general
administration
of the office come within the scope of the Act, and in that
context
the office of the Director of Public Prosecutions undertakes to hold
any
information provided to it by individuals or others, not relating to the
general
administration of the office, on a confidential basis”
And
finally
,
at
p. 4 it is stated
“Records
not within the range of general office administration are excluded
from
the scope of the Act.
It
must be emphasised that the office is precluded, both as a matter of
natural
justice and because of legal constraints, from giving reasons for
decisions
not to initiate a prosecution”
3.
There are other entries also to like effect. When therefore the document is
read as a whole one can readily see that, on access to information as well as
access to records, these are statutory restrictions which in the DPP’s
view prevent the giving of certain information or the making available of
certain records.
14. Consequently
I do not believe that support, as such, is in fact found in these passages for
the proposition as advocated by Mr. Deely, though the contrary view as
expressed by him is indeed understandable.
15. However,
even if Mr. Deely was correct, that, in itself, could not in any way be
conclusive as to the proper interpretation of the relevant Statutory provision,
this being a matter, ultimately for this Court.
19.
There are two further related matters which though, strictly, not germane
should, in difference to Mr. Deely be dealt with. The first is a claim that by
virtue of the common law a person prosecuted is entitled to demand and get from
the DPP, the reasons why the latter decided to embark upon such a prosecution.
Logically it might be argued that an aggrieved victim, where no prosecution
follows might also be entitled to insist upon a similar entitlement. In my
view, from several decided cases in both of the Superior Courts, it is beyond
doubt that this is not so. In the
State
(McCormack) -v- Curran
1987 I.L.R.M. 225 at 237 the then Chief Justice, Finlay C.J. said
“In
regard to the DPP I reject also the submission that he has only got a
discretion as to whether to prosecute or not to prosecute in any particular
case related exclusively to the probative value of the evidence laid before
him. Again, I am satisfied that there are many other factors which may be
appropriate and proper for him to take into consideration. I do not consider
that it would be wise or helpful to seek to list them in any exclusive way.
If, of course, it can be demonstrated that he reaches a decision mala fides or
influenced
by an improper motive or improper policy then his decision would be reviewable
by a court. To that extent I reject the contention again made on behalf of
this Respondent that his decisions were not of a matter of public policy ever
reviewable by a Court.
In
the instant case, however, I am satisfied that no prima facie case of mala
fides has been made out against either of the Respondents with regard to this
matter. Secondly, I am satisfied that the facts appearing from the affidavit
and documents do not exclude the reasonable possibility of a proper and valid
decision by the DPP not to prosecute the Appellant within this jurisdiction and
that that being so he cannot be called upon to explain his decision or to give
the reasons for it nor the sources of the information upon which it was
based”.
In
H -V- DPP
1994 2 I.R. 589 this matter was also dealt with in the Judgment of
O’Flaherty J where at 603 the learned Judge stated
“Thus,
Blayney J starts from the premise that the decision of the Minister is open to
full Judicial Review. However, it is clear from the decision in the
State
(McCormack) -v-
Curran
1987 I.L.R.M 225 that the discretion of the Director of Public Prosecutions is
reviewable only in certain circumstances as set out by Finlay C J at page 237
of the report...... It would seem then that as the duty to give reasons stems
from a need to facilitate full Judicial Review, the limited intervention
available in the context of the decisions of the director obviates the
necessity to disclose reasons”.
16. Therefore
there can be no question of Mr. Deely, in this case or a like person in a
similar case, being in a position, at common law to compel the DPP to give
reasons as to why in any given set of circumstances he did or did not decide to
prosecute.
20.
The
second related matter arises as a result of and following upon an application
to the learned District Judge dealing with the Road Traffic prosecution. That
judge, having heard both parties acceded to a request that prior to the
hearing, the Appellant should receive copies of the statements made by intended
witnesses at his then forthcoming trial. By way of extension and analogy it is
claimed that on this principle of law Mr. Deely is also entitled to reasons. In
DPP
-V- Doyle
1994 2 I. R. 286
the
Supreme Court, having considered a number of authorities, including
Cowzer
-v- Kirby
HC 11th February, 1991 U/R decided through the Judgment of Denham J at 302
“That
where an indictable charge is being disposed of by way of summary trial in the
District Court, there is no general obligation on the prosecution to furnish,
on request, the statements of the proposed witnesses for the prosecution. The
trial is summary, it is not a halfway house between an indictable and summary
trial. Thus, the answer to the first question is in the negative. However,
the Applicant retains at all times his constitutional rights to fair procedures
and if he requires, and it is in the interests of justice, that he be furnished
with statements, or indeed other documents held by the prosecution, which will
be evidence in his trial, then he is so entitled. It is a matter for the trial
judge to determine in each case”. From the context in which this issue
arose and from the aforesaid passage itself it is abundantly clear that this
principle of law is totally distinguishable from and is quite separate from
any claim pursuant to or pursuable under the 1997 Act. The exercise therefore
by the District Judge of his discretion in making available the aforesaid
statements is in my view quite extraneous in the live matters in this
case”.
21.
From
the context in which this issue arises and from the aforegoing passage itself,
it is abundantly clear that this principle of law is totally distinguishable
from and is quite separate to any claim pursued on pursuable under the 1997
Act. The exercise of the District Judges discretion, therefore in having
available the aforesaid statements is, in my view quite extraneous to the live
issue in this case.
22.
The
core issues in this case centre on the correct interpretation of and the
interplay between certain Sections of the Act. Section 6 (1) which creates the
statutory basis for the Right of access to records, commences with these words
“
Subject
to the provisions of this Act”
.
Therefore, the of right of so created is subject not only to the remainder of
Section 6 but also to the other provisions contained in the Act. Section 7
indicates the manner in which this right may be exercised. Section 8 deals
with the decision made on such requests and the notification of such decision.
Section 12 concerns itself with the manner of exercising the right if of access
granted and Section 14 deals with internal reviews.
17. It
should be noted that the provisions referred to at Sections 7 onwards are all
dependant upon the existence of the right of access created by Section 6 and
are designed to facilitate the implementation of that right. So unless in the
first instance, the right itself exists, any further reference to or
consideration of the other Sections would not appear to be relevant.
23.
Section 2, which is the definitive Section, at subsection (1) defines
“exempt record” as meaning
“(a)
a record in relation to which the grant of a request under Section 7 would
be
refused pursuant to Part III or by virtue of Section 46, or
(b)
.........”
Section
6 (1), it will be recalled, created the right but as I have previously
indicated that is subject to the other provisions of the Act which quite
obviously include the remainder of Section 6. Subsection (7) of this Section
reads
“Nothing
in this Section shall be construed as applying the right of access to
an
exempt record”.
18. Consequently
in relation to an “exempt record” Section 6 (1) cannot be relied
upon as conferring a right of access to such records. So once it can be
established what an “exempt record” is, it would appear to follow
that, subject only to the manner in which it becomes an exempt record, such
document cannot form the subject matter of a request for a right of access.
24.
For present purposes Part III of the Act is not in point given the
accepted nature of the documents in issue in this case. But Section 46 is. As
appears from paragraph 8 above subsection (1) of that Section reads
“(1)
This Act does not apply to
(a) .........
(b) a record held or created by the Attorney General or the Director
of Public Prosecutions or the Office of the Attorney General or the Office of
the Director of Prosecutions (other than a record concerning the general
administration of either of those offices)”.
19. What
then is the effect of the aforesaid recited parts of Sections 2,6 and 46
respectively?
25.
The essence of the Act is that when a person comes within Section 6 (1) he
may exercise that right, not out of grace and favour of the public body in
question, but rather pursuant to the force of law. It is a legal right which
he is exercising, indeed under Section 8 (4) of the Act the reasons why he
wishes to exercise that right are entirely immaterial. So what is crucial is
that a requester must show that his request for access is made pursuant to a
right of access, this right being one founded on, and contained within, the
provisions of the 1997 Act itself.
26.
Section 46 (1)(b) in my view, has both a stand alone independent existence
as well as having a direct relationship with Section 2 (1). Under the former
heading, the introductory words of the Section are in my opinion clear beyond
any dealt, uncertainty or ambiguity. “The Act does not apply to
........”. This can only mean that the provisions of the 1997 statute,
obviously to include Section 6 (1), have no application to the documents listed
therein save only as to the qualification contained within such listing. In my
view those words can have no other meaning. Subsection (1)(b) expressly
includes a
“record”,
held or created by the DPP or his office, unless that record relates to the
only qualification mentioned, namely the general administration of that office.
If this be correct it must follow that the Act, by virtue of this Section alone
can have no application to the relevant record in this case, it not being one
covered by general administration.
It
must also follow therefore that since the Act does not apply, the head of the
public body concerned, in this case the DPP, cannot be compelled to abide by
any Section thereof and that accordingly he can refuse a request for such
documents made to him under Section 7.
27.
In addition to the relevance of Section 46 (1) (b) in this way, it also
has a relevance by virtue of the definitive section, namely Section 2 (1). It
will be recalled this section defers An “Exempt Record” ; as meaning
inter
alia
,
a record, the access to which can be refused under Section 46. So once a
request for access to a record can be refused under the section last mentioned
it would seem to me that such record, by virtue of this right to refuse
becomes, under Section 2 (1), an Exempt Record . Having been thus so
classified subsection (7) of Section 6 negates any application of Section 6
(1). Accordingly, in this way Section 46 operates on and in conjunction with
Section 2 (1). Hence both the independent and interactive role of Sec 46.
28.
So being records within Section 46 (1)(b), the Act does not apply and
being exempt records by virtue of that Section and Section 2 (1) the right
created by Section 6 (1) if such right otherwise exists is specifically
excluded from applying to such documents by virtue of Section 6 (7). Whilst
the above deals with access to records, nonetheless it is highly relevant to
Mr. Deely’s request under Section 18.
29.
Subsection (2) of Section 18 reads
“Nothing
in this Section shall be construed as requiring -
(a)
The giving to a person of information contained in a exempt record or
(b)
..............”
20. Given
that the Appellant is attempting to establish a right which compels the DPP to
furnish the information sought, he must in my view also establish that such
right is enforceable by or under the provisions of this Act. It is quite
insufficient to say that the DPP is not prohibited by Section 18 (2) from
giving the information requested. That may be the case and indeed, thought I
express no view on it, the DPP may not by law be injuncted from supplying such
information. But once he decides against the request Mr. Deely must be able to
demonstrate a compulsion arising from law which removes any discretion which
the DPP might otherwise have. Very definitely in my opinion he cannot do so in
this case. Subsection (2) qualifies the Section itself. It commences with the
words quoted above. These can only mean that whatever rights are otherwise
contained in Section 18, such rights do not and cannot extend to a requirement
to give information which is contained in an exempt record as above defined.
This I believe is the correct interpretation of this Section and not that as
suggested by Mr. Deely for if it was that, as submitted, it would render the
entire section futile.
21. As,
without debate it is accepted that the requested information is contained
within an exempt record it must follow that also under Section 18 (2) the
request can be refused.
30.
It seems to me that when one looks at the relevant provisions a clear
policy view emerges which is, in the context of this case, that no record or
information contained in a record which is exempt pursuant to Section 46 can be
obtained under the provisions of this Act.
31.
As an alternative to his primary submission, Mr. Deely asserts that if his
request can be refused under Section 18 (2) the resulting notice, containing
such decision under subsection (4), must comply, by virtue of the statutory
instrument above mentioned, with S.8 (2)(d). So it is claimed, the notice must
give the reasons for the refusal, must set out the findings on any material
issues relevant to the decision and must particularise any matters relating to
the public interest which were taken into consideration for the purposes of
this decision. Whilst he may accept that the relevant letters contained the
reasons for the decision, he claims that there is no mention of public interest
considerations as is necessary and accordingly there has been a breach of
Section 8 (2)(d) of the Act.
32.
In my view this submission is not well founded. Firstly, as previously
stated Section 18 (2) qualifies this Section in the manner indicated. The
Section, of course includes subsection (4), which is the basis for the notice
requirement which must issue following upon a decision to refuse. This notice
requirement does not arise by virtue of Section 8 (2)(d) or by virtue of
Statutory Instrument 5/9/98. What the instrument does is simply to import into
subsection (4) the notice requirement specified in Section 8 (2)(d). This
method of applying Section 8 (2)(d) cannot in my view have greater effect than
if the original subsection (4) specified, in precise detail, what the notice
should contain. As the entirety of the Section, which obviously must include
obviously subsection (4), whether as originally drafted or as amended, is
qualified by displacing any obligation to give information contained in an
exempt record, it must follow in my view that this notice does not have to
contain such information.
22. Secondly,
I have grave reservations whether Section 8 (2)(d)(ii) can have any application
to a record, which becomes an exempt record in the manner applicable to this
case. It may very well have an important role to play if the exemption arises
from Part III but, that of course is not the situation here.
23. Thirdly,
if however the requirement did apply to an exempt record as established by
Section 46 (1)(d) of the Act, it can only have relevance is in fact there were
matters of public interest considered by the public body in making its
decision. In this case the evidence shows that there was no such matters.
Accordingly, one cannot say that there was any breach of the relevant
subsection, particularly where there is no compulsory provision making it
necessary to take such matters into account.
24. Fourthly,
again even if the requirement did apply and there was a breach thereof, there
is no subsequent provision in the Act dealing with the effect of non compliance.
25. Fifthly,
this appeal is from the decision of the Information Commissioner who has
reviewed the decision of the DPP and whose own decision procedurally is
unchallenged and
finally
it may very well be that as the Commissioner has found the notice did
efficiently comply with Section 8 (2)(d).
33.
In conclusion therefore for the reasons as outlined above, I do not
believe that any of the submissions advanced by and on behalf of Mr. Deely are
such as would entitle the Appellant to any relief as claimed. Given this view
it is I think unnecessary to consider whether or not a new point like that set
forth at paragraph at par. 16 (f) above which was not raised by the public body
or on review at the Section 34 stage, can for the first time be raised on an
Appeal to this Court. Because of this, quite obviously, I should not express
any view on the point itself.
© 2001 Irish High Court