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[2004] IEHC 176

THE HIGH COURT

DUBLIN

[2004] IEHC 176

2002 53 mca

PATRICK HOLLAND

Appellent

AND

THE INFORMATION COMMISSIONER

Respondent

EXTEMPORE JUDGMENT DELIVERED BY MR. JUSTICE T.C. SMYTH ON FRIDAY, 23 APRIL 2004

Introduction

This is an appeal on a point of law by the Appellant under the Freedom of Information Act, 1997 (as amended by the Freedom of Information Amendment Act, 2003) against a written decision of the Respondent dated 20th February 2002.

Section 42(1) of the Act of 1997 provides as follows:

"A party to a review under Section 34 or any other person affected by the decision of the Commissioner following such a review may appeal to the High Court on a point of law from the decision."

The facts:-

1. Historical

The Appellant appeared before the Special Criminal Court in relation to some drug charges. He was convicted and originally received a sentence of imprisonment of 20 years, which on appeal was reduced to 12 years. He is currently serving that sentence.

In the course of the trial of one Paul Ward in the Special Criminal Court, the Presiding Judge made criticisms of the conduct of certain Gardái. The Appellant in his submissions to this Court has cited and relied on a passage in that Judgment of 22nd March 2002. Arising from those criticisms apparently, the Garda Commissioner directed the holding of an inquiry within the force by Assistant Garda Commissioner Kevin Carty. It is the Appellant's position that the Gardái whose conduct was investigated in the course of the Carty inquiry are the same Gardái who gave evidence at his trial.

Pursuant to the provisions of the Act of 1997 the Appellant sought a copy of the report of Assistant Garda Commissioner Carty by letter dated 20th February 2000. On 21st March 2000 a Mr. Brendan Foy, the Freedom of Information Officer with the Department of Justice Equality and Law Reform, (the "Department"), refused to grant the Appellant's request under the provisions of Section 10(1)(a) of the Act of 1997. The refusal was the basis that the records of the type requested did not exist within the Department; he informed the Appellant that the report requested was held by the Garda authorities and that no copy of same was held within the Department, and that the Garda Authorities were not a public body for the purposes of the Act (paragraph 8 of the Affidavit of Mr. David Nutley sworn on 5th July 2002, filed on 8th July 2002), and it is exhibited.

The Appellant brought a motion on 25th July 2002 seeking to cross-examine Mr. Nutley on the affidavits sworn by him. Leave was refused by O Caoimh J. on 14th October 2002, and that decision was affirmed by the Supreme Court on 15th December 2003.

The Appellant sought an internal review of the decision set out in the letter of 21st March 2000 by letter dated 29th March 2000. The response of the Department conveyed by letter dated 10th April 2000 indicated that the Appeal had been reviewed by a more senior official of the Department who decided to uphold the original decision and refused the Appellant's request under the provisions of Section 10(1)(a) of the Act, on the basis that the records of the type requested did not exist.

2. The Background to the Decision The Appellant applied to the Respondent to review the decision of the Department. On 20 February 2002 the Respondent made the decision that has led to the present appeal and in that decision the Respondent held that:

"His review was concerned solely with whether the Department's decision to refuse access pursuant to Section 10(1)(a) was justified.

That having regard to the evidence assummarised in the decision of 20th February 2002 and the absence to the contrary the Department is justified refusing access to the report on the grounds that it could not be found."

It is against this decision that the present Appeal under Section 42(1) of the Act of 1997 comes before the Court.

The Appeal

The Act of 1997 provides for an appeal on a point of law only to the High Court and Statutory Instrument No.325 of 1998 provides for the procedure to be followed in bringing an appeal. In the instant case, the Appellant issued an original Notice of Motion dated 19th March 2002 grounded on an affidavit of his of the same date. Subsequently, by order of O'Sullivan J. dated 10th June 2002, Notice of Motion of the Appellant was substituted as the original Notice of Motion in lieu of that, dated 19th March2 002.

In summary this Notice of Motion seeks the following reliefs:-

1. In Order that the decision of the 20th February 2002 is ultra vires on the grounds that the Respondent misdirected himself in the interpretation of the Act.

2. An order quashing the decision on the the findings of the Respondent were based on evidence that is uncontroverted and unchallenged, incomplete and unsatisfactory in Law.

3. A Declaration that the findings of the Respondent are restrictive, unsustainable, unwarranted and unreasonable, and bad in law.

4. An order quashing the decision, or in the alternative an order suspending the decision pending further directions from the Court.

In essence they are a plea that the Respondent in applying Section 10(1)(a) did so on the basis of unsatisfactory evidence, and that as a result his decision was bad.

The Appellant's case is exclusively concerned with the correct interpretation of Section 10 (1) (a). It is put by him in his affidavit sworn on 19th March 2002, in paragraphs 8,9,10 and 12, and I quote:

"8. Firstly, I dispute the assertion made by Kevin Murphy in the second paragraph of his decision that "it is not the role of my office to carry out a search for the report in question".

I say that this is an unduly restrictive interpretation of the role of his office, especially in the lift of an enquiry such as mine which goes to the issue of personal liberty. I say it is incumbent on a person such as an Information Commissioner to give a wide and broad interpretation to the scope of his investigation when it concerns matters of personal liberty."

(I will return to this concept later).

"9. Secondly, in the same paragraph Kevin Murphy states that he must "have regard to the evidence available to the decision-maker, and this reasoning used by the decision made in arriving at his decision." and I say that I take serious issue to his findings which I say are so unreasonable as to be unsustainable in law. I say that in effect Kevin Murphy states that he put a number of questions to the Department of Justice who assured him that:-

(a) The Department did not have a copy of the report of Assistant Garda Commissioner Kevin Murphy.

(b) The reports of such enquiries would not normally be made available to the Department unless there were reasons for doing so.

(c) The Freedom of Information Act does not extend to the Garda Siochdna.

(d) The decision made in the Department of Justice had asked the various officials in the Sub Departments whether they had received a copy and they had been told they had not.

(e) The decision-maker went so far as to check with the Garda Commissioner as to whether the Garda Commissioner had sent them a report and had been assured that they had not.

10. I say that at the outset to the above points, that as things stand in this country at the moment, I accept that the Garddi are not subject to the provisions of the Freedom of Information Act 1997.I say that I believe that bodies such as the Department of Justice, the office of the Attorney General and the office of the Director of Public Prosecutions are amenable to the Act.

12. I say that despite the assertions that I have laid out above, Kevin Murphy accepted the reasons given by the Department of Justice at face value. I draw attention specifically to the Department of Justice explanation that "the reports of such enquiries would not be normally made available to the Department unless there were specific reasons for doing so", and I say that this was no normal Garda internal enquiry. I make the observation in passing that it is the easiest thing in the world to order an enquiry to receive the report and then do nothing. I say that when the administration of justice in Ireland is called into question that something further than the course outlined is needed."

Annexed to this judgment is the full text of the letter dated 20th February 2002 for which the Appellant has quoted in his affidavit.

The Law and Legal Submissions

The legal submission of the parties in general followed broadly the sequence of excerpts from the Appellant's affidavit. The Appellant contending that where matters of personal liberty are concerned the Respondent should give a wide and broad

to the scope of his investigations.The Respondent submitted that the interpretation of the Section as determined by the Courts in Ryan & Ryan-v-Information Commissioner (unreported. Quirke J. on 20th May 2003) was correct and ought to be followed.

Section 10(1)(a) of the Act [1997] provides:

"A head to whom a request under Section 7 is made may refuse to grant the request if:

(a) the record concerned does not exist or cannot be found after reasonable steps to ascertain its whereabouts have been taken."

Section 10(1)(a) has been judicially considered (as already indicated by Quirke J.) and in that case the

Applicant appealed against a decision of the Information Commissioner affirming the decision of he Department of Education and Science to refuse access to records. Various requests were made by the Appellants and various documents were provided by the Department in response to those requests. No response (in that particular case) was provided by the Department to the Appellants' last request but in previous responses the Department had already invoked Section 10(1)(a). The Respondent treated the refusal as being made on the basis of Section 10(1)(a) and concluded that the Department was justified in deciding that no further records existed or could be found after all reasonable steps had been taken. In :heir appeal the Appellants submitted that the respondent had applied Section 10(1)(a) in an incorrect and restrictive manner.

In respect of Section 10(1)(a) Mr. Justice Quirke

held, in concluding his judgment, as follows:

"I am satisfied also that the Respondent's understanding of his role, as outlined in evidence, was correct in that he was not required to search for records but was required rather to review the decision of the Department and in doing so to have regard to the evidence which was available to the decision-maker and to the reasoning used by the decision-maker in arriving or failing to arrive at a decision.

The role of this Court is expressly confined to the hearing of appeals from the Respondent on points of law.

Whilst it is true that, if the Respondent had taken an erroneous view of the law in making his decision, then the Appellants might have been entitled to relief, no evidence has been adduced in these proceedings which would justify such a conclusion. Furthermore there was a very large volume of evidence and material before the Respondent which, upon consideration could reasonably have given rise to the decision which was made".

This decision sets out clearly the role of the Respondent carrying out a review where the refusal is based on a Section 10(1)(a). The Respondent's function is not to search for records but rather to review the decision of the public body to refuse access on the grounds of Section 10(1)(a). The Respondent must have regard to the evidence available to the decision-maker and the reasoning used by the decision-maker in arriving at the decision. The Respondent must decide whether the decision-maker has regard to all relevant evidence and whether he was justified in coming to his decision.

In this case there are two letters which have been opened in extenso to me and they appear pivotal to the case. They are the letter of 10/12/01 and the response of 12/2/02

The Appellant's challenge to the decision of the Respondent is primarily based on an assertion that the evidence relied upon by the Respondent was unsatisfactory and that his findings were bad in law. I am satisfied and find as a fact on the evidence that the Respondent had ample evidence upon which to base his decision.

The question of the weight to be given to the findings of the Respondent as well to the scope of an appeal on a point of law has been comprehensively determined by McKechnie J. in Deely-v-Information Commissioner [2001] 3 IR 439 (cited with approval by Mr. Justice Quirke in Ryan).In that, Mr. Justice McKechnie addressed the issue of the correct interpretation of the Act and laid down certain principles to be applied on a Court considering only a point of law, as follows; and I quote from p452 of the report:

"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 to set aside inferences drawn from such facts unless such inferences were ones which no reasonable decision-making body coulddraw.

(c) It could, however, reverse such inferences if the same where based on the interpretation of documents and should do so if incorrect.

(d) if the conclusion reached by such bodies shows that they have taken an erroneous view of the law, that also is a ground for setting aside the resulting decision. (See for example

Mara-v-Hummingbird Ltd. [1982] 2 ILRM 421.

Effectively, this means that any finding of facts made by the Respondent cannot be set aside unless there is no evidence to support such findings. A similar standard applies in respect of inferences drawn from facts. On enquiry the Respondent through Ms. Hyland relied on the decision of the Supreme Court in Mara-v-Hummingbird. [1982] 2 ILRM at p427.

The passage to which I wish to refer is taken from the Judgment of Judge Kenny in the Supreme Court at

426-427, as follows:

"The way in which a Court should approach the conclusions of the Commissioner (that was a tax case) was discussed in the House of Lords in Edwards-v-Berestow [1956] Appeal Cases 14, in which the house reversed the finding of the Commissioner that a purchase of plant was not an adventure in the nature of trade. In the course of his speech, Viscount Simmons said: "for it: is universally conceded that though it: is a pure finding of fact it: may be set aside on grounds which have been stated in various ways but are, I think, fairly summarised by saying that the Court should take that course if it appears that the Commissioners have acted without any evidence, or on a view of the facts which could not reasonably be entertained."

Lord Radcliffe in the course of his speech said:

"I do not think that inferences drawn from other facts are incapable of being themselves findings of fact, although there is value in the distinction between primary facts and inferences drawn from them. When the case comes before the Court is it its duty to examine the determination having regard to its knowledge of the relevant law. If the case contains anything ex facie which is bad law and which bears on the determination it is obviously erroneous in point of law, but without any such misconception appearing ex facie it may be that the facts found are such that no person acting judicially and properly instructed as to the relevant law could come to the determination under appeal.

In those circumstances too, the Court must intervene. It has no option but to assume that there has been some misconception of the law and that this has been responsible for the determination. So to, there has been an error in point of law. I do not think it matters much whether this state of affairs is described as one in which there is no evidence in support of the determination or as one in which the evidence is inconsistent with and contradictory of the determination or as one in which the true and only reasonable conclusion contradicts the determination, rightly understood each phrase propounds the same test. For my part I prefer the last of the three since I think it is rather misleading to speak of there being no evidence to support a conclusion when in cases such as these many of the facts are likely to be neutral in themselves and only to take their colour from the combination of circumstances for which they are found to occur."

The application of the principles in Hummingbird results in the conclusion that any findings of facts by the Respondent cannot be set aside unless there is no evidence to support such findings or they are, as was contended for by the Appellant unsustainable and incontrovertible.

The case of Deely, indicates that the findings of fact by the Respondent should not be disturbed unless there is good and valid reason for doing so. Even if the Court takes the view that the Respondent drew inferences from any of the said facts and that therefore the Court is entitled to review those inferences on the grounds of reasonableness, the Respondent in my judgment rightly submits that in all the circumstances his decision was manifestly reasonable.

Now, Mr. Holland in his submissions to the Court cited from both the judgment of the Court of Criminal Appeal, to which I have already referred, and also Regina-v-H and Regina-v-C of the House of Lords, of

concerned are done so clearly and the 5th February 2004. Those judgments are about the Rights of Disclosure but they in the context of the criminal law and are distinguishable from the principles of law relevant legislation placed before me for consideration.

It is true, and in this Mr. Holland is correct, that where the liberty of the person is involved the Court must scrutinize very carefully the actions of the Respondent to be satisfied, as I am in this case, that the Respondent acted within his powers and that he made all such enquiries and proper enquiries as were appropriate. It would not satisfy his functions if he were to do to so on a superficial basis or an inadequate basis and I am satisfied there was no superficiality or inadequacy in the enquiries made by the Respondent in this case.

Accordingly, my Judgment is to the effect that the challenges in paragraphs 1 and 2 of the Notice of motion, on the basis of ultra vires and misdirection cannot stand, and that the findings were based on evidence that was available after due enquiry and was not incomplete or unsatisfactory in law.

The alleged nexus between the Garda Siochána and the Department of Justice seems to me a point that was certainly entitled to be made in the proceedings, but in my view is unsustainable. The Act of 1997 clearly deals with both in a quite separate and distinct fashion. Equally so I am satisfied that this is not a case in which an order for any declaration of the type sought in paragraph 3 should be given and insofar as the proceedings are concerned I dismiss the Application on the grounds set out. In my concern, not to in any way fail to appreciate the concerns of either party whose papers I have read overnight and considered. Equally so it is a matter of concern that the Appellant felt it right and appropriate, from his point of view, to write on two different occasions that these proceedings ought not to be delayed as he had other matters to attend to.

END OF JUDGMENT

Office of the Information Commissioner

Oifig an Choimisinéara Faisnéise

18 Lr Leeson Street Tel:(01)6785222 18 Sraíd Líosain íochtárach

Dublin 2 Fax:(01)6610570 Baile Átha cliath 2.

e-mail:foi@ombudsman.irlgov.ie

Our Reference : 000183

20 February 2002

Mr Patrick Holland

Portlaoise Prison

Portlaoise

Co.Laois

Dear Mr Holland

I refer to your application under the Freedom of Information (FOI) tact for a review of the decision. of the Department of Justice, Equality and Law Reform ("the Department") to refuse access to the report carried out by Assistant Garda Commissioner Kevin Carty following the Paul Ward trial. in the Special Criminal Court. I wish to apologise for the delay in dealing with your application. I appreciate that you wished to have a decision on this matter before now but this has not proved possible due to the large number of applications received by my Office.

Background

I have now completed my review of the Department's decision. The Department refused access to the report under section 10(1)(a) of the FOI Act. Section 10(1)(a) provides that access to a record may be refused if "the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have beer, .taken". I should make it clear that in such cases it is not the role of my Office to carry out a search for the report in question. My review is concerned with whether the Department's decision to refuse access pursuant. to section I 0(1)(a) is justified. In such a situation I must have regard to the evidence available to the decision maker and the reasoning used by the decision. maker in arriving at his decision.

Scope of review

My review is concerned solely with the question of whether the Department's decision to refuse access to the report pursuant to section 10(1)(a) is justified

Findings

The Department has stated that the report t is an internal Garda report which is held by the Garda Síochána and not by the Department.

As part of my review I have put a number of questions to the Department which relate, to the report. In response, the Department has assured me that:

• the Department does not now, nor has it ever, held a copy of the report and,

• the Department does not hold any summaries, analysis or Endings in relation to the report.

Given the Minister for Justice, Equality and Law Reform's role in relation to the Garda Síochána, I have also queried whether it would not have been expected that the Minister or the Department would have received a copy of the report. The Department replied :

"The (Garda) Commissioner is responsible for the day to day management and control of the Forces and in this capacity can order internal enquiries as he sees fit. The reports of such enquiries would not be normally made available to the Department unless there were specific reasons for doing so. As regards this particular case it should be noted that responsibility for criminal proceedings lies with the DPP and the Garda authorities".

The FOI Act itself recognises the separateness of Garda records in that the Garda Síochána are listed as a public body in their own right in paragraph 1(5) of the First Schedule to the Act. That paragraph lists a number of public bodies which may be brought within the scope of the Act in the future. To date, however, the Act has not been extended to include the Garda Síochána.

In relation to the initial search for the report the Department informed me that the decision maker consulted officials in the Department's Crime 1 Division, Crime 2 Division, Security and Northern Ireland Division and Garda Administration Division, all of whom informed the decision maker that a copy of the report had not been received by the Department. The decision maker also stated that he checked with the Garda Commissioner's office who informed him that a copy of the report in question was not forwarded to the Department.

I note that in your submission you raise the possibility that the report may have been held, at some point in time, by the DPP. While it is open to you to make an application to the DPP under the FOI Act you should note that section 46(l)(b) of the Act provides that the Act only applies to records concerning the general administration of the DPP. It would be difficult to argue that the report in question concerns the general administration of the Office of the Director of Public Prosecutions.

Having regard to the evidence available as outlined above, and in the absence-of any available evidence to the contrary, I find that the Department was justified in refusing access to the report on the ground that it could not be found.

Decision

Having carried out a review under section 34 (2) of the Freedom of Information Act 1997 I hereby affirm the decision of the Department of Justice Equality and Law Reform.

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than four weeks from the date of this letter.

Yours sincerely

Kevin Murphy

Kevin Murphy

Information Commissioner