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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> McKevitt -v- Minister for Justice and Equality [2015] IEHC 152 (06 March 2015)
URL: http://www.bailii.org/ie/cases/IEHC/2015/H152.html
Cite as: [2015] IEHC 152
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Judgment
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Neutral Citation: [2015] IEHC 152 THE HIGH COURT [2014 No. 146 MCA] IN THE MATTER OF THE FREEDOM OF INFORMATION ACT 1997, AND IN THE MATTER OF AN APPEAL PURSUANT TO S. 42(2) OF THE FREEDOM OF INFORMATION ACT 1997, BETWEEN MICHAEL MCKEVITT APPELLANT AND
THE MINISTER FOR JUSTICE AND EQUALITY RESPONDENT JUDGMENT of Mr. Justice McDermott delivered on the 6th day of March, 2015 1. This is an appeal pursuant to s. 42(2) of the Freedom of Information Act 1997, 2003 (FOI) whereby the appellant seeks to set aside the respondent’s certificate issued under s. 25 of the Act on 28th February, 2014. Various other declarations are sought in the notice of motion which are not in accordance with the jurisdiction of the court under section 42. They are drafted in a form more appropriate to judicial review proceedings. The court’s jurisdiction on this appeal is limited to an appeal on a point of law. Statutory Provisions
(a) decide whether to grant or refuse to grant the request or to grant it in part, (b) if he or she decides to grant the request, whether wholly or in part, determine the form and manner in which the right of access will be exercised, and (c) cause notice, in writing or in such other form as may be determined, of the decision and determination to be given to the requester concerned. (2) A notice under subsection (1) shall specify— (a) the decision under that subsection concerned and the day on which it was made… (d) if the request aforesaid is refused, whether wholly or in part—
(ii) unless the refusal is pursuant to section 19 (5), 22 (2), 23 (2) or 24 (3), 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. Section 23 provides:-
(a) prejudice or impair -
(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 of security of persons and property, (iv) the fairness of criminal proceedings in a court or of civil proceedings in a court or other tribunal, (v) the security of a penal institution, (vi) the security of the Central Mental Hospital, (vii) the security of a building or other structure or a vehicle, ship, boat or aircraft, (viii) the security of any system of communications whether internal or external of An Garda Síochána, the Defence Forces, the Revenue Commissioners or a penal institution, (c) facilitate the commission of an offence. (2) Where a request under section 7 relates to a record to which subsection (1) applies, or would, if the record existed, apply, and the head concerned is satisfied that the disclosure of the existence or non-existence of the record would have an effect specified in paragraph (a), (b) or (c) of that subsection, he or she shall refuse to grant the request and shall not disclose to the requester concerned whether or not the record exists.” 4. Section 23 of the principal Act was amended by s. 18 of the Freedom of Information (Amendment) Act 2003, authorising a head to refuse a request under s. 7 if access to the record concerned could “in the opinion of the head reasonably be expected to” -
(a) the security of the state, (b) the defence of the state, (c) the international relations of the state, or (d) matters relating to Northern Ireland. (2) A head shall refuse to grant a request under section 7 if the record concerned - (a) contains information -
(ii) that relates to - (I) the tactics, strategy or operations of the defence forces in or outside the state, or (II) the detection, prevention or suppression of activities calculated or tending to undermine the public order or the authority of the state (which expression has the same meaning as in section 2 of the Offences Against the State Act, 1939),…”
(i) a Minister of the Government or the head of a public body (other than a Department of State or the Office of the Tánaiste) in relation to which functions stand conferred on that Minister of the Government—
(II) pursuant to section 14 , upholds a decision, or decides, to refuse to grant a request under section 7, because he or she is satisfied that, by virtue of section 23 or 24 , the record concerned is an exempt record, and
Background 8. The appellant made a s. 7 FOI application to the respondent by letter dated 20th January, 2014, following the issuing of a final report by his Honour Judge Smithwick, of the “Tribunal of Inquiry into suggestions that members of An Garda Síochána or other employees of the State colluded in the fatal shooting of RUC Superintendent Harry Breen and RUC Superintendent Robert Buchanan on 20th March, 1989”. The application was said to be in connection with evidence given to the Tribunal and referred to at paras. 11.4 - 11.10 (inclusive) of the report. The contents of this extract of the Tribunal’s report demonstrates that the appellant was the subject of garda telephone surveillance in or about 1990. The Tribunal considered evidence as to whether there had been a leak of information from An Garda Síochána to Mr. McKevitt in respect of a proposed search of his home under a search warrant. The Tribunal obtained access to a Garda Síochána file on the appellant which contained transcripts of a number of intercepted telephone conversations between him and another or others. The Tribunal focused upon those transcripts and records relevant to its terms of reference and, in particular, to a period in or about January, 1990. The transcripts referred to did not represent an exhaustive list of all phone conversations intercepted by An Garda Síochána, but only those which were retained and considered to be relevant from the perspective of Crime and Security (the intelligence gathering arm) in An Garda Síochána. 9. The records and transcripts relating to the telephone surveillance carried out on the appellant were made available to the Tribunal pursuant to a process and/or protocol, details of which were not made known to the court. The appellant relies upon the proceedings and findings of the Tribunal as evidence that he was subject to telephone surveillance, that records existed in relation to that surveillance, including transcripts, and that An Garda Síochána gave access to His Honour Judge Smithwick, to those records and transcripts in the course of the Tribunal’s work. 10. He claims that as a result of the evidence given by serving and retired members of An Garda Síochána to the Smithwick Tribunal, a significant amount of information was now in the public domain in respect of interception of his home telephone. 11. In the letter of 20th January, 2014, the appellant sought various records relating to the interception by An Garda Síochána of his home telephone. An application made on his behalf by his solicitors states:-
Accordingly, we are writing to you seeking all records including but not limited to any authorisations under the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993, and all transcripts or audio recordings and all logs of calls or related intelligence reports concerning Michael McKevitt or his household. This request is made pursuant to the provisions of the Freedom of Information Acts and the Data Protection Act. Our client’s authority in that regard is attached. We draw your attention to the observations in the report at paragraph 11.4.2. It follows that if the State effectively led this evidence in public without objection we do not see how any refusal can be grounded upon maintenance of a State secret that the State of (sic) voluntarily waived secrecy and privilege over.”
A. Details of Section 7 Request “All records including but not limited to any authorisations under the Interception of Postal Packets and Telecommunications (Regulation) Act 1993, and all transcript or audio recordings and all logs of calls or related intelligence reports concerning Michael McKevitt or his household.” B. Provisions of the Act by Reference to which the Records Requested are Exempt Records “Section 23(1)(a)(i)-(iii) The prevention, detection or investigation of offences, the apprehensions or prosecution of offenders or the effectiveness or lawful methods, systems, plans or procedures employed for the purpose of the matters aforesaid the enforcement of, or compliance with or administration of any law, lawful methods, systems, plans or procedures for ensuring the safety of the public and the safety or security of persons and property. Section 24(1)(a)(b)(c)(d) The security of the State The defence of the State The international relations of the State Matters relating to Northern Ireland C. Date of Signature of Certificate and Expiration Date of Certificate Date Certificate signed 28th February, 2014 Expiration Date of Certificate 28th February, 2016 D. Name of Requester MacGuill & Company Solicitors on behalf of Mr. Michael McKevitt Alan Shatter T.D., Minister for Justice and Equality 25th February, 2014.”
I refer to your Freedom of Information request in respect of you client, Mr. Michael McKevitt, for the following: “All records including but not limited to any authorisations under the Interception of Postal Packets and Telecommunications (Regulation) Act 1993, and all transcripts or audio recordings and all logs of calls or related intelligence reports concerning Michael McKevitt or his household.” Decision I wish to inform you that the Minister, as provided for under the provisions of section 25 of the Freedom of Information Act, as amended, has decided to declare, in a certificate issued by him that the records requested are exempt by virtue of sections 23 and 24 of the Act. A copy of the ministerial certificate is enclosed for your information. Rights of Appeal 13. The appellant seeks an order setting aside the ministerial certificate issued on 28th February, 2014. In the notice of motion grounding the application no point of law is cited as the basis for the appeal. Rather, a number of declarations are sought which, as matters emerged in argument, formed the basis of a number of legal points advanced. The court derives the following points of law from the application:-
(B) Providing the applicant with each of the categories of materials sought could not reasonably be expected to adversely affect each or all of the public interest considerations referred to in the certificate. (C) The respondent failed to have sufficient regard to the fact that the materials sought by the applicant are historical in nature and the State has previously waived its rights to claim confidentiality in respect thereof by allowing extensive reference to be made in public proceedings to their existence and content. 14. The scope of this appeal is determined by s. 42 of the Freedom of Information Act 1997, which provides that a requester may appeal to the High Court “on a point of law” against:-
(b) a decision pursuant to section 8, to refuse to grant a request under section 7 in relation to a record the subject of such a certificate,…”
(b) The court ought not to set aside inferences drawn from such facts unless such inferences were ones which no reasonable decision making body could draw: (c) The court may reverse such inferences, if some were based on the interpretation of documents and should do so if incorrect; (d) If the conclusion reached by the body is shown to be based on an erroneous view of the law, the decision may be set aside; (e) The onus of proving that the decision of the respondent was erroneous in law rests upon the appellant.” 16. In Campbell v. The Minister for Justice, Equality and Law Reform and The Information Commissioner [2010] IEHC 197, an appeal was brought under s. 42(2) seeking to set aside a s. 25 certificate. The arguments made by the applicants in Campbell closely resemble those now relied upon by the applicant in these proceedings. It was claimed that the manner in which the reasons for refusal had been certified by simply restating in the certificate the statutory provisions relied upon by the Minister constituted an insufficient discharge by him of the obligation to provide a reason or reasons for refusal. It was submitted that by failing to explain in a more expansive way why he was certifying the records as exempt, the Minister made it impossible for the decision to be appealed in any meaningful way. It was also claimed that any confidentiality which may have attached to the records had already been waived by the Minister because they had been provided to a third party, the prosecuting authorities in Lithuania, and could not now be relied upon as a reason for exemption. 17. Peart J. held that s. 25(5)(b) of the Act did not require the Minister to explain in a certificate which refuses access to documents the reasons why it is considered that the records in question come within the provisions of ss. 23 or 24. He stated:-
The Decisions in Mallak and Murphy
Several converging legal sources strongly suggest an emerging commonly held view that persons affected by administrative decisions have a right to know the reasons on which they are based, in short to understand them.”
41. The obligation to give reasons is, as has been observed, dependent upon and a reflection of, the reviewability of the decision and the scope of that review. The decision made here is at the end of the spectrum where review is most limited and attenuated. This is because of the subject matter of the decision, the sensitivity of the matters routinely considered, and the fact that the end result of a decision to prosecute will be a trial in open court pursuant to the dictates of Article 38.1. The category of reasons which apply in the context of the Offences Against the State Act are reasonably well known. They are in part contained in the decision of the government to bring Part V into operation on the grounds that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order, and also in the Director of Public Prosecution’s certificate that those conditions mean that the administration of justice and preservation of peace and order cannot be secured in the individual case… 42. It also follows from the decision of the government and the certificate of the Director of Public Prosecutions that it is highly likely that the reason why the Director of Public Prosecutions considered that the ordinary courts are not adequate to secure the administration of justice in the particular case must relate to the connections of the individual with organisations which are prepared to interfere with the administration of justice. Nevertheless, trial by jury is a constitutional requirement in those cases to which it applies. A decision which has the effect of removing a case which would otherwise be tried by a jury to be tried by a judge or judges alone is a decision which must comply with the dictates of the Constitution. Accordingly, the Court considers that it is necessary in such a case that the Director of Public Prosecutions, if requested, should either give such reason, or, as contemplated in Mallak, justify a refusal to do so. While this, in most cases, may be an entirely predictable step, it is nevertheless an important one in an area where there is a significant limit on the jurisdiction of the courts and it is desirable that such an obligation should be required where that duty to give reasons can be complied with without damage to the other public interests involved.” 23. The Oireachtas has addressed in very specific terms the extent of the information to be given in all cases but draws a distinction between those covered by ss. 23 and 24 and others. Under s. 8(2)(d) a notice refusing an application for records must specify the reasons for the refusal and unless the refusal is made pursuant to, inter alia, ss. 23(2) or 24(3), the notice must specify the provision of the 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 that purpose. Thus, the Oireachtas has considered the extent of the information which the Minister is obliged to give. It is clear that the justification for the limited reasons that may be given for exempting records under s. 25, with reference to ss. 23 and 24, relates to the sensitivity and seriousness surrounding the furnishing of such information or elaborating upon the reasons for the exemption. The court is satisfied that the Minister is not statutorily obliged to provide any further information than the fact that the reasons permitted under the relevant sections are relied upon. 24. Under s. 25, the Minister may grant a certificate that a record is exempt by virtue of s. 23 or 24 if “satisfied that the record is of sufficient sensitivity or seriousness to justify his or her doing so”. The decision as to the sensitivity or seriousness of the records in issue is a matter entirely for the Minister. Any elaboration upon the materials or considerations leading to that determination may defeat the purpose of the certification process. This is not a case of a refusal to give reasons under s. 8(2) or to give any reasons at all for the certification under s. 25, nor is it a case of a failure to give reasons justifying a refusal to give such reasons. The justification for the granting of the certificate arises from the nature of the documents which qualify for exemption under ss. 23 and 24 and the necessary statutory determination that they are of such sufficient and serious sensitivity to require certification by the Minister. This involves the exercise of an executive discretion concerning issues of public policy, the protection of citizens and matters of state. The Minister is obliged to act in accordance with constitutional fairness in the exercise of this discretion which is circumscribed by the provisions of s. 25 and the other provisions of the Act. There is a rebuttable presumption that the Minister has acted in a constitutional manner. Moreover, the certificate expires after a period of two years. 25. Furthermore, I am not satisfied that the common law or the Constitution imposed a duty to give any further explanation or elaboration of the statutory reasons advanced in this case. As noted by O’Donnell J. in Murphy, the obligation to give reasons is “dependent upon and a reflection of the reviewability of the decision and the scope of that review”: so also is any suggested obligation to expand on such reasons. In that case the decision was held to be “at the end of the spectrum where review is most limited and attenuated”. In this case also, the subject matter of the certification necessarily involved the consideration of sensitive matters as evidenced by the invocation of ss. 23 and 24. This is unsurprising having regard to the wide ranging nature and extent of the sources and investigative tools which must be relied upon when combating terrorism and protecting citizens and the institutions of the state. 26. The court is, therefore, satisfied that in the circumstances of this case, the certificate issued under s. 25 by the respondent was in accordance with law. The declaration contained in the certificate that by virtue of ss. 23 or 24, the documents sought are exempt records, was made for reasons which are clear and transparent and follow a consideration that the records were of sufficient sensitivity or seriousness to justify certification. There is no allegation of mala fides on the part of the respondent and no evidence indicating unreasonableness, irrationality or lack of proportionality by the respondent in the making of the decision. The acknowledged background and circumstances of the case indicate the contrary, though the merits of the decision are not a matter for this Court. The extent and detail of the reasons given for certification are clearly and properly informed by the terms of s. 25, and the seriousness and sensitivity of the records sought when considered in the context of the applicant’s known history and circumstances. Anything further that might relate to the “gist of the information” relied upon in making the decision was not required. The justification for the lack of elaboration is in no way opaque and derives directly from the consideration by the Minister of the seriousness and sensitivity of the applicant’s phone records. I do not consider that there is any conflict of principle between the judgment of Peart J. in Campbell and the subsequent decisions of the Supreme Court in Mallak and Murphy in respect of these matters. Waiver or Estoppel 28. I am not satisfied that this submission is correct. Reliance is placed on the judgment of Hardiman J. in Hannigan v. Director of Public Prosecutions [2001] 1 IR 378. It is submitted that the situation is analogous to a claim of privilege where part of a privileged document has been referred to in court proceedings by a person asserting privilege over it, but in a manner which is unfair to the opposing party. The general rule that where privilege material is deployed in court in an interlocutory application, the privilege in that and any associated material is waived has no application in the present case. In this case, the disclosure to the Tribunal was of a very limited nature and took place in very restricted circumstances consistent with the seriousness and sensitivity with which the records were regarded by the Tribunal and the authorities. Evidence was given in private session upon the application of the Garda Commissioner. The references to the transcripts are limited to telephone conversations from An Garda Síochána’s file in or about January 1990. There is no evidence of any waiver by or on behalf of the Minister in respect of the power vested in him under section 25. Furthermore, the appellant seeks records which came into existence subsequent to the events the subject matter of the Tribunal’s report. There is no evidence to suggest that confidentiality in respect of any of those records was at any stage undermined or waived by the Minister and the disclosure to the Tribunal does not amount to a forbearance or waiver of the right of the Minister to exercise his power under s. 25 at any stage in relation to them (see Campbell at p. 33 and OBG Limited v. Allan [2008] 1 AC 1 paras. 302 and 329). I am not satisfied that the Minister waived or undermined the protection from disclosure which he was entitled to consider and confer on the telephone records under section 25. Conclusion |