Case 98043. Garda report sent to the Department of Justice, Equality and Law Reform - whether information was given in confidence and on the understanding that it would be treated as confidential - whether release would prejudice the giving of similar information in future - whether it was important to the Department to receive similar information in the future - application of section 26(1)(a).

Case Summary

Facts

The requester, who was an employee of the Department, sought a copy of a Garda report on criminal incidents which took place close to his house. The Garda Commissioner opposed the release of this report and the Department refused access under section 26(1)(a) on the basis that this information was received in confidence and on the understanding that it would be treated as confidential and to release it would prejudice the giving of such information in the future.

Decision

The Commissioner decided to grant access to the record sought, subject to the deletion of personal information about another person. He did not accept that the contents of the report were of such a sensitive nature as to imply that they were intended to be kept confidential. The conclusion of the report, and not the full contents, was what the Department actually needed to know. Therefore the Commissioner did not accept that it was of importance to the Department to receive similar information in the future.

Date of Decision: 18.11.1998

DECISION

Background:

Mr AAN, a prison officer, made a request under the FOI Act on 18 May 1998 for access to a Garda report on criminal incidents which took place close to his house.

His house and car were vandalised and the incidents were reported to the Gardaí. No other houses or cars on the road were interfered with and Mr AAN felt that the incidents might be connected with his work. He found the situation stressful and incurred some sick leave and sought to have this sick leave counted as being caused by an occupational injury. In January 1998, Prisons Personnel Section sought a Garda report on the matter, following the receipt of which it refused his request relating to sick leave. Prior to the commencement of the Act, he had been informed that the Garda report had concluded that the incidents were not related to his being a prison officer but he had been refused access to the actual report.

The Department initially considered release in the public interest under Section 26(3) and wrote to the Garda Commissioner seeking submissions in accordance with Section 29 of the Act and stated "As the information was supplied in confidence, we are obliged to inform you that this report may be made available to Mr AAN".

A minute from the Garda Commissioner's Office dated 29 June 1998 "informed" the Department that the report should not be released. It went on to say "According to up to date legal advice, if this type of investigation was conducted at the present time, detailed information would not be passed to the Minister unless he had a specific function in the matter".

The Department of Justice, Equality and Law Reform then refused access to Mr AAN under Section 26(1)(a) on the basis that this information was received in confidence and to release it would prejudice the giving of such information in the future.

Mr AAN sought an internal review of this decision on 6 July and the original decision was upheld. He applied to me for a review of the decision on 15 July.

Review

Submissions in this case were sought from Mr AAN, the Department of Justice, Equality and Law Reform and the Garda Commissioner. The Gardaí agreed to an abridged version of the report being released to Mr AAN and this was issued to him asking him if he would consider withdrawing the application for a review. Mr AAN has confirmed that he is not willing to withdraw the application since he thinks that certain aspects of the abridged report may be factually incorrect and therefore wants to see the entire contents. While I recognise the effort made by the Gardaí to address the concerns of Mr AAN, I proceeded with the review in the absence of an agreed settlement.

Submissions

Mr AAN's submission outlines how he was subjected to abuse after being recognised as a prison officer in May 1997 while a passenger on a bus. His home and car were vandalised in the subsequent months. All incidents were reported to the Gardaí. No other houses or cars on the road were interfered with and Mr AAN felt that the incidents might be connected with his work as a Prison Officer. He found the situation stressful and incurred some sick leave and sought to have this sick leave counted as being caused by an occupational injury.

Personnel Section refused his request on the basis of the Garda Síochána report. He said in his submission that "if this report could show that the criminal incidents on my home were not linked to my employment, I would be quite happy to accept the decisions [of Personnel Section]". He feels that he should be given the report in the interests of "Natural Justice."

The Garda Síochána submission states that the report was submitted in response to claims by Mr AAN that the incidents around his house were motivated by the fact that he is a prison officer. The report outlines action by the Gardaí in response to Mr AAN's complaints. It describes how a juvenile offender who was involved in a particular incident was dealt with. The submission states that the report contains references to other individuals, information that may lead to the identification of the juvenile and information about Garda Síochána operational matters. It goes on to refer to the importance of persons who contribute to the compilation of such reports doing so in a full and frank manner, particularly in cases similar to the present one. The Department had a concern about the security of a penal institution although the report allayed that concern. While the Garda Síochána accept that, at the time the report was passed to the Department, there was no express term of confidentiality, they claim that there was an implication of confidentiality in the light of the content and subject of the report.

The Garda Síochána feel that it is clear that the report was given to the Department in confidence and accept that "the opinion of the Department as to whether disclosure of the report would prejudice the giving of further similar information in the future is a matter for that Department itself". They say that if the report is released "serious policy issues arise both for An Garda Síochána and the Department of Justice, Equality and Law Reform. Consideration will have to be given to the supplying of reports with the same level of detail to the Department in future cases. This will mean reports of a less detailed nature being sent to the Department which may inhibit the way the Department, and importantly the Minister, discharge certain functions. Again it is a matter for the Department to indicate the importance of continuing to receive such information to adequately discharge their functions."

The Garda Síochána claim that they do not want to have all Garda reports made confidential as a class of documents but that this particular report should not be made available in the public interest.

The Garda Síochána acknowledge a duty of confidentiality in relation to information received and claim that if it became generally known that "An Garda Síochána routinely released information to the public", important sources of information would no longer be available. There would also be an adverse effect on the relationship between the Gardaí and the community at large.

They also point out that, if the Garda Síochána were a public body for the purposes of the Act, they would be seeking to use the exemption under Section 23, relating to law enforcement and public safety. The Department states that all Garda reports are sought on the basis that they are to be treated as confidential but since the report did not appear to be particularly sensitive and its conclusion had already been communicated to Mr AAN, the initial decision maker felt that a case could be made for release under Section 26(3), the public interest provision. Accordingly he consulted the Garda Commissioner under Section 29. The Department re-examined the public interest argument in the light of the Garda comments and took the following considerations into account:

• the Garda Commissioner would no longer make reports available if he was of the view that they might be released, unless the Minister had a specific legal function in the matter
• that it is in the interests of security and of good management that the Minister should be furnished with such reports where necessary, irrespective of whether the Minister has a specific legal function in the matter,
• the fact that the germane facts of the report have already been communicated to the requester,
• the fact that Mr AAN has already made a complaint to the Garda Complaints Board about the handling of certain aspects of the investigation. The Department considered that the Board was the correct forum in which to deal with this matter.

The Department felt that they had no right to release information that either the Garda Síochána or the Complaints Board had not released. Findings

It has not been disputed that the report contains personal information about Mr AAN and that a right of access exists under Section 6.

As will be appreciated from the arguments set out above, the main grounds for exemption by the Department and the Garda Síochána are that Section 26 applies.

Section 26(1)(a) requires that a head refuse a request where the record concerned contains information

• given to the public body concerned in confidence and,
• on the understanding that it would be treated by it as confidential and,
• its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and,
• it is of importance to the body that such further similar information as aforesaid should continue to be given to the body.

Section 26(1)(b) requires that a head refuse a request where disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment or otherwise by law. Neither the Department nor the Garda Síochána has claimed that disclosure would constitute a breach of confidence provided for by law as provided by Section 26(1)(b). The issue which I have to consider, therefore, is whether the exemption in Section 26(1)(a) applies.

Both the Department and the Garda Síochána claim that this information was sent to the Department in confidence and on the understanding that it would be treated as confidential. As indicated above, the Garda Síochána have accepted that, at the time the report was sent to the Department, there was no express term of confidentiality included in it. However, they say that it can be inferred that the report was given in confidence in the light of the report's subject matter and contents and also by reference to then existing practice in relation to Garda reports sent to the Department. Having examined the document I do not accept that the contents are of such a sensitive nature as to imply that they were intended to be kept confidential. Indeed, given the circumstances in which the report was sought - to help resolve Mr AAN's sick leave request - it seems to me that the Department must have known that it would, at the very least, have to disclose the broad contents, if not the actual details, of the report to Mr AAN. I am not convinced, therefore, that it can be said that this particular report was given in confidence and on the understanding that it would be kept confidential. While this conclusion of itself is sufficient to justify the release of the record sought, I have also considered whether the other two requirements of Section 26(1)(a), outlined above, are met in this case.

The Department, when considering the public interest aspects of the request, took into account the consideration that the Garda Commissioner would no longer make reports available if he was of the view that they might be released, unless the Minister had a specific legal function in the matter.

The Garda Síochána have stated that serious policy issues will arise for the Department and the Garda Síochána if the report is released in full. They stated that "this will mean reports of a less detailed nature being sent to the Department which may inhibit the way the Department, and importantly the Minister, discharge certain functions." In other words, release will prejudice the giving of similar information to the Department in future. I would not be justified in the circumstances of this case in getting drawn into a debate about the degree of accountability which the Minister can legitimately require of the Garda Síochána. But, in the light of the points made, I must accept that the level of detail in future reports of this kind which might be sought in similar circumstances to the present case might be reduced.

In relation to the last requirement of Section 26(1)(a), the Department feel that it is important to continue to receive a similar level of detail in future reports of a similar kind but have not articulated any clear reasons for this. Indeed they refer to the "relevant conclusion" of the report and this conclusion was the basis for certain actions taken by the Department. Thus, while the full contents of the report may have added to the knowledge of the Department, the conclusion was all they actually needed to know. A perusal of the contents of the report makes it clear that much of it was extraneous, in the sense that it was of no real relevance to the decision on whether to accept Mr AAN's sick leave request. In the circumstances, I do not accept that the fourth requirement of Section 26(1)(a) - that it is of importance to the Department to receive similar information in the future - is met.

I have decided, therefore, that the report should be released to Mr AAN but subject to a minor deletion with which I will now deal. The Garda Síochána claim that the age and address of the youth mentioned in the report could lead to his identification. I accept this argument and Mr AAN has agreed that he is not interested in these details. This detail from the record should not be disclosed under Section 28 since it would involve the disclosure of personal information.

In view of the grounds of my decision, it is unnecessary for me to deal with the other arguments made in the Garda submission. However, for the guidance of the parties, I wish to make the following comments. The Garda Síochána expressed concern that release of Garda reports on a routine basis would have serious implications in terms of its ability to protect sources. I accept this to be the case. However, the Freedom of Information Act recognises these concerns and provides a number of safeguards such as Section 23 and Section 46(1)(f). The effect of these sections is to ensure that Garda reports cannot be made available to requesters as a matter of routine. However, it is also implicit in such provisions that there is no blanket exemption for Garda reports held by public bodies and that in appropriate cases such reports may be released. I am satisfied that this is an appropriate case for release for the reasons set out above.

Findings

Decision

Having carried out a full review of the decision of the Department of Justice, Equality and Law Reform, and having considered the arguments put forward by the Department, the Garda Síochána and Mr AAN, I consider that Mr AAN is, subject to one minor restriction, entitled to full access to the record he has sought.

I therefore direct that Mr AAN be offered full access, subject only to the restriction that the age and address of the youth referred to in the report should not be released to him.

Information Commissioner

18 November 1998