Case 98086. Investigation in progress, prosecution contemplated but not commenced - whether release would prejudice or impair the investigation or a prosecution - application of sections 21(1)(a) and 23(1)(a) - whether public interest better served by release.

Case Summary

Date of Decision: 14.01.1999

DECISION

Background:

By letter dated 22 May 1998, Messrs AAU sought access to their files held by a District Veterinary Office of the Department of Agriculture and Food. The letter was dealt with under the Freedom of Information Act, 1997 and an initial decision was made by the Department on 29 June 1998 in which the Department refused access to 8 records relying on section 21(1)(a) and section 23(1)(a) of the Act. All other records were made available to Messrs AAU.

Messrs AAU appealed that decision. On internal review, the Department granted access to some of the records previously withheld and refused access to three records. The Department relied on section 23(1)(a) for its decision. Messrs AAU appealed that decision in a letter to me dated 4 September 1998 which was received at this Office on 10 September 1998.

The request in this case appears to have been brought about by a suspicion on the part of the Department that the cattle tags on a number of the cattle owned by Messrs AAU had been interfered with. The Department then withheld payment of the grants due to Messrs AAU under the eradication scheme pending investigation of the matter. A considerable amount of information relating to the Department's enquiries has been released to Messrs AAU.

Both the Department and Messrs AAU were given the opportunity of furnishing submissions. Messrs AAU wrote to this Office on 15 September 1998 stating that as the Department had not paid them their brucellosis grants the information which was withheld might enlighten them as to the reasons for same.

After receiving the FOI file and records from the Department, it was clear that a considerable amount of information had been released to the Messrs AAU which indicated the nature of the investigation, the information collected and the likelihood of a prosecution. The matter had been referred by the Department to the Garda Síochana. The Department was asked by my Office to explain the prejudice that might reasonably be expected to occur to the enquiries being conducted. The Department considered the matter further and consulted with the Gardaí who indicated to the Department that they did not have an objection to the release of the records. The Department made a specific submission to my Office on the issue of the application of sections 23(1)(a) and 21(1)(a) to the records in question.

Submissions

The Department has relied on section 23(1)(a) and section 21(1)(a) in withholding these records.

Section 23 (1)(a)

Section 23(1)(a) states as follows:

A head may refuse to grant a request under section 7 if access to the record concerned could, in the opinion of the head, reasonably be expected to-

(a) prejudice or impair- (i) the prevention, detection or investigation of offences, the apprehension or prosecution of offenders or the effectiveness of lawful methods, systems, plans or procedures employed for the purposes of the matters aforesaid, (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 or 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 the Garda Síochána, the Defence Forces, the Revenue Commissioners or a penal institution,

The Department argues that release of the three records could prejudice or impair the Garda enquiries, the prosecution of offenders and the effectiveness of lawful methods, systems, plans or procedures employed (i.e. they rely on (i) and (iii) above).

Section 21(1)(a)

Section 21(1)(a) states as follows:

(1) A head may refuse to grant a request under section 7 if access to the record concerned could, in the opinion of the head, reasonably be expected to

(a) prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of the public body concerned or the procedures or methods employed for the conduct thereof,

In a letter to this Office of 13 November 1998 the Department also argues that the records are exempt under section 21(1)(a) as the release of the records could reasonably be expected to prejudice the effectiveness of the ongoing investigation and the procedures or methods employed in the conduct thereof as the Department would be making the possible defendants in a case aware of the exact method and procedure of its investigation and the findings to date of that investigation which were available to the Department. The initial decision made by the Department also relied on section 21(1)(a) although it was not relied upon for the internal review decision.

Findings

In this case, a prosecution is contemplated by the Department but has not commenced. The requesters are aware that a prosecution is possible. However, the files are still with the Gardaí and it appears that the investigation has not yet closed. In the course of their investigations the Gardaí may interview and take statements from various persons. There is always the possibility that either the Gardaí or the DPP may cause further enquiries or investigations to be made. Until such time as a decision is made either to prosecute or not to prosecute, I accept that the investigations in this case are not complete. I find that in this case an investigation is still ongoing and a prosecution has not commenced. However, there is a strong possibility that a criminal prosecution will result. In such cases, I think that the arguments in favour of release of relevant records are weak and remain weak until such time as the investigation has been completed and a prosecution has been concluded or a decision has been taken not to institute a prosecution. In cases where the prosecution has taken place or there is not going to be a prosecution, the bias moves in favour of release of the record. In such cases there is far less likelihood of prejudice or impairment to the investigation or prosecution.

In these circumstances it seems to me that the provisions of section 23(1)(a)(i) are relevant. Access to a document or part of a document may be refused if that access could reasonably be expected to prejudice or impair the investigation of offences. While section 23(1)(a)(i) refers to offences and offenders (i.e. in the plural), it seems to me that the section applies even if access could reasonably be expected to prejudice or impair the investigation of only one particular offence.

As a general proposition I would accept that an investigator must be allowed a fair degree of latitude, subject to the need for fair procedures, to decide when information already in his or her possession should be made available to a party which is the subject of the investigation. If a party subject to investigation by a public body has a right to be fully informed at all times of the state of knowledge of the investigating authority, then it would appear to be inevitable that this would impair the investigation of offences. In this particular case, I am satisfied that the release of some (but not all) of the information in the records which are the subject of this review could reasonably be expected to prejudice or impair the current investigation. Therefore, I find that the exemption in section 23(1)(a)(i) applies.

Section 23(3) provides that access to a record may be granted in specified circumstances where the public interest would, on balance, be better served by granting than by refusing to grant the request. Those circumstances include those where the record discloses that an investigation is not authorised by law or contravenes any law, contains information concerning the performance of a public body of functions relating to law enforcement or contains information concerning the effectiveness or merits of any programme for prevention, detection or investigation of breaches of the law. No such record exists in this case and section 23(3) does not apply.

I have also considered the Department's argument that it could reasonably be expected that release would prejudice or impair the prosecution of offences in this case. I have taken the view that the current investigation may reasonably be expected to be prejudiced or impaired, by release of certain material. It seems to me to be reasonable to say that, if the investigation of an offence can be expected to be prejudiced or impaired, then any subsequent prosecution can be expected to be similarly affected. Once a prosecution has actually commenced different issues may arise but there is no need for me to consider them for the purposes of the present case.

The Department also relied on section 21(1)(a) . There seems to be a degree of overlap between section 21(1)(a) and section 23(1)(a)(i) insofar as both subsections deal with investigations. My remarks concerning the prejudice to an investigation in the context of section 23(1)(a)(i) are equally applicable to section 21(1)(a), and I accept that the exemption in that subsection can also apply, subject to the public interest balancing test in section 21(2) which is not as restrictive as the public interest test in section 23(3).

Strictly speaking, on the view I take of the matter, it is unnecessary for me to consider the operation of section 21(2). This is because, even if I accepted that the balance of the public interest required that the exemption in section 21(1)(a) should not apply, the exemption in section 23(1)(a) would still apply. Nevertheless, for the guidance of the parties I should say that I do not accept that the public interest would be better served by granting than by refusing to grant this request. In coming to this view I have taken the following matters into account. There is a very significant public interest in the Department being able to conduct effective investigations into a wide variety of possible abuses in agriculture. On the other hand, there is a public interest in ensuring that individuals are treated fairly. I am conscious of the fact that during the course of the investigation Messrs AAU are suffering some detriment in the sense that the payment of grants is being withheld from them. However, there is no evidence before me to suggest that at this stage the investigation is not being conducted in a bona fide and expeditious manner. In the circumstances I have decided that the public interest would not be better served by releasing the information which might prejudice the investigation.

Having made these general comments, I will now deal individually with the three records which are the subject of the review.

Record No. 1

This record is a letter and an attached list and form. The letter itself contains information relating to the case and it refers to the two other records (records 2 and 3 below) being withheld by the Department in this case. Messrs AAU are aware of the information contained in the letter and of the existence of the two other records. On this basis I find it very difficult to see what further prejudice or impairment within the meaning of section 23(1)(a) may result from release of the letter to Messrs AAU. I have decided that the letter itself be released.

The attached list contains details of a list of offences and the associated regulations. Anyone with knowledge of the law applicable in this area would easily prepare such a list. In my view Messrs AAU would have little or no difficulty in establishing the relevant regulations, should a prosecution proceed. I do not find that this information may reasonably be expected to prejudice or impair the investigation or a contemplated prosecution.

The attached form is a standard form completed by the Department reporting the alleged offences and requesting a Garda investigation. Again, I find that there is no information contained in this form which the requesters do not already have or which they could not easily establish. On that basis, I do not find that the information may reasonably be expected to prejudice or impair the investigation.

For the same reasons, I do not think that section 21(1)(a) can apply to the covering letter or the attached list or the form.

Record No. 2.

This is a report prepared by the District Veterinary Office on the four animals central to the investigation. Messrs AAU are aware of the existence or likely existence of this report. It contains details collected by the Department in the course of investigations for the contemplated prosecution and which Messrs AAU would notnecessarily have. The information contained in the report is the data on the tags for the cattle. In particular, the report contains details of the names and addresses of the previous owners of the cattle in question and the marts at which they were sold. It seems to me that this information is personal information about the previous owners, and could be refused on this ground alone. However, I also accept that the investigation could be impaired by releasing this information before the investigators are willing to do so. Therefore, I find that the details of the names and addresses of the previous owners of the cattle should be deleted from the records to be released.

In saying this, I am conscious of the fact that if a decision is taken not to prosecute in this case, Messrs AAU would be entitled to make a fresh request under FOI for the records and the matter would have to be reviewed at that stage in a very different set of circumstances. If the decision is to proceed with a prosecution, Messrs AAU will be entitled to a fair trial of the case and this record, or the information contained in it, will most probably be produced in evidence against them. Indeed, if a FOI request is made for the record after the prosecution has commenced a different view may possibly be taken about the release of the record at that time. However, in the meantime I am of the view that the specified portions of the record are exempt from release under section 23(1)(a).

I must now decide whether section 23(1)(a) applies to the remainder of the record. The record sets out the data or history for the tags in question. The nature of this information is well known. I have already decided that the actual details of the herd owners who sold the animals are to be deleted. I find that there is nothing in the remainder of the record which could reasonably be expected to prejudice or impair the investigation and, therefore, section 23(1)(a)(i) does not apply. For the same reasons section 21(1)(a) does not apply. I also find that the other provisions of section 23(1)(a) are not applicable to the rest of the record.

Record No. 3.

This record is a report prepared by the Forensic Science Laboratory. Messrs AAU are aware of the existence of this report. The Department argues that this report may form the basis for any charges that may be brought against Messrs AAU. Again, it contains information from the investigation which Messrs AAU would not necessarily have. The Department argues that to release the information at this stage would make the defendant aware of the exact evidence which would be given in court and this would give the defendant an advantage not normally given in the District Court.

Messrs AAU are aware that a report was prepared by the Forensic Science Laboratory. They are aware that the report's findings very strongly support the allegation that four tags were interfered with. They have also been informed of the tag numbers for the four tags in question. They are, however, unaware of the exact nature of the alleged interference found. I find that release of the information at this time when the investigations are still ongoing and the prosecution has not commenced, would be premature and could reasonably be expected to impair or prejudice the investigation and any subsequent prosecution. As I have decided that this record is exempt from release pursuant to section 23(1)(a)(i), there is no necessity for me to examine the application of section 21(1)(a) to the record.

Decision

I have decided to vary the decision of the Department and to grant access to Record No. 1 with the attached list and form. I have decided to grant partial access to Record No. 2. and to affirm the Department's decision not to grant access to Record No. 3.

Information Commissioner

14 January 1999