Case 000101. Statement of reasons under section 18 - the giving of reasons based on information contained in an exempt record - section 46(1)(b)

NB - The Information Commissioner's decision in this case was appealed to the High Court by the applicant on a point of law. On 11 May 2001 Mr. Justice McKechnie delivered his judgement which upheld the Commissioner's decision. The text of the High Court judgement is available here. 

Case Summary

Issues

Statement of reasons under section 18 - the giving of reasons based on information contained in a exempt record - section 46(1)(b).

Facts

The applicant sought from the DPP a statement of reasons, under section 18 of the FOI Act, for the decision to prosecute him in relation to a road traffic accident. The DPP decided that the application could not be met as to do so would involve the provision of information which is contained in an exempt record. Mr X then applied to the Information Commissioner for a review of that decision.

Decision

Section 46(1)(b) of the FOI Act provides that 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. The Commissioner found that the information required to provide the reasons sought by the applicant was contained in a specific file, created by the DPP's Office, in connection with the road traffic accident. No case was made by the applicant that the records on the file were records concerning the "general administration" of the DPP's Office. The Commissioner found that the records, from which the statement of reasons would have been compiled, were exempt records by virtue of section 46. He noted 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, and decided that the public body was within its right not to grant the application.

Date of Decision: 05.09.2000

Our Reference: 000101

05.09.2000

Mr X

Dear Mr X,

I refer to your application, under the Freedom of Information (FOI) Act, for a review of the decision of the Office of the Director of Public Prosecutions (DPP) as communicated to you in the letter of 13 January 2000 from Ms. Maureen Stokes of the DPP's Office. I have now reviewed the decision of the DPP's Office in accordance with the provisions of section 34 of the FOI Act. In conducting this review, I have had regard to the arguments made by you in your letters to me of 23 February 2000 and 14 August 2000. I have also taken account of the position outlined by the DPP's Office both in its dealings with you and in contacts with my Office in relation to your case.

I note that Fintan Butler, Senior Investigator in my Office, wrote to you on 3 August 2000 setting out his preliminary views on your case. Mr. Butler invited you, in the event that you agreed with his analysis, to withdraw your application for a review. Your letter of 14 August 2000 makes clear that you do not agree with Mr. Butler's analysis and that you wish me to proceed with a decision on your case.

In your recent letter you commented that you did not feel that to "discuss" the case with the DPP's Office constitutes " a review within the meaning of the Act". Discussion with the public body concerned, including the eliciting of its arguments and its response to any preliminary views my Office might form, is a routine feature of a review under section 34 of the FOI Act. However, the review itself is not complete until I have taken account of the position of the two sides and made a decision on the basis both of the law and of the facts of the case. The FOI Act provides - at section 37(6) - that the procedures for the conduct of an investigation shall be "such as the Commissioner considers appropriate in all the circumstances of the case". In each case, including this present case, I take care to ensure the review procedure is fair to all sides and provides a firm basis for a decision.

Background

Your request to the DPP's Office was for a statement of the reasons for the decision to prosecute you in relation to a road traffic accident on 1 April 1999. You asked for these reasons to be given to you in accordance with the provisions of section 18 of the FOI Act. The decision of the DPP's Office was that your request could not be met as to do so would involve the giving of information which is contained in an exempt record. Section 18(2) of the FOI Act provides that the general duty to give reasons is not to be construed as requiring "the giving to a person of information contained in an exempt record". The DPP's Office maintains that the giving of reasons to you would necessarily require it to reveal information from the file relating to the particular road traffic accident of 1 April 1999. The records on that file, according to the DPP's Office, are excluded from the scope of the FOI Act by virtue of section 46(1)(b). It is clear from your correspondence that you are familiar with the provisions of the FOI Act so it seems unnecessary here to quote these to you in any detail.

Scope of Review

This review is concerned solely with the question of whether the DPP's Office was correct in its decision to refuse you reasons for its decision to proceed with a prosecution in your case arising from a road traffic accident on 1 April 1999. The review is not concerned with granting you access to records held by the DPP's Office.

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 Part 111 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:

• 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;
• 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;
• 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 1 April 1999.

A party to a review, or any other person affected by a decision of the 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 4 weeks from the date of this letter.

Yours sincerely

Information Commissioner