Request for a list of all Dáil Deputies who petitioned the Department for clemency on behalf of members of the public against court penalties - whether release could reasonably be expected to prejudice or impair the enforcement of, compliance with, or administration of any law - section 23(1)(a)(ii)

Case Summary

Facts

In 1995, the High Court concluded that the power of the Minister for Justice, Equality and Law Reform to commute or remit punishments, imposed by a court exercising criminal jurisdiction, must be exercised "sparingly and for special reasons with proper maintenance of records". Following this High Court judgement, the Department introduced implementing guidelines and procedures for the processing of petitions, and requested the co-operation of all Deputies "in being selective about accepting future applications to have a petition opened".

The requester sought a list of all Dáil Deputies who petitioned the Department for clemency on behalf of members of the public against court penalties in a specified period. The Department refused the request on the grounds of section 23(1)(a)(ii), in that it contended that release could reasonably be expected to prejudice or impair the enforcement of, compliance with, or administration of any law and that the public interest would not be better served by releasing even part of the information concerned.

Decision

The Commissioner found that the Department had not identified the manner in which it expected the Petitions Scheme to be prejudiced (that is to say, injured or potentially injured) or impaired (that is to say, damaged or weakened) by the release of the records in question. The Commissioner commented that he considered the increased public scrutiny, that may result from release of the list requested in this case, was more likely to facilitate rather than prejudice or impair the administration of the current Petitions Scheme in accordance with the 1995 High Court judgement by highlighting the role of the petitioning Deputies in the process. He also found that the Department had failed to show that its expectation of any harm arising was reasonable. The Commissioner found that the Department had not adequately justified its refusal of the request under section 23(1)(a)(ii) and that he was not, therefore, obliged to consider the public interest test.

The Commissioner also commented that, even if the Department had made a case to him that the information on the list was personal information about the petitioning Deputies, he would not have accepted that disclosure that a Deputy had made a representation of a particular type involved the disclosure of personal information about that Deputy.

Date of Decision: 12.01.2001

Our Reference: 99452

12.01.2001

Mr X

Dear Mr X

I refer to your application for a review of the decision of the Department of Justice, Equality and Law Reform to refuse to grant your request for access to a record relating to the Petitions Scheme. I apologise for the delay in dealing with your application.

Background

I have now completed my review of the Department's decision. In carrying out that review, I have had regard to the submissions made by the Department in a similar case involving the Petitions Scheme.

Scope of Review

I note that you specifically request a list of all Dáil Deputies who petitioned the Department for clemency on behalf of members of the public against court penalties. You agree that the period covered by your request is from 21 April 1998 to 27 April 1999. Accordingly, my review in this matter is concerned solely with the question of whether the decision of the Department to refuse you access to this information is justified.

Findings

At the outset, I believe it would be useful to give the general background of the Petitions Scheme. The Petitions Scheme is administered under the provisions of the Criminal Justice Act, 1951, as amended by section 17 of the Criminal Justice (Miscellaneous Provisions) Act, 1997. Pursuant to section 23 of the Criminal Justice Act, 1951, the Minister for Justice has been empowered, except in capital cases, "to commute or remit, in whole or in part, any punishment imposed by a Court exercising criminal jurisdiction, subject to such conditions as [the Minister] may think proper." However, in 1995, the High Court found that the system which had been adopted by the then Minister for Justice for remission of fines was ultra vires both the 1951 Act and the Constitution in light of evidence suggesting that the power was being exercised on a routine basis. The High Court emphasised that the power to commute or remit punishment was never intended to be used as a parallel or alternative system of justice to that provided for by the courts. The High Court therefore concluded that the power under section 23 must be exercised "sparingly and for special reasons with proper maintenance of records." In reaching its decision, the Court recognised that the Minister was not required to exercise the power in public, but that "for the exercise of any power, whether constitutional, statutory or otherwise, some accountability is essential."

Following the High Court Judgement, the Department introduced implementing guidelines and procedures for the processing of petitions. According to the Department, the exercise of clemency under the new petitions procedure will now be "the exception rather than the rule." The Department also issued a letter to all Deputies to explain the new petitions procedure to them and to request their "co-operation in being selective about accepting future applications to have a petition opened." The Department claims that any records relating to the Petitions Scheme are exempt under the provisions of section 23(1)(a)(ii) of the Freedom of Information Act ("the FOI Act"). The Department also considers that the public interest would be better served by not releasing even part of the information concerned.

Under section 34(12)(b) of the FOI Act, a decision to refuse to grant access to a record "shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified." Section 23(1)(a)(ii) of the FOI Act, in turn, provides that "[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- (ii) the enforcement of, compliance with or administration of any law".

In Case No. 98104, The Sunday Times Newspaper & Others and the Department of Education and Science, I explained my approach to interpreting the words "could...reasonably be expected to...." in the context of section 21 of the FOI Act. I stated that "in arriving at a decision to claim a section 21 exemption, a decision maker must firstly identify the potential harm to the functions covered by the exemption that might arise from disclosure and having identified that harm, consider the reasonableness of any expectation that the harm will occur." More recently, in Case No. 99017, Mr. ABM & Others and the Office of the Revenue Commissioners, I adopted this approach in reference to section 23(1)(a) of the FOI Act. I also determined that the words "prejudice" and "impair" were not intended to be synonymous and were to take their ordinary meaning.

In this case, the Department has not identified the manner in which it expects the Petitions Scheme to be prejudiced (that is to say, injured or potentially injured) or impaired (that is to say, damaged or weakened) by the release of any of the related records. Indeed, I consider that the increased public scrutiny that may result from release of the list requested in this case is more likely to facilitate rather than prejudice or impair the administration of the current Petitions Scheme in accordance with the 1995 High Court Judgement by highlighting the role of the petitioning Deputies in the process. The Department has also failed to show that its expectation of any harm arising is reasonable. Therefore, I find that the Department has not adequately justified its refusal to grant you access to the information you request.

I note that 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. However, as I have determined that the Department has not justified its reliance on section 23(1)(a)(ii) in the first instance, it is unnecessary for me to address the Department's public interest argument in this case.

I further note that the Department has not made any case to me that the information on the list you request is personal information about the petitioning Deputies. Even if such a case had been made, I do not accept that disclosure that a Deputy has made a representation of a particular type involves disclosure of personal information about that Deputy. Nevertheless, as the Deputies concerned could be considered to be persons affected by this decision, I am notifying them in accordance with section 34(10) of the FOI Act.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby annul the decision of the Department and make a new decision to grant access to the list requested.

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