Case 000321. Request for statistics on the number of warrants authorising phone and postal interceptions issued by the Minister for Justice, Equality and Law Reform since 1998 - whether non-disclosure of the records concerned is authorised by an enactment in certain circumstances and the case is one in which the head would, pursuant to the enactment, refuse to disclose the record - section 32(1)(b)

Case Summary

Facts

The Department contended that the regulations governing the issue of these warrants i.e. the Interception of Postal Packets and Telecommunications Messages (Regulations) Act, 1993, expressly forbade the release of this type of information and that it is therefore exempt by virtue of section 30(1)(b) of the FOI Act. They also submitted that release of the information could reasonably be expected to prejudice or impair law enforcement and that section 23(1)(a) therefore applied and that in addition, release could adversely affect the security of the State, a harm covered by section 24(1)(a).

Decision

The Commissioner accepted that section 12 of the 1993 Act restricted the amount of information that could be released, and that the information sought by the requester was covered by this restriction. Section 32(1)(a) therefore applied. This was sufficient grounds to affirm the decision of the Department not to release the information, without examining the other FOI exemptions claimed, and the Commissioner decided accordingly.

Date of Decision: 07.05.2002

Our Reference: 000321

07.05.2002

Ms Y The Sunday Tribune, 15 Lr. Baggot Street, Dublin 2.

Dear Ms. Y

I refer to your application under the Freedom of Information Act ("the FOI Act") for a review of the decisions of the Department of Justice, Equality and Law Reform ("the Department") to refuse your initial request of 22 February, 2000 for a monthly breakdown of the number of warrants issued since April 1998, under the Interception of Postal Packets and Telecommunications Messages Act, 1993 ("the 1993 Act").

I would like to begin by apologising for the delay in bringing this matter to a conclusion which was caused by the large number of cases awaiting review. Ongoing initiatives, including the securing of additional staff, will help address the arrears issue and enable me in future to deal with reviews within the time frame envisaged by the FOI Act.

Background

From my examination of the issues involved in this case it is clear that the Department in refusing your request is relying on the following grounds:-

1) that they are expressly prohibited from releasing this or any other relevant information by section 12, of the 1993 Act (copy attached), and that consequently, refusal of the request is covered by section 32(1)(b) of the FOI, Act;

2) that even if it were permissible to release this information, it could not be released because to do so could, in the opinion of the head, reasonably be expected to prejudice or impair the prevention, detection or investigation of offences etc. as provided for by section 23(1)(a) of the FOI Act;

3) it could reasonably be expected to affect adversely the security of the State as provided for by section 24(1)(a).

Scope of Review

My review is concerned solely with the question as to whether or not the Department is justified in refusing access to the records in question.

Findings

Section 32 of the FOI Act

I have examined in detail section 12 of the 1993 Act, in particular whether it justifies considering the information under review as exempt in accordance with section 32 of the FOI Act or whether, within the context of the 1993 Act, it could be interpreted as allowing for the release of statistical information of the type covered by this review.

I am satisfied that section 12 is designed to ensure that the Minister does not disclose the fact of the giving of any authorisations generally, or the contents of any communications which have been intercepted pursuant to such authorisations, save to the extent necessary:-

(1) for the purpose of the prevention or detection of serious offences; or
(2) in the interests of the security of the State.

In light of the foregoing, the provisions of section 12 might be characterised in Freedom of Information Act terms as, effectively, the authorisation of the non-disclosure of a record in certain circumstances, as contemplated by section 32(1)(b) of the 1997 Act. The circumstances in which the head is authorised not to disclose the relevant records are circumstances where the records concerned are not required to be disclosed for the purpose of the prevention or detection of serious offences or in the interests of the security of the State.

Conclusion

Section 23 and 24

Having found that the records concerned are exempt under section 32(1)(b), I do not need to investigate the other FOI exemptions quoted by the Department, specifically sections 23 and 24.

Decision

Having completed my review under section 34(2) of the FOI Act, 1997, I have decided to uphold the decisions of the Department.

A party to a review, or any other person affected by a decision of the Commissioner 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