Background

In your original request you sought the release of:

"All records created by, received by or held by Fingal County Council in relation to the replacement of Mountjoy Prison with a new Prison on a greenfield site in Thornton, North Dublin, including, but not confined to, records relating to interactions between Fingal County Council and the Department of Justice Equality and Law Reform, the Irish Prison Service, and the Office of Public Works. Also including but not confined to, records relating to interactions between Fingal County Council and any Agency under the aegis of Fingal County Council, the Department of Justice Equality and Law Reform, the Irish Prison Service, the Office of Public Works and the Mountjoy Complex Replacement Site Committee.

All records held by Fingal County Council relating to any site in the Fingal area being proposed, submitted and/or considered for a prison development."

The Council's original decision issued on 10 April 2006 but the records located, which were not listed or scheduled, were withheld on the basis of section 32(1) of the FOI Act. On 26 April 2006 you sought an internal review of the original decision and this led to your original request being re-considered by a more senior official. You were informed of the outcome of the internal review, which resulted in the original decision being upheld, on 26 May 2006.

My Office subsequently received a review application from you which I accepted on 20 July 2006. The case was then assigned to an Investigator from my Office, Mr. Cathal Duffy, who since then has been in regular communication with all parties relating to the various issues arising.

Scope

The scope of this review is confined to relevant records created and/or received by the Council between 12 August 2005 (when you made a similar FOI request) and 13 March 2006 (the date that the FOI request that is the subject of this review was received by the Council).

In its original and internal review decision letters, the Council failed to provide you with a schedule of the records that fall within the scope of this review, or indeed any information relating to the volume of records at issue. This shortcoming on the Council's part was addressed by Mr. Duffy and, as a result, the Council wrote to you on 2 November 2006 and provided the following details of the five records that it deemed to be relevant to your request:

1. Record of Pre-application Consultation No. 01276, dated 1/3/2006.

2. Notes, supplied by the Irish Prison Service, to update Fingal County Council on the progress being made towards the formal issue of their planning notice.

3. Drawing: Job Title: Development at Thornton Hall, Co. Dublin
DRG Title: Proposed Strategic Risingmain Layout
Job No: R1455 DRG No: 300

4. Drawing:
Job Title: Development at Thornton Hall, Co. Dublin
DRG Title: Proposed Strategic Risingmain Layout
Job No: R1455 DRG No: 301

5. Drawing:
Job Title: Development at Thornton Hall, Co. Dublin
DRG Title: Proposed Strategic Risingmain Layout
Job No. R1455
DRG No: 210

At the request of my Office, the Council also reviewed its decision to withhold these five records under section 32(1) and decided to grant access to all of record number 1 and to the information contained under the first heading in record number 2. The remainder of record number 2, comprising of information contained under a further eight headings and a one page appendix, along with the entirety of the drawings that comprise record numbers 3, 4 and 5 were withheld from release on the basis of an exemption claimed under section 23(1)(a)(v) of the FOI Act. Apart from withholding record numbers 2 to 5, you will be aware from recent communications with Mr. Duffy that the Council has also withheld a further five records on this basis which, as outlined under my "Findings" below, were located during the course of this review.

In relation to record number 2, I should point out that, in addition to the appendix which is attached, there is a reference on the first page of this record to an "... attached letter ...". However, the Council has confirmed that the letter that is referred to was not in fact attached to the version of this record that it received i.e. the letter was presumably attached to the record when created by its author but it was not attached when it was subsequently passed on to the Council by the Irish Prison Service. Accordingly, the "... attached letter ..." that is referred to falls outside of the scope of this review as it is not a record held by the Council.

Findings

Two issues arise in relation to this review. Firstly, has the Council located all relevant records that fall within the scope of your request and, secondly, is the Council's decision to refuse to grant full access to the nine records that it has withheld justified having regard to the exemption claimed under section 23(1)(a)(v) of the FOI Act. I address each of these two issues separately, below.

Have all relevant records been located?
During your telephone conversation with Mr. Duffy on 8 November 2006 you expressed some surprise at the relatively small number of records deemed relevant, particularly when compared to the volume of records provided following your previous FOI request to the Council in which similar information had been sought. In response to a request from Mr. Duffy, you provided a submission dated 15 November 2006 in which you referred to the absence of certain types of records and expressed astonishment that a project of this size could be progressed with such a dearth of records.

In these circumstances, the provisions of section 10(1)(a) of the FOI Act must be considered. This provides an exemption for a public body if the records sought do not exist or cannot be found after all reasonable steps have been taken to locate them. In cases such as this, my role is to review the decision of the public body to refuse access to such records on the grounds that they do not exist or cannot be found after all reasonable steps have been taken to ascertain their whereabouts. This means that I must have regard to the evidence available and to the reasoning used by the Council in arriving at its decision that further relevant records do not exist. In my view, the evidence in a case such as this consists of the steps that were actually taken to locate relevant records along with other evidence about the records management practices of the public body concerned. Furthermore, I would expect that searches would be carried out in all locations where relevant records might, as opposed to should, be held.

I note that in a submission received on 20 September 2006 the Council addressed an issue raised by my Office, in the early stages of this review, concerning the fact that only a small number of relevant records had been located. The Council pointed out that a state agency, such as the Irish Prison Service, is not subject to the same planning obligations as a private citizen and, as the relevant procedures applicable to such a body had not commenced at the time of your request, there are in fact relatively few records in existence. At this stage, I should point out that can be some misconceptions about the role of my Office in cases of this nature where a public body has decided that no further records exist or can be found. Occasionally, requesters expect my Office to carry out a search for the records in question. However, I see my role in these cases as one of reviewing the decision of the public body and deciding whether that decision was justified. This means that, as in any other review, I must have regard to the evidence available insofar as the existence of further relevant records is concerned. It should be noted that my understanding of my role in these cases was approved by Mr. Justice Quirke in the High Court case of Matthew Ryan and Kathleen Ryan and the Information Commissioner (2002 No. 18 M.C.A.) when he said:

"I am satisfied also that the respondent's understanding of his role, as outlined in evidence, was correct in that he was not required to search for records but was required rather to review the decision of the Department and in doing so to have regard to the evidence which was available to the decision-maker and to the reasoning used by the decision-maker in arriving or failing to arrive at a decision."

In the context of your contention that further relevant records ought to exist, particularly of the type that you referred to in your submission of 15 November last, Mr. Duffy wrote to the Council on 6 December and requested it to make a submission providing evidence of the steps taken to search for records that would be relevant to your FOI request. In his letter, Mr. Duffy asked the Council to provide a copy of any applicable records management guidelines or manual that sets out details of the Council's policy on record creation, retention and destruction. The Council's submission was received on 28 December 2006. The submission stated that following your previous FOI request of 12 August 2005, the County Manager decided that one official would deal with all matters concerning the proposed prison and would act as a liaison officer for all related correspondence. When your FOI request, which is the subject of this review, was received by the Council, all available information was sought from the liaison officer and five records were subsequently provided to the decision maker.

As regards Mr. Duffy's query concerning the Council's records management policy, its submission states that it does not have any guidelines or manual setting out arrangements for record creation, retention or destruction. For a local authority of its size, with such a wide breadth of responsibilities, this stated position is a matter of serious concern to me. I recently published the Report of my investigation into the manner in which public bodies have used section 10(1)(a) of the FOI Act to refuse requests that involve searches for records. Although Fingal County Council was not amongst the local authorities that I investigated, I will be drawing their attention to the recommendations made in my Report, which can be viewed on my Office's website at www.oic.gov.ie, when I write to the Council in relation to this review. I will be advocating that the Council pays particular attention to Chapter 4 of my Report with a view to drawing up and implementing a comprehensive records management policy as a priority and that the pilot records management project in local authorities, which is being developed by the Local Government Management Services Board, should be fully implemented as a matter of urgency and before the end of this year at the latest.

When Mr. Duffy wrote to the Council on 6 December last, he also raised twelve specific questions that arise in the context of this case. Details of the twelve questions are listed below, as are the Council's responses underneath. Whilst the Council's submission was received on 28 December last, all questions were not fully answered and, as further clarifications in relation to new issues had to be sought, further submissions were received by my Office on various dates during February and March last. The responses below set out the Council's composite response to the twelve questions raised by Mr. Duffy.

1. The Council was asked if, apart from the "Record of Pre-application Consultation" form (record number 1), any notes were taken, or any other form of record created, by a Council official at the pre-application consultation meeting and, if so, what did each of the officials concerned do with such records. The Council's response stated that the "Record of Pre-application Consultation" is the only record of the meeting that was created.
2. The Council was asked whether any form of record was given to Council officials at this meeting and, if so, what did each of the officials concerned do with such records. The Council's response stated that the documents which comprise record numbers 2, 3, 4 and 5 were the only records handed over to the Council at the meeting.
3. A number of names, some initialled, are recorded in manuscript at the top of record number 1. The Council was required, in respect of those in attendance who are Council officials, to ask each person if they have, or are aware of, any records; (a) in relation to the meeting in question and (b) that may be relevant to your FOI request generally. The Council was also asked to name each of the officials referred to and it was reminded that relevant records would, of course, include any diary entries, e-mails and any other forms of record that any Council officials may possess. The Council provided the names of each of the six officials who attended the meeting and has stated that each official has been consulted in the context of this review and that each has confirmed that they have no further records nor are they aware of the existence of any further records.
4. The Council was asked if any more formal minute of the pre-application consultation meeting was created. In its response, the Council confirmed that, apart from record number 1, no further record of the meeting was ever created.
5. The Council was asked to clarify how the pre-application consultation meeting came to take place and whether there are there any records in this regard. The Council has clarified that the pre-application consultation meeting took place following a phone call received by a Council official from the Irish Prison Service. The official who received the call has confirmed that he created no record of the call and that the six officials who attended the subsequent meeting were informed by phone call that their attendance would be required. The Council has confirmed that no record of such telephone calls was created by the person who made the calls and, as per the response to question number 3 above, none of the six officials who received such a call created any record of it.
6. The Council was asked when did it receive record numbers 2, 3, 4 and 5 from the Irish Prison Service. This issue was clarified by the Council's response to question number 2 above.
7. In relation to record numbers 1, 2, 3, 4 and 5, the Council was asked to clarify whether any official created any subsequent record in relation to their content. For example, the Council was asked if these records, or copies thereof, were forwarded or circulated to any official or Council member for information or for the purpose of seeking an observation or comment and, if so, where are the records. The Council has confirmed that no subsequent record was created in relation to the content of the five records. Apart from copies of record numbers 2, 3, 4 and 5 which are held by the Transportation and Water Services departments, who were represented at the pre-consultation meeting, the Council has confirmed that none of the five records, or copies thereof, were forwarded or circulated to any other official or Council member.
8. Question 8 is dealt with later as my findings need to be considered in light of the responses provided to the other eleven questions.
9. The Council was asked if, apart from the pre-application consultation meeting, did any Council official(s) attend any other internal or external meetings between 12 August 2005 and 13 March 2006 at which the proposed development was discussed. The Council has stated that the proposed development was not discussed at any other meeting attended by any official.
10. The Council was asked if it received any correspondence from members of the public, or representations from politicians or interest groups, in relation to the proposed development during the relevant period. Apart from correspondence that has in any event been published on its website, and is therefore outside of the scope of the FOI Act, the Council has confirmed that any correspondence from members of the public and representations from politicians or interest groups would be placed on the liaison officer's file but that this contains no such records of this type.
11. The Council was asked if it has an electronic file or database register that can be searched using certain key-words such as "prison" or "Thornton". If so, it was asked to provide details of the results of any searches that could be carried out. The Council has confirmed that it was able to carry out a key-word search of its "Post" database which records correspondence received. During the timeframe relevant to this review, a total of eight further records were identified as a result of this search. Three of these records comprise of submissions made in relation to the proposed designation of Thornton as an Architectural Conservation Area (ACA), three more relate to the proposed designation of Thornton Hall as a Protected Structure, one record relates to a complaint made about the erection of protest signs near the site and the final record cannot be found. Following enquiries made by Mr. Duffy, it emerged that these records are representative of a greater volume of records that relate to each of the issues referred to. The Council confirmed to Mr. Duffy that it had not considered that such records would be within the scope of your request. Mr. Duffy, correctly in my view, disagreed with the Council's stance and discussed the matter with you on 1 March last. Notwithstanding the fact that you believe, quite correctly in my view, that such records certainly should have been identified as relevant when the Council issued its decision, you confirmed in your e-mail to Mr. Duffy of 5 March last that, in the circumstances, you are not seeking the release of records relating to: (i) the proposed designation of Thornton Hall as a Protected Structure, (ii) the proposed designation of Thornton as an ACA and (iii) complaints made about protest signs erected near the Thornton Hall site. Accordingly, the only outstanding issue arising from the outcome of the key-word search is the fact that one record could not be found. The Council understands, given the name of the author of the missing record, that it relates to the proposed designation of Thornton Hall as a Protected Structure and would therefore be outside of the scope of this review on the basis of your e-mail confirmation that you are not now seeking release of such records. However, in circumstances where it cannot necessarily be assumed that the missing record is outside of the scope of this review, Mr. Duffy asked the Council, in the context of section 10(1)(a) of the FOI Act, to provide details of the steps taken to locate the missing record. From the information available as a result of the key-word search, it is apparent that the letter was referred to a certain official who has confirmed that he recalls seeing the record. The official in question believes that the letter related to the proposed designation of Thornton Hall as a protected structure. Accordingly, it is understood that the letter would then have been passed on to another named official but the official concerned has no memory of receiving the letter. Following a request by Mr. Duffy, searches for the missing letter were carried out by three officials, and a fourth was also consulted, but to no avail. In response to a further query from Mr. Duffy, the Council has confirmed that no response issued to the author of the letter which in my view supports the contention that the letter was lost shortly after being received by the Council and that no action was taken on foot of it. The fact that this could occur is very unsatisfactory and highlights the critical importance of my recommendation that the Council must draw up and implement a comprehensive records management policy as a matter of priority. In the context of the FOI Act, and indeed other legislative provisions that are underpinned by good records management practices, it is not acceptable that a public body, and in particular one as large as Fingal County Council which presumably receives and creates a substantial volume of hard-copy and electronic records daily, would not have any policies or procedures in place to deal with record creation, retention and destruction. In saying this, I acknowledge that the most efficient policies and procedures will not prevent the possibility that, on occasion, a particular record could unfortunately be mislaid or filed incorrectly to the extent that it would be irretrievable unless accidentally found. However, the fact that the letter in question in this case has been lost cannot, in my view, be reasonably described as unfortunate in circumstances where the Council has no policies or procedures in place for dealing with record creation, retention or destruction.
12. The Council was asked if it has any reason to believe that any relevant records may have been mislaid or accidentally destroyed and, if so, to provide details. Aside from the missing record that has been dealt with at question number 11 above, the Council has stated that it does not have any reason to believe that any relevant records may have been mislaid or accidentally destroyed.

8. The Council was asked to identify the file on which the five records are held and to clarify what other records are held on this file.
The Council confirmed that the five records are held by the liaison officer on a lever arch file, which is not numbered, but is named "Thornton Hall". Furthermore, copies of record numbers 2, 3, 4 and 5 are held on separate files in the Council's Transportation and Water Services departments. The files held in these two departments have not been given any index numbers but both are named "Thornton Hall". The Council has confirmed that, apart from copies of record numbers 2, 3, 4 and 5, there are no other relevant records held on the Transportation Department file.

However, on 12 March last it emerged following Mr. Duffy's request for clarification of what seemed to be one final outstanding issue in relation to the Water Services Department file, and despite the various assurances provided in all previous submissions, that a variety of further relevant records are in fact held on this file. My earlier comments concerning records management notwithstanding, this is a quite extraordinary and disturbing development coming after the Council had given all of the assurances referred to above in its earlier responses to Mr. Duffy's questions. In my view, this demonstrates that the Council's approach to your original request, your internal review request and, up to a point, this review by my Office was an unacceptably long way short of the standard of service that you, as a member of the public, and I, as Information Commissioner, have a right to expect when dealing with a public body. It was only after the Council had been pressed by Mr. Duffy to confirm that certain routine steps had been taken that relevant records, which in my view ought to have been readily located in response to your original request, were unearthed. Whilst their omission in the context of your original request may have been an unfortunate oversight, the fact that the Council's internal review also failed to locate records that are held on a file bearing the name "Thornton Hall" raises serious concerns for me in relation to what, if anything, was done after the Council received your €75 internal review fee and before it issued its single page letter of 23 May 2006 which affirmed the original decision.

This finding also indicates that the County Manager's decision that one official, acting as a liaison officer, would hold all records relating to the proposed prison, has clearly not had the desired effect and needs to be urgently reviewed.

In light of this latest turn of events, I will be reminding the Council that the FOI Act is law and that the obligations which it imposes on public bodies are not some form of voluntary or non-statutory code that can, in a particular case, be dealt with without due regard to a requester's lawful rights of access to information, as provided by the FOI Act. I say in "a particular case" because I assume that the Council's handling of this particular case is an aberration, albeit a serious one, on its part and that the poor standard of service it showed in dealing with your rights under the Act is not representative of how it treats FOI requests generally. In saying this, I acknowledge the fact that after the Water Services Department records were located, the Council responded to all subsequent queries raised by my Office with commendable urgency.

Turning to the various additional records that were located, I note that the Council referred to these when it listed 17 records in its letter to you of 21 March 2007 (which was erroneously dated 2006). Of these, twelve records were released to you. However, one of the records withheld, described as "Drawing No. 301, Rev. 1st, Print No. 004 - Proposed Strategic Watermain Layout" is in fact the same record as that which comprises record number 4, as listed in the Council's letter of 2 November 2006. This overlap was repeated when it was listed as the first record when the Council wrote to you on 4 April last in an effort to clarify the position in relation to all of the additional "drawing" records that it has now located but withheld.

Arising from Mr. Duffy's enquiries in relation to the "drawing" records, I am satisfied that there are in fact five additional such records within the scope of your request and which are therefore relevant to this review. I have followed the numbering sequence started by the Council when it wrote to you on 2 November 2006 and accordingly the first of these additional records, all of which have been withheld by the Council under section 23(1)(a)(v) of the FOI Act, is numbered 6 and so on.

6. Drawing No. 301, Rev. A, Print No. 4 - Proposed Strategic Watermain Layout

7. Drawing No. 301, Rev. A, Print No. 001 - Proposed Strategic Rising Main Layout

8. Drawing No. 300, Print No. 001 - Proposed Strategic Rising Main Layout

9. Drawing No. 300, Rev. A, Print No. 4 - Proposed Strategic Rising Main Layout

10. Drawing No. 354, Rev. B, Print No. 1 - Proposed Foul Drainage at Coolquay

When the Council wrote to you on 21 March last, it also informed you of the fact that a further record, which it described as "[l]egal opinion in relation to the supply of services to Thornton Hall" had been located. The Council withheld this record, which is dated 10 February 2006, from release on the basis of section 22(1)(a) of the FOI Act as it would be exempt from production in proceedings in a court on the ground of legal professional privilege.

Following his examination of the various additional records that had been located and referred to in the Council's letter to you of 21 March last, further queries were raised by Mr. Duffy in relation to their content as it seemed that yet more relevant records may exist.

For example, Mr. Duffy raised the fact that the legal opinion provided to the Council, as referred to above, would not have been received unless it had been sought and, accordingly, there must be a record of a request for the opinion provided. The Council responded to Mr. Duffy on 31 March last and confirmed that a formal request for legal opinion was made on 18 January 2006. Similar to the position taken in relation to the legal opinion received, the Council maintains that the request is also exempt in accordance with section 22(1)(a) of the FOI Act. The Council's request for legal opinion was accompanied by an attached copy of a previous legal opinion, dated 25 April 2005, which concerned the duty of a local authority to provide drains and sewers. This further additional record, which although not directly related to Thornton Hall is relevant as it was attached to a request for legal opinion in relation to the proposed prison, was referred to by the Council when it wrote to you on 2 April 2006. If subsequently came to Mr. Duffy's attention that a substantial portion of the information contained in the attachment is already in the public domain as a result of certain information provided to members at a meeting of Fingal County Council on 9 January 2006. In these circumstances, Mr. Duffy arrived at a preliminary view that the Council could not continue to withhold the remainder of the information in the attachment, comprising further legal opinion, as it had exceeded a certain point of disclosure which would constitute an imputed waiver of the privilege that may have attached to the advice received. In essence, the principle of imputed waiver provides that privilege in relation to legal advice can be lost if the conduct of a client is inconsistent with maintenance of the confidentiality, in the legal opinion, which legal professional privilege exists to protect. Having been informed of Mr. Duffy's view, the Council decided to release, in full, the record of the legal advice dated 25 April 2005. I note that the Council wrote to you on 12 April last providing you with a copy of this record.

As you are aware, Mr. Duffy also arrived at a preliminary view that the Council's record of its request for legal advice, dated 18 January 2006, not including the aforementioned attachment, and the advice subsequently received, dated 10 February 2006, have been properly withheld by the Council having regard to the exemption claimed under section 22(1)(a) of the Act. I note that in your e-mail to Mr. Duffy, dated 14 April last, you accepted his preliminary view in relation to these two records. Accordingly, the release or otherwise of these two records is not something that I must consider for the purposes of this review.

In response to Mr. Duffy's queries concerning the possibility that further relevant records may exist, the Council has confirmed that, when received, the legal opinion of 10 February 2006 was forwarded by its Law Agent directly to the then County Manager and that no other official was given a copy. In response to a subsequent query from Mr. Duffy, the Council has confirmed that the current County Manager and his administrative staff have no records in relation to the legal opinion received.

A further query raised by Mr. Duffy, concerning the content of the additional records referred to in the Council's letter to you of 21 March 2007, related to the content of the e-mail sent by an official in the Council's Water Services Department to a colleague on 22 September 2005. The e-mail in question, which was released to you on 21 March last, states that "[r]oads have agreed to commence a Part 10 in relation to widening the road from Mays". Accordingly, Mr. Duffy queried the non-existence of any records concerning the widening of the road in question, that is, insofar as the widening of the road would be related to the proposed prison development at Thornton Hall. In response, the Council clarified on 26 March last that its Transportation Department did not, in fact, agree to commence a Part 10 (now referred to as a Part VIII) procedure in relation to this matter although it was open to consideration. The Council has also confirmed that there are no records relating to this matter.

Another record that was released to you comprises the minutes of a meeting held on 24 August 2005 between the Council and Thomas Garland & Partners, Consulting Civil & Structural Engineers. The Council has confirmed that only one of the three officials who attended this meeting created any record of it, being the manuscript notes that were also released to you on 26 March last, although I note that the Council's letter inadvertently refers to 28 August 2005 as being the date of the meeting and that the manuscript notes are dated 25 August 2005. In response to Mr. Duffy's query as to how the meeting came to take place, the Council has stated that one of its officials arranged the meeting by way of a telephone call and he then informed the other officials, also by telephone, that their attendance would be required although no records of such communications were created by any of the three officials concerned.

Mr. Duffy also queried the fact that the minutes of the above mentioned meeting refer to various actions that were to be taken and options to be considered that directly relate to Thornton Hall which would presumably result in the receipt and/or creation of further relevant records. For example, paragraph 1.2 of the minutes indicate that the Council was to check peak flow water demand at Mountjoy Prison whilst Thomas Garland & Partners were to do likewise at Cloverhill/Wheatfield and were also to forward other demand figures. In response, the Council explained that the figures that were sought, as per paragraph 1.2, were received verbally, without a record being kept, and entered on to an electronic water network modelling tool that is used by the Council's Water Design Section to calculate water demand. However, the Council has explained that the modelling tool does not retain a record of entries or outcomes and simply calculates the water demand based on any figures entered at a given time. It seems to me that the modelling tool operates in a similar manner to a calculator in that it would not, unless specially programmed to do so, retain a record of any data entries. The Council has confirmed that, when calculated, Thomas Garland & Partners were informed verbally of the water demand figure arrived at without any record being retained.

Mr. Duffy also pointed out to the Council that paragraphs 1.3, 1.5, 2.1 and 2.4 of the minutes indicate that certain options were to be considered and tasks carried out and he queried the existence, or otherwise, of further records in relation to each of these specific issues. In response, the Council has clarified that this was a preliminary meeting at which the issues referred to were raised, in general terms, in order to advise Thomas Garland & Partners of matters that they would need to resolve if the proposed prison is to be located at Thornton Hall. The Council has stated that issues such as the requirement for a Pollution Control Method Statement and replacement of a particular pipe were seen as issues that Thomas Garland & Partners would have to deal with. Accordingly, the Council has confirmed that it has no further relevant records in relation to these issues.

In light of the various circumstances outlined above, and having regard to all of the responses received to the myriad queries raised by Mr. Duffy in relation to each of the twelve questions asked, I am satisfied that an exemption under section 10(1)(a) of the Act is now justified in relation to your initial contention, when this review commenced, that further relevant records exist. I make this finding on the basis of the evidence that I have been presented with which leads me to conclude that, at this stage, further relevant records do not exist or, in the case of the missing letter referred to at question 11 above, all reasonable steps have been taken to locate it.

Is the decision to refuse to grant full access to the records withheld justified?
In refusing to grant access to the withheld extracts from record number 2, and all of record numbers 3, 4, 5, 6, 7, 8, 9 and 10, the Council has relied upon the exemption provided by section 23(1)(a)(v) of the FOI Act. This provides that access to a record may be refused if disclosure could reasonably be expected to prejudice or impair the security of a penal institution.

I should clarify at the outset that whilst the existence of record numbers 6 to 10 only came to light after Mr. Duffy had consulted with both the Council and the Department of Justice, Equality and Law Reform, I am satisfied that the issues that arise in relation to the drawings that comprise these five additional records are entirely similar to those that Mr. Duffy raised in relation to the drawings that comprise record numbers 3 to 5.

Furthermore, before addressing the various issues that arise in relation to the applicability of the exemption claimed by the Council, I should point out that, in carrying out this review, I am required by section 43(3) of the FOI Act to take all reasonable precautions to prevent disclosure of information that is contained in a record that the public body has found to be exempt. This applies regardless of whether I decide to release some or all of the information withheld as I could prejudice the right of an affected party to appeal my decision to the High Court on a point of law if I were to reveal any information that the Council has withheld.

In support of its decision that the exemption claimed is applicable, the Council made a short submission to my Office on 8 November 2006 in which it argued that release of the withheld information "... could possibly assist the escape of convicted prisoners ...". In the course of a number of communications with the Council around that time, Mr. Duffy sought to address the validity of this claim in the context of the actual information contained in the withheld records. However, the Council's view is that it is not in a position, despite having consulted with the Department of Justice, Equality and Law Reform, to foresee "... how a criminal might use this type of information ...". In this regard, it is important to note that the Act places no restrictions on the subsequent uses to which information in a record may be put after its disclosure and, in effect, this means that any record released to you would actually be disclosed to "the world at large" i.e. it would thereafter be information in the public domain.

Having regard to the fact that the Council had informed him that it is not in a position to explain how the information contained in the records could reasonably be expected to prejudice or impair the security of the proposed new prison, Mr. Duffy wrote to the Department of Justice, Equality and Law Reform on 16 November 2006 seeking its views concerning the applicability, or otherwise, of the exemption claimed by the Council in relation to records it received from the Irish Prison Service, which is under the aegis of the Department.

In his letter to the Department, which the Council was also given a copy of, Mr. Duffy referred to the fact that section 34(12)(b) of the FOI Act provides that a decision to exempt a record is presumed not to be justified unless it is shown to my satisfaction to be justified. Mr. Duffy explained that in his opinion the case made by the Council would not be likely to persuade me to uphold its view that disclosure of the information withheld could reasonably be expected to prejudice or impair the security of the proposed new prison. Accordingly, the Department was asked to provide its view of the security risk, if any, that may arise from disclosure of the information withheld.

Mr. Duffy referred the Department to a number of extracts from record number 2 that, in his view, are so innocuous that he could not foresee any circumstance that would make it reasonable to expect that disclosure could prejudice or impair the security of the proposed new prison. In relation to the single page attachment to record number 2 and the three drawings that comprise record numbers 3, 4 and 5, Mr. Duffy stated that, in his view, the decision on their release will depend on my approach to the related information in record number 2. As stated earlier, I am satisfied that this applies equally to record numbers 6 to 10 which were only recently located following queries raised by Mr. Duffy, at question number 8 above, all of which are clearly drawings that are similar to those in record numbers 3 to 5.

In his letter, Mr. Duffy emphasised that it would not be sufficient for the Department to state, as the Council had done, that whilst it believes that the exemption is applicable it is nevertheless unable to provide any basis for concluding that such information, in the wrong hands, could reasonably be expected to prejudice or impair the security of the proposed new prison.

In its response to Mr. Duffy, which was received on 8 December last, the Department indicated that it strongly supports the position taken by the Council. It stated that it regards the "... security of any penal institution as the single most important issue which the Prisons Division has responsibility for ...". Referring specifically to some of the information that is contained in record number 2, the Department stated that, in the wrong hands, "... this information could place the operation of the prison in jeopardy ...". It added:

"When confronted by the release of any material which may, no matter how benign, place the security of a prison in jeopardy now or in the future, the Department will refuse to release. In refusing to release, the Department weighs up the likely effect of releasing this information into the public arena. While the information in the document attached may seem benign, the Department considers that this information is equally as important to protect as would information on the type of cell doors installed in prisons.
.........
Any threat or likely threat to the operation of services to the prison by the release of information will not be considered. In considering any threat to the prison, the Department must consider both any real or potential threat. The Department considers the release of the material attached as a potential threat to the security of the prison."

Having considered this response, Mr. Duffy wrote to the Department again on 31 January 2007. He pointed out that whilst the Department sees the information that the Council has withheld as being equally important to protect as information on the type of cell doors installed in prisons, it had not provided any basis for considering that the information at issue in this case is comparable. In the context of section 34(12)(b) of the Act, he reminded the Department that it needs to explain, in respect of each item of information, on a per sentence basis in some cases, how the information that has been withheld is a potential threat to the security of the proposed new prison. Rather than stating, in broad terms, that it is its policy to withhold all such information, no matter how benign, the Department was told that it would need to explain how the specific information withheld meets the standard required by the exemption claimed.

In its response, the Department's letter of 9 February last stated that it has made known its views and has nothing further to add on this matter.

In light of all of the foregoing, and having regard to section 34(12)(b) of the Act, I have examined the content of the records withheld. I have also had regard to fact that the provisions of section 23 of the FOI Act require a public body to identify a particular harm that could occur, explain how access to a particular record could result in that harm occurring and consider the likelihood of that harm occurring. My approach in relation to such harm based exemptions was endorsed by the Supreme Court in the case of Barney Sheedy and the Information Commissioner [329/2004]. In that case, Mr. Justice Kearns said (in the context of a claim that a subsection of section 21 applied to exempt the records because of the harm that might occur if primary school inspection reports were to be released) that: "A mere assertion of an expectation of non co-operation from teaching staff could never constitute sufficient evidence in this regard ...". In circumstances where neither the Council nor the Department has identified, explained or considered the likelihood of a particular harm occurring, I am satisfied that there is nothing in the content of any of the records that persuades me that the exemption claimed is justified. Accordingly, I find that record numbers 2, 3, 4, 5, 6, 7, 8, 9 and 10 should all be released to you in full.

Whilst I appreciate that neither the Council nor the Department can be expected to foresee precisely how all of the information contained in the records in question could, in the wrong hands, threaten the security of the proposed new prison, I would have expected some form of analysis of how specific items of information could, if disclosed, have the type of negative consequence that the exemption in question is intended to prevent. As Mr. Duffy stated in his letter to the Department of 31 January last, if it is not possible for the body that has responsibility for managing the country's prisons to gauge how the information withheld in this case is a potential threat to prison security, then it would not be reasonable to infer that the exemption claimed by the Council is applicable. It seems to me that both the Council and the Department have adopted a position whereby they believe that section 23(1)(a)(v) of the Act can be treated as a form of class based exemption whereby, regardless of the content, a record is exempt from disclosure if it contains any information about a prison. This is clearly not what the exemption provides and both bodies ought to have appreciated this point.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act, 1997 as amended, I hereby vary the decision of Fingal County Council and direct that you be granted full access to record numbers 2, 3, 4, 5, 6, 7, 8, 9 and 10, including the appendix to record number 2.

Right of Appeal

A party to a review, or any other person affected by a decision of the Information 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 eight weeks from the date of this letter. You should note that effect cannot be given to this decision before the expiration of this eight week time limit.

Emily O'Reilly
Office of the Information Commissioner