Case Case 060092. Appeal of the refusal of the Department to grant access to records it held in relation to the Dublin Monaghan Bombings under sections 19(1)(a), 23(1)(a)(iii), and 28(1) of the FOI Act.

Case Summary

The Senior Investigator affirmed the decision of the Department.

Date of Decision: 10.11.2009

Review Application under the Freedom of Information Acts 1997 & 2003 (FOI Act) to the Information Commissioner

Background:

In his original request of 22 December 2005 to the Department, the Applicant, through his legal representatives, referred to the tragic death of his daughter who was killed as a result of a bomb explosion on [name of street], Dublin, on 17 May 1974. In his request he sought access to all records and files held by the Department in relation to what is now known as the Dublin Monaghan Bombings. The Department originally treated the request as a request for personal information only i.e. information that is personal to the Applicant's late daughter and affirmed this in its internal review decision of 23 March 2006. The Applicant applied to this Office for review of that decision on 28 March 2006.

Conducted in accordance with section 34(2) of the FOI Act by Sean Garvey, Senior Investigator, Office of the Information Commissioner, authorised by the Information Commissioner ("the Commissioner") to conduct this review.

Scope

There has been considerable correspondence on this case between Mr Cathal Duffy, former Investigator of this Office, the Department, and the Applicant. Much of that correspondence related to the scope of the review, in particular whether it should be regarded as a request for only the personal information of the Applicant's late daughter or whether the scope should include other records relating to the Dublin Monaghan bombings generally. Following correspondence with Mr Duffy, the Department revised its interpretation of the request and located 38 further records relevant to this review. The Applicant was informed previously of Mr Duffy's view that the Department had released all relevant personal information created before commencement of the FOI Act on 21 April 1998, and that he was satisfied that it had taken all reasonable steps to locate relevant post-commencement records, resulting in the location of the 38 records mentioned above. I note that the Applicant has not disputed Mr Duffy's view that all relevant pre-commencement records have been released to him. Accordingly, in my view the issue of pre-commencement records has been completed and I do not propose to deal with that matter any further in this decision.

Of the 38 initially located records, 14 (nos. 1-3, 7, 8, 13, 16, 18-20, 26, 28, 29, and 32) were released in full, four (9, 10, 15, and 17) were withheld in full while the remaining 20 (4-6, 11, 12, 14, 21-25, 27, 30, 31, and 33-38) were partially released.

There was also further correspondence between this Office, the Department and the Applicant relating to the relevance to this review of records created by the different Inquiries and Commissions established in the wake of the bombings. The Department has estimated that there are some 7,000 records relevant to this aspect of the request. However, I see from correspondence between the Department and the Applicant that the Applicant agreed to confine the scope of the review (insofar as it relates to such Inquiries and Commissions) to records held by the Remembrance and Victims' Commissions in relation to his late daughter and the Dublin and Monaghan bombings, and is not seeking access to records also considered elsewhere in this review or to applications made to the Remembrance Commission in respect of persons other than his late daughter. In this regard the Department has identified 26 of the estimated 7,000 records as relevant to the Applicant's late daughter. Having examined the correspondence, and given that the Department has publicly confirmed that in the period 2004-2008 the Remembrance Commission received 559 applications for payments in respect of 123 persons who were killed and 106 who were injured in conflict related incidents, I am satisfied that it has identified all relevant records. I am also satisfied that, in its letter to the Applicant of 15 October 2009, the Department demonstrated that it properly considered all 26 relevant records. For clarity, I will refer to those 26 records held by the Remembrance and Victims' Commissions as numbers 1A-26A respectively.

The Department released records 4A and 14A-26A in full which, accordingly, are outside the scope of this review. On the basis of the above, what remains within the scope of this review are those of the 38 records initially located by the Department in the course of its correspondence with Mr Duffy that have not been fully released, along with records 1A-3A and 5A-13A. Mr Duffy provided the Applicant with his views on the 38 initially located records in his letter of 25 June 2008, and also communicated his views to the Department. With the exception of record 24 (detail below), I agree with Mr Duffy's views on the matter, and in the interests of clarity and completeness, I set out my decision on these records below which incorporate Mr Duffy's previously communicated views and subsequent correspondence between this Office and the Department.

With regard to records 1A-3A and 5A-13A, the Department's decision as per its letter of 15 October 2009 to the Applicant was considered by this Office which formed the preliminary view that the Department had properly applied sections 23(1)(a)(iii) and 28(1) to parts of the records. This view was communicated to the Applicant, who has, as is his right, informed this Office that he does not accept it. Accordingly, these records remain within the scope of the review and I set out my decision on them below.

Submissions

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Findings

My views on the application of relevant exemption provisions of the FOI Act to the 24 remaining initial records and the 12 recently identified Victims' and Remembrance Commission's records withheld either in full or in part follow. Some of the records considered below are listed more than once. This is because in my view that more than one exemption applies to the information withheld in such records. I have marked each such record with an asterisk*. In other words, certain extracts are withheld on the basis of one exemption whilst another extract in the same record is withheld on the basis of a different exemption.

Section 19

Subsection 19(1)(a) provides that access shall be refused if the record concerned "... has been, or is proposed to be, submitted to the Government for their consideration by a Minister of the Government or the Attorney General and was created for that purpose''.

Records 9, 10, 15, and 17 are Memoranda for Government which were submitted to their Cabinet colleagues by the Minister for Justice, Equality and Law Reform and by the Taoiseach respectively. I am satisfied that these records were created solely for the purpose of discussion at a Government meeting and, in these circumstances, they clearly meet the requirements of the exemption provided by section 19(1)(a) of the Act. However, section 19(3)(a) provides that the exemption contained in section 19(1) does not apply in relation to factual information in the Memoranda related to a published Government decision. Having examined the records, I can not find any evidence of published Government decisions relating to the matters dealt with in the Memoranda, and am therefore satisfied that the provisions of 19(3)(a) are not relevant to those records. Accordingly, I find they have been properly exempted under section 19(1)(a).

Section 23(1)(a)(iii)

This exemption provides that a request may be refused if it is considered that access to the record sought could "... reasonably be expected to prejudice or impair lawful methods, systems, plans or procedures for ensuring the safety of the public and the safety or security of persons and property".

This section is not directly concerned with protecting against the disclosure of information which could be prejudicial to the safety of the public or the safety or security of persons and property. Rather, it is concerned with the protection of lawful methods, systems, plans or procedures for ensuring the safety of the public or the safety or security of persons and property. In previous cases, the Commissioner has accepted that the Department has a policy of not disclosing the names of officials working in sensitive areas of the Department, such as the Security and Northern Ireland Division, as such disclosure could compromise their security. The Department's position is that release of the identities of officials of that Division could impair the system in place to ensure their safety.

In response to enquiries made by this Office in a previous case, the Department advised that the policy of not disclosing the identities of officials working in the Division in question has been in place for a substantial period, long before the introduction of the FOI Act. It explained that the policy extends to all contacts with members of the general public but not to officials of other national and non-national bodies with which the Division has legitimate dealings and that there is, in any event, very little direct contact with the general public as the Division has no overt service provision role. It added that in cases of direct contact with the general public via telephone and in writing, exceptions may be made on a case by case basis, according to the established bona fides of the interlocutor(s) involved and the nature of the matter under consideration, i.e. its sensitivity and potential to prejudice safety and security. Such circumstances would not apply here as release of information to a requester under the FOI Act is, in effect, release to the world at large as the FOI Act places no restrictions on the use to which information disclosed can be put.

Accordingly, the Commissioner, whilst expressing no opinion on its appropriateness or efficiency, has always accepted that the Department operates a policy of not disclosing the names of officials working in certain Divisions, including Crime and Security and Northern Ireland Divisions, in view of the sensitivity of the work generally carried out by those Divisions and that the purpose of such a policy is to ensure the safety and security of its officials. Whilst the names of certain Department officials are listed in the State Directory, I am satisfied that the Department has always ensured that the Divisions that such staff work in has never been published. Consistent with previous decisions taken by the Commissioner regarding the Department's policy of not disclosing names of officials working in sensitive divisions, I am satisfied that the disclosure of the identities of the officials named in a number of the records at issue in this case could reasonably be expected to prejudice or impair that policy or system. Accordingly, in my view section 23(1)(a)(iii) applies to the names/signatures/initials of the officials of the Crime and Security and Northern Ireland Divisions contained in the extracts that were blanked out in the following records:

• Record numbers 4-6, 11*, 12*, 14, 21*, 22*, 23*, 25, 27, 30, 31, and 33-38; 1A*, 2A*, 3A, 5A*-7A*, 8A, and 9A*-13A*.

Section 23(3) provides that the exemption contained in section 23(1) does not apply in certain limited circumstances. I am satisfied that no such circumstances arise in this case.

I note that Mr Duffy had disagreed with the Department on its contention that this exemption is applicable to the one extract that it withheld from record number 24. Having examined that record, in my view this exemption has been claimed in relation to the name of an official working in a security sensitive division and that, for the reasons set out above, section 23(1)(a)(iii) has been properly applied to this redaction also. I find accordingly for the redaction from record 24 and the other records listed above.

Section 28(1)

This exemption provides for the refusal of a request where to grant it would involve the disclosure of personal information about an individual other than the requester.

Section 2 of the FOI Act provides the following definition of personal information: "personal information means information about an identifiable individual that

(a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends of the individual, or

(b) is held by a public body on the understanding that it would be treated by it as confidential".

Without prejudice to the generality of the foregoing, the definition of personal information at section 2 of the Act, includes, amongst other things: "(v) information relating to the criminal history of the individual, ... (x) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to, establish that any personal information held by the public body concerned relates to the individual, ... and (xii) the views or opinions of anotherperson about the individual".

Having carefully examined the contents of the following records, I notice that names, addresses and other details that would identify individuals other than the applicant's late daughter have been redacted. I am satisfied that such details constitute the personal information of the people to whom these details relate. In commenting on the Department's redaction of the details referred to above, I am mindful of the provisions of section 43(3) which provide that, when undertaking a review of a decision of a public body not to release a record, I must prevent the disclosure of matter that would cause the record to be exempt. In other words, I must be careful not to say anything that would reveal the content of an exempt record and am therefore restricted in what I can say about the records considered under this provision.

However, I am satisfied that it is in order for me to say that the details concerned comprise names and addresses of persons who made representations about the investigations into the Dublin-Monaghan bombings. They also include reference(s) to the alleged criminal history of a third party or parties. As the criminal history of an individual is specifically listed in the definition of personal information at section 2 of the Act, I am satisfied that such information also is personal to the person(s) to whom it relates.

Therefore, in my view, the exemption under section 28(1) applies to names, addresses and other third party personal information that is contained in the extracts that were blanked out. That is not the end of the matter, however. I must also consider the public interest as provided for in section 28(5).

Section 28(5)

This section 28 provides that a record found to be exempt under section 28(1) may be released, if, on balance

(a) the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld, or

(b) the grant of the request would benefit the individual aforesaid ..." .

In the case of section 28(5)(b), there is no obvious case that the release of any relevant records that might exist would be to the benefit of the individuals in question. I am of the view that section 25(b) would not apply in this case.

Regarding section 28(5)(a), it is necessary to decide whether the public interest served by release of the records outweighs the public interest in respecting the right to privacy of the individuals concerned.

Privacy rights will be set aside only where the public interest to be served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy. Weighing against release is the very strong public interest in protecting privacy rights, which is reflected in the language both of section 28 and the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with "THE RIGHT TO PRIVACY"). Furthermore, the right to privacy has a Constitutional dimension as one of the unenumerated personal rights under the Constitution. Section 28(5)(a) provides that access to a record may be granted where the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld.

It might be argued that there is a public interest in the public being aware of the nature and extent of information held by the Department in relating to the Dublin and Monaghan bombings. However, I do not consider that the release of personal information regarding persons who made representations adds sufficiently to that public interest so as to require such release. As regards details concerning those alleged to have been engaged in criminal activity(ies), I am not aware that anyone has been found guilty of involvement in the bombings, nor am I aware that the named individual(s) have been found guilty of the alleged offence(s) referred to in the records. I do not consider that either the Constitution or the FOI Act require me to find that there should be less privacy afforded to the personal information of individuals (which by its nature in this case is inherently sensitive) because of alleged and unproven involvement in criminal activity, than those not alleged to be so involved.

In summary, therefore, I consider that the public interest in disclosure of personal information relating to those atrocities as contained in the records at issue does not outweigh the public interest in protecting the right to privacy of the individuals to whom such information relates.

Accordingly, I find that the following records contain personal information that has properly been withheld by the Department on the basis of this exemption.

• Record Numbers 11*, 12*, 21*- 23*; and 1A*, 2A*, 5A*-7A*, and 9A*-13A*.

Decision

I affirm the decision of the Department in relation to those records and parts of records the subject of this review. I find that the Department has properly applied sections 19(1)(a), 23(1)(a)(iii), and 28(1) of the FOI Act to the records as specified above.

Right of Appeal

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 eight weeks from the date of this decision.

Seán Garvey

Senior Investigator

10 November 2009