Request to the Department of Justice, Equality and Law Reform (the Department) for various documents relating to Ms Y - whether any relevant records that might be held by the Gardai are under the control of the Department - section 2(5)(a) - whether records would be exempt from production in proceedings in a court on the ground of legal professional privilege - section 22(1)(a) - whether records contain material the release of which 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 - section 23(1)(a)(iii) - whether the conditions required to be met in order for the public interest to be considered in respect of the latter variety of records have been met - section 23(3) - whether records contain information obtained or prepared for the purpose of intelligence in respect of the security or defence of the State - section 24(2)(a)(i) - whether records outside the scope of the FOI Act by virtue of section 46(1)(b).

Case Summary

Facts

A number of records were fully and partially released to the Applicant at internal review stage, and following her application to this Office, two further records were fully released (although administratively) as was a further record, in part.

The Applicant, having submitted a request for records relating to her as held by the Department, subsequently clarified that her request intended to seek access to records including C77 forms in the possession of the Gardai and/or the Minister for Justice, Equality and Law Reform (the Minister) held in relation to communications between the Minister and his servants or agents and the Commissioner for the Gardai (the Garda Commissioner) and/or his servants or agents, and the Embassy of the United States of America in Dublin, and/or in relation to communications between the Minister and the Garda Commissioner with the Department of State of the United States of America concerning the Applicant between 1976 and the present time; and all documents held by the Department, its servants or agents, in respect of information received from An Garda Síochána concerning the Applicant, including all C77 forms

Findings

The Commissioner's authorised official accepted that any records of relevance to the request that might be held by the Gardai were not under the control of the Department and thus were not accessible under section 2(5)(a) of the FOI Act. He also found that certain records, including one internal Departmental record, would be exempt from production in proceedings in a court on the ground of legal professional privilege and that section 22(1)(a) applied to them.

The Commissioner's authorised official was 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 the Department's policy of not disclosing the names of officials working in certain Divisions (which had been adopted in view of the sensitivity of the work generally carried out by those Divisions and to ensure the safety and security of the officials working therein). He found that section 23(1)(a)(iii) was applicable to the relevant excerpts of the records and that the public interest was not required to be considered in this case. He found, however, that this provision of the FOI Act was not applicable to details of a fax number in Garda Headquarters contained in certain of the records.

The Commissioner's authorised official found certain records to contain information that was obtained or prepared for the purpose of intelligence in respect of the security or defence of the State and that section 24(2)(a)(i) applied to them. He also found the remaining records to be outside the scope of the FOI Act by virtue of section 46(1)(b), in that they were records created by the Attorney General or his Office and did not relate to the general administration of that Office.

Date of Decision: 23.12.2009

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

Background:

On 13 March 2008 the Applicant submitted a request under the FOI Act to the Department for all records and files relating to her (and asked that all correspondence be sent to her solicitor). On 1 May 2008, she clarified that she sought access to all documents (including C77 forms in the possession of the Gardai and/or the Minister for Justice, Equality and Law Reform, to whom I will refer as "the Minister" in this decision) held in relation to communications between the Minister and his servants or agents and the Commissioner for the Gardai (to whom I will refer as "the Garda Commissioner" in this decision) and/or his servants or agents, and the Embassy of the United States of America in Dublin, and/or in relation to communications between the Minister and the Garda Commissioner with the Department of State of the United States of America concerning the Applicant between 1976 and the present time. She also clarified that the request included all documents held by the Department, its servants or agents, in respect of information received from An Garda Síochána concerning the Applicant, including all C77 forms.

The Department did not respond to her request within the statutory timeframe and on 31 July 2008, the Applicant's solicitor made an application for internal review of this effective refusal of her request. On 25 August 2008, the Department issued its internal review decision, in which a total of 50 records were fully released, 17 records partially released and the remaining 19 fully withheld. The records were held on two files: one in the Garda Accountability Division and the other in the Crime 3 Division. On 7 November 2008, the Applicant's solicitor applied to this Office for a review of the Department's refusal to fully release all records.

Following correspondence with this Office, the Department agreed to release two records in full, and one in part, outside of the FOI Act. I will not consider the relevant details further.

On 23 July 2009, this Office informed the Applicant's solicitors (by way of telephone call) of the view that the Department's position on the records it continues to withhold was correct. While opting, as is their right, for the case to be concluded by way of formal binding decision, in conducting my review of those records I have had regard to the fact that the Applicant's solicitors has not put forward any arguments as to why the records should be released, either on foot of the telephone conversations between them and this Office or within the date for reply specified in the further letter sent to them by Ms Anne Moran, Investigator in this Office, dated 7 December 2009. (Ms Moran's letter largely concerned the issue of access under the FOI Act to any relevant records that might be held by the Gardai but also briefly summarised her preliminary views on the withheld Departmental records). I have also had regard to the relevant submissions of the Department and to various contacts between it and this Office. Finally, in arriving at the findings and decision set out hereunder, I had regard to the contents of the records at issue (copies of which have been provided to this Office by the Department for the purposes of this review) and to the provisions of the FOI Act, as amended.

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

Scope of the Review

The scope of this review is confined to the sole issue of whether or not the Department's refusal to fully release all records it holds of relevance to the request, and its effective refusal of any relevant records as held by the Gardai, is in accordance with the provisions of the FOI Act. I have followed the numbering system used by the Department in its correspondence with the Applicant.

The records concerned are as follows:

Garda Accountability

Records 2; 3; 9; 13; 15; 18 (in part); 19; 21; 23; 26; 28; 31 (see comment below regarding the copy of record 30 therein); 32; 35 (in part); 36; 39 (in part); 40; 45; and 46.

Crime 3

Records 16 (in part); 18 (in part); 19 (in part); 21 (in part i.e. paragraph three from second sentence to end); 23 (in part); 26 (in part); 27 (in part); 28 (in part); 30; 31 (in part); 32 (in part); 34 (in part); 37 and 38.

While record 30 of those held by Garda Accountability Division was also withheld, I have excluded it from the scope of the review as the details concerned are entirely contained within the withheld element of record 31 as also held by that Division. This is in accordance with my delegated powers under section 34(9)(a)(iii) of the FOI Act, by which I may discontinue a review (in full or in part) if any element of the application for review is, has been or will be, the subject of another review under section 34.

Any further reference to particular records in this letter may be taken as a reference to any such records that have been partially withheld. Where I find below that records and parts of records are exempt under a particular provision, I do not feel it necessary to consider the application of other provisions of the FOI Act cited by the Department.

Submissions

.

Findings

Preliminary Matters

Section 34(12)(b) of the FOI Act provides that a decision of a public body to exempt a record from release is not justified unless it can be demonstrated to my satisfaction that the decision was so justified. Therefore the onus at all times lies on the public body to justify its decision. Also, while I am required to explain any decision I might make regarding access to records, section 43(3) provides that I must not reveal the content of an exempt record in providing such explanation. This is to preserve the right of appeal of all parties to the High Court in cases where there is disagreement with a decision I might make. In the circumstances of this case, section 43(3) requires me to exercise caution in relation to the description I can give of the records at issue.

Findings

Section 2(5)(a)

Section 6 of the FOI Act provides for a right of access to records "held" by public bodies that are subject to the Act. While the Garda Síochána is not a public body prescribed for the purposes of the FOI Act, and thus is not subject to the provisions of the Act, section 2(5)(a) of the FOI Act provides that this reference to records "held" by a public body includes records "under the control" of that body. In other words, in the present case the Department would be obliged to provide access under the Act to any requested records that might be held by the Garda Síochána if such records can be said to be under the Department's control. Although the issue of access to such records was not referred to by the Applicant's solicitors at any stage subsequent to its application to this Office (in which case it is debatable whether it intended to pursue this aspect of the original request), Ms Moran's letter of 7 December 2009 explained to them why she considered any such relevant records as held by the Gardai not to be under the control of the Department.

Ms Moran referred the Applicant's solicitors to the comments made by the former Commissioner (Mr Kevin Murphy) in relation to his view of what is meant by "control" in the context of the FOI Act:

"In my view, records which are not physically held by a public body can only be said to be under its control if, at the very least, the public body has a legal entitlement of some kind to procure those records. In deciding whether such control exists, I consider that it is necessary to have regard to the relationship between the parties, to any agreement between them concerning the records and to any legal rights which a party seeking to assert control over the records might have. I would also have regard to the National Archives Act, 1986 which defines "Departmental records" as records "made or received, and held in the course of its business, by a Department of State ..."

Ms Moran also referred the Applicant's solicitors to the current Commissioner's decision of 22 November 2006 in the case of AV Niche Ltd. and the Department of Justice, Equality and Law Reform (case number 010355 - available on the Office website www.oic.ie) which dealt with the issue of Departmental control over Garda records. The Commissioner has, in accordance with Kevin Murphy's views, accepted that records held by the Garda Síochána are not "under the control" of the Department within the meaning of the FOI Act. While the Minister for Justice, Equality and Law Reform has a role in relation to policy formulation and overall administration of the Garda Síochána, the Gardaí are operationally independent. The FOI Act itself recognises the separateness of Garda records in that the Garda Síochána are listed as a public body in their own right in paragraph 1(5) of the First Schedule to the Act (which lists a number of public bodies which may be brought within the scope of the Act in the future). To date, however, the Act has not been extended to include the Garda Síochána.

I have adopted the Commissioner's reasoning in the AV Niche case for the purposes of this review. Having regard to the views put by Ms Moran to the Applicant's solicitors, to which no response was received within the specified deadline, I concur with her view that the Department is entitled to refuse access to any relevant records that might be held by the Gardai, in that such records are not under the Department's control. Accordingly, I find that section 2(5)(a) is not applicable to this case.

Section 22(1)(a)

This section provides that a request shall be refused ".... if the record concerned would be exempt from production in proceedings in a court on the ground of legal professional privilege, ...". This provision does not require the consideration of the public interest. In considering whether the records in question would be exempt from production in a court on the grounds of legal professional privilege, one must ignore the likelihood or otherwise of court proceedings taking place and bear in mind that legal professional privilege resides with the client. The question comes down simply to whether the client, in this case the Department, would succeed in withholding the documents on the grounds of legal professional privilege in court proceedings.

Having examined the records listed below (communications between the Department and the Gardai, which was a party to the proceedings taken by the Applicant), I consider their dominant purpose was the preparation for that litigation. Accordingly, I consider that the records would be exempt from production in proceedings in a court on the ground of legal professional privilege and I find that they are exempt from release under section 22(1)(a) of the FOI Act (noting that no argument to the contrary has been put forward by the Applicant's solicitors, either in response to previous telephone conversations or within the specified deadline for response to Ms Moran's letter of 7 December 2009):

• Garda Accountability Division: 2, 3, 13, 15, 21, and 28

Ms Moran also outlined a view to the Applicant's solicitors that record 23 on the Garda Accountability Division file should be exempt from release under section 22(1)(a) (the record is described on the schedule attached to the Department's internal review decision as an "internal minute"). She considered this record to be part of an continuum of correspondence within the Department that related to its preparation for the threatened litigation, which she felt would satisfy the criteria for the attraction of legal professional privilege, having regard to the decision of the Court of Appeal in the 'Balabel v. Air India" case quoted in Adrian Keane's book "The Modern Law of Evidence" [(4th Ed.), Butterworths, 1996, at pp. 521-522]:

"Communications between a solicitor and his client may enjoy privilege even if they do not specifically seek or convey advice. In Balabel v Air India [(1988) Ch. 317; [1988] 2 All E.R., 246, CA.], the respondents ...... sought discovery of communications between the appellants and their solicitors (other than those seeking and giving legal advice): drafts, working papers, attendance notes (of meetings between the appellants and their solicitors) and memoranda written by the appellants’ solicitors and internal communications of the appellants. The Court of Appeal held that in most solicitor and client relationships, especially where a transaction involves protracted dealings, there will be a continuum of communications and meetings between the solicitor and client; and where information is passed between them as part of that continuum, the aim being to keep both informed so that advice may be sought and given as required, privilege will attach. Accordingly, the documents in question were privileged."

No response to Ms Moran's view was received within the specified deadline. I concur with her view and find that record 23 (Garda Accountability Division file) would be exempt from production in proceedings in a court on the ground of legal professional privilege and is thus exempt from release under section 22(1)(a) of the FOI Act.

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".

It has been explained to the Applicant's solicitors that this provision 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, but 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 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 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, I find that section 23(1)(a)(iii) applies to the names/signatures/initials of the officials contained in the withheld extracts of the following records:

• Crime Division: 16, 18, 19, 21, 23, 26-28, 30-32, and 34.

Section 23(1)(a)(iii) is subject to section 23(3) which provides that consideration must be given to the possibility that the public interest would be better served by the release of the information, rather than by the record being withheld, in the event that one of three conditions is fulfilled.

The first condition is that the record under consideration "discloses that an investigation for the purpose of the enforcement of any law...is not authorised by law or contravenes any law". The second condition is that the record contains information concerning "the performance of the functions of a public body whose functions include functions relating to the enforcement of law"" and the third condition is that it contains information concerning "the merits or otherwise or the success or otherwise of any programme, scheme or policy of a public body for preventing, detecting or investigating contraventions of the law". The records do not contain any information that satisfies these conditions. Accordingly, there is no need for me to consider the public interest, and I find that the relevant details in the records listed above are exempt under section 23(1)(a)(iii) of the FOI Act (again, noting that no response to the relevant preliminary views was received from the Applicant's solicitors either on foot of various telephone conversations or within the specified deadline contained in Ms Moran's letter of 7 December 2009).

In reviewing the case, Ms Moran noted that certain withheld details in records 18, 31, 35 and 39 of the Garda Accountability Division comprised a fax number in Garda Headquarters. While it had been previously indicated to the Department that this Office accepted its arguments that this number should be withheld, Ms Moran considered that further explanation was required from the Department as to why section 23(1)(a)(iii) should apply to it. The Department responded that the details would not enhance the Applicant's understanding of the records in any way and that my earlier view should stand. While it is indeed the case that the details will not add to the Applicant's understanding of the way in which her case was handled, the fact is that this has no relevance to my decision. It is also the case that I agree with Ms Moran that it was appropriate for her to seek further explanation from the Department in relation to the fax number. This was not forthcoming and, having regard to the onus of proof placed on the Department by section 34(12)(b) of the FOI Act, I find that the Department has not justified its refusal of this particular detail.

Section 24(2)(a)(i)

This exemption provides that a public body shall refuse to grant a request if the record concerned contains information ''... that was obtained or prepared for the purpose of intelligence in respect of the security or defence of the State".

Unlike other exemptions in the Act which require the public body to identify a particular harm which might be occasioned by the release of the information concerned, this exemption does not require the public body to identify a particular harm which might be occasioned by the disclosure of the information. Exemptions such as this one are described as class exemptions, whereby the information must be withheld once it falls within the parameters of the exemption provision - regardless of the outcome of any consideration of the harm that may or may not be occasioned by its release.

It had been explained to the Applicant's solicitors that the following records contain information that was obtained or prepared for the purpose of intelligence, and, that the intelligence is in respect of the security or defence of the State. No response was received either on foot of various telephone conversations between them and this Office or within the specified deadline contained in Ms Moran's letter of 7 December 2009. Given that the public interest is not required to be considered in respect of such records, I accordingly find the following to be exempt from release on the basis of section 24(2)(a)(i):

• Crime Division: 21 (second, third, and fourth sentences of the third paragraph only), 37, and 38.

Section 46(1)(b)

This provides that the FOI Act does not apply to "a record held or created by the Attorney General or the Director of Public Prosecutions or the Office of the Attorney General or the Director of Public Prosecutions (other than a record concerning the general administration of either of those Offices)".

Having examined the records listed below, although they were withheld by the Department under other provisions of the Act, I am satisfied that they were all created by the Office of the Attorney General. I am also fully satisfied none of these records relate to the general administration of that Office. Under these circumstances, it is my view that the following records cannot be considered for release as such records are, in fact, outside of the scope of the FOI Act, and I find accordingly. Again, the Applicant's solicitors were made aware of this view but did not respond either on foot of various telephone conversations or within the specified deadline contained in Ms Moran's letter of 7 December 2009.

• Garda Accountability Division: 9, 19, 26, 31 (remainder other than fax number discussed earlier), 32, 36, 40, 45, and 46.

While not necessary for me to consider these records further, if they were subject to the FOI Act I would find them to be exempt from release in any event under section 22(1)(a), given that they relate to the giving or seeking of legal advice, and/or the dominant purpose for their creation was preparation for litigation).

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby affirm the decision of the Department in this case with the exception of the Garda Headquarters fax number contained in records 18, 31, 35 and 39 of the Garda Accountability Division file, which I direct be released.

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 decision.

Seán Garvey

Senior Investigator

23 December 2009