The Commissioner varied the decision of the MBRS by affirming it in part and annulling it in part. She found that the source code of the Lion Intoxilyzer 6000 IRL is a trade secret and is exempt under section 27(1)(a) of the Act and that a duty of confidence is also owed to the manufacturer, Lion Laboratories Ltd under section 26(1)(b) in respect of the source code. Having regard to section 34(12)(b) of the FOI Act, she found that the claims for exemption made by the MBRS with respect to the remaining records at issue were not justified. She accepted that the Lion Laboratories Handbook is under copyright, but found no basis for refusing access by way of inspection under section 12(1)(d) of the FOI Act. She directed that access to the other relevant records be granted by providing the applicant with a copy of the records concerned.

Case Summary

Whether the MBRS' refusal to grant access to records relating to the Lion Intoxilyzer 6000 IRL Machine and the Intoxilyzer at the Garda Station in [location], apart from the personal information of donors of breath specimens, is justified under sections 22, 23, 26, 27 and 28 of the FOI Act.

Date of Decision: 15.07.2010

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

Background:

The MBRS is a public body that was established under the Road Traffic Act 1968. The Administration Yearbook & Diary 2010 published by the Institute of Public Administration describes the functions of the MBRS as follows:

 "It analyses blood, breath and urine specimens for the presence and concentration of alcohol and also analyses blood and urine specimens for the presence of drugs, in the context of road safety legislation. It issues certificates for presentation in connection with prosecutions for alleged intoxicated driving and also provides expert forensic evidence to assist the courts. It approves, supplies and tests equipment for evidential breath testing by the Garda Síochána and provides training for Garda operators. It operates within Forensic and Legal Medicine at UCD [University College Dublin], which provides the staff for the bureau on an assigned basis, and it is funded by an annual grant from the Department of Transport."

In a request made to the MBRS dated 4 September 2008, the applicant sought access to two categories of records: (1) "all documentation" on the Lion Intoxilyzer 6000IRL Machine in general, including all details of its manufacture, installation, programming, testing, maintenance, repair and operation; (2) "identical details" for the Intoxilyzer machine at the [named] Garda Station.

The MBRS made a schedule available to the applicant in which it identified the following records as relevant to the request:

1. Documents relating to the installation of the Lion Intoxilyzer 6000IRL at [location], records numbered 3 to 71;
2. Procedures for the testing of Lion Intoxilyzer 6000IRL evidential breath testing instruments, records numbered 72-114;
3. Documents relating to the testing, maintenance and repair of the Lion Intoxilyzer 6000IRL at [location]; records numbered 115-172;
4. Source code of the Lion Intoxilyzer 6000IRL;
5. Lion Laboratories Handbook;
6. Garda Síochána Training Notes.

The MBRS refused the request in full, referring variously to sections 23(1)(a)(i) to (iv), 22(1)(b), 26(1)(a) and (b), 27(1)(a) and (b), and 28(1) of the FOI Act. The applicant applied to my Office for review in a letter dated 6 November 2008. In his submission dated 5 December 2008, the applicant clarified that he does not seek access to any records of personal information relating to the donors of breath specimens.

In the course of this review, Ms. Melanie Campbell, Investigator, issued preliminary view letters to the MBRS, the applicant, and the manufacturer of the Lion Intoxilyzer 6000IRL, Lion Laboratories Ltd, as the affected third party. As the MBRS had argued that other third parties, such as the Garda Síochána and the Office of the Director of Public Prosecutions (the DPP), should also be consulted and be given the opportunity to make submissions, Ms. Campbell explained in her letter to the MBRS that she did not accept that the interests of any other parties would be affected by the release of the records at issue in this case. Ms. Campbell noted that, as the records at issue are held by and were also, for the most part, prepared by the MBRS, the burden of proof was on the MBRS to justify any decision to refuse access to the records concerned.

In her preliminary observations, Ms. Campbell accepted that the source code was exempt under section 27(1)(a) and that a duty of confidence would also apply, but she considered that the claims for exemption with respect to the remaining records at issue were not justified. She considered that the MBRS' main arguments could be summed up with its assertion that FOI should not be allowed to "provide a parallel system whereby the defence could obtain what is in effect disclosure in a criminal case". In her view, however, the creation of a parallel system of obtaining access to records relating to the MBRS' functions under the Road Traffic Acts may have been one of the reasons why the MBRS was brought fully within the remit of the FOI Act, i.e. without the restrictions that apply with respect to records of the Offices of the Attorney General (the AG) and the Director of Public Prosecutions (the DPP).

In a reply dated 9 April 2010, the MBRS took issue not only with the substance of Ms. Campbell's preliminary view, but also with her refusal to consult with other third parties. The MBRS noted: "[N]o assistance has been sought from the Attorney General ('AG'), the DPP or An Garda Siochana. One might have thought that even as a matter of courtesy, before a parallel disclosure system in criminal law is created out of thin air, that their views would be canvassed." Given the MBRS' insistence on the procedural issue of consultation, Ms. Campbell decided to avoid any further conflict on this point by simply writing to the AG, the DPP, and the Garda Síochána in order to ascertain their views on the matter. She fully advised the three other parties of her preliminary view and gave them a period of three weeks in which to make any submissions which they considered to be relevant to this review. The DPP and the Garda Síochána formally acknowledged receipt of Ms. Campbell's preliminary view letters, but made no further reply. In a letter dated 17 May 2010, Mr. Christopher Doyle of the AG's Office made the following response, in pertinent part:

"In the event this Office would agree with you that the interests of the Attorney General would not be affected by the release of any of the documentation you referred to. As you point out nearly all the records were prepared by the MBRS themselves. Also they do not seem to be relying on Section 46, the crucial exemption from this Offices point of view.

Accordingly I agree with you that the Office of the Attorney is not affected by the release."

I have now completed my review in accordance with section 34(2) of the FOI Act. In carrying out this review, I have had regard to the submissions made by the MBRS, Lion Laboratories, and the Applicant. For what it is worth, I am also mindful that the Offices of the AG and DPP and also the Garda Síochána evidently have no objection to the proposed release of most of the records at issue. I have decided to conclude this review by way of a formal, binding decision.

Conducted by the Information Commissioner in accordance with section 34(2) of the FOI Act.

Scope of the Review

My review in this case is concerned solely with the question of whether the MBRS' decision to refuse grant access to the records identified above, apart from the personal information of donors of breath specimens, is justified. However, as Ms. Campbell noted in her preliminary view letters, the names or initials of staff members of the MBRS or the Garda Síochána generally do not qualify as personal information within meaning of the the FOI Act.

Submissions

Submissions of the MBRS

In its submission dated 16 December 2008, the MBRS stated that the source code of the Lion Intoxilyzer 6000IRL was given to it by Lion Laboratories as a result of the relevant public procurement process in 1999 on the understanding that it was confidential and only for the purpose of enabling the continued use of the machine by the MBRS in the event that Lion Laboratories ceased to trade. The MBRS described the Lion Laboratories Handbook as the copyright of Lion Laboratories and noted that it can be purchased from the company upon request for about stg£60. The MBRS also noted that the Garda Síochána Training Notes can be obtained from any Garda District Office.

In relation to the other records at issue, the MBRS emphasised the role it plays in criminal law. It noted that its functions under the Road Traffic Acts are, in particular, to arrange for:

(a) The receipt and analysis of specimens of blood and urine forwarded to it under Part III of the Road Traffic Act 1994 and the issue of reports on such analyses;

(b) The determination, in respect of such specimens, of the concentration of alcohol in the blood and urine and of the presence (if any) of a drug or drugs in the blood or urine;

(c) The issue of certificates required under Part III of the Road Traffic Act 1994;

(d) The provision of equipment for the taking of such specimens;

(e) The approval of (i) apparatus for indicating the presence of alcohol, and (ii) apparatus for determining the concentration of alcohol in the breath.

The MBRS further noted that it may also conduct research into certain specified road safety issues. In addition, it may arrange for the supply and testing of (i) apparatus for indicating the presence of alcohol, and (ii) apparatus for determining the concentration of alcohol in the breath.

The MBRS stated that its functions in relation to the Lion Intoxilyzer 6000IRL are "for the purpose of . . . forensic investigation and production of forensic evidence which may be used in criminal proceedings. The MBRS added: "These are not administrative or policy matters of a general nature but are specific to forensic criminal investigation."

In relation to the potential release of the records under FOI, the MBRS pointed out that it is a matter for the courts to determine what information must be made available to the defence and the prosecution in order to ensure the fairness of criminal proceedings. The MBRS stated: "[T]he Courts have carefully balanced matters which the defence is entitled to know about with matters that are not relevant to the prosecution and which would instead place an intolerable burden on the resources of the State." The MBRS therefore argues, in essence, that no records relating to its forensic investigative role, including records relating to the testing, maintenance, etc. of the Lion Intoxilyzer 6000IRL, should be made available outside of court proceedings (or otherwise as required under the Road Traffic Acts). The MBRS argued that the release of such records under FOI "could in effect undermine the careful balance that the Courts have struck in this area since it would in effect provide a parallel system whereby the defence could obtain what is in effect disclosure in a criminal case, since there is not an administrative aspect to the documents being sought".

The MBRS explained:

"The primary mechanism by which an accused person obtains information that he requires for his defence is by means of disclosure. If the prosecution does not disclose sufficient material then it is open to the accused to seek an order from the District Court compelling disclosure. If the accused is still not happy with the scope of disclosure then it is open to them to seek a case stated to the High Court or to judicially review the decision of the District Judge.

What this means is as follows: where a Freedom of Information request is made of the Bureau it will either consist of information that the accused will get by way of disclosure or information which the Court has ruled that the accused is not entitled to by way of disclosure. If the information falls into the former category no basis for the request arises since the accused either already has the information or can get it via the prosecution. If the information falls into the latter category there is no public interest in its disclosure since the Court will already have ruled (or will rule if asked to) that the information is not necessary for the defence of the accused.

The Bureau is extremely concerned that information obtained under FOI will be used as the basis for a defence in criminal proceedings in circumstances where a judge dealing with those criminal proceedings has not agreed to the disclosure of those documents within the context of criminal process. The Bureau would like to point out that the High Court in DPP (Garda Horan) v. O'Malley [2008] IEHC 117 Gilligan J held that the Court was not entitled as a matter of law to make an order against a third party in criminal proceedings and there was no power to make an order against the Bureau in that particular case. In that case, the disclosure of the source code was at issue.

What is also unknown if Freedom of Information requests become in effect a parallel to seeking disclosure in criminal cases is what effect that will have on the conduct of criminal cases. For example, will accused persons seek to hold up their criminal trials pending the conclusion of their Freedom of Information request? Obviously that is a matter for the trial judge in the criminal case but it does illustrate the difficult issues that arise when a Freedom of Information request is made against the background of a criminal prosecution and/or the general criminal law functions of the Bureau."

The MBRS supported its submission with cited case law relating to issues of disclosure in summary criminal proceedings. The MBRS concluded: "[I]n circumstances where the issue of the appropriate disclosure to be made in drink driving cases has been so carefully considered by the Courts and where the issue is still being litigated the Bureau is naturally concerned to ensure that Freedom of Information requests do not become a parallel system of disclosure and so undermine the careful balance struck by the Courts on the issue."

The MBRS also drew comparisons between its role in criminal law and the Garda Síochána, which does not come within the remit of the FOI Act. It stated: "In so far as the raison d'etre of the Bureau's functions is to assist in the Gardai's investigation of the criminal offence of drink driving, it is respectfully submitted that caution is required before any order for disclosure is made. In addition records held by Courts and tribunals and records held by the DPP are (subject to some exceptions) excluded from the scope of the Act. This again emphasises the intention of the drafters of the legislation that the administration of justice in criminal matters not be interfered with by freedom of information requests."

In its submission dated 9 April 2010 in response to Ms. Campbell's preliminary view, the MBRS argues that her position on the matter "has the potential to upset the very careful balance that the courts have struck as regards the scope of disclosure in criminal law and will cause dismay to anyone who seeks to prosecute criminal cases". The MBRS states: "It is simply inconceivable that in prescribing the MBRS as a public body for the purposes of the Act the Minister for Finance (who, of course, has nothing whatsoever to do with the criminal justice system) intended to create a parallel system of disclosure so as to set at nought the careful balance that the courts have struck in this area." The MBRS further states:

"What makes the situation so sensitive is that the MBRS is not a third party in the ordinary sense; rather it is a key element of the criminal case in a drink driving case. Thus the extent to which material that it generates pursuant to criminal statute should be made available to the prosecution and defence is a matter for the courts to balance."

The MBRS makes this argument despite its acknowledgement that courts do not have the authority to make disclosure orders against the MBRS in criminal proceedings. The MBRS also emphasises that discovery is not available in criminal proceedings and argues that the cases referenced in Ms. Campbell's preliminary view letter are inapposite. It is apparent that the MBRS considers that Ms. Campbell's understanding of the significance of its own role in drink driving cases and of the nature of disclosure in summary criminal proceedings is flawed. The MBRS also asserts for the first time that, as the Lion Laboratories Handbook and the Garda Training Notes are publicly available, they are outside the scope of the FOI Act under sections 46(2)(a) and (b).

Submissions of Lion Laboratories

In its submission dated 24 February 2009, Lion Laboratories accepted that certain information relating to the initial approval of the Lion Intoxilyzer 6000IRL devices in Ireland in 1999, such as the performance specification, could and should be in the public domain, but it argued strenuously that the methodology by which the devices satisfy the performance specification is a trade secret. The company stated:

"It is our Intellectual Property, and the result of a huge degree of time and financial investment by us. It does not belong to anyone else: including either the MBRS or the Garda [Síochána].

To release this technical, software information would be seriously to undermine Lion's position in this highly competitive market. If it was to fall into the hands of a competitor, especially a new company entering the market, it would give them a quite unfair and unacceptable [to us] advantage in their product development."

The company also attributed certain motives to the requester in arguing that the request is inappropriate and misplaced.

In a subsequent submission dated 9 April 2010, Lion Laboratories elaborates on the arguments made in its initial submission. In pertinent part, the company refers to a previous letter written to the MBRS in which the source code is described as containing "much proprietary know how", and it emphasises that whenever the software is lodged with an Authority such as the MBRS as part of the approval process, the company always does so under a confidentiality agreement. It states that the relevant agreement in this case was executed in January 2000. Moreover, the company emphasises that it "fully support[s] the stance taken by the MBRS in respect of all the instrument manufacture and service record documents". The company also confirms that the Lion Laboratories Handbook is subject to copyright and is available for purchase by anyone, at a cost of 70 euro.

Submissions of the Applicant

In a submission dated 5 December 2008, the applicant emphasised that no records relating to individual breath samples or on-going drink driving cases have been sought. He also referred to court cases such as McGonnell v. A.G & Anor [2004] IEHC 312, which have established that defendants have a right of access upon request to certain types of the records at issue in this case and also a right of inspection of the relevant machine. The applicant therefore argued that the issue of contempt of court under section 22(1)(b) does not arise. The applicant also argued that there is a strong public interest in disclosing information relating to the intoxilyzer machine and its operation and that the requested records therefore fall within the scope of the public interest provisions set out at section 23(3)(a)(ii).

In addition, the applicant suggested that evidence of a confidentiality agreement should submitted before a finding could be made that section 26(1) applies. In relation to section 27, the applicant noted that the apparatus has been in operation in Ireland since 1999. It stated:

"We understand that the technology has since been superseded and that there are more modern machines designed and constructed by both Lion Laboratories and particularly their counter-parts in the USA. It is not clearly understood accordingly how furnishing documentation in relation to the material and records sought could be protected in any way by the exemption sought under Section 27(1)(a) and (b)."

However, the applicant raised no specific objection in his response dated 8 March 2010 to Ms. Campbell's letter advising him of her preliminary view that the source code was exempt under section 27(1)(a) and that a duty of confidence would also apply.

Findings

Analysis and Findings

Preliminary Matters

The FOI Act has been in force in Ireland for almost 12 years now, yet certain public bodies still do not seem to grasp the extent to which it confers on members of the public a statutory right to access records held by the public bodies falling within its remit. The Courts, however, have acknowledged the profound change in public administration brought about by the FOI Act with respect to openness and accountability. For example, Mr. Justice McKechnie, in his judgment in Deely v. The Information Commissioner [2001] IEHC 91 (text of judgment is available at www.oic.gov.ie), had this to say about the FOI Act:

"[The Act's] passing, it is no exaggeration to say, affected in a most profound way, access by members of the public to records held by public bodies and to information regarding certain acts of such bodies which touch or concern such persons. The purpose of its enactment was to create accountability and transparency and this to an extent not heretofore contemplated let alone available to the general public. Many would say that it creates an openness which inspires a belief and trust which can only further public confidence in the Constitutional organs of the State.

[T]he clear intention is that, subject to certain specific and defined exceptions, the rights so conferred on members of the public and their exercise should be as extensive as possible, this viewed, in the context of and in a way to positively further the aims, principles and policies underpinning this statute, subject and subject only to necessary restrictions.....It is on any view, a piece of legislation independent in existence, forceful in its aim and liberal in outlook and philosophy."

This view of the extensive nature of the rights conferred by FOI has been endorsed by the Supreme Court, in Barney Sheedy v. The Information Commissioner[2005] IESC 35 (text of judgment also available at www.oic.gov.ie), where Mr Justice Fennelly commented:

"The passing of the Freedom of Information Act constituted a legislative development of major importance. By it, the Oireachtas took a considered and deliberate step which dramatically alters the administrative assumptions and culture of centuries. It replaces the presumption of secrecy with one of openness. It is designed to open up the workings of government and administration to scrutiny. It is not designed simply to satisfy the appetite of the media for stories. It is for the benefit of every citizen."

Thus, the underlying presumption of the FOI Act is that requests for access will be granted, subject only to necessary restrictions. I also wish to emphasise that, under section 34(12)(b) of the FOI Act, a decision to refuse to grant access to a record "shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified."

I should note, however, that while I am required by section 34(10) of the FOI Act to give reasons for my decisions, this is subject to the requirement of section 43 that I take all reasonable precautions to prevent disclosure of information contained in an exempt record during the course of a review. This constraint means that, in the present case, the description that I can give of the contents of the records at issue is limited.

Source Code

The relevant exemptions with respect to the source code are sections 26(1)(a) and (b) and sections 27(1)(a) and (b) of the FOI Act. Section 26(1) states that "Subject to the provisions of this section, a head shall refuse to grant a request under section 7 if-

(a) the record concerned contains information given to a public body in confidence and on the understanding that it would be treated by it as confidential (including such information as aforesaid that a person was required by law, or could have been required by the body pursuant to law, to give to the body) and, in the opinion of the head, its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and it is of importance to the body that such further similar information as aforesaid should continue to be given to the body, or (b) disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment (other than a provision specified in column (3) of the Third Schedule of an enactment specified in that Schedule) or otherwise by law".

The confidentiality exemption generally does not apply to a record prepared by a staff member of a public body, or a person who is providing a service for a public body under a contract for services, "unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than a public body or head or a director, or member of the staff of, a public body or a person who is providing or provided a service for a public body under a contract for services" (section 26(2) refers). Section 26(1)(a) also does not apply if the public interest would, on balance, be better served by granting rather than by refusing to grant the request (section 26(3) refers).

Section 27 of the FOI Act provides protection for three different classes of commercially sensitive information as follows:

"27.-(1) Subject to subsection (2), a head shall refuse to grant a request under section 7 if the record concerned contains-

a) trade secrets of a person other than the requester concerned,

b) financial, commercial, scientific or technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation, or

c) information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates."

Again, however, section 27(1) does not apply if the public interest would, on balance, be better served by granting rather than by refusing the request (section 27(3) refers).

It is my understanding that the term "source code" refers to high level code, the disclosure of which would allow the development of competing products. I therefore accept that the source code at issue in this case qualifies as a trade secret within the meaning of section 27(1)(a) of the FOI Act. I also consider that, on balance, the public interest would not favour release, particularly if the testing, maintenance and repair records are made available. As Ms. Campbell stated, court procedures must be considered adequate to ensure the fairness of any criminal proceedings under the Road Traffic Acts.

I also accept that a duty of confidence would be owed to Lion Laboratories in the circumstances. Moreover, I note that evidence was submitted in the case stated by Judge Mary Devins in DPP v. O'Malley [2008] IEHC 117 to show that the MBRS is contractually prohibited from disclosing the source code to any third party. In the circumstances, I am satisfied that the source code is exempt under section 26(1)(b) as well as section 27(1)(a) of the FOI Act.

Lion Laboratories Handbook & Garda Síochána Training Notes

No substantive claims for exemption have been made in relation to the Lion Laboratories Handbook or the Garda Síochána Training Notes. I accept that the Handbook is under copyright, but it is admittedly available for purchase from Lion Laboratories Ltd.

The Garda Training Notes are also admittedly available at any Garda District Office. I further note that, in Whelan v. Kirby & Anor [2004] IESC 16, the State authorities had no objection in principle to the disclosure of the Garda Training Manuals to the defence in that case.

I wish to emphasise that the availability of the Handbook or the Training Notes elsewhere, or through other means, generally does not excuse the MBRS from its obligations under the FOI Act with respect to records which it holds or which are under its control. As Ms. Campbell noted in her preliminary view letter to the MBRS, one exception is where a record falls within the ambit of section 46(2) of the FOI Act. However, in Case Number 98058, Mr. Phelim McAleer of the Sunday Times and the Department of Justice, Equality and Law Reform (16 June 2000), available on my Office's website at www.oic.gov.ie, the former Commissioner found that access to copies of articles from a newspaper and a periodical should be granted under FOI where the public body concerned had retained copies of the articles. In the former Commissioner's view, with which I agree, the retained copies were records of the public body which had a separate identity from copies which could be obtained elsewhere. In this case, the Training Notes at issue apparently were prepared by the MBRS and a copy of both the Training Notes and the Handbook has been retained by the MBRS, presumably for purposes relating to its functions under the Road Traffic Acts. Moreover, although advised of Ms. Campbell's preliminary view that the Training Notes were subject to release under FOI, the Garda Síochána has raised no objection. I conclude that both the Handbook and the Training Notes are subject to FOI. Accordingly, I find that access to the Handbook should be granted by way of inspection under section 12(1)(d) of the Act and that a copy of the Training Notes should be released to the Applicant in full.

Other Records at Issue

In relation to the remaining records at issue, the MBRS' arguments may be summed up, as Ms. Campbell stated, by its assertion that FOI should not be allowed to "provide a parallel system whereby the defence could obtain what is in effect disclosure in a criminal case". The MBRS considers that sections 23(1)(a)(i) to (iv) and section 22(1)(b) of the FOI Act should therefore apply.

Section 23(1)(a) provides that a request for access to a record may be refused where its release could reasonably be expected to prejudice or impair

(i) the prevention, detection or investigation of offences, the apprehension or prosecution of offenders or the effectiveness of lawful methods, systems, plans or procedures employed for the purposes of such matters;

(ii) the enforcement of, compliance with or administration of any law;

(iii) lawful methods, systems, plans or procedures for ensuring the safety of the public and the safety or security of persons and property;

(iv) the fairness of criminal proceedings in a court or of civil proceedings in a court or other tribunal.

Section 22(1)(b) is a mandatory exemption that applies if disclosure of a record would constitute contempt of court.

As Ms. Campbell observed, the creation of a parallel system of obtaining access to records relating to the MBRS' functions under the Road Traffic Acts would appear to be one of the reasons why the MBRS was brought fully within the remit of the FOI Act, i.e. without the restrictions that apply with respect to records of the Offices of the AG and the DPP. The regulations, S.I. No. 297 of 2006, prescribing the MBRS as a public body for purposes of the FOI Act were issued by the Minister for Finance in 2006, long after the judgment of the High Court in EH and EPH v. the Information Commissioner [2001] 2 IR 463 (4 April 2001) in which O'Neill J stated: "I think it will undoubtedly be the case that as the public grow accustomed to the opportunities of disclosure contained in the Act, as time goes by and where litigation may be contemplated or indeed where it has even occurred they may opt to seek disclosure of documents via the Act rather than via the traditional method of discovery".

In a decision which issued from this Office in February 2003, Case Number 020481, Mr. X and the Department of Justice, Equality and Law Reform (27 February 2003), available at www.oic.gov.ie, the former Commissioner had regard to this comment by Justice O'Neill in finding that the lack of reciprocity, of itself, did not provide a sufficient basis for section 23(1)(a)(iv) to apply and that regard must be had to the contents of the records. The Commissioner stated: "Section 23 of the FOI Act is a harm based exemption and cannot be applied to particular records simply as a result of their falling within a particular class of records."

Similarly in Case Number 99108, Mr. X and the Department of Agriculture, Food and Rural Development (20 December 2001), also available at www.oic.gov.ie, the former Commissioner stated: "It seems to me that the mere fact that disclosure of certain information might weaken the prosecution or strengthen the defence is irrelevant as such disclosure would not, of itself, damage the fairness of the proceedings." The Commissioner also found that section 23(1)(a)(i) did not apply to records relating to the requester's alleged breaches of the Animal Health Regulations where the Department had failed to show how his being aware of the evidence or of the methods and procedures used to investigate alleged breaches of the Animal Health Regulations could give rise to any of the harms identified.

Presumably, then, the Minister for Finance was aware of the potential for the release of records held by the MBRS to defendants in criminal proceedings, as well as other members of the public, when he prescribed the MBRS as a public body under the FOI Act, as he was authorised to do so. In accordance with the spirit of FOI, the Minister seems to have considered that the MBRS' functions under the Road Traffic Acts should be subject to public scrutiny. The Minister may also have considered that information relating to the performance of the Intoxilyzer should be available in the interests of openness and transparency to ensure public confidence in its reliability, which again would be in accordance with the spirit of FOI.

In its submission, the MBRS says that the Minister for Finance "has nothing whatsoever to do with the criminal justice system". I note that the Minister for Finance nevertheless has the authority to prescribe a public body under section 3(5) of the FOI Act and that this Office is bound by any such regulations that he promulgates. Moreover, the text of S.I. No. 297 of 2006 reflects that the then Minister, Mr. Brian Cowen, the current Taoiseach, had the consent of other Ministers, including the Minister for Justice, Equality and Law Reform and the Minister for Transport, in making the regulations. Thus, it seems to me that, notwithstanding its role in criminal law, the relevant authorities decided not to treat the MBRS like the Garda Síochána or the Offices of the DPP and AG, but rather to bring it fully within the remit of the FOI Act and thus create a "parallel system" of access to the records it holds, including records relating to its functions under the Road Traffic Acts. It is also worth noting that the Garda Síochána, the DPP, and the AG evidently are not too concerned about the release under FOI of records relating to the role of the MBRS in criminal law, including records relating to the testing, maintenance, etc. of the Lion Intoxilyzer 6000IRL.

I recognise that there is no "discovery" as such in criminal proceedings in Ireland. However, this is not a criminal proceeding; this is review being conducted under section 34(2) of the FOI Act, and the fact that records may be made available under FOI does not necessarily mean that they will be considered relevant to or admissible in any court proceedings. FOI and court proceedings operate in parallel to one another, as the MBRS is aware; their only interconnection in relation to a defendant would be at the court's discretion.

Having considered the MBRS' submissions, I, like Ms. Campbell, understand that disclosure to defendants in District Court proceedings turns primarily on the question of relevance; this is not a requirement under FOI, where the motive for any request must be disregarded (section 8(4) of the FOI Act refers). In its most recent submission, the MBRS states that this Office's understanding of the matter is incorrect, but then it quotes from the judgment of McMahon J in Mullane v. Browne [2008] IEHC 391, which in my view tends to confirm that relevance is the primary criterion for disclosure in District Court proceedings. Of course, the need to avoid "inordinate expense" in terms of time and costs is also a factor in summary court proceedings. However, I do not see how the right of access to records of the MBRS through FOI, in and of itself, could reasonably be expected to have an adverse impact on summary prosecutions under the Road Traffic Acts. In a letter quoted in the Supreme Court judgment in Whelan v. Kirby [2004] IESC 17), the MBRS described itself as an "independent statutory body" (emphasis added). Although the MBRS may be a "key element of the criminal case in a drink driving case", it is not a party to the criminal proceedings, a fact which the MBRS seems to have lost sight of to some extent in preparing its submissions. Moreover, as the MBRS has itself acknowledged, it is a matter for the courts to rule on any motions for adjournment based on pending or related FOI requests. It is also a matter for the courts to rule on questions of the relevance or admissibility in court proceedings of any records obtained through FOI.

Indeed, despite the many references to a "parallel system", it seems that, without FOI, the MBRS would be generally unaccountable either to the courts or to the public with respect to its functions under the Road Traffic Acts and that there would be no legal recourse to records relating to its forensic investigative role even in the event of suspected irregularities. A point which has been made in its submissions is that a court is not in a position to make a disclosure order against the MBRS in criminal proceedings; yet the MBRS does not seem to recognise the inherent inconsistency between this fact on the one hand and its argument on the other that disclosure of information relating to its forensic investigative functions should be a matter solely for the courts. One of the many judgments cited is Whelan v. Kirby , referenced above, in which Mr. Justice Geoghegan stated in relation to an order to allow inspection of an intoximeter: "Such orders could only be made against the DPP but if as a consequence of non cooperation by the Medical Bureau or for any other reason the District Court order could not be complied with, it would be open for the District Court to refuse to proceed with the trial." (See also DPP v. O'Malley [2008] IEHC 117 (noting in relation to the question of whether there is power to make an order against the MBRS that the answer is no, because "[i]t is a well established principle that an order for disclosure against a third party cannot be made in criminal proceedings").) Given the risk that a trial of an alleged intoxicated driver could collapse if the MBRS were to chose to be uncooperative, I do not see how its immunity from any disclosure regime, including FOI, could be considered as enhancing the administration of justice. This is not, of course, to suggest that the MBRS would deliberately choose to be uncooperative. As Mr. Justice Geoghegan observed: "[I]t seems probable that the Bureau is concerned only with protecting its apparatus and would be likely to abide by any informal recommendation by the court as suggested in the written submission of the Applicant." Nevertheless, it is interesting to note that, following on from the MBRS' insistence in the proceedings underlying the Whelan v. Kirby case that a court order be obtained, the convictions of various defendants were ultimately quashed due to the District Court's refusal to entertain the application for inspection which had been made.

I also note that in a recent case referred to by the MBRS, HSE v. White [2009] IEHC 242, the DPP supported the defendant's application for disclosure against the third party concerned, because it "readily appreciated the potential materiality of [the information sought] to the defence". Nevertheless, the information sought was not obtainable because the third party concerned was not subject to disclosure by court order. Mr. Justice John Edwards observed:

"In the view of this Court the present lacuna in the law is unsatisfactory in as much as, in cases such as the present, it may have the effect of depriving the State of its right to proceed with a prosecution. Clearly there need to be a legal mechanism by means of which a third party in possession of material that is potentially relevant to a defendant's defence in a criminal trial can be compelled to disclose it, at least to the prosecuting authority who is usually, though not invariably, the Director of Public Prosecutions. In my opinion this is primarily a matter for the legislature. Legislation in this area is likely to be complex and to be influenced by major public and executive policy considerations."

Justice Edwards further observed:

"It is very much to be hoped that any third party, and in particular a state or state-funded body, would not lightly disregard a Court's declaration as to the extent of its duty. Ultimately, however, the effectiveness of such action may be limited and, in the absence of sanctions provided for in legislation, it may from time to time prove ineffective. However, it should always be possible to vindicate the rights of an affected accused by staying his or her trial.

In conclusion, I do not consider that the respondent in this case was justified in fashioning a novel remedy without a sound jurisdictional basis for doing so. While a trial judge may have an inherent jurisdiction to resort to extraordinary measure of that sort as a last resort in truly exceptional circumstances, such circumstances did not exist in this case. Though it may be desirable that trial judges should have available to them a remedy similar to that fashioned by the respondent, that is something that requires to be addressed in legislation to be enacted by the legislature should they see fit to do so."

It is not suggested here that the FOI Act is by any means a substitute for the legislation that Justice Edwards considers necessary to address the "present lacuna in the law" with respect to disclosure in criminal proceedings. As I stated above, this is not a criminal proceeding; this is a review being conducted under section 34(2) of the FOI Act. However, while the FOI Act does not provide the remedy needed in criminal law to ensure the disclosure of all relevant material held by third parties in order to avoid "the effect of depriving the State of its right to proceed with a prosecution", it nevertheless gives members of the public a right of access to records held by the MBRS, including records relating to its forensic investigative functions under the Road Traffic Acts. Moreover, in light of the "present lacuna in [criminal] law", whereby non cooperation by a third party such as the MBRS could effectively jeopardise a trial, I see no basis for concluding that disclosure of such records through FOI is necessarily harmful to the criminal justice system. I certainly do not accept the general principle that making the MBRS fully amendable to the FOI Act, i.e. without the restrictions that apply to the Offices of the AG and the DPP, could, irrespective of the contents of the records requested, reasonably be expected to prejudice or impair

(i) the prevention, detection or investigation of offences, the apprehension or prosecution of offenders or the effectiveness of lawful methods, systems, plans or procedures employed for the purposes of such matters;

(ii) the enforcement of, compliance with or administration of any law;

(iii) lawful methods, systems, plans or procedures for ensuring the safety of the public and the safety or security of persons and property;

(iv) the fairness of criminal proceedings in a court or of civil proceedings in a court or other tribunal.

I have also had regard to the comments of a United States Federal Court in relation to similar legislation in the United States, referred to as "FOIA". In North v. Walsh, 881 F.2d 1088 (D.C. Cir. 1989), the Circuit Court of Appeal for the District of Columbia stated: "[N]o showing of relevance or need is required to obtain documents under FOIA. The only issue in North's FOIA action is whether the documents were properly withheld under one of the specific statutory exemptions." (Citing Playboy Enters, Inc. v. Department of Justice, 677 F.2d 931, 936 (D.C. Cir. 1982): "[T]he issues in discovery proceedings and the issues in the context of a FOIA action are quite different. That for one reason or another a document may be exempt from discovery does not mean that it will be exempt from demand under FOIA."). The Court in North v. Walsh further stated: "The fact that a defendant in an ongoing criminal proceeding may obtain documents via FOIA that he could not procure through discovery, or at least before he could obtain them through discovery, does not in and of itself constitute interference with a law enforcement proceeding. Rather, the government must show that disclosure of those documents would, in some particular, discernible way, disrupt, impede, or otherwise harm the enforcement proceeding."

Again, I am aware that there is no "discovery" as such in criminal proceedings in Ireland. I also recognise that there are significant differences between the nature of the criminal proceedings underlying the FOIA request made in North v. Walsh and summary intoxicated driving cases in Ireland. Nevertheless, I consider that the Court's comments in North v. Walsh provide helpful guidance with respect to FOI in Ireland: As in the United States, relevance or need is not required to obtain documents under the FOI Act. The fact that a record may relate to the investigation of criminal offences and potentially to matters of evidence in criminal proceedings does not, in and itself, establish that one of the exemptions under sections 23(1)(i) to (iv) of the FOI Act applies; otherwise, the Act would provide for a class-based exemption for such records, which it does not. Moreover, in my view, the fact that access to a record through disclosure in District Court proceedings may or may not be available likewise does not, in and of itself, establish that one of the exemptions under sections 23(1)(i) to (iv) applies. As noted above, the former Commissioner stated in Case Number 020481, Mr. X and the Department of Justice, Equality and Law Reform (27 February 2003), available at www.oic.gov.ie: "Section 23 of the FOI Act is a harm based exemption and cannot be applied to particular records simply as a result of their falling within a particular class of records."

I also note that a similar approach is taken in other similar FOI jurisdictions. For instance, in Re Gary Green and Australian and Overseas Telecommunications Corporation [1992] AATA 252, the Administrative Appeals Tribunal of Australia stated: "The FOI Act does not seek to override or in any way vary the rules relating to production of documents in the context of court proceedings. It adds to a person's rights to obtain access but does not in any way restrict his or her gaining access by other means." In another case, Alistair Peter Scholes and Australian Federal Police [1996] AATA 347, the Tribunal admonished the Australian Federal Police (AFP): "If the AFP had taken less of a 'scatter gun approach' and had tried to identify methods or procedures the release of which would really be reasonably likely to prejudice the effectiveness of those methods, then its attention would have been drawn to the need to give evidence explaining that prejudice. That would have substantially narrowed the exemptions claimed under this section but may also have helped the AFP maintain exemptions for which evidence could have been called supporting the claimed exemption. The s 37(2)(b) exemption [relating to lawful methods or procedures for preventing, detecting, investigating, or dealing with matters arising out of breaches or evasions of the law] is not upheld in respect of any documents or part of documents in either V93/1159 or V94/533)". In Ontario, Canada, the Information and Privacy Commissioner (IPC) has stated that, in order to show that the law enforcement exemptions apply, "the institution must provide 'detailed and convincing' evidence to establish a 'reasonable expectation of harm'. Evidence amounting to speculation of possible harm is not sufficient . . . . It is not sufficient for an institution to take the position that the harms under section 8 are self-evident from the records or that a continuing law enforcement matter constitutes per se fulfilment of the requirements of the exemption". (IPC Order MO-2019, York Regional Police Services Board (Feb. 17, 2006)). In Scotland, in a case involving a request for information relating to mobile safety camera operations, the Scottish Information Commissioner said in relation to section 35(1), the law enforcement exemption: "[I]n order for a public authority to be able to rely on this exemption, it would have to show that the risk of damage from disclosing the information would be real or very likely, not simply a remote possibility. The harm caused or likely to be caused must be significant, not marginal, and it would have to occur or be likely to occur in the near (certainly foreseeable) future and not in some distant time." (Decision 139/2006 Mr James Robertson and the Chief Constable of Lothian and Borders Police (26 July 2006)) Moreover, although the exemption relating to investigations in the UK, section 30, is a class based exemption, it is qualified "so that the information itself is only exempt from disclosure where the public interest in maintaining the exemption outweighs the public interest in disclosure". (UK Decision Notice FS50117048, South Yorkshire Police (22 Feb. 2007) (referring to the Information Commissioner's published guidance on the exemption).

The MBRS has statutory functions under the Road Traffic Acts, but it is also under a statutory obligation to make records available upon request under the FOI Act unless it meets its burden of showing that an exemption is applicable. In this case, no showing of any of the harms under sections 23(1)(a)(i) to (iv) has been made based on the contents of the records at issue. Moreover, based on my own examination of the records, I see nothing in the contents that could reasonably be expected to prejudice or impair any of the law enforcement and public safety measures variously protected under sections 23(1)(a)(i) to (iv). For instance, the records do not involve any risk of witness intimidation or reveal any sensitive information regarding investigative methods. As the MBRS has not met its burden of proof with respect to the particular records at issue in this case. In the circumstances, I find that the claims for exemption under sections 23(1)(a)(i) to (iv) are not justified.

No reasons have been advanced to support the assertion that disclosure of the records at issue would constitute contempt of court. Moreover, none of the judgments referred to by the MBRS in its submission appears to establish any prohibition on the disclosure of records relating to the MBRS' functions under the Road Traffic Acts outside of the context of District Court proceedings. I therefore find no basis for concluding that section 22(1)(b) applies.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby vary the decision of the MBRS in the following terms:

I affirm its decision in relation to the source code of the Lion Intoxilyzer 6000IRL.

I annul its decision in relation to the Lion Laboratories Handbook and direct that access be granted by way in inspection in accordance with section 12(1)(d) of the FOI Act.

I annul its decision in relation to the other records concerned, i.e. records number 3-172 (subject to the deletion of personal information, if any) and the Garda Síochána Training Notes, and direct that access be granted by providing the applicant with a copy of the records.

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 after notice of the decision was given to the person bringing the appeal.

Emily O'Reilly

Information Commissioner

15 July 2010