The Commissioner found that the claims for exemption made by the MBRS under section 23 of the FOI Act were not justified in this case having regard to section 34(12)(b) of the Act. Accordingly, she annulled the decision of the MBRS and directed the release of the records concerned.

Case Summary

Whether the MBRS' refusal to grant access to records relating to the receipt, analysis and certification of urine samples provided by the applicant at [a named] Garda Station on a certain date, is justified under section 23(1)(a) (i), (ii) and (iv) 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 18 December 2008, the applicant's solicitors sought access to all documentation pertaining to the receipt, analysis and certification of urine samples provided by the applicant at [a named] Garda Station on [date] at [time]. In its original decision dated 12 February 2009, the MBRS refused the request in full under sections 22(1)(a) and 23(1)(a)(iv) of the FOI Act on the basis that the documentation "could be the subject of litigation in alleged criminal offences before the court".

The applicant, through his solicitors, applied for internal review in a letter dated 13 February 2009. In its internal review decision, dated 27 February 2009, the MBRS refused the request in full on the grounds that sections 23(1)(a)(i), (ii), and (iv) applied. The MBRS noted that its analysis of the applicant's urine sample was done pursuant to its statutory functions under the Road Traffic Acts. It stated that records sought therefore related to the investigation of criminal offences and potentially to matters of evidence in criminal proceedings relating to the alleged commission of a criminal offence. The MBRS emphasised that the Road Traffic Acts require it to provide both An Garda Síochána and the specimen donor with certificates under section 19(3) of the Road Traffic Act 1994 certifying the concentration of alcohol and presence (if any) of drugs found in the specimen. The MBRS stated: "The Bureau is not a party to these criminal proceedings and has taken the view that where either the prosecution or the defence seeks information over and above the statutory certificates, it is ultimately a matter for the courts to decide." The MBRS pointed out that, if the records were to be disclosed to the applicant under the FOI Act, the prosecution would not have an equivalent right of access to his personal information under FOI. Although acknowledging that the lack of reciprocity does not of itself provide a sufficient basis to rely on section 23(1)(a)(iv), the MBRS nevertheless considered that it could reasonably result in prejudice or impairment in the context of criminal proceedings. "The prosecution will not be on notice that the information has been disclosed whereas in the ordinary course of criminal proceedings, both sides are aware of the evidence to be relied upon." Moreover, in relation to its claim for exemption under section 23(1)(a)(ii), the MBRS stated: "[D]isclosing the records sought in this case, which are over and above what the Bureau is required and permitted to provide in accordance with section 19(3) of the Road Traffic Act 1994, would effectively undermine the Bureau's obligation under section 19(3) of the Road Traffic Act 1994 thereby causing prejudice or impairment to its compliance with section 19(3) of that criminal statute and the criminal law generally relating to alleged driving under the influence of intoxicants offences."

Through his solicitors, the applicant applied to my Office for review in a letter dated 9 March 2009. The application for review set out the circumstances of the applicant's arrest on [date] and the subsequent production of two certificates under section 19 of the Road Traffic Act 1994 by the MBRS. The first certificate, [date] certified that the urine specimen taken on [date] had "nil" milligrams of alcohol. The second certificate, [date], certified that the urine specimen taken on [date] contained the presence of a cannabis class drug. The applicant's solicitors emphasised that sections 19(1) and (3) of the Road Traffic Act 1994 require the MBRS to analyse specimens and issue certificates "[a]s soon as practicable". The applicant's solicitors also emphasised that, under section 19(4) of the Road Traffic Act 1994, "it shall be presumed until the contrary is shown that subsections (1) to (3) have been complied with". Given the time lag between the two certificates issued with respect to the applicant's urine sample, the applicant's solicitors explained that they requested the records relating to the MBRS' analysis of the urine sample in order "to ascertain whether [their] client's sample was analysed within the requisite time frame allowed for such analysis". They stated: "The only means by which our client may rebut the presumption applied in Section 19(4) is to be provided with the Medical Bureau of Road Safety's records relating to the analysis of his sample." In relation to any potential prejudice or harm to their client's prosecution under section 23(1)(a)(i) of the FOI Act, the applicant's solicitors maintained:

"The Medical Bureau of Road Safety is not a party to any prosecution, nor has it identified how the release of such information could in any way prejudice such a prosecution. In fact, we believe the opposite is the case. The release of this information would ensure that the accused receives a fair trial in that he is entitled to know, given the sanctions he faces as a result of this prosecution, whether or not his [urine] sample has been properly received, analysed, stored, etc."

 The applicant's solicitors also argued that sections 23(1)(a)(ii) and (iv) likewise do not apply. They stated:

"The [MBRS] mistakenly suppose that a Judge decides what evidence should be made available at trial. A Judge in criminal proceedings has only jurisdiction to ensure that evidence the Director of Public Prosecutions or the prosecuting Garda have available to them, be disclosed to an accused. [T]he Judge has no jurisdiction to direct a third party, not a party to the proceedings, and has no jurisdiction to make Orders relating to an independent statutory body. In those circumstances it is a matter to be decided under the Freedom of Information Act, not a matter for the Courts to decide."

 They further stated:

"The [MBRS] is an independent Statutory Body, and not a party to any prosecution. The release of these records would not demonstrate any legal strategy, legal advice, nor would it interfere with any potential witnesses, or indeed disclose information of any third party. In these circumstances, it is impossible to see how the release of these records relating to a scientific procedure could prejudice or impair the prosecution of an offence, or the fairness of criminal proceedings."

The applicant's solicitors therefore urged that I overturn the decision of the MBRS and direct the release of the records relating to their client.

In the course of the review, the MBRS made further submissions which are summarised below. In a letter dated 3 March 2010, Ms. Melanie Campbell, Investigator, advised the MBRS of her preliminary view on the matter. 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 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 explained that merely showing that a record relates to the investigation of criminal offences and potentially to matters of evidence in criminal proceedings was not sufficient to discharge the MBRS' burden of proof under section 34(12)(b) of the FOI Act. She considered that the MBRS had not adequately explained how the release of the records at issue in this case could reasonably be expected to prejudice or impair the investigation or prosecution of offences or the fairness of proceedings under the Road Traffic Acts. She noted that section 19(3) of the Road Traffic Act 1994 does not prohibit the disclosure of information over and above the "completed certificate" referred to; she therefore considered that the MBRS had also failed to show how the release of the records at issue would undermine its obligations under section 19(3) of the Road Traffic Act 1994 and thus reasonably be expected to prejudice or impair its compliance with this or any other law. She stated: "In this case, no showing of any of the harms under section 23(1)(a)(i), (ii), and (iv) has been made based on the contents of the records at issue. In the circumstances, having regard to the burden of proof under section 34(12) of the Act, my preliminary view is that the claims for exemption under sections 23(1)(a)(i), (ii), and (iv) are not justified."

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 controversy 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 application for review and the submissions made by the MBRS. 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 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 to grant access to the records it holds relating to the receipt, analysis and certification of the urine sample(s) provided by the applicant at [named] Garda Station on [date] at [time] is justified.

Submissions

Submissions of the MBRS

In a submission dated 16 April 2009, the MBRS stated that "it fully supports both in spirit and in legal application the provisions of the FOI Acts". The MBRS argued, however, that a distinction should be made between administrative information and information related to the criminal investigation of an individual. In its view, the disclosure of information relating to its forensic investigative procedures over and above what is required under the Road Traffic Acts should be a matter solely for the courts. According to the MBRS, the creation through FOI of a "parallel process for disclosure of information in criminal proceedings . . . would undermine and interfere with [its] statutory obligations under the Road Traffic Acts"; "would also undermine and interfere with the function of the prosecution services in their duty to put before the court evidence in relation to an alleged criminal offence as they deem proper"; and "would also undermine and interfere with the jurisdiction of the Judges of the criminal courts whose prerogative it is under the Constitution to adjudicate on what should or should not be disclosed as evidence in criminal proceedings". The MBRS also noted, however, that there is no disclosure against third parties such as itself in criminal proceedings.

In its subsequent submission dated 22 April 2008, 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.

In relation to the potential release of records relating to its forensic investigative procedures 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 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.

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 noted that "it is not possible to make a disclosure order directly against the Bureau in a criminal case" (citing DPP (Garda Horan) v. O'Malley [2008] IEHC 117). 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. This is all the more so due to the fact that alleged intoxicated driving offences are challenged so frequently and so vigorously."

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 asserts that her position on the matter "will cause dismay to anyone who seeks to prosecute criminal cases". The MBRS states:

"In particular, in the context of drink driving cases, over the years accused persons have used over-broad disclosure requests as a means of running prosecutions into the ground. The courts have been fully alive to this risk and the [DPP] has been successful in recent years in keeping disclosure in drink driving requests under strict parameters and in persuading the courts that an accused person has a limited right to access documents that are generated by the State in the course of its prosecutorial function. That is now apparently to be set at nought because the Freedom of Information Commissioner has decided that there is in fact a parallel disclosure system now in place."

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 states: "It is respectfully submitted that in prescribing the MBRS as a public body for the purposes of the Act the Minister for Finance did not intend to set up a parallel system of disclosure to the one that the courts have fashioned. Nor did he intend to collaterally enact the type of legislation that will be needed if disclosure is to be put on a statutory footing in this jurisdiction." 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 Applicant's Submissions

The applicant relied on the arguments made in his application for review, which are summarised above.

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." The presumption in favour of release is especially strong when the applicant is seeking access to his or her own personal information. In this case, as the records at issue relate to the receipt, analysis and certification of the applicant's urine sample(s), the records consist of his personal information.

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.

Section 23(1)(a)

The MBRS' arguments may be summed up 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), (ii), and (iv) 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;

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

As Ms. Campbell observed in her preliminary view to the MBRS in a similar case, 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.

Although the MBRS suggests that the Minister for Finance "did not intend to set up a parallel system of disclosure", I find nothing to support this position. I also emphasise that the Minister for Finance 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 its forensic investigative functions.

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 simply 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;

(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 section 23 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).

Conclusion

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), (ii), and (iv) has been made based on the contents of the records at issue. As noted by Ms. Campbell, section 19(3) of the Road Traffic Act 1994 does not prohibit the disclosure of information over and above the "completed certificate" referred to. 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, (ii), and (iv). For instance, the records do not involve any risk of witness intimidation or reveal any sensitive information regarding investigative methods. On the contrary, the records merely show the manner in which the applicant's urine specimen was handled and analysed. I do not think that I would be revealing exempt information in violation of section 43(3) of the FOI Act by observing that page 7 of the records includes a note in the margin initialled by an analyst. However, the significance, if any, of the note has not been identified by the MBRS in any of its submissions. As the MBRS has not met its burden of proof with respect to the particular records at issue in this case, I find that the claims for exemption under sections 23(1)(a)(i), (ii), and (iv) are not justified.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby annul the decision of the MBRS and direct the release of the records concerned.

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