The Senior Investigator varied the Department's decision and found that specified records and parts of records should be released.

Case Summary

Whether the Department is justified in its decision to withhold certain records on the grounds of sections 20, 26 and 46 of the FOI Act and whether, as submitted by a third party, section 21 also applies.

Date of Decision: 29.07.2010

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

Background:

On 25 September 2008, the Applicant wrote to the Department requesting under the FOI Acts records relating to a particular investigation concerning herself and other family members. On 30 October 2008, the Department decided to release 12 records and withhold 10, quoting the exemptions provided for by sections 20, 26 and 46 of the FOI Acts. On 20 November 2008, the applicant wrote to the Department seeking an internal review of its decision.

On 19 December 2008, the Department in its internal review revised its original decision and released a further three records. The number of records now withheld is seven, specifically:-

Records numbered 1, 2, 3, 6, 8, 11 and 14.

Records 1, 2 and 3 consist of a minute drafted by the Department of a meeting between the Applicant and her representatives and officials of the Department attached to covering letters from the Secretary General of the Department to the Director General of the Law Society of Ireland, to the Commissioner of An Garda Síochána, and to the Director of Public Prosecutions (DPP) respectively on the attached minute of the meeting. Record 6 consists of the inter reply from the Law Society while record 8 is its substantive reply. Record 11 is the substantive reply from An Garda Siochana while record 14 is a reminder from the Department to the DPP requesting a response.

On 18 May 2009, the Applicant applied to this Office for a review of the Department's decision. Mr. Colin Stokes of this Office issued his preliminary view that the records should be released on 13 April 2010, and on 27 April 2010, the Applicant confirmed that she accepted his views. However, the Department, as is its right, reasserted its objections to release of the remaining seven records and made a submission on the matter on 20 May, 2010. I am therefore proceeding to a formal binding decision on the issue.

In the circumstances of this case I found it appropriate to consult with two third parties who created some of the records under review, namely The Law Society of Ireland and An Garda Síochána. The Law Society confirmed that they had no objection to the release of the records as agreed by Mr. Stokes and the Applicant (see "Scope" below) while the Garda advised that they objected to release of the records on the grounds of sections 21 (1)(a) and 26(l)(a) of the FOI Act.

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

Scope

This decision is confined to the question as to whether the seven records remaining subject to review should be released. In discussions with this Office the Applicant agreed that references to allegations against third parties identifiable from records 1, 2, 3 and 8 constitute the personal information of those parties and can be excluded from this review. Accordingly the records under review are those parts of records 1, 2, 3 and 8 that do not contain personal information of identifiable third parties and records 6, 11 and 14 in their entirety. In arriving at my decision I have taken account of the submissions made by both parties. I will, for the sake of completeness, revisit some of the facts and issues as laid out by Mr. Stokes in his preliminary view.

Submissions

.

Findings

Preliminary Issues

I would like to emphasise that under section 34(12)(b) of the FOI Act, a decision to refuse to grant access to a record is presumed not to have been justified unless it is shown to the satisfaction of the Commissioner that the decision was justified. This provision has the effect of placing the burden of proof for refusing access to a record on the public body.

Also, while I am required to explain any decision I might make regarding access to records, section 43(3) provides that I must not reveal the content of an exempt record in providing such explanation. This is to preserve the right of appeal of all parties to the High Court in cases where there is disagreement with a decision I might make. In the circumstances of this case, Section 43(3) requires me to exercise caution in relation to the description I can give of the records at issue.

Findings

In withholding the records the Department has invoked section 20 of the FOI Act.

Section 20

Section 20(l) of the FOI Act provides that:-

" A head may refuse to grant a request under section 7 if the record concerned contains

matter relating to the deliberative processes of the public body concerned (including

opinions, advice, recommendations, and the results of consultations, considered by the

body, the head of the body, or a member of the body or of the staff of the body for the

purpose of those processes),"

The Department's arguments against release of the relevant records are that release would undermine the confidentiality of communications between senior officials of the Department and of other bodies and that this would negatively impact upon the deliberative process. I am taking it that the Department is arguing that release of these records would inhibit the principals involved in such deliberations from engaging in similar deliberations in the future as it is clear that the deliberations in this case have finished.

I do not accept that there can be a blanket exemption on meetings held between Departmental officials, elected representatives and the people they represent. Each case must be judged on its merits. In this case the Applicant and other members of her family have expressly given their permission to the release of the records while the other parties involved are in the main either Government officials or appointees or elected representatives. I do not accept that these people would be inhibited from carrying out their duties by release of the records involved in this case and the Department has not provided any evidence to justify its contention that this would be the outcome of release of the records. Accordingly, I find that section 20 does not apply to the records.

Public interest

Section 20(3)

Even if I were convinced by the Department's assertions in relation to its deliberative process that would not be the end of the matter as section 20 contains a public interest clause, the terms of which must be satisfied before a decision to exempt a record under section 20 is justified. Section 20(3) provides for the granting of a request where:-

" in the opinion of the head concerned, the public interest would, on balance, be betterserved by granting than by refusing to grant the request. "

I consider that the following public interest considerations would, on balance, favour release:

• the public interest in individuals being able to exercise their rights under the FOI Act to the fullest extent
• the public interest in members of the public knowing how a public body performs its functions and being able to form an opinion as to whether those functions are being properly discharged

The Department has submitted that, as An Garda Siochana and the Law Society are not public bodies for the purposes of the FOI Act, release of the records would provide for access to information provided by bodies not subject to the Act which would go against the wishes of the Oireachtas in not bringing those bodies within the scope of FOI and would accordingly be against the public interest. However, the wishes of the Oireachtas as expressed in the provisions of the FOI Act, provide that all records held by public bodies are subject to release unless refusal to release is justified through the specific exemption provisions in the Act. The Act does not provide for exemption of records on the basis of the source or origin of the information contained within them and therefore I do not accept the Department's submission on this point. I will deal with the point on confidentiality of communications in my consideration of section 26 below.

I have considered above the various arguments advanced by the Department in support of its contention that these specific record should be withheld. As stated, I am not convinced that the arguments made in favour of exempting the record outweigh the arguments in favour of release. I am therefore satisfied that, the public interest would, on balance, be better served by granting than by refusing to grant the request. I find accordingly.

Section 21(1)(a)

The Garda have quoted section 21(1)(a) in support of its submission that the records should not be released. Section 21 (a) provides that a public body may refuse access to a record if it considers that access could reasonably be expected to:-

"prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of a public body or the procedures or methods employed for the conduct thereof."

In arriving at a decision to claim a section 21 exemption, a decision maker must, firstly, identify the potential harm to the functions covered by the exemption that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur. The test of whether the expectation is reasonable is not concerned with the question of probabilities or possibilities; it is concerned with whether or not the decision maker's expectation is reasonable.

It is appropriate here to refer to the Supreme Court judgment in Sheedy v Information Commissioner, Barney Sheedy v. The Information Commissioner [20051 IESC 35 (the text of this judgment is available on this Office's website: www.oic.gov.ie), where Mr Justice Fennelly commented: "the onus to produce evidence of prejudice fell (in that case) on the Department and in the absence of same the Commissioner was entitled, under s. 34 of the Act of 199 7, to hold against the Department. A mere assertion of an expectation [of prejudice] could never constitute sufficient evidence in this regard". Thus, in the present context, I consider that the Garda must show some evidence of prejudice if its reliance on section 21 (1)(a) is to be justified. However, rather than providing such evidence, in my view the Garda in its submission appear to be making a class-based claim for exemption in relation to any record and has not provided any evidence to justify its contention that release of the records would lead to the harms provided for in section 21(1)(a).

I consider that any request for records must be dealt with on its merits in light of the contents of each particular record concerned and the relevant facts and circumstances of the case. In this case, I have examined the records with particular reference to the importance and sensitivity of the role of played by An Garda Siochana and I am satisfied that the records at issue do not reveal anything that could lead to the harms envisaged by section 21. Therefore I do not see how release of the reports to one of the people to whom they relate could, in the circumstances of this case, negatively impact on the future work of the Gardai.

Therefore, based on my examination of the contents of the records, I find no basis to support the claim of prejudice under section 21(1)(a) and find that the records are not exempt under this provision. Section 21(2) provides for a public interest test but as I have found that section 21(1)(a) does not apply there is no need for me to consider the public interest as provided for in that section.

Section 26

The Department also contended that the records are exempt under section 26 because of an understanding of confidence between it and its correspondents in this case. The Department contends that the records are exempt under section 26(l)(a).

Section 26(1)(a)

This section provides that a request for access to a record shall be refused if

"the record concerned contains information given to the public body concerned inconfidence 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 couldhave 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 ,

Specifically, for section 26(l)(a) to apply, it is necessary that four separate elements of that provision are satisfied:-

• that the information was given to the public body concerned in confidence
• that the information was given on the understanding that it would be treated as confidential,
• that the disclosure of the information would be likely to prejudice the giving to the body of further similar information from the same person or other person in the future, and
• that it is of importance to the body that such further similar information continue to be given to the body.

All four elements must be satisfied if section 26(l)(a) is to apply. The first question which arises here is whether the information given to the Department was in fact given confidence and on the understanding that it would be treated as confidential, covering the first two of the four elements highlighted above. Against a background of an FOI Act that had already been in operation for 1 0 years at the time in question, I do not accept that a public body can reasonably claim to have been operating on the basis of confidentiality in relation to an entire category of information.

In its submission the Department argues that section 26 applies because the records were "clearly intended as confidential" and it again asserts that any diminution of this understanding would have an adverse effect on the supply of necessary information in the future. However, I should point out that in relation to Garda records generally, the Commissioner has found in previous cases, (for example case reference number 99449 on our website www.oic.gov.ie), that there cannot be an expectation that all communication between An Garda Síochána and public bodies is in confidence. Indeed, in a recent review (case reference number 090250, again available on our website) the Garda Síochána themselves accepted that reports it had made to a local authority about an individual were not confidential. Decisions on release of such records must be based on the content and circumstances of each particular case. In the circumstances of this case, and based on my examination of the records, I do not accept that the Department has provided evidence that the information provided by the Garda and other sources had been given in confidence nor has it demonstrated that the nature of the information in the records is such as to substantiate a contention that the communication between the Department and An Garda Siochana was conducted in confidence. Accordingly, I find that the first element of 26(1)(a) has not been satisfied.

Regarding the third element, I believe it is worth noting that the most significant record, them minute of the meeting, concerns a meeting that was sought by the Applicant, attended by her and her representatives and that she is now seeking to have that record released. On this basis I cannot see how it can be reasonably argued that the release of the records would prejudice receipt of future information from the Applicant, so I am taking it that the Department considers release would prejudice future receipt of information from other parties with whom it might engage in the future. However, as it has not provided any evidence to substantiate such a possibility I do not accept that a valid case has been made to justify invoking the third element of 26(l)(a).

Also it has been contended, as referred to previously, that release of the records would undermine the confidentiality of communications between senior officials of the Department and other bodies. As the Law Society has no objection to release of the information relating to it as agreed between Mr. Stokes and the applicant, I do not accept that such release would negatively impact on the level of communication between it and the Department. In relation to communications between the Garda and the Department of Justice, I am not satisfied that the release of the information in these records would be likely to prejudice the provision of similar information by An Garda in the future. The fact is that both are public bodies, albeit the Garda are not within the remit of FOI legislation, and have a common interest in the prevention and detection of criminal activity. In that context, I do not see how release of the records in this case, which relate primarily to the applicant and members of her family, would prejudice the continued receipt by the Department, as required, of intelligence type information from the Garda. Similarly, I do not accept that release of this information would prejudice necessary communications between the DPP and the Department given both bodies' shared statutory role in upholding the laws of this State.

I have found that two of the parts of 26(l)(a) have not been met and as it is necessary that all four parts are met before exemption of a record under that provision is justified, I find that section 26(l)(a) does not apply to the records.

The Public Interest

Section 26(3) provides that, where records would otherwise fall to be exempted under 26(l)(a), they should nevertheless be released where:-

"the public interest would, on balance, be better served by granting than by refusing to grant the request.... concerned ",

The Department contends that the public interest would not be better served by granting the request. As I have found that section 26(l)(a) does not apply to the records, it is not strictly necessary for me to consider section 26(3) in the circumstances of this case. However, I can say that the public interest arguments in relation to section 26 would closely resemble those in relation to section 20, which I have examined above, and that I consider I would have come to a similar conclusion.

Section 46(l)(b)

The Department also claims exemption for some of the records in accordance with section 46(l)(b). This section exempts records:-

"...held or created by the Attorney General or the Director of public Prosecution (the DPP) or the Office of the Attorney General or the Director of public Prosecutions (other than a record concerning the general administration of either of these Offices),

However, having examined the two records involved (records 3 and 14 see background above), I am satisfied that both records were created by the Department and are held by it and that therefore section 46(l)(b) does not apply. I refer to an earlier decision of the Commissioner (reference number 030414: also on our website) in relation to the Office of the Attorney General to which the same principles would apply.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby vary the decision of the Department and decide that the records and parts of records as described released.

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date of this letter.

Seán Garvey

Senior Investigator

29 July 2010