The Commissioner's authorised official affirmed the refusal of the witness statements, but found them to be exempt under section 23(1)(a)(i) of the FOI Act (having been satisfied that their release could reasonably be expected to prejudice or impair the prevention, detection or investigation of offences, and/or the apprehension or prosecution of offenders). She also upheld the refusal of the remaining records on the grounds that they were exempt under section 28(1) or were outside the scope of the request in the first place.

Case Summary

Whether the Department is justified in refusing certain records, including witness statements, concerning An Garda Síochána's investigation into the disappearance of the Applicant's sister, under sections 26(1)(a) - information provided to the Department in confidence; 28(1) - details pertaining to a person other than the applicant; and 20(1) - matter relating to a deliberative process.

Date of Decision: 29.09.2010

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

Background:

Further to the Applicant's request, dated 28 October 2008, for "all information and records to date" in respect of her sister, the Department issued a decision on 19 December 2008 concerning records held by two Divisions. The Corporate Services Division released nine records and withheld a further two, while the Crime 1 Division released 37 records and withheld a further eight. Sections 26(1)(a) and 28(1) of the FOI Act were cited in relation to all of the withheld records.

On 5 January 2009, the Applicant sought an internal review of the Department's refusal to release the 10 withheld records. Thus, on 13 February 2009, the Department released the two records withheld by the Corporate Services Division, which it explained were copies of two of the eight records withheld by Crime 1 Division. It cited sections 26(1)(a) and 20(1) of the FOI Act as the basis for its refusal of the remaining six records.

The Applicant made her application to this Office for a review of the Department's decision on 14 July 2009.

In carrying out my review, I have had regard to various contacts between this Office and the Department and An Garda Síochána; to the details of various correspondence between staff in this Office and the Applicant, including various contacts between Mr Sean Garvey, Senior Investigator and the Applicant, the letters sent by Ms Anne Moran, Investigator, to the applicant on 12 and 26 August 2010, the notes of Ms Moran's telephone conversations with the Applicant of 17 and 26 August 2010, the Applicant's email to Ms Moran of 19 September 2010 and Ms Moran's reply of 20 September 2009; to records 6, 43 and 44 and the Garda statements that partially comprise record 2 (copies of which were provided to this Office for the purposes of the Commissioner's review); and to the provisions of the FOI Act.

Conducted in accordance with section 34(2) of the FOI Act, by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review.

Scope of the Review

At the time of the application to this Office, records 2, 6, 13, 15, 43 and 44 of those considered by the Crime 1 Division had been withheld. Following correspondence between Mr Garvey and the Department, the latter agreed to release records 13 and 15 in full, and records 6, 43 and 44 in part. Record 2 - consisting of statements made by various members of An Garda Síochána and civilian witnesses - remained fully withheld.

I note from the file that, in subsequent conversations with Mr Garvey, the Applicant accepted that records 6, 43 and 44 had been redacted appropriately and that the civilian witness statements in record 2 were exempt from release. Thus, it was Mr Garvey's understanding that the review could be confined to the Garda witness statements in record 2. It is not entirely clear from the Applicant's email to Ms Moran of 19 September 2010 whether or not she disputes the narrowing of the scope of the request in such a manner. However, I have decided that, in light of that email and the absence of the applicant's written agreement to narrow the scope of the review, it is appropriate for me to consider, and make a finding on, whether or not the Department's partial release of records 6, 43 and 44, and its complete refusal of record 2, is in accordance with the provisions of the FOI Act.

It is to this issue that my review is confined. As has been explained to the Applicant, the review cannot extend to any assessment of the Garda investigation into her sister's disappearance, or make any findings based on such an assessment.

Submissions

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Findings

Records 6, 43 and 44

The case file notes that, on 9 October 2009, Mr Garvey outlined his view to the Applicant that the redacted portions of these records were either the personal information of a party other than her sister (and thus would be exempt under section 28(1) of the FOI Act, which provides for the refusal of a request where its grant would result in the disclosure of personal information of a party other than the Applicant) or were outside the scope of the review, in that they did not relate to the investigation into her sister's disappearance. The file notes that the Applicant accepted this view. However, in response to the applicant's email of 19 September 2010, Ms Moran advised the applicant on 20 September 2010 that she agreed with Mr Garvey's views in this regard.

Having examined the content, I consider the details in record 6 to be exempt from release under section 28(1) of the FOI Act in that they pertain to persons other than the applicant or her sister. In so far as the Applicant might contend that the details pertain as much as to her sister as they do to any other individual, it should be borne in mind that section 28 of the FOI Act also provides for the refusal of what is termed "joint personal information" (where the personal information of one individual is so closely intertwined with the personal information of another party that they cannot be separated). A record found to be exempt under section 28 may, however, be released to an individual where the public interest in its release outweighs the public interest in protecting the rights to privacy of any third party or parties to which the information therein also relates.

While the Applicant has, in her correspondence with this Office and the Department, set out various reasons why the records at issue should be released in the public interest, it must be borne in mind that one's right to privacy has a Constitutional dimension. It should also be borne in mind that disclosure of records further to a request under the FOI Act effectively places those records in the public domain. I have examined the details concerned and am satisfied that their release will not provide the applicant or her family with any further knowledge of the circumstances in which her sister went missing, or regarding the Garda investigation into her sister's disappearance. Under the circumstances, I see no positive public interest to be served by the placing of the withheld third party information into the public domain. I thus find the withheld details in record 6 to have been withheld in accordance with section 28 of the FOI Act.

I also agree that the withheld portions of records 43 and 44 do not pertain to the Garda investigation into the disappearance of the Applicant's sister. I thus find them to be outside the scope of the request in the first place.

Record 2

Garda Witness Statements & section 23(1)(a)(i)

The file record of Mr Garvey's further telephone conversation with the Applicant of 23 October 2009 notes that while, at that stage, the Department had not provided this Office with any of the records comprising record 2 (which I understand was due to the Department's concerns over the sensitivity of the records) he would seek copies of the Garda witness statements therein and consider whether or not they should be released. (The remaining witness statements were not sought as Mr Garvey was of the view that these had been eliminated from the scope of the review.)

When the case was assigned to Ms Moran, she sought additional details from the Department on the impact of release of these records, in light of its previous contention that the case into the disappearance of the Applicant's sister remained open and was under ongoing consideration by An Garda Síochána. The Department responded that it was unable to make any informed submission on the matter due to its lack of involvement in the investigation, prosecution or trial of alleged offences. Thus, Ms Moran sought the views of An Garda Síochána in this regard.

The Garda Commissioner's Office responded that, arising from a review of the original Garda investigation by members of the Garda Serious Crime Review team, "the disappearance of [the applicant's sister] still remains the subject of an ongoing Garda Investigation." It stated that "all statements taken during the course of the Garda investigation could form an integral part of a prosecution at some future time" and that, while new statements may have been taken, "this does not take away from or devalue the original statements taken by the original investigating team. All statements taken must be available to a Court in any future proceedings and in this regard carry equal weight from an evidential perspective."

On 12 August 2010, Ms Moran outlined her view to the applicant that, if further information were to come to light regarding her sister's disappearance, details of what the investigating Gardaí had done or observed at particular times could be used by individuals to avoid initial detection or to present themselves in the best possible light in any statements they might duly make to the Gardaí. She said she considered that, accordingly, any further Garda investigation could be hampered by the public knowledge of the details in the records at issue, as could future arrests and/or prosecutions. Ms Moran also said that, while she appreciated that the Applicant might question whether or not there would ever be any arrests or prosecutions given the lack thereof since her sister's disappearance in [details of year withheld], she had noted at least two cases in recent years where more than 20 years had elapsed between a crime being committed and the prosecution of a guilty party.

Ms Moran said it was for these reasons that she considered section 23(1)(a)(i) of the FOI Act to be applicable to the Garda witness statements. This section provides for the refusal of a request for a record where release thereof could "reasonably be expected to prejudice or impair 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 the matters aforesaid".

Ms Moran also outlined the circumstances in which the public interest is required to be considered in respect of a record found to be exempt under section 23(1)(a). She advised the Applicant that she considered none of those circumstances applied to the records at issue, and that, accordingly, there were no grounds to consider the public interest in the release of the records. Ms Moran also said, that even if consideration of the public interest was required, she would consider the public interest in preventing the disclosure of any details that could enable individuals to escape suspicion - or eventual prosecution - for any crimes committed to outweigh the public interests in ensuring the accountability of An Garda Síochána for all actions taken in its investigations and in placing as much information as possible into the public domain about a missing person that could cause others to recollect details that might help find the missing person.

However, in a subsequent telephone conversation with Ms Moran of 17 August, the applicant said that she and her family had been verbally told by the Gardaí that foul play was now not suspected in the disappearance of her sister. Ms Moran sought further views from An Garda Síochána in the light of this.

The Garda Commissioner's Office responded that while "neither the original investigation into the disappearance of [the Applicant's sister], or (sic) the review of the investigation has (sic) to date disclosed any evidence of criminality, at no time was it intimated to the ... family by investigation/liaison personnel that foul play has been ruled out of this investigation." It went on to state that "[g]iven that the body of [the Applicant's sister] has not, to date, been located the investigation remains open and in such circumstances the issue of foul play cannot be ruled out." In her letter of 26 August 2010, Ms Moran advised the applicant of the Gardaí's response, and said that, accordingly, she had no grounds to change her view that the records were exempt from release under section 23(1)(a)(i) of the FOI Act.

The Applicant, in an email of 19 September 2010, put forward a number of arguments as to why the records should be released. However, it seems to me that these were more in the nature of public interest-based arguments rather than arguments as to why the Garda investigation, or the potential apprehension or prosecution of offenders, could not be prejudiced by the release of the statements at issue.

As noted already in this decision, release of details under FOI is equivalent to placing the details in the public domain. Generally speaking, it seems to me that the release of the details of Garda witness statements to the world at large in the course of an open Garda investigation would be likely to increase the chance of statements being made deliberately by other individuals to divert attention from particular routes of enquiry that the Gardaí might otherwise have taken. I note that the Applicant's family claim to have been told that foul play has been ruled out, in which case one would question the likelihood that any further investigation would be needed, or that any prosecutions would need to be taken, particularly when 22 years have lapsed since the disappearance of the Applicant's sister. However, given that the Garda Commissioner's Office has stated to this Office that foul play in this case has not been ruled out and that the investigation remains open, I consider that I have no basis on which to make any finding other than one in accordance with Ms Moran's views as to the application of section 23(1)(a)(i) to the Garda statements concerned.

I also accept Ms Moran's view that there are no grounds for me to consider the public interest in the release of the statements concerned. In this regard, while I accept that the applicant has taken issue with how an Garda Síochána conducted the investigation into her sister's disappearance, I can only reiterate that it is not within the remit of this Office to make any finding in this regard, or to base any direction as to the release of the records on this issue.

Civilian Witness Statements & section 23(1)(a)(i)

In her letter to the Applicant of 12 August 2010, Ms Moran set out the reasons why she considered section 23(1)(a)(i) of the FOI Act to apply to the Garda witness statements,. She also said that she considered any other witness statements gathered in the course of the Garda investigation into the applicant's sister's disappearance to be similarly exempt. I agree with her views in this regard.

In her further letter to the Applicant of 20 September 2010, Ms Moran said that she further considered it reasonable to expect that potential witnesses would be reluctant to give information to the Gardaí due to fears that their statements might be released under the FOI Act, without restriction upon further use as she understood to be the case in criminal proceedings, thus attracting unwarranted attention from persons accused of crimes or from other parties. It seems to me that this consideration is particularly relevant when the records at issue pertain to an open Garda investigation in which no decision has been made to prosecute any individual. I agree with Ms Moran's view that an unwillingness on the part of witnesses to give all relevant information to the Gardaí could reasonably be expected to prejudice the latter's ability to investigate offences, and in turn, to prejudice the apprehension or prosecution of offenders.

Thus, I agree with her views that section 23(1)(a)(i) applies to the civilian witness statements, and I find accordingly. I also consider that there are no grounds for me to consider the public interest in the release of these records.

In the light of the above findings, I did not consider it necessary to examine copies of the civilian witness statements.

Finally, given my findings as set out above in relation to records 2, 6, 43 and 44, it is not necessary for me to consider the relevance of the other provisions of the FOI Act relied on by the Department.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the Department's decision to refuse to release the various witness statements comprising record 2, and its refusal to release the remainder of records 6, 43 and 44. In respect of records 2 and 6, I find the details concerned to be exempt from release under sections 23(1)(a)(i) and 28(1) of the FOI Act, while I find the remainder of records 43 and 44 to be outside the scope of the request.

Right of Appeal

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

Elizabeth Dolan

Senior Investigator

29 September 2010