Whether the Department was justified in its decision to refuse access to records relating to phone taps on the basis that the records are exempt from release under sections 23(1), 24(1), 24(2) and 32(1) of the FOI Act.

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

Background

The applicant wrote to the Department on 17 August 2010 seeking "access to documents which state

• The number of applications by gardaí for the authorisation of phone taps on a yearly basis since April 21st 1997.
• The number of authorisations of phone taps that were granted by the different Ministers of Justice on a yearly basis since April 21st 1997.
• A breakdown of the type of phone taps used (e.g. device used, breakdown of taps applied to mobile phones as opposed to landlines)
• A breakdown of the alleged crimes which the phone taps relate to."

On 15 November 2010, the Department refused access to the records sought on the basis of section 32(1)(a) of the FOI Act and also relied on sections 23(2) and 24(3) in refusing to disclose whether records of this type existed. The applicant applied for an internal review of that decision on 30 November 2010. In its internal review decision of 31 December 2010, the Department upheld the original decision and relied on sections 23(1), 24(1) and 24(2) of the FOI Act as additional grounds for its decision to refuse the request.

The applicant wrote to this Office on 5 January 2011 seeking a review of the Department's decision.

On 7 July 2011 the applicant was informed of this Office's preliminary views on this case and she made a response on 20 July 2011. On 21 July 2011, and for the purposes of this review, the applicant narrowed the scope of the request and confined it to the first two parts of her original FOI request.

In conducting this review, I have had regard to the submissions of the Department as well as those of the applicant (including those she made to the Department). I have had regard also to additional information and clarification provided by the Department at the request of this Office as well as to the provisions of the FOI Act.

Scope of Review

The issue in this review is whether the Department is justified, by reference to sections 23(1), 24(1), 24(2) and 32(1) of the FOI Act, in refusing access to records which disclose the information identified in the first two parts of the applicant's FOI request dated 17 August 2010. The Department has decided that it should neither confirm nor deny the existence of any record which contains information of the kind sought by the applicant. In these circumstances, this review must proceed on the basis of the decision to be taken in the event that such records do exist. The outcome of this review, therefore, must not be taken as implying either that relevant records do, or do not, exist.

Analysis and Findings

The Department in its decisions refused the request on a number of separate grounds (sections 23, 24 and 32 of the FOI Act). In the event that any one of these grounds is found to apply, the records (if they exist) will be exempt from release irrespective of the application or otherwise of the other exemptions claimed.

Having reviewed the submissions from both parties, it is my view that section 24(2)(a)(ii)(II) is the provision of most likely relevance in this case. Section 24(2)(a)(ii)(II) provides as follows:

"A head shall refuse to grant a request under section 7 if the record concerned-

(a) contains information

[...]

(ii) that relates to-

(II) the detection, prevention, or suppression of activities calculated or tending to undermine the public order or the authority of the State (which expression has the same meaning as in section 2 of the Offences against the State Act, 1939) ...''.

Since the enactment of the Freedom of Information (Amendment) Act 2003, section 24(2)(a)(ii)(II) is a mandatory exemption; the only requirement is that the record contains information which relates to the activities specified in the provision. The provision is not subject to any public interest override.

In this case, the question is whether the numbers of authorisations for phone taps applied for, and of authorisations granted, relate to the detection, prevention, or suppression of activities calculated or tending to undermine the public order or the authority of the State. Both the Department and the applicant have made arguments on whether the provision of the information sought would, or would not, cause harm in the sense of undermining the detection of crime or of terrorist activities. But in the context of section 24(2)(a)(ii)(II) these arguments have no application as the provision does not involve any "harm" test. For the provision to apply, all that is necessary is that the information being sought "relates" to the detection, prevention or suppression of the particular activities mentioned in the provision. If this test is met, then the exemption applies whether or not release of the information would cause harm and, indeed, even whether or not one might believe that the information ought to be released in the public interest.

I find as a a matter of fact that the information being sought by the applicant does relate to the "detection, prevention, or suppression of activities calculated or tending to undermine the public order or the authority of the State (which expression has the same meaning as in section 2 of the Offences against the State Act, 1939) ...''. In the circumstances, I have no option other than to find that section 24(2)(a)(ii)(II) of the FOI Act applies. In the light of this finding, it is not necessary to consider the relevance of the other exemptions relied upon by the Department.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of the Department and find that the relevant records (if they exist) are exempt from release on the basis of section 24(2)(a)(ii)(II) of the FOI Act.

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.

Fintan Butler
Senior Investigator
29 August 2013