Whether the Department was justified in deciding to refuse access to records relating to interception of communications.

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

Background

On 13 May 2011, the applicant made a request to the Department for records from 2001 onwards relating to either (a) the lawful interception of communications, or (b) legislative measures intended to address the unlawful interception of communications, to include ten items listed by the applcant. The applicant specifically excluded records which related only to individual authorisations to intercept and records which relate only to data retention from the scope of his request. For ease of reference, I will refer to the listed items as items 1-10, in the order in which they are listed in the original request. No decision issued from the Department and the applicant made an internal review request on 20 June 2011. The Department failed to issue an internal review decision within the required timeframe and the applicant submitted an application for review to this Office on 14 July 2011. As the review comes to this Office on the basis of a deemed refusal, no fee is payable to this Office. At the request of this Office, the Department issued an effective decision on 22 August 2011, in which it refused access to records, apart from granting access to a redacted version of one record i.e. the March 2011 Ministerial briefing note which was one of the items specified in the request. The request was refused by the Department on the basis of Sections 10(1)(a), 20, 23, 24 and 32 of the FOI Act.

The Investigator in this Office who dealt with the review advised the parties of her preliminary views in the matter by letter of 26 June 2013. Responses were received from the Department and the applicant. I have decided to bring this review to a conclusion by issuing a binding decision. In conducting this review, I have had regard to the submissions of the applicant, to the submissions of the Department, to the provisions of the FOI Acts, and to the content of the records.

Scope of the Review

The scope of the review relates solely to whether the decision of the Department to refuse the request was justified under the FOI Act. Records or parts of records to which the Department has granted access, either in response to the original request or during the course of the review are no longer within the scope of the review and will not be dealt with in this decision.

Preliminary Matters

Section 43(3) of the FOI Act requires the Information Commissioner to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record.

Section 34(12)(b) of the FOI Act provides that a decision to refuse a request "shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified."

Section 13 of the FOI Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. However, the Commissioner takes the view that neither the definition of a record nor the provisions of section 13 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent. In the circumstances of this review, given the large volume of records and the nature of those records, I do not consider it practicable to deal with the application of the exemptions claimed to particular lines of records or to direct the release small parts of otherwise exempt records.

The applicant also drew this Office's attention to a recent judgment in the European Court of Human Rights - Youth Initiative for Human Rights v Serbia, Application 48135/06 - Judgment of 25 June 2013. According to the applicant, this highlighted a very significant public interest in oversight of secret surveillance methods. I have examined this judgment and I do not see that it has any particular implications for this review.

Analysis and Findings

In its effective decision, the Department refused access to records on the basis of Section 32 of the FOI Act, in that Section 12 of the Interception of Postal Packets and Telecommunications Messages (Regulation) Act, 1993 (1993 Act) applied to some of the records sought.

Section 32 provides that a public body shall refuse to grant a request if (a) the disclosure of the record concerned is prohibited by any enactment (other than a provision specified in column (3) of the Third Scheduleof an enactment specified in that Schedule), or (b) the non-disclosure of the record is authorised by any such enactment in certain circumstances and the case is one in which the head would, pursuant to the enactment, refuse to disclose the record. In her preliminary views, the Investigator set out her view that Section 12 of the 1993 Act is quite specific and is intended to apply only to specific records as specified in this section of the Act. The Investigator's view was that it does not seem to be the case that Section 12 of the 1993 Act is intended to relate to any records relating more generally to this piece of legislation, and that the requested records were not ones to which the 1993 Act applied and, therefore, Section 32 of the FOI Act could not apply. I agree with the Investigator's view in this regard and find accordingly.

This Office asked the Department to advise if there were records relevant to the request, which are not covered by Section 12 of the 1993 Act, and indicate what exemptions, if any, the Department considered applied to such records. The Department was also asked to address some of the specific items listed in the request which had not been addressed by the Department in the effective decision. The Department responded that almost 900 individual records had been identified as relevant to the request, across a number of divisions. Of these, over 600 are held by Security and Northern Ireland Division (SNID), with the remainder held by Criminal Law Reform Division(CLRD) and Civil Law Division (CLD).

Records held by Security and Northern Ireland Division

In the case of the 600 SNID records, a detailed schedule was provided to this Office for the purposes of the review. In the particular circumstances of this review and having examined the schedule, I am satisfied that it is not appropriate to provide a copy of the schedule to the applicant, nor is it appropriate that a detailed description of the records be provided in this decision. The reason for this is that I consider there is a significant risk of a breach of the provisions of Section 43(3). For the purposes of this decision, I will describe categories of records held by SNID, as follows:

Category A : Briefing Material for An Taoiseach, incoming Ministers and senior officials, covering the main legislative provisions and the relevant process required to implement the legislation.

Category B: Legislative matters - correspondence and legal advice

Category C: Administration of the legislation, including

(a) memos for Government and correspondence on the appointment of persons as required by the 1993 Act
(i) designation of a judge of the High Court under section 8 of the 1993 Act
(ii) appointment of a Complaints Referee under Section 9 of the Act
(iii) appointment of officers under section 6(4) of 1993 Act
(b) documents concerning Alteration of Name of Department & Title of Minister Order, 2011 (SI 138 of 2011) and Authorisation of Certain Interceptions Order, 2012 (SI 76 of 2012)
(c)Material relating to directions under s.110 of the Postal and Telecommunications Services Act, 1983,as amended

Category D: Expenditure - material relating to financial matters connected to the administration of the 1993 Act.

Category E: correspondence from and responses to public representatives

Category F: parliamentary questions and replies

On more detailed examination of the records held, it emerged that there were no records relevant to this review which fell within Category E. The Department granted access to the very small number of Category F records.

The Department claimed that Sections 19, 20(1), 21(1), 22(1)(a), 23(1), 24(1), 24(2), 26, 27, 28 and 46 of the FOI Act applied to protect records held by SNID from release. These records are relevant to items 1 and 2 on the applicant's list.

Section 46(1)(b) provides that the Act does not apply to a record held or created by the Office of the Attorney General other than a record concerning the general administration of that Office. As the Chief State Solicitor's Office (CSSO) and the Office of the Parliamentary Counsel (OPC) are constituent parts of the Office of the Attorney General, Section 46(1)(a) also applies to any records created by these Offices. I am satisfied that there are records created by the Office of the Attorney General, which do not relate to the general administration of that Office. I find that Section 46(1)(b) applies to those records created by the Offices of the Attorney General, the CSSO and the OPC.

Section 22(1)(a) provides that : "A head shall refuse to grant a request under section 7 if the record concerned ­ (a) would be exempt from production in proceedings in a court on the ground of legal professional privilege,"

Unlike several other of the exemptions in the FOI Act, the provision at section 22(1)(a) does not provide for the setting aside of that exemption where to do so would serve the public interest. Legal professional privilege enables the client to maintain the confidentiality of two types of communication:
communications made between a client and professional legal adviser for the purpose of obtaining and/or giving legal advice; and
communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated or pending litigation.

In considering whether particular records would be exempt from production in a court, I have to bear in mind that legal professional privilege resides with the client and ignore the likelihood or otherwise of court proceedings taking place. The question comes down to whether the client would succeed in withholding the document on the ground of legal professional privilege in court proceedings. The Department has made no argument that the dominant purpose in preparing these records was the preparation for litigation and I do not find that the second limb of legal professional privilege would apply to the records at issue. I understand that the first limb of the rule of legal professional covers confidential communications between lawyer and client (which would include the seeking and giving of legal advice). This Office has examined the records in the context of whether they constitute confidential communications between professional legal advisers and their clients giving or seeking legal advice.

The records identified include records which are communications between a client (the Department) and its legal advisor for the purpose of obtaining legal advice and therefore the first limb of legal professional privilege is satisfied. The records identified also include internal documents which disclose legal advice received by the Department from its legal advisors and as such satisfy the criteria for legal professional privilege. I find that Section 22(1)(a) applies to those records which meet the relevant conditions.

The Department claimed that Sections 24(1)(a), 24(2)(a)(i) and 24(2)(a)(ii)(II) apply to various records identified.

Section 24(1)(a) provides that:

"A head may refuse to grant a request.... if, in the opinion of the head, access to it could reasonably be expected to affect adversely-
(a) the security of the State"

For the exemption to apply, the decision maker must first of all identify the particular adverse affect on the security of the State and then consider the reasonableness of any expectation that such an adverse affect would occur. For the public body to succeed in its arguments, I have to be satisfied that granting access to the records, in respect of which the exemption is claimed, could reasonably be expected to have the adverse affect so identified. I do not have to be satisfied that such an outcome will definitely occur. It is sufficient for the public body to show that it expects such an outcome and that its expectations are reasonable in the sense that there are adequate grounds for them.

Given the nature of the records at issue, I am satisfied that the Department, in its submissions to this Office, has met the requirements for the exemption in Section 24(1)(a) to apply, in that it has identified the particular adverse affect and the expectation that such an affect will occur. In his response to the Investigator's preliminary views, the applicant pointed to the lack of a description of the records, and the particular adverse affect or the reasonableness of the expectation that it would occur not being addressed. As set out above, this Office is required by Section 43(3) to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. Given the particular exemption under consideration here, I am satisfied that it would not be appropriate to set out in detail a description of the records or of the potential consequences of the release of the records. To do so could have the affect of jeopardising the very thing, i.e. security of the State, which the exemption is designed to protect.

Section 24(2) provides that:

"A head shall refuse to grant a request under section 7 if the record concerned-
(a) contains information-
(i) that was obtained or prepared for the purpose of intelligence in respect of the security or defence of the State, or
(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) ...''.

Unlike other exemptions in the Act which require the public body to identify a particular harm which might be occasioned by the release of the information concerned, this exemption does not require the public body to identify a particular harm which might be occasioned by the disclosure of the information. Exemptions such as this one are described as class exemptions whereby the information must be withheld once it falls within the parameters of the exemption provision regardless of the outcome of any consideration of the harm that may or may not be occasioned by its release.

I am satisfied that the information in the records for which the exemptions in Section 24(2)(a) have been claimed is information which falls within the parameters of the exemption and therefore, access must be refused.

Having considered the submissions of the Department and the applicant and this Office's examination of the relevant records, I find that the exemptions provided for in Section 24(1)(a), 24(2)(a)(i) and 24(2)(a)(ii)(II) are justified in relation to those records for which it has been claimed.

I find that all of the records in Categories A, B, C(a)(iii), C(b), C(c) and D are exempt from release on the basis that Sections 46(1)(b), 22(1)(a), 24(1)(a), 24(2)(a)(i) and 24(2)(a)(ii)(II) apply.

Category C(a)(i) and (ii)
The Department originally claimed that various sections of the FOI Act, as above, applied to these records. During the course of the review, the Investigator indicated to the Department that she was not satisfied that Section 20(1) could apply to these records and the Department agreed to review its position. As a result of this, the Department agreed to release or part release many, but not all records, in these two sub-categories. The Department continues to claim that Sections 19(1), 23(1)(a)(iii) and 24(1)(a) apply to those records in these categories not released and remaining within the scope of the review.

Section 19(1)(a) provides that a record shall be not be released pursuant to an FOI request where the record has been, or is proposed to be, submitted to the Government for their consideration by a Minister of the Government or the Attorney General and was created for that purpose.

Section 19(1)(b) provides that a record shall not be released pursuant to an FOI request where it is a record of the Government other than a record by which a decision of the Government is published to the general public by or on behalf of the Government.

Section 19(1)(c) provides that a record shall not be released where the record contains information (including advice) for a member of the Government for use for the purpose of the transaction of any business of the Government at a meeting of the Government.

Section 19(3)(a) provides for the release of factual information that is contained in a record to which section 19(1) applies, "if and in so far as it contains factual information relating to a decision of the Government that has been published to the general public".

I am satisfied that those records, to which the Department has claimed that Sections 19(1)(a), 19(1)(b) and 19(1)(c) apply, are records to which the provisions of these sections apply and that Section 19(3)(a) does not apply to any of these records. I find accordingly.

Section 23(1)(a)(iii) provides that a request may be refused if it is considered that access to the record sought could "... reasonably be expected to prejudice or impair lawful methods, systems, plans or procedures for ensuring the safety of the public and the safety or security of persons and property".

This section is not directly concerned with protecting against the disclosure of information which could be prejudicial to the safety of the public or the safety or security of persons and property. Rather, it is concerned with the protection of lawful methods, systems, plans or procedures for ensuring the safety of the public or the safety or security of persons and property. Accordingly, the Commissioner, whilst expressing no opinion on its appropriateness or efficiency, has always accepted that the Department operates a policy of not disclosing the names of officials working in certain areas and that the purpose of such a policy is to ensure the safety and security of its officials. Consistent with previous decisions taken by the Commissioner regarding the Department's policy of not disclosing names of officials working in certain areas, I am satisfied that the disclosure of the identities of the officials in this case could reasonably be expected to prejudice or impair that policy or system. I find that section 23(1)(a)(iii) applies to the names/signatures/initials of the officials in these records.

Section 23(1)(a)(iii) is subject to section 23(3) which provides that consideration must be given to the possibility that the public interest would be better served by the release of the information, rather than by the record being withheld, in the event that one of three conditions is fulfilled. I am satisfied that none of the three conditions is relevant to the information at issue in this case.

I find that Sections 19(1), 23(1)(a)(iii) and 24(1)(a) apply to those records and parts of records in Category C(a)(i) and C(a)(ii) within the scope of the review and they should not be released.

As I have found that all the relevant records held by SNID are covered by the exemptions addressed above, it is not necessary for me to deal with the other exemptions claimed by the Department for these records.

Records held by Criminal Law Reform Division

One record was identified as relevant "the Cybercrime Bill" (item 3), "the Council of Europe Convention on Cybercrime" (item 5) and "the Framework Decision on Attacks Against Information Systems" (item 6). Access to this record was refused on the basis of sections 19(1) and 20(1) of the FOI Act. As this record is a record which was prepared for the purpose of submission to Government, I am satisfied that Section 19(1)(a) applies and, that 19(3)(a) does not apply and this record should not be released. I find accordingly.

This Division also refused access to "records which discuss the effect of the Court of Criminal Appeal decisions in DPP v Dillon [2002] 4 IR 501 and DPP v Glen Geasley [2009] IECCA 22" (item 9) on the grounds of Section 10(1)(a) of the FOI Act.

Section 10(1)(a) provides that access to a record may be refused if "the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken". In cases such as this, the role of the Commissioner is to decide whether the decision maker has had regard to all the relevant evidence and to assess the adequacy of the searches conducted by the public body in looking for relevant records. The evidence in "search" cases generally consists of the steps actually taken to search for the records along with miscellaneous other information about the records management practices of the public body insofar as those practices relate to the records in question. On the basis of the information provided, the Commissioner forms a view as to whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found. It is not normally the Commissioner's function to search for records.

Based on the information provided by the Department regarding the efforts made to search for relevant records, which included searches of electronic databases and checking with relevant officials who would deal with such matters, I am satisfied that reasonable steps have been taken by the Department to search for any relevant records which may exist and that Section 10(1)(a) of the FOI Act applies to any records relating to these two cases which in the applicant's view should exist. I find accordingly.

One of the items which did not appear to be addressed in the Department's effective decision is item 8 - "the Criminal Justice (Mutual Assistance ) Bill 2005/Criminal Justice (Mutual Assistance) Act 2008." When this was raised with the Department, following an examination of files, approx. 175 records were identified as relevant. The Department claimed that various exemptions {Sections 19(1)(a), 20(1), 22(1)(a), 23(1)(a)(i), 24(2)(e), 26(1)(a), 46(1)(b) and 46(2)} provided for in the FOI Act applied to these records. The Department has accepted this Office's preliminary view that, for those records for which only Section 20(1) or Section 26(1)(a) had been claimed, the exemption was not justified and has released these records to the applicant. The Department also agreed to release the three records for which only Section 24(2)(e) had been claimed. These records which have been released are not now within the scope of this decision.

I am satisfied that Section 46(1)(b) applies to those records for which it has been claimed by the Department. The Department has provided this Office with the relevant evidence to show that these records were created by the Office of the Attorney General. The FOI Act does not apply to records covered by section 46(1)(b). I find accordingly.

The Department has claimed that Section 46(2) applies to some of these records. Section 46(2) provides that the FOI Act does not apply to a record, or copy of a record, which is already publicly available. As the applicant has been notified of the records for which this has been claimed, I am satisfied that Section 46(2) applies to these records and I find accordingly.

I am satisfied that Section 19(1)(a) applies to those records for which it has been claimed by the Department and I find accordingly.

I am satisfied that Section 22(1)(a) applies to those records for which it has been claimed and I find accordingly.

The Department claimed that Section 23(1)(a)(i) applied to about 10 records. These records are also held by SNID and dealt with above and found to be exempt. As I have already found these records to be exempt, I do not need to address the application of Section 23(1)(a)(i) to them.

Records held by Civil Law Reform Division
The other item not addressed in the effective decision on 22 August 2011 was item 4 "the Privacy Bill 2006". Civil Law Reform division examined its files for relevant records and provided this Office with a list of the files examined. No relevant records were identified and the Department has claimed that Section 10(1)(a) applies to this part of the request. The provisions and approach to Section 10(1)(a) are set out above. In this instance, having examined the information provided by the Department, I am satisfied that reasonable steps have been taken to search for records which may exist and none have been found. I find that Section 10(1)(a) applies.

Decision

Having carried out a review under Section 34(2) of the FOI Act, I hereby vary the decision of the Department and find that Sections 10(1)(a), 19(1), 22(1)(a), 23(1)(a)(i), 23(1)(a)(iii), 24(1)(a), 24(2)(a)(i) and 24(2)(a)(ii)(II), 46(1)(b) and 46(2) apply to the records or parts of records within the scope of the review and these records should not be released.

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. Any such 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.

Sean Garvey
Senior Investigator