Whether the Department was justified in deciding to refuse access to a record on the applicant's immigration file.

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

Background

This review relates to the applicant's original request of 17 May 2013 for a copy of his immigration file. In its original decision of 4 June 2013, the Department granted access to all but one record (Record no.15) on the basis of Sections 23(1)(a) and 26(1)(a) of the FOI Act. The applicant sought an internal review of the decision on 10 June 2013. In its internal review decision of 27 June 2013, the Department affirmed the original decision. The applicant applied to my Office for a review of the Department's decision on 10 July 2013.

The Investigator in my Office who dealt with the review advised the Department and An Garda Síochána (the Gardaí) of her preliminary views, by letter of 23 August 2013, that the exemptions claimed were not justified and the record should be released. As the Department remains of the view that its decision to refuse access was justified, 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, the response of the Gardaí, to the provisions of the FOI Acts, and to the content of the record at issue.

Scope of the Review

The scope of the review relates solely to whether the decision of the Department to refuse access to one record was justified under the FOI Act.

Preliminary Matters

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 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.

Analysis and Findings

Record 15 is described on the Department schedule as a "Garda report". It comprises a 2 page letter/report from An Garda Síochána and an attached email exchange between a Department official and another person. The Department refused access to the record in full on the basis of Section 23(1)(a)(viii) and Section 26(1)(a) of the FOI Act. The Department has informed my Office that the second party to the email exchange is a member of Garda National Immigration Bureau (GNIB) civilian staff, who reports to the Garda Commissioner and is paid from the Garda Vote. In its submissions, the Department has claimed that the identity of this GNIB staff member should not be released and that Sections 21(1)(b) and 23(1)(a)(iii) apply to this information. The response from the Gardaí to the Investigator's preliminary views stated that it had "no further submission to offer in respect of your preliminary views on the release of the record".

Section 23(1)(a)(viii)
Section 23(1)(a)(viii) provides that a public body may refuse access to a record if the head of the body considers that the granting of access to the record could reasonably be expected to prejudice or impair the security of any system of communications, whether internal or external, of the Garda Síochána. The points made in the Department's submissions do not specifically address, nor do they appear relevant to the application of Section 23(1)(a)(viii). In a previous decision, Case No: 99329 Mr. X and the Department of Justice, Equality and Law Reform, available on www.oic.gov.ie, one of my predecessors as Commissioner set out his view on the application of this exemption, as follows:

"While the Act does not define what is meant by a system of communications, I consider that the type of record that would be covered by the exemption in section 23(1)(a)(viii) is, for example, one that gives technical details of the location and/or type of equipment used by the Garda Síochána for their electronic communications or one that gives details of codes or waveband frequencies used in the transmission of communications. In the present case all that is being disclosed is the fact that reports are passed between different levels within the Garda Síochána and between the Garda Síochána and the Department. I consider that this represents an administrative practice rather than a system of communication as envisaged by the Act. Administrative practices of this nature are common in many public bodies and would be generally known to members of the public."

In that decision, he went on to say that:

"The Garda Síochána suggested in correspondence which the Department made available to me that the release of internal Garda reports on foot of FOI requests to the Department could have a detrimental effect on the manner in which such communications are carried out. It is not clear to me how any such detrimental effect represents prejudice to or impairment of the 'security' of the system. There can be little doubt but that many internal reports of the Garda Síochána are exempt from disclosure under the FOI Act. However, I am unable to accept that the release of a report which is not inherently sensitive and the contents of which have already been made known to the requester could reasonably be expected to prejudice or impair the security of the system of communications, whether internal or external, of the Garda Síochána".

Similarly in this case, the existence of and contents of record 15 have already been made known to the applicant. The Department has not identified any "system of communications" the security of which could be impaired by the release of this record. I am satisfied that the record at issue in this case is similar in nature to that dealt with in Case No: 99329 and I cannot see how the release of this record could have the effect envisaged in this exemption. I find that the refusal of access to the record on the basis of Section 23(1)(a)(viii) is not justified.

Section 26(1)(a)
Section 26(1)(a) provides that:
"Subject to the provisions of this section, a head shall refuse to grant a request under section 7 if-

(a) the record concerned contains information given to the public body concerned in confidence 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 could have 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,".

For section 26(1)(a) to apply, there are four separate requirements to be satisfied:

• that the information was given in confidence, and
• that the information was given on the understanding that it would be treated as confidential, and
• 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 persons in the future, and
• that it is of importance to the body that such further similar information should continue to be given to the body.

The approach adopted by my Office is that all four of these tests must be satisfied in order for a record to be considered exempt from release under this section of the FOI Act. Section 26(1)(a) is not a class based exemption which can be applied to all communications between An Garda Síochána and a public body. I accept that there may be circumstances in which the content of communications between the Gardaí and the Department would be such as to meet the tests for the application of 26(1)(a). However, it is not the case that Section 26(1)(a) necessarily applies to all records comprising communications between the Gardaí and the Department as a class. I note from the Department's most recent submission its position that it relies on the Garda authorities for information and as such has an obligation to keep Garda records protected. This is not the purpose of the exemption provided for in Section 26(1)(a).

The Department will be aware of my Office's approach in this regard from previous decisions to which the Department was a party, such as those of the previous Commissioner, Emily O'Reilly, in Case No. 070241 signed on 12 December 2007 and Case No. 070083 signed on 16 November 2007. The approach has also been set out in more recent decisions such as Case No. 090186 issued on 24 June 2013 and Case No. 100192 issued on 28 March 2013. The Gardaí have also been made aware of this Office's approach to Garda records in these cases and other cases where Garda records, held by other public bodies, are relevant to applications for review to this Office.

It seems to me that all of the information in the refused record is included in the other records (in particular records 1 and 14) which were released in response to the original FOI request. All of the released records are correspondence between the Department and the applicant or his representatives or family members. The applicant is aware of the existence of record 15, not only from the FOI request, but also as it is referred to in the other records. The applicant has been informed in the other records that the Garda authorities have provided the Department with the information which is contained in record 15. Given the particular circumstances of this case, where the information contained in record 15 has been conveyed to the applicant and he has been informed as to the source of the information, I cannot see how the first two tests for the application of Section 26(1)(a) can be said to be met.

I do not consider that it would be a breach of Section 43(3) of the FOI Act for me to describe record 15 as an application from the Gardaí for a Removal Order under Article 20 of the European Communities (Free Movement of Persons) Regulation 2006 (the Regulation) in respect of the applicant. The applicant has been informed by the Department in other records (particularly Record 1), which were released, as to the nature of record 15. In his reply to Parliamentary Question No. 160 of 13 March 2013, Minister for Justice and Equality Alan Shatter said that "Applications in accordance with Regulation 20 of the SI for the issuance of Removal Orders in respect of EU citizens are made in writing to my Department by An Garda Síochána".

The Regulation makes provision for the person the subject of a Removal Order request to be notified and to have the opportunity to make representations to the Department. I do not accept that the Gardaí would cease to make applications to the Minister for Removal Orders as a consequence of the release of this record under FOI. Therefore, I am satisfied that the third test for the application of Section 26(1)(a) is not met and therefore, I find that Section 26(1)(a) does not apply to the record.

Section 23(1)(a)(iii)
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, my predecessors as Commissioner, whilst expressing no opinion on its appropriateness or efficiency, have 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 Commissioners regarding the Department's policy of not disclosing names of officials working in certain areas, I am satisfied that the disclosure of the identity and contact details of the GNIB civilian staff member 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 name of the GNIB staff member, which appears twice in full and once as first name only.

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.

Decision

Having carried out a review under Section 34(2) of the FOI Act, I hereby vary decision of the Department and direct that record 15 be released, apart from the name of the GNIB civilian staff member to which I find Section 23(1)(a)(iii) applies.

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.

Peter Tyndall
Information Commissioner