Whether the Department's decision to refuse to grant access to the Garda report on the Phoenix Park concerts in July 2012 was justified under sections 23(1)(a)(iii) and 26(1)(a) of the FOI Act.

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

Background

In a request dated 4 August 2012, the applicant sought access, in pertinent part, to a copy of the Garda report to the Department on the Phoenix Park concerts in July 2012. In a decision dated 31 August 2012, the Department refused to grant access to the report under sections 23(1)(a)(iii) (law enforcement and public safety) and 26(1)(a) (information obtained in confidence) of the FOI Act. On or about 27 September 2012, the applicant requested an internal review of the Department's decision. In a belated decision dated 1 November 2012, the Department upheld its original decision in the matter. By letter dated 10 November 2012, the applicant applied to my Office for a review of the Department's decision.

I have now completed my review in accordance with section 34(2) of the FOI Act. In carrying out my review, I have examined the report at issue. I have also had regard to the submissions made by the Department and An Garda Síochána in support of the decision to refuse access to the report. In addition, I have had regard to the press release relating to the report that was issued by the Department on 2 August 2012, including the linked cover letter to the report, and the Review Document dated 6 September 2012 that was published by MCD Productions, the promotions company that organised the Phoenix Park concerts held in July 2012. I note that, following the Department's press release and in its review document, MCD publicly called for the Garda report to be published in full. In the circumstances, I did not consider it necessary to notify the company of the review in order to seek its views on the matter under section 34(8) of the FOI Act. However, the company will be notified of my decision in accordance with section 34(10) of the FOI Act.

Scope of the Review

During the course of the review, the applicant agreed to exclude the names of any MDC personnel and all mobile telephone numbers appearing in the report from the scope of the review. In the interests of public safety, he also agreed to exclude the bomb alert message that is contained in Appendix C of the report (i.e. the message in the Policing Plan in the event of bomb call). Accordingly, this review is concerned solely with the question of whether the Department's decision to refuse the applicant's request for access to the Garda report, apart from the names of any MDC personnel, the mobile telephone numbers, and the bomb alert message contained therein, was justified under the FOI Act.

Analysis and Findings

Section 34(12)(b) of the FOI Act provides that a decision to refuse to grant access to a record "shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified." It should also be noted that a review under section 34 of the FOI Act is de novo in that it is based on the circumstances and the law as they apply on the date of the decision. This approach was endorsed by the High Court judgment of Mr Justice Ó Caoimh in the case of Minister for Education and Science v Information Commissioner[2001] IEHC 116. In a more recent judgment, The National Maternity Hospital and The Information Commissioner [2007] 3 IR 643, [2007] IEHC 113, the High Court (Quirke J) explained: "The Commissioner was entitled to consider all of the material before her on the date on which she made her decision and to make her decision having regard to the circumstances which existed on [the date of her decision]".

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.

In its submission dated 7 May 2014, the Garda Síochána states:

"In order to carry out [its functions under the Garda Síochána Act 2005] successfully An Garda Síochána requires that some of its policing methodologies are not made public. This is to protect members of the public and members of An Garda Síochána. It is also imperative to allow for the proper policing of events in the face of possible civil disturbances. There are individuals and groups that promote, incite and engage (or plan to engage) in civil disturbances. Such groups/individuals engage in surveillance of Garda procedures and methodologies to discover perceived weaknesses and implement strategies to further their aims.

The report furnished to the Department of Justice and Equality discusses the intelligence led approach . . . in addition to deployment, numbers and duties of the public order unit. It also sets out the command structure and response times to incidents. An Garda Síochána has concerns that the release of the information, no matter how apparently innocuous, reduces that ability of An Garda Síochána to protect life and property at events such as this and to fulfil its objectives generally."

In a subsequent submission dated 20 May 2014, the Department highlights the concern expressed in the Garda submission that disclosure of information contained in the report, "no matter how apparently innocuous", could reduce the ability of An Garda Síochána to protect life and property.

The FOI Act does not exempt Garda reports to the Minister as a class. As the first Commissioner, the late Mr. Kevin Murphy, stated in Case Number 020481, Mr. X and the Department of Justice, Equality and Law Reform (27 February 2003), available at www.oic.gov.ie: "Section 23 of the FOI Act is a harm based exemption and cannot be applied to particular records simply as a result of their falling within a particular class of records." In my view, mere speculation regarding the dangers that might arise from the release of "apparently innocuous" information is not sufficient to establish the reasonable expectation of harm that is required.

Apart from referring vaguely to matters such as deployment and command structure, neither the Garda Síochána nor the Department has identified the policing procedures or methodologies that are considered to be at risk in this case. It has also not been explained how any harm could reasonably be expected to arise in the event of the release of the report. I recognise, of course, that the report provides details of the security and policing measures taken with respect to the events of 5-8 July 2012, especially 7 July 2012, but it has not been explained how any such measures could reasonably be expected to be prejudiced or impaired by the release of the report. The report itself indicates that the policing plan described was tailored to fit the particular events concerned. I therefore do not see, based on the information before me, how disclosure of the report could reasonably be expected to undermine any future operations.

I further note that it has not been disputed that much of the information referred to in the report is already in the public domain, at least in a general form. For instance, both the MCD review document and a Garda press release have given information on the number of Garda personnel deployed at the concerts. The MCD report also provides information regarding the Garda Policing Policy in effect at the time. While the Garda report provides more detailed information regarding such matters as the deployment of Garda personnel, it has not been shown how such information could be of any use to individuals or groups intent upon causing civil disturbances. I also note that the report does not appear to provide "response times to incidents" per se; rather, in relation, for instance, to three stabbing incidents, it is possible to discern the time between the report of the incidents and the arrest that was subsequently made.

Moreover, the report does not, in my view, provide any sensitive information regarding the "intelligence led approach" undertaken. For instance, the report does not provide details of any covert operations or anything else that could be regarded as special investigative techniques. One method for discerning the likely crowd demographic of the concert patrons is referred to, but the method is one that is widely used and, as no details are provided, I find no basis for concluding that its effectiveness or the integrity of the system used could be undermined by disclosure of the report. As the Investigator of this Office observed in correspondence to the Department and the Garda Síochána, the report would seem to describe routine methods, systems, plans or procedures that one would expect law enforcement agencies to use on a regular basis. What is meant by this is that the report does not appear to describe any unusual or unexpected policing methods for dealing with an "electric music" concert event. The methods and planning, particularly in relation to decisions on the deployment of personnel, were adapted to address the specific risks associated with each concert, but again, it has not been explained how disclosure of any of the information at issue could reasonably be expected to result in any harm to any law enforcement and public safety measures in future. In the circumstances, I am not satisfied that the claim for exemption under section 23(1)(a)(iii) is justified. For the sake of clarity, I note that it likewise has not been shown that the report qualifies for exemption under any of the other exemption provisions of section 23(1) of the FOI Act.

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 a public body 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, the following requirements must be met:

• that the information was given 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 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.

In addition, section 26(1)(a) does not apply if the public interest would, on balance, be better served by granting rather than by refusing to grant the request (section 26(3) refers).

In this case, I accept that based on the submissions made by the Department and the Garda Síochána and also the press release dated 2 August 2012 that the report was given to the Department in confidence and on the understanding that it would be treated as confidential. However, as the Investigator observed in her correspondence to the Department and the Garda Síochána, it not plausible that the release of the report would be likely to prejudice the giving of further similar information to the Department in future if it were important to the Department to have access to the such information. In their submissions made in response to the Investigator's correspondence, both the Department and the Gardaí acknowledge that section 41 of the Garda Síochána Act 2005 places a duty on the Garda Commissioner to provide information to the Minister for Justice and Equality. Moreover, both submissions made reference to section 41(4) of the Garda Síochána Act, which gives the Minister the discretion to publish all or part of a report submitted to him or her. In my view, section 41 of the Garda Síochána Act reflects the intent of the Oireachtas that Garda reports be given to the Minister as required without assurances of confidentiality attached.

It is to state the obvious to observe that the security measures taken at the concert held on 7 July 2012 did not prove adequate, for whatever reason or reasons. The published cover letter to the report acknowledges as much by noting that "the arrangements put in place for the concert were not sufficient to prevent the serious incidents of public disorder which took place". The "serious incidents" included multiple stabbings and the subsequent drug-related deaths of two concert-goers. That a Garda report would be required by the Minister in such circumstances is to be expected. As I have found above, no showing has been made that any harm to the Gardaí's law enforcement functions could reasonably be expected to arise from the release of the report. I therefore find no basis for concluding that the release of the report would be likely to have any deterrent effect on the supply to the Minister or the Department of similar such information in the future. In the circumstances, I do not accept that the third requirement of section 26(1)(a) has been met.

Conclusion
No other claims for exemption have been made by either the Department or the Garda Síochána in relation to the report at issue. I note that the report includes the names of certain Garda personnel and a brief amount of information about the artists who performed at the concerts, including references to the well publicised criminal record of one artist whose profile is known to have contributed to the level of risk associated with the concert held on 7 July 2012. However, having regard to the burden of proof under section 34(12)(b), I am not satisfied that this or any other information at issue in the report is exempt under any provision of the FOI Act. I conclude that the report should be released in full subject to the redaction of the details that the applicant has agreed to exclude from the scope of the review.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby annul the decision of the Department and direct the release of the report concerned apart from the names of any MDC personnel, the mobile telephone numbers, and the bomb alert message contained therein.

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 after notice of the decision was given to the person bringing the appeal.

Peter Tyndall
Information Commissioner