Whether the Department was justified in its decision to refuse to release a letter from the designated judge to the Taoiseach under section 8 of the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993

Conducted in accordance with the FOI Act, by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

The applicant submitted a request to the Department on 11 February 2015 for all communications or reports from the Designated Judge to the Taoiseach under section 8 of the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993 other than annual reports under section 8(2)(a), and all reports from the Complaints Referee to the Taoiseach under section 9.

In its decision dated 10 March 2015, the Department refused access to the one record it identified as coming within the scope of the request under sections 32(1)(a) and 33(1)(a) (referring to law enforcement and public safety, and security, defence and international relations, respectively) of the FOI Act. The Department did not give any reasons for its decision.

The applicant sought an internal review of that decision and in its internal review decision dated 7 April 2015, the Department upheld its original decision to refuse access to the record. It again neglected to give reasons for its decision notwithstanding the fact that the applicant had drawn the Department's attention to this omission in his application for internal review. The applicant applied to this Office for a review of the Department's decision on 27 April 2015.

Following acceptance of the application for review, Ms Elizabeth Dolan, Senior Investigator, issued a letter under section 23(1) of the FOI Act to the Secretary General of the Department, requiring the Department to furnish a written statement of its reasons for refusal, identifying the relevant provisions of the Act and any findings on any material issues relevant to the decision and particulars of any matter relating to the public interest taken into consideration for the purposes of the decision. In addition, Mr. Christopher Campbell of this Office wrote to the Department inviting a focused submission on the matter.

As the Department has now delivered to this Office both its submission and its response to the section 23 letter, I consider that this review should now be brought to a close by the issue of a formal binding decision. In conducting this review I have had regard to the decisions of the Department on this request and its submissions to this Office, to the communications of the applicant with the Department and this Office and to the record at issue.

Scope

This review is concerned solely with the question of whether the Department was justified in refusing access to the record it identified as coming within the scope of the applicant's request under sections 32(1)(a) and 33(1)(a) of the FOI Act.

Analysis and Findings

Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant an FOI 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. This means that the onus is on the Department to satisfy this Office that its decision to withhold the record at issue was justified.

The Department argues that the record at issue is exempt from release under subsections (i), (ii) and (iii) of section 32(1)(a) of the FOI Act. Section 32(1)(a) provides that a public body may refuse to grant a request if it considers that access to the record concerned could reasonably be expected to prejudice or impair

(i) the prevention, detection or investigation of offences, the apprehension or prosecution of offenders or the effectiveness or lawful methods, systems, plans or procedures employed for the purposes of the matters aforesaid
(ii) the enforcement of, compliance with or administration of any law; or
(iii) lawful methods, systems, plans or procedures for ensuring the safety of the public and the safety or security of persons and property.

The Department further argues that section 33(1)(a) applies. That section provides that a public body may refuse to grant a request if it considers that access to the record concerned could reasonably be expected to affect adversely the security of the State.

In arriving at a decision to claim exemption under the sections identified by the Department, a decision maker must identify the potential harm to the specified matters covered by the exemption that might arise from disclosure of the record and, having identified that harm, consider the reasonableness of any expectation that the harm will occur. For the public body to succeed in its arguments, I have to be satisfied that granting access to the record could reasonably be expected to give rise the harm 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 of the harm arising are reasonable.

While section 8 of the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993 has since been amended by the Communications (Retention of Data) Act 2011, at the time of the creation of the record at issue the section provided that a designated High Court judge would undertake the duties specified in the section and in section 67 of the Criminal Justice (Terrorist Offences) Act 2005. The designated judge had the duty of keeping the operation of the Acts under review, to ascertain whether the provisions of the Acts were being complied with and to report to the Taoiseach on these and on such other matters as the Judge considered appropriate.

The record at issue is a letter dated 14 December 2007 from Judge T.C. Smyth, the then designated Judge under section 8, that accompanied the 2007 Report of the Designated Judge to the Taoiseach on the operation of provisions of the Acts of 1993 and 2005. The Department states that the information contained in the record bears directly on the operational activities and interactions undertaken in respect of lawful interception and access to retained communications data and also on the practices and procedures in respect of those operational activities and interactions. It argues that the release of such information would be harmful to the effective deployment of those operational activities and seriously undermine their use and that maintaining a degree of secrecy with regard to these measures is considered essential in order to ensure, in so far as that may be done, that those against whom the measures are deployed are not enabled to take counter measures.

In essence, it appears that Department's argument is that the disclosure of the record would increase the possibility of counter measures being be taken to impair the effectiveness of the operational activities and interactions undertaken and the procedures employed to allow for lawful interception and access to retained communications data. Having examined the record at issue, I fail to see how this might be the case. The record contains the observations of the judge on a number of matters which could be described, at best, as very broadly related to operational activities and procedures that one would expect law enforcement agencies to use. It contains no specific information that might throw light on detailed procedures employed for lawful interception and access to retained communications data and that might, if disclosed, allow for counter measures to be taken as suggested by the Department.

Having reviewed the submissions of the Department in this case, I find that the Department has not satisfactorily explained how release of the record could be reasonably expected to give rise to any of the harms in sections 32(1)(a) or 33(1)(a). Therefore, in accordance with the provisions of Section 22(12)(b), I find that the decision of the Department to withhold the record under sections 32(1)(a) and 33(1)(a) of the Act was not justified.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby annul the decision of the Department and direct that the record requested be released to the applicant.

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 four weeks from the date on which notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator