Whether the Department was justified in refusing to release the applicant's Parole Board file in full to him on the basis that a number of records contain the personal information relating to other parties

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

I should state at the outset that the manner in which the Department processed the applicant's request in this case was most unsatisfactory. Among other things, it has caused confusion as to the precise scope of the review in this case and it has also resulted in the Department failing to adhere to the statutory time-frames set out in the Act for processing FOI requests. Furthermore, the applicant was not fully informed of his entitlements under the Act. It would appear that the issues arose as a result of the Department's decision to essentially split the request and as a result of the manner in which it processed those separate parts of the request. While it may well have been more convenient for the Department to split the request in the manner it did, it was nevertheless incumbent upon the Department to ensure that the statutory provisions of the FOI Act were complied with when processing the request.

The applicant submitted a request to the Department on 30 January 2015 for a copy of his file held by the Irish Prison Service from 1997 to 2015 and for all records held by the Parole Board relating to him. The Department's copy of that request indicates that it was received on 4 February 2015. The Department clearly had concerns about the large volume of records captured by the applicant's request. Accordingly, it wrote to him on 11 February 2015 asking him to narrow the scope of his request in view of the large volume of records involved and stated that the time-frame for responding to the request was suspended until he reverted to the Department. It would appear that the decision to suspend the processing of the request related only to that part of the request relating to the records held by the Prisons Operations Division, although this is not entirely clear.

In the ordinary course, a public body must issue its decision on a request within four weeks of receipt. However, in accordance with section 14 of the Act, it also has discretion to extend the period for considering the request by an additional period not exceeding four weeks if it considers that the request relates to such number of records that compliance with the four week time-frame is not reasonably possible. The Act does not, however, provide that the body may suspend a review on the ground that the request covers a large volume of records. If the Department had concerns about its ability to process the request within four weeks, it could have extended the period for responding by a further four weeks and informed the applicant of that fact.

Under section 12(2), a public body is required to acknowledge receipt of the request within two weeks of receipt and the notification must include details of the provisions of section 19 and particulars of the rights of review under the Act. Section 19 provides that where a decision is not made within the prescribed time-frame, the request is deemed to have been refused. I note that a sample acknowledgement form containing the requisite details is available on the website of the Central Policy Unit of the Department of Public Expenditure and Reform, although I would add that the Department has been subject to the provisions of the FOI Acts for the past 17 years and it should be fully aware of its obligations and requirements when processing FOI requests. Nevertheless, the Department does not appear to have complied with the provisions of section 12(2) in this case. Had it done so, the applicant would have been made aware of his right to apply for an internal review on the ground of a deemed refusal when the deadline for issuing a decision had passed.

In response to the Department's letter of 11 February 2015, the applicant confirmed by letter dated 12 February 2015 that he was not seeking copies of P19s (disciplinary forms) or warrants relating to him, although it is unclear whether the Department received this letter.

On 17 February 2015, the Department wrote to the applicant to indicate that it had extended the period for issuing a decision by four weeks, in accordance with section 14 of the Act and that he could expect a response by 3 April 2015. Again, the letter does not state whether the extension was applied to one or both parts of the request. On 4 March 2015 the Department issued a decision in respect of the records held relating to the Parole Board and it again sought further information as to the records he was seeking from the file held by Prison Operations Division. The decision taken in respect of the Parole Board records was to release 27 records in full and 20 in part with certain information relating to third parties redacted.

In his application for internal review dated 16 March 2015, the applicant indicated that he wished to appeal the decision relating to the Parole Board records and he indicated in response to the letter of 11 February 2015 that he wanted to see what information the Department had on file. In a letter dated 24 March 2015, the Department stated that a decision would issue in relation to the Parole Board records on or before 16 April 2015. It also essentially indicated that the applicant's letter of 16 March 2015 provided clarification in relation to the records held by Prison Operations Division, that the previously imposed suspension had therefore been lifted, and that the applicant could expect a response in relation to the records by 23 April 2015, unless an extension of time was sought.

On 17 April 2015, the Department issued a decision upholding its original decision to withhold the information from the Parole Board records. The applicant applied to this Office for a review of that decision on 7 May 2015. Subsequently, on 11 June 2015, the Department issued a decision in respect of records held by Prisons Operations Directorate, some four months after the original request was made. Even then, that decision did not address all of the records held by the Department as it indicated the file from Wheatfield Prison would be processed as soon as it was received. The applicant was informed of his right to apply for an internal review of that decision.

In summary, therefore, while the applicant submitted a request on 4 February 2015, the Department issued the first part of its decision on 4 March 2015 and the second part on 11 June 2015 but even then, the second part acknowledged that not all records had been considered. This was an entirely unacceptable process that resulted in significant breaches of the time-frames set out in the Act. I expect the Department to review its processes to ensure that future FOI requests are processed in accordance with the provisions of the FOI Act.

For the purpose of clarity in this review, and in light of the fact that the Department eventually made a decision on the records held by the Prison Operations Directorate and invited the applicant to apply for an internal review of that decision if he was unhappy with it, this Office agreed to review the decision of the Department in respect of the Parole Board records only. I am satisfied that this was an appropriate course of action to take given that it remains open to the applicant to apply for an internal review of the Department's decision in respect of records held by Prisons Operations Directorate and ultimately to apply to this Office for a review of any such decision

In conducting this review, I have had regard to the correspondence between this Office and both the applicant and the Department, and to the correspondence between the applicant and the Department. In referring to the records at issue, I have adopted the numbering system used by the Department in the schedule of records it provided to the applicant.

Scope of Review

As I have explained above, the decision taken by the Department in respect of the Parole Board records was to release 27 records in full and 20 in part with certain information relating to third parties redacted. Having carefully examined the records provided to this Office for the purposes of this review, it appears that one further record (record No. 1) was also redacted.

Accordingly, this review is concerned solely with whether the Department was justified in refusing to grant only partial access to records numbered 1, 3, 4, 5, 8, 12, 14, 17, 18, 19, 20, 21, 27, 28, 29, 32, 34, 37, 40, 43 and 47.

Preliminary Matters

It is important to note that section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request under section 12 shall be presumed not to have been justified unless the head of the relevant FOI body shows to the Commissioner's satisfaction that its decision was justified. This means that the onus is on the Department of satisfying this Office that its decision to redact certain information from the records at issue was justified.

Analysis and Findings

Information relating to other prisoners:
The information redacted from records 1 (page 2), 14, 19, 20, 28, 29, 34 and 43 (page 16) comprises information relating to prisoners other than the applicant. I am satisfied that such information is personal information relating to those individuals. Records No. 20, 29, 34 and 43 also contain information relating to Department officials that has been withheld by the Department, and I will address this below. Section 37(1) of the FOI Act provides that a public body shall refuse a request where it considers that access to the record sought would involve the disclosure of personal information relating to parties other than the requester. I find that section 37(1) applies to the information redacted from the records in question that relates to other prisoners. The Act provides that section 37(1) may not apply in certain circumstances, including where the body considers that the public interest in granting the request outweighs, on balance, the public interest in upholding the privacy rights of the persons about whom the information relates. I am satisfied that no such circumstances arise in this case and that the public interest in releasing the information does not outweigh the public interest in protecting the relevant privacy rights. Accordingly, I find that the Department was justified in refusing access to the information relating to other prisoners.

Information relating to Departmental and/or prison officials:
Section 37(1)
The Department redacted information relating to certain officials from 17 records (Records No. 3, 4, 5, 8, 12, 17, 18, 20, 21, 27, 29, 32, 34, 37, 40 (pages 4 and 15), 43 (pages 6, 7, 11 and 16) and 47, under section 37(1) of the FOI Act, on the basis that it comprised the personal information of third parties. The information redacted from the 17 records at issue comprises the titles, names and contact details of various staff working in Mountjoy and Cork Prisons, the Directorate, the Probation Service, and the Parole Board, as well as details of the City of Dublin Vocational Education Committee Educational Service to Prisons (the CDVEC) and the Education Unit of Cork Prison.

Personal information is defined in section 2 of the Act as including information that would, in the ordinary course of events, be known only to the individual or members of the family, or friends of the individual. The definition also contains a list of twelve specific types of information, including information relating to the employment or employment history of an identifiable individual. However, where the individual in question holds or held a position as a member of staff of an FOI body, section 2 of the Act excludes from the definition of personal information the name of the individual or information relating to the position, as well as anything written by the individual in the course of and for the purpose of the performance of the functions of the FOI body. Accordingly, I do not accept that the information redacted from the records listed above comprises personal information relating to the individuals concerned, with the exception of the mobile telephone number of the senior clinical psychologist as contained in records 40 (page 15) and 43 (page 16). Accordingly, I find that section 37(1) applies to the mobile telephone number in question but that it does not apply to any of the remaining information that has been withheld.

Section 30(1)(b)
During the course of the review, Ms Murdiff of this Office invited the Department to make a submission in support of its decision to refuse access to the information at issue. It should be noted that section 37 was the only exemption cited by the Department in its decision letters and in the schedule of records accompanying those decisions. In its replying submission, however, the Department stated that it was seeking to rely upon the provisions of section 30(1)(b) and 32(1)(b) of the Act to refuse access to the names and contact details of staff working in the Directorate of the Irish Prison Service. Section 30(1)(b) provides that records may be exempt if their release could reasonably be expected to have a significant adverse effect on the FOI body's performance of its functions relating to management, including industrial relations and management of its staff. The Department has not explained how the release of the names and contact details of some of its staff could reasonably be expected to give rise to the harm identified in section 30(1)(b), other than to state that the Irish Prison Service has a responsibility to have procedures in place for ensuring, as far as possible, the safety and security of its property and its staff. Accordingly, having regard to the provisions of section 22(12)(b), I find that the Department has not justified its decision to withhold the information in question under section 30(1)(b) of the Act.

Section 32(1)(b)
While the Department cited section 31(1)(b) in its submission, it quoted section 32(1)(b). I am satisfied, that the Department sought to rely upon the provisions of section 32(1)(b). That section provides for the refusal of a request where release of the information sought could reasonably be expected to endanger the life or safety of any person. This is not a commonly used exemption, nor, in my view, is it an exemption that should be applied without careful consideration having been given to whether the expectation set out in the subsection is a reasonable one in all of the circumstances. I consider that the test to be met in regard to this exemption is such that it should only be invoked in circumstances of the most serious nature. What is required is an assessment of the expected consequences of releasing particular records in terms of endangering life or safety. It is not necessary or indeed possible to establish that such harm will occur but that there is reasonable expectation of this.

I am satisfied that my consideration of this exemption must be concerned only with whether or not the expectation of endangerment to life or safety to persons is reasonable. I am also of the view that, in order for the exemption to be upheld, it should be possible to clearly link the expectation of serious harm arising to the content and context of the records.

In essence, the Department's argument is that release of the details of staff working in certain areas in the Prison Service would pose a security threat to the staff in question. It states that release of the information could be expected to lead to threatening and/or abusive phone calls or emails. It also argues that staff in the Directorate who are decision makers or decision processors on requests for temporary release, etc., could be targeted by prisoners upon release, and/or intimidated or pressured to make different decisions. Therefore, the Department contends that release of the information could reasonably be expected to endanger the life or safety of the third parties in question. However, in my view, it has not shown in the circumstances of this case, and having regard to the contents of these particular records, how this would occur.

I can see nothing in Records 5, 8, 18 and 21 which would justify refusing access to the names of the staff in the Directorate - these records are merely requests for Prison Review Committee (PRC) reports for the Parole Board relating to the applicant. I also note that the reports supplied as a result of the requests are mostly factual and the comments generally positive. Furthermore, while the names redacted from records 5, 8, 18 and 21 are those of specific staff working in the relevant section, the PRC reports are compiled by a committee which includes prison management, probation officers, the chaplain, the education service as well as representatives of the Directorate. It is not the case that the single named person from the Directorate made a recommendation to the Parole Board in relation to the applicant. I also note that the 2013 PRC report released to the applicant contains the name of the chair of the Committee which was released unredacted.

Furthermore, while the Department has not referred specifically to the reports supplied by the psychiatrists based in Mountjoy Prison, I note that it has redacted their names from some of the records at issue. Having examined the psychiatric reports in detail, I see nothing which would justify refusing access to the names of the staff involved. Even if I had, the Department has released other records in this case which clearly refer to the psychologist who prepared the reports in question. Furthermore, I note from the requests for reports to the various sections of the Department that these reports have been disclosed to the applicant and he has had an opportunity to comment on them before the Parole Board made its final decision on each occasion.

Accordingly, I do not consider that the Department has established that there is reasonable expectation of the life or safety of staff being endangered if the information in these particular records is released.

Furthermore, the redaction of this information from the records has not been consistent. The names of psychiatrists and officials working in Mountjoy Prison, Probation Officers and members of the Parole Board have been redacted from some records and not from others released to the applicant. Some examples of this are set out below:

The names of Parole Board Members were redacted from Record No. 14 but released in Record No. 15. I note that the names of the Parole Board Members are published in the Parole Board's Annual Report, available on the Department's own website www.justice.ie.
The signature and title of the Deputy Governor of Mountjoy Prison was redacted from Record 27, but released unredacted on Page 3 of Record No. 40.
The name and title of a psychologist in Mountjoy Prison was redacted from page 15 of Record No. 40 but released unredacted on page 23 of the same record.

The Department has also redacted the address and contact details of the Education Unit in Cork Prison and the CDVEC, as well as the address and phone number of Mountjoy Prison. While a brief internet search shows that this information is publicly available, in at least one record the redacted information or part thereof is also clearly legible elsewhere on the page released.

Having regard to the burden of proof under section 22(12)(b), I am not satisfied that the Department has justified its decision to refuse access to the information at issue under section 32(1)(b).

In summary, therefore, I find that the Department has not justified its decision to refuse to release information relating to staff and various sections of the Department apart from the mobile telephone number of the senior clinical psychologist as contained in records 40 and 43.

For the sake of completeness, I should add that the Department has stated that it has long been the practice of the Irish Prison Service to refuse to release staff details as it could pose a security threat. Although it has not cited the section in question, this may be a reference to section 32(1)(a)(iii) of the Act which provides for the exemption of records whose release 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. In previous decisions the Commissioner, whilst expressing no opinion on its appropriateness or efficiency, has 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 official in question. However, this is a discretionary exemption, and as the Department has not relied on this section to withhold records in this instance, I do not need to consider whether a decision to withhold the information on that basis would have been upheld by this Office.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the decision of the Department. While I uphold the decision of the Department to refuse access to information relating to prisoners other than the applicant from records 1 (page 2), 14, 19, 20, 28, 29, 34 and 43 (page 16) and to the details of the mobile telephone number of the senior clinical psychologist as contained in records 40 and 43, I annul the decision of the Department to withhold the remaining information and direct its release.

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 by the applicant not later than eight weeks after notice of the decision is given to him, and by any other party not later than four weeks after notice of the decision is given to that party.

Stephen Rafferty
Senior Investigator