Whether the Department was justified in its decision to refuse a request for access to records relating to the layout of the new Cork prison under section 32 of the FOI Act

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

The applicant made a request to the Department on 10 December 2014 for certain information relating to the new Cork Prison. In his request, he referred to previous correspondence where he sought access to information that would enable him to visualise the internal aspects of the new prison, such as a scaled layout of rooms and other spaces, and sufficient drawings that would allow him to comprehend the dimensions of rooms and other spaces, and to see where different rooms stand in relation to each other.

The Department failed to issue a decision in response to the request and so the applicant sought an internal review of the deemed refusal of his request by letter dated 25 February 2015. The Department again failed to respond to the applicant within the prescribed time provided for in the FOI Act, and is therefore deemed to have refused the applicant's request. The applicant contacted this Office about the Department's failure to reply to him and this Office requested the Department issue a reply to the applicant setting out its effective position concerning the records sought.

In its effective decision dated 25 May 2015 the Department decided to refuse the applicant's request under sections 32(1)(a)(i) and 32(1)(a)(v) of the FOI Act. The applicant applied to this Office for a review of the Department's decision by letter dated 15 June 2015. The applicant set out 10 points of information in his application for review in which he was particularly interested, including information such as the size of cells and recreational and learning areas in the prison and how these spaces related to each other.

During the course of this review, the Department provided more detailed information to the applicant with a view to satisfying the ten points highlighted in the applicant's letter to this Office. It also offered to allow the applicant to view the plans of the prison in person. The applicant indicated that he was not satisfied with the information provided by the Department. Accordingly, I have decided to conclude this review by issuing a formal, binding decision on the matter.

In conducting this review, I have had regard to the correspondence between the applicant and the Department and to the correspondence between this Office and both the applicant and the Department. I have also had regard to the information administratively released by the Department, a copy of which has been provided to this Office by the Department for the purposes of this review.

Scope of Review

The Department has indicated that the applicant's request could be met in full only by the release of the detailed plans of the prison. It has confirmed that there are no other plans of the new Cork Prison in the possession of the Irish Prison Service other than the detailed plans requested.

Accordingly, this review is concerned solely with the question of whether the Department was justified in its decision to refuse access to plans of the new Cork Prison under sections 32(1)(a)(i) and 32(1)(a)(v) of the FOI Act.

Preliminary Matters

Before I deal with the substantive issue in this case, there are two points I wish to make. Firstly, section 13(4) of the Act provides that, in deciding whether to grant or refuse a request, regard shall not be had to any reason that the applicant gives for the request. Therefore, while I note that the applicant is seeking the the records at issue for research purposes, this is not a matter to which I can have regard in this review. Secondly, it is important to bear in mind that as the Act places no restrictions on the use of records once they are released under FOI, release is regarded, in effect, as release to the world at large.

Analysis and Findings

The Department decided to refuse the applicant's request under sections 32(1)(a)(i) and 32(1)(a)(v) of the FOI Act. In my view, section 32(1)(a)(v) is of more relevance in this case. That section provides for the refusal of a request where access to the record sought could reasonably be expected to prejudice or impair the security of a penal institution.

Essentially, the Department's argument is that disclosure of the detailed plans of the prison could reasonably be expected prejudice or impair the security of the new prison in a number of ways, by facilitating or assisting escape attempts from the prison, by compromising the safety of persons within and outside of the facility, and by assisting the entry of contraband to the prison. The Department stated that it is the long standing practice of the Irish Prison Service not to release plans of prisons to third parties on the grounds that there is a real risk that doing so could result in the security of a prison and the safety of persons within it being compromised. It stated that the circulation of the internal layouts of prisons is strictly confined, even within the Irish Prison Service itself, to those persons who have a need to gain access to such drawings. It added that when staff in the Irish Prison Service were being informed of the development of the new prison in Cork the internal layouts and schematics were only made available for viewing purposes and then only under the supervision of senior management. Similarly, when the Prison Officers Association, representing the great majority of Irish Prison Service staff, requested to see the plans for the new prison they were facilitated by being allowed to view the plans under the supervision of the Cork Project Manager and were not permitted to make copies of the plans or to take extracts from them.

The Department also submitted that in obtaining planning consent for the development of Cork new prison - under Part 4 of the Prisons Act, 2007 - the Oireachtas is the Planning Authority and there was no requirement to make the internal layouts of the facility available to the members of the Oireachtas. Neither were they opened to the general public which was facilitated with a six week period during which they could submit observations on the proposed development to the official Rapporteur appointed under the Act. The Department further stated that the Planning and Development Acts do not require the internal schematics of a prison to be divulged. It is the view of the Irish prison Service that this is so because it is recognised that publishing or otherwise making such information available to third parties is not in the public interest.

The Irish Prison Service stated that is cognisant of the potential value of the applicant's research and accepts his bona fides without question. In order to facilitate his academic research in the field of penal policy the internal layouts of the new prison can, with sufficient notice, be made available to him for viewing under the same circumstances and conditions as are described above in relation to its staff and the Prison Officers Association.

Having regard to the detailed submission of the Department in this case, I am satisfied that the Department has demonstrated the potential harms arising from the released of the prison plans and that those harms could reasonably be expected to prejudice or impair the security of the new prison. I find, therefore, that section 32(1)(a)(v) applies.

Section 32(1) is subject to section 32)(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 it being withheld, in the event that one of three conditions is fulfilled. I am satisfied that no such circumstances arise in this case, and that section 32(3) does not apply.

Accordingly, I find the Department was justified in its decision to refuse access to the detailed plans of the new prison under section 32(1)(a)(v) of the FOI Act. Having so found, I do not need to consider the application of section 32(1)(a)(i).

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2015, I hereby I affirm the decision of the Department.

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

Stephen Rafferty
Senior Investigator