Case Number: 150400

Whether the refusal of access to records concerning the applicant's employment and certain investigations is justified under sections 15(1)(a), 15(1)(d), 29(1), 30(1)(a), (b) and (c), 31(1)(a), 31(1)(b), 32(1)(a)(i), 35(1)(a) and (b), 37 and 42(f) of the FOI Act

Conducted in accordance with section 22(2) of the FOI Act by the Information Commissioner (the Commissioner)

Background

On 9 June 2015 the applicant made an FOI request to the Department for records held relating to him and to the Garda Síochána's Serious Crime Review Team. He specifically referred to nine categories of records relating to complaints and legal proceedings by him and investigations into certain matters raised by him. By letter dated 8 July 2015, the Department refused access to the records on the basis that they were exempt from release under sections 15(1)(d) and 31(1)(a) of the FOI Act. On 11 July 2015 the applicant applied for an internal review in respect of all of the records. By letter dated 7 September 2015, the Department issued its internal review decision, in which it affirmed its original decision, under sections 15(1)(a), 15(1)(d), 29(1), 30(1)(c), 31(1)(a), 32(1)(a)(i), 35(1)(a) and (b), and 41(1)(b) of the FOI Act. On 16 November 2015 the applicant applied to this Office for a review of the Department's decision.

In conducting this review I have had regard to the Department's decision on the matter; the Department's communications with the applicant and with this Office; the applicant's communications with the Department and with this Office; the submissions of the Garda Síochána in relation to certain records; the nature and content of the withheld records; and to the provisions of the FOI Act.

Scope of the Review

The Department identified 90 records relevant to the request. It submits that records 4 and 54 fall outside the scope of the applicant's FOI request. Having reviewed these records, I accept that record 54 falls outside the scope of the applicant's FOI request but do not accept that record 4 falls outside the scope of his FOI request.

At my Office's request, the Department provided a numbered schedule of records during this review. Despite the recommendations of the Central Policy Unit of the Department of Public Expenditure and Reform in relation to good FOI decision-making practice, no schedule was prepared at request stage. The schedule refers to each record and the provision of the FOI Act being relied on. The Department also invoked additional exemptions during this review. Having regard to this schedule and to all of the Department's submissions and to the submissions of the Garda Síochána, the question for this review is whether the Department was justified in refusing access to records 1 - 90 (not 54) under sections 15(1)(a), 15(1)(d), 29(1), 30(1)(a), (b) and (c), 31(1)(a), 31(1)(b), 32(1)(a)(i), (ii) and (iv), 35(1)(a) and (b), 37 and 42(f) of the FOI Act.

Handling of the request and review by the Department

I must draw attention to some of the shortcomings in the Department's approach to this case. At the outset, it invoked a large number of exemptions over the records, on a "blanket" basis. It does not appear to have examined the content of each record and properly analysed which particular provision of the FOI Act was relevant. Moreover, it was not clear about which exemptions it was relying on. Towards the end of the review process, due to issues raised by my Office and a change in circumstances in relation to court proceedings, it made further submissions and invoked additional exemptions. However, the Department again sought to claim exemptions on a "blanket" basis over a number of records. Overall, the Department's submissions suggest a lack of clarity in its thinking about the content of certain records in this case.
As discussed above, the Department did not initially provide a numbered schedule of records to the applicant or to my Office. Instead, it referred to the categories of records named by the applicant. Even when the requested schedule was produced, it did not number the records individually. In many cases, it bundled various records under one number and included duplicates. This made the review process less straightforward than it ought to have been. While the FOI Act does not require a schedule of records, it is clearly best practice to provide the requester with one, especially where a large number of records is held. Unless they are relying on a "neither confirm nor deny" provision, FOI bodies should clearly list what records they hold within the scope of the request.
The Department initially declined to send copies of any records to my Office for the purpose of this review. Following correspondence with my Office, the Department agreed to send copies of some records. However, it said that it would not provide copies of those records in respect of which it invoked section 42(f), despite assurances of confidentiality from my Office. My staff agreed that an investigator would visit the Department's offices to inspect those records. With the benefit of hindsight, I believe that my staff should have insisted that the Department provide me with copies of the records at the outset, by way of notice under section 45 of the FOI Act if necessary. As it transpired, the investigator had to examine the records on more than one occasion in the presence of a Department official. This was not, in my view, the best use of resources. FOI bodies regularly provide my Office with highly sensitive records for the purpose of reviews and I trust that the Department does not take the view that its records would be treated other than entirely confidentially by my staff. At the end of the review process, the Department finally agreed to provide my staff with copies of all the records.
In short, the Department's overall approach in this case made the review process more lengthy and cumbersome than it should have been. In general, I would expect better handling of an FOI request and review from a Department that has been designated as an FOI body since 1998.
Preliminary Matters
First, I should explain that my jurisdiction under section 22 of the FOI Act is to make a new decision, in light of the facts and circumstances as they apply on the date of the review. 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 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]".

Secondly, with certain limited exceptions, the FOI Act does not provide for the limiting of access to records to particular individuals only. When a record is released under the FOI Act, it effectively amounts to disclosure to "the world at large" (H.(E.) v Information Commissioner [2001] IEHC 58). The FOI Act places no restrictions on the type or extent of disclosure or the subsequent use to which the record may be put.

Thirdly, section 18 of the FOI Act provides that if it is practicable, records may be granted in part, by excluding the exempt material. Section 18 shall not apply if the copy of the record provided would be misleading. I take the view that neither the definition of a record under section 2 nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, I am not in favour of the cutting or "dissecting" of records to such an extent.

Finally, it is important to note that section 22(12)(b) of the FOI Act provides that when the Commissioner reviews a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore in this case, the onus is on the Department to satisfy me that its decision is justified.

Records falling outside of the FOI Act

Section 42 of the FOI Act excludes certain records from the provisions of the FOI Act.

Section 42(f) - records created or held by the Attorney General's Office

Section 42(f) of the FOI Act disapplies the FOI Act in relation to records which are held or created by the Attorney General or the Office of the Attorney General. The Chief State Solicitor's Office is part of the Office of the Attorney General. The Department claims section 42(f) over records 1 - 58 (not 8) and records 74 - 76.

The following records, or parts of records, were created by the Chief State Solicitor's Office: 2 (not the correspondence from the applicant's solicitors), 5 (not the court order), 6 (not the court order), 7 (not the emails from the applicant's solicitors or from the Courts Service or the plenary summons), 9 (not the court order), 10, 11, 12, 13 (not the letter from the applicant's solicitors), 14, 15 (not the email from the Gardaí), 17, 18, 19, 20, 21 (not the email from the Department), 22, 23, 24 (not the letter from the applicant's solicitors), 25 (not the email from the barrister), 26 (not the email from the barrister), 27 (not the email from the Gardaí), 28 (not the email from the Gardaí), 29 (not the letters from the applicant's solicitors), 30 (not the correspondence from the barrister), 31, 32, 33 (not the letter from the barrister), 34, 35, 36 (not the letter from the barrister), 37, 38, 39, 40, 41, 42, 43 (not the applicant's affidavit and exhibits), 44, 45 (not the email from the Department), 46 (not the affidavit), 47 (not the applicant's affidavit), 48 (not the internal Department email), 49, 50, 51, 52 (not the letter from the barrister), 53, 55, 56, 57 (not the email from the Department), 74 (not the letter from the applicant's solicitors), 75 (not the letter from the barrister or the attachment) and 76 (not the internal Department email or the excerpt from the applicant's affidavit or the letter from the barrister).

I find that the records numbered above, except for those parts in parentheses, are excluded from the application of the FOI Act under section 42(f) and the Department is justified in refusing access to them on that basis.

Section 42(b) - certain records held or created by the Garda Síochána

As certain records within the scope of this review had been created by the Garda Síochána, my Office asked the Department to clarify whether any of the records fell under section 42(b) of the FOI Act, which lists particular classes ((i)- (x)) of records to which the FOI Act does not apply. In its response, the Department did not invoke section 42(b) or any other part of section 42 apart from section 42(f), which is dealt with above. Accordingly and having regard to section 22(12)(b) of the FOI Act, I do not consider that I am required to consider section 42 further.

Refusal on Administrative Grounds

Section 15(1)(a) - records which do not exist or cannot be found after reasonable searches

Section 15(1)(a) of the FOI Act provides that FOI bodies may refuse to grant a request where the records do not exist or cannot be found after reasonable searches. The Department invokes this exemption over certain records which the applicant sought: specifically, records relating to surveillance material and phone intercepts; consultant/expert reports received by the Department; records relating to investigations by the Garda Síochána into the applicant's allegations. The Department's position is that it holds no records relating to these matters. It states in a submission to my Office that the only records that it holds are those identified in a particular file held in its Policing Division.

During this review, my Office asked the applicant if he had any reason to think that those records did exist in the Department, in which case this Office would pursue the matter with the Department. The applicant did not reply. In his FOI request, the applicant advised the Department that he had also requested data from the Garda Síochána. I have no reason to consider that the Department holds records such as those described above. I find that the Department is justified in refusing access to these records under section 15(1)(a).

Section 15(1)(d) - information in the public domain

Section 15(1)(d) of the FOI Act provides that FOI bodies may refuse to grant a request where the information is already in the public domain. I note that records 8, 65, 68 (the press cutting only), 80 (only the three press cuttings) are already in the public domain. I therefore find that the Department is justified in withholding these records, or parts of records, on the basis that they are exempt under section 15(1)(d) of the FOI Act.

Exempt Records

Section 31(1)(a) - legal professional privilege

The Department claims this exemption in respect of records 59 - 90. I will consider it in relation to all the records within the scope of this review, apart from those which I have found to be covered by sections 15(1)(d) or 42(f). I agree with the applicant's contention that legal privilege cannot be applied merely because the record is held on a "legal" file. Therefore, I have examined the content of each record in the context of the rules on legal privilege.

Section 31(1)(a) of the FOI Act provides that a head shall refuse to grant an FOI request if the record concerned would be exempt from production in proceedings in a court on the ground of Legal Professional Privilege (LPP). In deciding whether section 31(1)(a) applies, I must consider whether the record concerned would be withheld on the ground of LPP in court proceedings. LPP enables the client to maintain the confidentiality of two types of communication:

(a) confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege); and
(b) confidential communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation (litigation privilege).
Originally, the Department had referred to legal proceedings taken by the applicant in the context of its claim that litigation privilege applied to some of the records. During the review, the Department notified my Office that the relevant legal proceedings are now over and that there are no subsequent related legal proceedings. In considering litigation privilege, I have had regard to the judgment of 21 March 2014 of Finlay Geoghegan J., in the case of University College Cork - National University of Ireland v the Electricity Supply Board [2014] IEHC 135 ("the ESB judgment"). In granting the discovery sought, Ms Justice Finlay Geoghegan made it clear that, unlike legal advice privilege, litigation privilege does not "automatically continue beyond the final determination of either that litigation or ... closely related litigation."

When the Department advised my Office that the legal proceedings had concluded, it put the following request to my Office: "you might also confirm that the exemption and legal privilege sought for legal papers still applies notwithstanding the conclusion of the mediation process and the case". The Department did not itself seek to demonstrate how litigation privilege still applied. It is not my Office's function to advise a public body whether the exemptions which it invokes apply, prior to the issuing of a formal decision. In the circumstances, the Department has not shown me how litigation privilege would continue to apply. I must therefore consider whether the records are covered by legal advice privilege.

My Office has previously considered records which may not, on an individual basis, satisfy the criteria for the attraction of LPP but which form part of a series of confidential communications regarding the giving or receiving of legal advice. In Case Number 020281, the former Commissioner referred to the following comments by Mr. Adrian Keane in "The Modern Law of Evidence" (4th Ed.), Butterworths, 1996, at pp. 521-522:

"Communications between a solicitor and his client may enjoy privilege even if they do not specifically seek or convey advice. In Balabel v Air India (1988) Ch. 317; [1988] 2 All E.R., 246, CA., ...[t]he Court of Appeal held that in most solicitor and client relationships, especially where a transaction involves protracted dealings, there will be a continuum of communications and meetings between the solicitor and client; and where information is passed between them as part of that continuum, the aim being to keep both informed so that advice may be sought and given as required, privilege will attach."

I adopt this approach and take the view that privilege attaches to records that form part of a continuum of correspondence that results from the original request for advice.

Records 1 - 58 & 74-76

I have already found parts of these records to be excluded from the FOI Act, under section 42(f). I consider that section 31(1)(a) applies to the following: the remainder of records 15, 16, 21, 25, 26, 27, 28, 30, 45, 57, 58 and 76. This is on the basis that this information comprises confidential communications between the Department and the Chief State Solicitor's Office and the barristers instructed to advise them, which form part of a continuum of seeking and receiving legal advice in relation to litigation against the Department and the Gardaí.

I therefore find that the Department is justified in refusing access to these records under section 31(1)(a) of the FOI Act. I do not consider that section 31(1)(a) applies to the remaining records within this group and therefore find that the Department is not justified in refusing access to them under section 31(1)(a) of the FOI Act.

Records 59 - 90 (not 74-76)

The Department has advised my Office that it has not provided the Chief State Solicitors' Office with these records. Nevertheless, it submits that they form part of a continuum of documents and relate to the litigation being taken by the applicant. I cannot accept that the fact that a record may relate to an aspect of litigation means that it is automatically legally privileged and therefore exempt under section 31(1)(a) of the FOI Act. In any case, the litigation has concluded and the records do not result from the original request for legal advice; nor do they contain requests for or advice given by professional legal advisers. Having examined the records within this group, I do not see the basis on which they would attract legal privilege.

I find that the Department is not justified in refusing access to these records under section 31(1)(a) of the FOI Act.

Section 31(1)(b) - contempt of court

Towards the end of this review, the Department submitted that section 31(1)(b) "might also apply" to records 59 - 90 (except for record 54) and part of record 48. My Office asked the Department to clarify the precise legal basis on which it claimed contempt of court. The Department replied that all of the matters raised in the section 41 report and update are included in the applicant's affidavits and therefore releasing them would constitute contempt of court.

My understanding of contempt of court is that for contempt to have occurred, a party would have to contravene a court order or undertaking made to a court, commit an act of resistance to the court or engage in conduct liable to prejudice the trial of an accused person. I do not see how these situations arise in relation to the records under consideration. The Department has not referred my Office to any court order for discovery which applies to these particular records. Neither does it suggest that any of these particular records were disclosed on discovery in the context of the court proceedings and therefore subject to any implied undertaking to the Court. Furthermore, since the relevant legal proceedings are now over, I do not think that I need to consider whether breach of the sub judice rule could arise.

I therefore find that the Department is not justified in refusing access to these records under section 31(1)(b).

Section 37 - personal information

Towards the end of this review, the Department claimed this exemption in respect of the section 41 report and its update. I will consider it in relation to those and the other remaining records.

Section 37(1)

Section 37(1) of the FOI Act provides that access to a record shall be refused if it would involve the disclosure of personal information. Section 2 of the FOI Act defines the term "personal information" as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or his/her family or friends, or (b) is held by a public body on the understanding that it would be treated as confidential. The Act details fourteen specific categories of information which is personal without prejudice to the generality of (a) and (b) above. Following the decision in Governors and Guardians Rotunda Hospital v Information Commissioner [2011] IESC 26, I must proceed on the basis that information about an identifiable individual can qualify as personal information where it comes within the scope of either (a) or (b) above or where it comes within one or more of the categories (i) to (xiv), which are non-exhaustive.

1. Section 41 Garda Commissioner Report and related records

The records include a section 41 Garda Commissioner Report to the Secretary General of the Department about the applicant's allegations, an update on this section 41 report from the Garda Commissioner to the Secretary General of the Department, a memo from the Department on the report, a letter from the Department to the Garda Commissioner seeking an update and related correspondence.

The section 41 report and the update set out the allegations made by the applicant and the people involved. The memo and letter referred to above contain details of the applicant's allegations and the people involved. Having regard to their content, I believe that some of the records contain personal information relating to people other than the applicant; namely the people against whom he makes allegations, which allegations are the subject of ongoing Garda investigations. This information relates to the individuals' employment and the views or opinions of another person about them. Even if one were to redact the names of the individuals, some of the remaining information could be used to identify the individuals who are alleged to be involved. I therefore believe that the records listed below constitute joint personal information for the purposes of section 37(7) of the FOI Act. In these circumstances, I find that the Department is justified in withholding this information under sections 37(1) and (7) of the FOI Act. This finding is subject to sections 37(2) and (5), which I consider below.

Records 48 (internal Department email); 59, 60, 62, 64, 68, 80 (the Garda Commissioner Report from the third paragraph on the second page to the paragraph before "Conclusion" on the penultimate page); 77 (Update on Garda Commissioner report from fourth paragraph on the second page to the end); 78 (letter to Garda Commissioner 13 February 2015); 79; 80 (memo 5 February 2015); 81, 82, 83, 86, 88, 89 (letter to Garda Commissioner 13 February 2015).

2. Court documents

Records 1, 4 (affidavit) 7 (plenary summons), 30 (affidavit), 43 (applicant's affidavit and exhibits), 46 (affidavit), 47 (applicant's affidavit), 59 (applicant's affidavit), 60 (applicant's affidavit), 62 (applicant's affidavit), 64 (applicant's affidavit), 68 (applicant's affidavit), 76 (excerpt from applicant's affidavit) and 80 (applicant's affidavit) contain the names of third parties about whom the applicant makes certain allegations and in some cases, details of those allegations. In my view this constitutes joint personal information under section 37(7) of the FOI Act. I find that the Department is justified in withholding access to the parts of these records identified in parentheses under sections 37(1) and (7) of the FOI Act. This finding is subject to sections 37(2) and (5), which I consider below.

3. Names of the independent expert/mediator

Many of the records contain the name of the third party appointed as a mediator and independent expert in this matter. For completeness, I have considered whether this individual's name falls within the definition of "personal information". In circumstances where this person was acting in a professional rather than private capacity in providing a service to a public body, I do not believe that their name falls within the categories of personal information identified in section 2 of the FOI Act. I therefore find that this name is not exempt under section 37(1) of the FOI Act.

4. Name of the applicant and information relating to his employment and legal proceedings

The vast majority of the records within the scope of this review contain the applicant's name and certain pieces of information relating solely to him and his employment and legal proceedings. Section 37(2) disapplies section 37(1) in respect of information relating to the requester and I therefore find that section 37(1) does not apply to this information. Clearly the position would be different if a third party were to seek the same information in another FOI request.

Section 37(2)

Section 37(2) of the FOI Act sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of those circumstances arise in this case. That is to say, (a) the information identified above as joint personal information does not relate solely to the applicant; (b) the third parties have not consented to the release of the information; (c) the information is not of a kind that is available to the general public; (d) the information does not belong to a class of information which would or might be made available to the general public; and (e) the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.

I am then required to consider section 37(5) as it applies to the records.

Section 37(5) - The Public Interest

Section 37(5) of the FOI Act provides that access to the personal information of a third party may be granted where:

(a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or
(b) the grant of the request would benefit the person to whom the information relates.

The July 2011 Supreme Court judgment in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner[2011] 1 IR 729, [2011] IESC 26 outlined the approach that the Commissioner should take when balancing the public interest in granting access to personal information with the public interest in upholding the right to privacy of the individual(s) to whom that information relates. Therefore in considering section 37(5)(a), I must distinguish private interests from "true public interest[s] recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law. "

The FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies. On the other hand, however, the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy, which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution. Accordingly, when considering section 37(5)(a), privacy rights will be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy. I cannot identify a public interest which would override the Constitutional rights to privacy of the third parties to whom these records relate. I therefore find that section 37(5)(a) does not apply in the circumstances. It has not been argued that releasing these records would benefit the people to whom the information relates and I find that section 37(5)(b) does not apply in the circumstances.

Having regard to the above, I find that the Department is justified in withholding access to the information identified above as joint personal information, under sections 37(1) and (7) of the FOI Act. I find that the Department is not justified in withholding access to the name of the third party expert contained in the records listed above under "Independent expert/mediator", or any of the remaining records, under section 37 of the FOI Act.

Section 32(1)(a)(i), (ii) & (iv) - law enforcement and public safety

The Department claims section 32(1)(a)(i) and (ii) in respect of records 59 - 90 (not 74 - 76). I consider it in relation to these records, apart from those which I have found to be covered by section 15(1)(d) or 37.

During the review, my Office invited the views of the Garda Síochána on releasing the remainder of the section 41 report and its update, with the personal information redacted (in accordance with my finding under section 37 above). In its submissions to this Office, the Garda Síochána claims that sections 32(1)(a)(i), (ii) and (iv) of the FOI Act apply.

Section 32(1)(a)(i), (ii) and (iv) provides:

"A head may refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, reasonably be expected to -

(a) 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 matters aforesaid,

(ii) the enforcement of, compliance with or administration of any law

...

(iv) the fairness of criminal proceedings in a court or of civil proceedings in a court or other tribunal, ".

Where an FOI body relies on section 32(1)(a), it should identify the potential harm to the matters specified in the relevant sub-paragraph that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur. The FOI body is expected to show how release of the particular record could reasonably be expected in that harm. A mere assertion of an expectation of harm is not sufficient.

As noted above, the Department submits that there are a number of Garda investigations into matters raised by the applicant. It says that releasing the records could interfere with the proper conduct of these investigations, to the extent of compromising their outcomes. It further submits that releasing the records could be used as a ground for claiming a breach of fair principles or for not proceeding to prosecution and that any ensuing publicity could make a fair and impartial investigation more difficult.

For its part, the Garda Síochána says that both the Garda Síochána Ombudsman Commission and the Director of Public Prosecutions are actively involved in the matters raised in these records. It submits that it is reasonable to expect that releasing this information will injure/potentially injure and weaken the administration of law and potential for prosecuting offenders in a fair manner. In this regard, it advises that the Serious Crime Review Team is small, consisting of eight people, and therefore the individuals concerned would be easily identifiable. In support of its submissions, the Garda Síochána cites two decisions of my predecessor, Case 98086 (Messrs AAU & the Department of Agriculture and Food) and Case 99017 (Messrs AABM and Ors & the Office of the Revenue Commissioners).

I have already found that the majority of the information which these records contain is exempt under section 37 of the FOI Act. Having regard to the content of what remains, I do not believe that its disclosure could reasonably be expected to cause the harms identified above. This is particularly in view of the fact that some background information to the applicant's allegations is already in the public domain, having been published in media reports. I accept that the Serious Crime Review Team is a small unit, but it is already known from media reports and Court proceedings that the applicant has made complaints and allegations against that unit. The Garda submission refers to the right to a fair trial and to prejudice to both the prosecution and individuals involved, should the records be released. However, it does not point to any content in the relevant excerpts from the reports at issue (copies of which were supplied to it) that reveals material about the investigation of any individual. I have considered the decisions of previous Commissioners cited by the Garda Síochána and agree with the approach adopted in those cases. It is clear from the decisions that a reasonable expectation of prejudice to investigations of offences or to the fairness of proceedings depended to a large extent on the content of the information at issue in individual records; i.e. a "blanket" approach was not taken once it was established that investigations or proceedings were likely or ongoing.

In this case, having regard to their content, I do not see how the remaining parts of the section 41 report or its updates could reasonably be expected to prejudice or impair investigations by the Garda itself, the DPP or GSOC, or the fairness of any prosecutions. The information concerned sets out in very broad terms the nature of the applicant's allegations and how the Garda Commissioner proposes to address them. While it is arguable that disclosing the full detail of the allegations as set out in the report could be expected to prejudice investigations and/or prosecutions, I have already found such detail to be exempt under section 37(1). Neither do I consider that the related correspondence could reasonably be expected to cause the harms identified above.

I therefore find that section 32(1) does not apply in the circumstances. In view of this finding, I am not required to consider section 32(3).

I find that the Department is not justified in refusing access to the following records, or parts of records, under section 32(1)(a)(i), (ii) or (iv): 59 (cover email and Garda Commissioner Report from the beginning to " referred to in greater detail later in this report" in the second paragraph on second page and from "Conclusion" on the penultimate page to "10th September 2014" on the final page); 60 (cover emails and Report as above); 61; 62 (cover emails, acknowledgement letter, Secretary's Office Query & Correspondence record and Report as above); 63; 64 (memo 12 September 2014, cover emails and Report as above); 65 (cover email); 66; 67; 68 (cover emails and Report as above); 69; 70; 71; 72; 73; 77 (Update on Garda Commissioner Report from the beginning to "incorporated into SCRT" in the third paragraph on the second page); 78 (cover email); 80 (emails and Report as above); 81 (emails); 82 (cover email); 83 (memo and emails); 84; 85; 86 (emails); 87; 88 (letter 22 April 2015); 89 (all except for letter to Garda Commissioner 13 February 2015); and 90.

Section 29(1) - deliberative process

The Department claims this exemption in respect of records 59 - 90 (not 74 - 76). I will consider it in relation to these records, apart from those which I have found to be covered by section 15(1)(d) or 37.

Section 29(1) of the FOI Act provides:

"A head may refuse to grant an FOI request -

(a) if the record concerned contains matter relating to the deliberative processes of an FOI body (including opinions, advice, recommendations, and the results of consultations, considered by the body, the head of the body, or a member of the body or of the staff of the body for the purpose of those processes), and

(b) the granting of the request would, in the opinion of the head, be contrary to the public interest,

and, without prejudice to the generality of paragraph (b), the head shall, in determining whether to grant or refuse to grant the request, consider whether the grant thereof would be contrary to the public interest by reason of the fact that the requester concerned would thereby become aware of a significant decision that the body proposes to make".

The exemption under section 29 has two requirements:

(a) the record must contain matter relating to the deliberative process; and
(b) disclosure must be contrary to the public interest.

These are two independent requirements and the fact that the first is met carries no presumption that the second is also met. It is therefore important for public bodies to show to the satisfaction of the Commissioner that both requirements have been met.

A deliberative process may be described as a thinking process which informs decision-making in FOI bodies. It involves the gathering of information from a variety of sources and weighing or considering carefully all of the information and facts obtained with a view to making a decision or reflecting upon the reasons for or against a particular choice. Thus, it involves the consideration of various matters with a view to making a decision on a particular matter. It would, for example, include some weighing up or evaluation of competing options or the consideration of proposals or courses of action.

The Department originally submitted that because the applicant's legal proceedings and related mediation process were ongoing, the matters which the records concern were covered by the deliberative process until the legal proceedings and the mediation had concluded. The Department now submits that although the applicant's legal proceedings and mediation are over, the deliberative process continues in relation to the investigations into the applicant's allegations. I do not accept that the Garda Síochána's investigations equate to a "deliberative process" for the purposes of section 29. In any event, I have considered the harm which releasing these records could cause to the investigations into the applicant's allegations above, under section 32(1)(a) of the FOI Act.

I find that the Department is not justified in withholding access to these records under section 29(1) of the FOI Act.

Section 30(1) - functions and negotiations

The Department claims this exemption in respect of records 59 - 90 (not 74 - 76). I consider it in relation to these records, apart from those which I have found to be covered by section 15(1)(d) or 37.

Section 30(1) of the FOI Act provides, among other things:

"A head may refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, reasonably be expected to -

(a) prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or the methods employed for the conduct thereof,

(b) have a significant, adverse effect on the performance by an FOI body of any of its functions relating to management (including industrial relations and management of its staff), or

(c) disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations carried on or being, or to be, carried on by or on behalf of the Government or an FOI body".

The Department invokes all three subsections in this case.

Section 30(1)(a)

When an FOI body relies on section 30(1)(a), it should first identify the potential harm to the relevant function specified in paragraph (a) which might arise from disclosure and secondly consider the reasonableness of the expectation that the harm will occur. To satisfy the Commissioner, the public body must show that there are adequate grounds for its expectation. The FOI body should identify the potential harm or prejudice to the relevant test, examination etc and show how release of the record could reasonably be expected to prejudice the effectiveness of tests or examinations etc.

Towards the end of this review, the Department submitted that disclosing these records might prejudice or interfere with investigations, inquiries or audits conducted by the Garda Síochána. However, it does not explain how and why releasing the records could give rise to the harm envisaged. In any event, I take this to be the same argument as that made under section 32(1)(a) above and therefore consider that I have already addressed this point.

Accordingly, I find that the Department's refusal of access to the records is not justified under section 30(1)(a) of the FOI Act.

Section 30(1)(b)

When an FOI body relies on section 30(1)(b), it should first identify the potential harm to the performance of its any of its functions relating to management and secondly consider the reasonableness of the expectation that the harm will occur. In identifying the harm, it should identify the significant adverse effect on its management functions. To satisfy the Commissioner, the public body must show that there are adequate grounds for its expectation.
Towards the end of this review, the Department submitted that disclosing the records could have a significant, adverse effect on the performance of the Garda Síochána of its functions relating to management, including industrial relations and management of staff. It says "in this regard, I would refer to current industrial relations developments in the Garda Síochána, including the demonstration on 17 May 2016 by the members of the Association of Garda Sergeant and Inspectors". I accept that managing staff is a management function for the purposes of section 30(1)(b). However, the Department does not explain how and why, in its opinion, releasing these records could give rise to the harm envisaged. It simply alludes to current developments and a Garda demonstration, without identifying any link between those events and the particular records at issue in this FOI request. The Department has not satisfied me that section 30(1)(b) applies in the circumstances.

Accordingly, I find that the Department's refusal of access to the records is not justified under section 30(1)(b) of the FOI Act.

Section 30(1)(c)

Section 30(1)(c) is designed to protect positions taken for the purpose of any negotiation carried on by or on behalf of an FOI body. It does not contain a harm test. However, FOI bodies should identify the relevant negotiations at issue and show that releasing the records could reasonably be expected to disclose positions taken for the purpose of those negotiations. The Oxford English Dictionary defines "negotiation" as "the action or business of negotiating or making terms with others". It goes on to define the verb "negotiate" as "to hold communication or conference (with another) for the purpose of arranging some matter by mutual agreement; to discuss a matter with a view to some settlement or compromise". Records relating to past, present or future negotiations may be protected under section 30(1)(c).

The Department submits that releasing the records to the applicant, who is participating in the mediation process, would impact negatively on the mediation process. As noted above, the legal proceedings and mediation process are now over.

Having reviewed the records, the only records which I consider to potentially relate to section 30(1)(c) are records 33, 36, 52, 75, 76. These records include correspondence from a third party who was appointed as an independent expert/mediator in an extra-judicial process which aimed to resolve the dispute in this matter. I believe that the purpose of this process was to discuss matters with a view to some settlement. I therefore accept that these records disclose plans and procedures used or followed for the purpose of negotiations which were carried on, on behalf of the Department. Accordingly, I find that section 30(1)(c) applies to this correspondence.

Section 30(2)

Given my finding under section 30(1)(c), I am now required to consider the public interest balancing test under section 30(2) of the FOI Act. On the one hand, I recognise that there is a public interest in transparency around the activities of the Department. On the other hand, I believe that it is in the public interest that FOI bodies such as the Department can pursue the non-adversarial resolution of disputes and that the confidentiality of such a process should be protected. On balance, in the circumstances, I find that the Department is justified in refusing access to the correspondence mentioned above, under section 30(1)(c) of the FOI Act.

Section 35(1)(a) & (b) - confidentiality

The Department claims this exemption in respect of records 59 - 90 (not 74 - 76). It submits that the section 41 Garda Commissioner Report and all internal memos flowing from internal reports relating to this report are covered by confidentiality, and it therefore wishes to claim confidentiality over records 59 - 90 (not 74 - 76). I consider it in relation to these records, apart from those which I have found to be covered by section 15(1)(d) or 37. I also consider it in relation to record 4.

Section 35(1) of the FOI Act provides:

"a head shall refuse to grant an FOI request if -

(a) the record concerned contains information given to an FOI body, in confidence and on the understanding that it would be treated 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, or

(b) disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment (other than a provision specified in column (3) in Part 1 or 2 of Schedule 3 of an enactment specified in that Schedule) or otherwise by law ...

(3) Subject to section 38, subsection (1)(a) shall not apply in relation to a case in which, in the opinion of the head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the FOI request concerned."

Under section 35(2) the confidentiality exemption at subsection (1) does not apply to a record which was prepared by a head, director or staff member of an FOI body or its service provider in the course of the performance of his or her functions, unless disclosure would constitute a breach of confidence that is owed to a person other than an FOI body etc.

Section 35(1)(b)

In its submissions to this Office, the Department has not pointed this Office to any legal basis for section 35(1)(b) to apply, such as an agreement or enactment or any other duty of confidence provided for by law. Therefore I am not satisfied that section 35(1)(b) applies in relation to the records, with the exception of Record 4. This contains an authorisation for payment of legal costs and a letter from the applicant's solicitors, both of which contain the bank account details of the applicant's solicitors. Having regard to the circumstances in, and limited purpose for which, the applicant's solicitors would have given this information to the Department, I believe that this information has the necessary quality of confidence and imposes an obligation of confidentiality such as to attract protection under section 35(1)(b) and moreover that it would be an unauthorised use of that information to circulate it further. Accordingly I find that this constitutes confidential information under section 35(1)(b).

Section 35(1)(a)

All four requirements as outlined in section 35(1)(a) cited above must be satisfied in order for a record to be considered exempt from release under section 35(1)(a) of the FOI Act. As my predecessor noted in Case 120291 (Mr X and the Department of Justice and Equality), the FOI Act does not exempt Garda reports to the Minister as a class. As the former Commissioner observed in that case, section 41 of the Garda Síochána Act places a duty on the Garda Commissioner to provide information to the Minister and gives the Minister the discretion to publish all or part of a report submitted to him or her. In that case, the Commissioner said "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". I adopt this view. I do not find it feasible to suggest that disclosing the parts of the section 41 report or update or related correspondence which I have identified as falling for release would be likely to prejudice the giving of certain information by the Garda Commissioner to the Department. I therefore do not accept that section 35(1) applies to the remaining records.

Accordingly, I find that the Department is justified in refusing access to the confidential information contained in record 4 under section 35(1)(b) of the FOI Act but is not justified in refusing access to any of the remaining records under section 35(1)(a) or (b) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of the Department. I affirm its decision in relation to certain records under sections 15(1)(a), 15(1)(d), 30(1)(c), 31(1)(a), 35(1)(b), 37(1) and (7) and 42(f) of the FOI Act. I annul its decision in relation to the remaining records and direct their release. For the avoidance of doubt, my directions are summarised in the appendix to this decision.

I specify that, subject to sections 24 and 26 of the FOI Act, effect shall be given by the Department to my decision within five working days of the expiration of the 4 week period for the bringing of an appeal to the High Court from this decision as provided for at section 24(4) of the FOI Act.

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 was given, and by any other party not later than four weeks after notice of the decision was given.

 

Peter Tyndall
Information Commissioner