Case Number: 170150

Whether the Department was justified in refusing access to a report containing a review of a Garda investigation on the basis that the report is exempt from release under sections 32(1)(a)(i), 35(1)(a), 37(1) and 41(1)(a) of the FOI Act

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

Background

In 2003, Ms. X was involved in a fatal road traffic collision. In 2005, she pleaded guilty to dangerous driving causing death and was convicted. In 2006, she wrote to An Garda Síochána and complained of alleged shortcomings in its investigation. The Garda Commissioner appointed a Superintendent to review the investigation. In 2007, the Superintendent completed his report and forwarded it to Garda Management. The findings of the report were discussed with Ms. X; however, she was not provided with a copy of the report. The report remained an internal Garda record until 2014.

In 2014, the Government established an Independent Review Mechanism (IRM) to consider allegations of Garda misconduct or complaints made to the Minister for Justice concerning inadequacies in the investigation of certain cases. The IRM consisted of a panel of independent barristers whose role was to consider the papers relating to each allegation, and to make whatever recommendation they saw fit taking account of the powers or options available to the Minister. Where the panel required information from the Garda Commissioner, they requested the Department to obtain it from a liaison officer appointed by the Garda Commissioner for that purpose.

Ms. X's complaint was referred to the IRM and the counsel considering it requested the Superintendent's report. The Department obtained the report from An Garda Síochána and transmitted it to counsel. Counsel considered the papers and made their recommendation to the Minister that no further action should be taken in the matter. The Minister accepted that recommendation and Ms. X was informed of that decision and the reasons for it in February 2016.

On 8 June 2016, the applicant made an FOI request to the Department for a copy of the report, and all correspondence in relation to the report between the Department and the Gardaí in the six month period following its completion. The applicant provided the Department with a letter from Ms. X consenting to the release of her personal information to the applicant. On 25 July 2016, the Department refused access to the records requested on the basis of sections 35 and 37 of the Act (provisions relating to confidential information and personal information). On 2 September 2016, the applicant requested an internal review of the Department's decision. On 3 October 2016, the Department affirmed its original decision to refuse the records; it also cited section 32 as a further ground for refusing the records. On 28 March 2017, the applicant applied to this Office for a review of the Department's decision.

Both the applicant and the Department made submissions in the course of this review. In its submissions, the Department sought to rely on section 41 of the FOI Act as an additional ground for refusing the records. This Office informed the applicant who argued that section 41 is not applicable to the records requested.

I have decided to conclude this review by way of a formal binding decision. In conducting this review, I have had regard to correspondence between the Department and the applicant, to correspondence between the Department and this Office, to correspondence between the applicant and this Office, to the contents of the records at issue and to the provisions of the FOI Act 2014.

Scope of Review

In his application to this Office, the applicant requested a review of the decision to refuse access to the report; he did not request a review of the decision concerning the related correspondence. There are appendices attached to the report which contain various witness statements from the original investigation in 2003-2004. The appendices also include further statements taken as part of the Superintendent's review of the investigation in 2007. The scope of this review is confined to whether the Department has justified its decision to refuse access to the report and appendices on the basis that they are exempt under sections 32(1)(a)(i), 35(1)(a), 37(1), or 41(1)(a) of the FOI Act.

Preliminary Matters

The report is divided into 32 sections, each of which addresses a separate allegation made by Ms. X. In the course of the review, this Office wrote to the Department and stated that a page from section one appears to be missing. In reply, the Department stated that "everything we have has been provided to OIC." It stated that when it received the report, it immediately transmitted it to the IRM without perusing the contents. It stated that the contents were examined for the first time in the context of this FOI request. While it is certainly not ideal that a page from the report appears to be missing, I am satisfied that it is possible to carry out a review of the Department's decision on the basis of the copy of the report provided to this Office.

Section 13(4) of the Act provides that, subject to the Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. Thus, while certain provisions of the Act implicitly render the motive of the requester relevant, as a general rule, the actual or perceived reasons for a request must be disregarded in deciding whether to grant or refuse an access request under the FOI Act.

Section 2 of the Act defines "record" as including "a copy or part" of anything falling within the definition of a record. Section 18(1) provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the FOI body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers).

The Commissioner takes the view that neither the definition of a record under section 2 of the Act 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, he is not in favour of the cutting or "dissecting" of records to such an extent. He takes the view that, being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records

Under FOI records are released without any restriction as to how they may be used and thus, FOI release is regarded, in effect, as release to the world at large. Although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the records at issue and the material that I can refer to in the analysis is limited.

Analysis and Findings

Section 37 - Personal Information
Section 37(1) of the FOI Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information. This does not apply where the information involved relates to the requester (section 37(2)(a) refers). However, section 37(7) provides that, notwithstanding section 37(2)(a), an FOI body shall refuse to grant a request if access to the record concerned would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester. Where a record or part of a record contains personal information relating to the requester, which is closely intertwined with personal information relating to another party (or parties), and where it is not feasible to separate the personal information relating to the requester from that relating to the other party (or parties), it can be described as joint personal information and section 37(7) must be considered.

The definition of "personal information" is contained in section 2 of Act:

"Personal information means information about an identifiable individual that, either -

(a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or
(b) is held by an FOI body on the understanding that it would be treated by that body as confidential,

and, without prejudice to the generality of the foregoing, includes -

(iii) information relating to the employment or employment history of the individual...
(vi) information relating to any criminal history of, or the commission or alleged commission of any offence by, the individual...
(xii) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to, establish that any personal information held by the FOI Body concerned relates to the individual...
(xiii) information relating to property of the individual (including the nature of the individual's title to any property),
(xiv) the views or opinions of another person about the individual,

but does not include -

(I) in a case where the individual holds or held -

(A) office as a director of,
(B) a position as a member of staff of, or
(C) any other office, or any other position, remunerated from public funds in,

an FOI body, the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or occupies or occupied that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of the functions aforesaid,"

Following the Supreme Court's decision in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. The Information Commissioner[2011] IESC 26 [more commonly referred to as "the Rotunda Hospital case"] I must proceed on the basis that information about an identifiable individual can qualify as personal information where it comes within either (a) or (b) above or where it comes within one or more of the categories (i) to (xiv) which are non-exhaustive.

The applicant argues that if the report contains third party personal information this can easily be dealt with by redacting the names of the people who gave information. He argues that the report was commissioned for Ms. X and it makes no sense that she was not provided with a copy of the report.

The Department argues the report contains a substantial amount of personal information in relation to a large number of individuals. It argues that the report is an internal Garda record which in the normal course of events would never have come into the possession of the Department.

I have examined the report and each of the appendices carefully. I am satisfied that they contain information provided by witnesses and persons of interest much of which is their personal information. The information contained in the report includes the names and other details of witnesses and persons of interest and information given by and about these parties by way of recollection of events that were the subject of a criminal investigation.

The report and appendices also contain personal information in relation to Ms. X who has given permission for the release of her personal information. However, I am satisfied that the personal information of Ms. X is so closely intertwined with the personal information of other parties that it is not feasible to separate the two. Therefore section 37(7) applies. It seems to me, that even if their names were redacted, witnesses would still be identifiable by those familiar with the case from the content of their statements.

In addition, I consider that it would not be feasible to redact information about location\addresses, property, employment etc. from all of the report and its appendices without causing the remainder of the record to be misleading (section 18 of the Act refers). I find that the report and appendices are exempt from release on the basis of section 37(1), subject to the provisions of section 37(2) and section 37(5) which I examine below.

Section 37(2)
Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. For the purposes of this review, and with reference to those circumstances, I am satisfied that, (a) the information contained in the report and appendices does not relate solely to the applicant; (b) the third parties have not consented to the release of that information; (c) the information is not of a kind that is available to the general public; (d) the information at issue 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.

Section 37(5)
Section 37(5) provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance, (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 information would be to the benefit of the person to whom the information relates. In my view, the grant of the request would not benefit the individuals to whom the information relates. I am satisfied that section 37(5)(b) does not apply in this case.

The Public Interest
A request which would otherwise be refused under section 37(1) may be granted where the public interest that it be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld. The Commissioner's view is that the public interest in respecting the right to privacy is a very strong public interest and is recognised in the language of section 37 itself. This public interest in protecting privacy rights is also reflected in the Long Title to the Act which makes it clear that the release of records under FOI must be consistent with the right to privacy. The Commissioner also notes that the right to privacy also has a Constitutional dimension as one of the unenumerated personal rights under the Constitution.

In relation to the issue of the public interest, it is important to take note of the obitercomments of the Supreme Court in the the Rotundacase. Fennelly J. distinguished between a request made by a "private individual for a private purpose" and a request "made in the public interest". Macken J. in the same case stated that in her view a public interest would "require to be a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law". Thus, a public interest (a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law) should be distinguished from a private interest.

The Commissioner takes the view that both section 13(4) of the FOI Act and the Rotunda case stand for the principle that a requester's private interest in certain records cannot be construed into a public interest based on the requester's own motives for seeking access to the records. He considers that an objective rather than subjective standard applies in determining the public interest in granting access to records.

The applicant submits that the underlying principles of the FOI Act include the need to ensure that the decisions taken by public bodies are open to public scrutiny, that citizens who are affected by decisions know how they were arrived at and that they know what information is held about them by state bodies. He argues that failure to release the report leads to the suspicion that matters are being covered up and that in this case the public interest would be served by disclosure.

The Department submits that the public interest factors in favour of release of the information concern the right of the individual to learn of the details of the case brought against her. It submits that the public interest factors against release are that persons providing information to the Garda Síochána in relation to a criminal investigation should be entitled to do so in the knowledge that their personal information will be treated as confidential.

There is a public interest in openness and accountability in the manner in which a public body performs its functions. However, I am of the opinion that the public interest in openness and accountability has been met to some extent by the fact that Ms. X's complaint was referred to the IRM and considered by independent counsel. The recommendation made by Counsel and the reasons for that recommendation were communicated to the applicant. I do not consider that the public interest in the release of withheld information in this instance outweighs, on balance, the significant public interest in protecting the privacy rights of the individuals to whom the information relates. I find, therefore, that section 37(5)(a) does not apply to the withheld report and appendices.

In summary, I find that the report and appendices are exempt from release on the basis of section 37(1) and that none of the exceptions under section 37 apply.

In light of the above finding it is not necessary to further consider whether the report is also exempt under sections 32(1)(a)(i), 35(1)(a), and 41(1)(a) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I affirm the Department's decision to refuse access to the report and attached appendices on the basis of section 37(1) of the Act.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given.

Elizabeth Dolan
Senior Investigator