Case Number: 170325

Whether the IPS was justified in refusing to release records to the applicant relating to drugs and drug seizures

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

Background

On 11 August 2016, the applicant submitted an FOI request to the IPS for access to records relating drug seizures, detection and testing "for each of the 14 facilities run by the [IPS]" from 2012 to the date of her request. The IPS issued a decision in November 2016 and granted access to certain information but refused access to a number of records on the basis of section 32 (Law enforcement and public safety) of the FOI Act. The IPS also stated that records related to drug seizure and detection "are not kept". As such, while not referring the applicant to the relevant exemption provision, as required by the Act, the IPS effectively refused access to further records under section 15(1)(a) of the FOI Act, on the basis that no such records exist.

On December 2016, the applicant requested an internal review concerning part of her request for

"All reports made by the Security Committee of each prison facility to the Governor of that facility in relation to drug seizures.

"All recommendations made by the Security Committee of each prison facility to the Governor of that facility in relation to drugs."

The applicant explained in her request that she did not want access to "sensitive security information", and was solely interested in documentation relating to the detection of drugs and in particular "to the types of drugs found, whether prescription or illicit".

The IPS did not issue a decision in accordance with the provisions of section 21(4) of the Act. Following communications with this Office, on 13 June 2017 the IPS issued an effective position to the applicant. However, it did so on the basis of all aspects of the applicant's original request. The IPS stated that the records were refused under sections 30(1)(c), 32(1)(a)(i), (iii), (v) and (x) of the FOI Act. Similar to its original decision, the IPS did not specify if it was relying on section 15(1)(a) of the FOI Act.

During the course of this review, the applicant made a submission to the Office on the basis of her internal review request of the applicant and her application to this Office. Subsequently, the Investigator spoke with the applicant in order to clarify what the applicant wanted this Office to review. Having explained that section 15(1)(a) might apply to that part of the applicant's request, the Investigator then wrote to the applicant and invited her to make a second submission on the basis of that section. A second submission was not received.

In conducting this review I have had regard to the submissions of the IPS and the applicant, and to correspondence between the applicant, the IPS, and this Office. I have also had regard to the provisions of the FOI Act. I consider that the review should now be brought to a close by the issue of a formal, binding decision.

Preliminary Matters

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 IPS to satisfy the Commissioner that its decision is justified.

Scope of Review

This review is solely concerned with whether the decision of the IPS to refuse the applicant's request under section 15(1)(a) of the FOI Act was justified.

Analysis and Findings

Section 15(1)(a)
Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused if the record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. The role of this Office in cases such as this is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision and I also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.

The evidence in "search" cases consists of the steps actually taken to search for records, along with miscellaneous other evidence about the record management practices of the FOI body, on the basis of which the FOI body concluded that the steps taken to search for records were reasonable. Having regard to the information provided, this Office forms a view as to whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found. However, it is not normally the function of this Office to search for records that a requester believes are in existence.

In a submission to this Office the applicant explained that she has asked that her request be refined to provide only information that related to the type of drug seized or confiscated. The applicant referred to the IPS Drugs policy and strategy document 'Keeping Drugs out of Prisons' which referred to a prison 'Security Committee' and its reporting structure. She argued that the IPS "should be in a position to disclose information about the type and quantities of drugs and other substances in prisons".

The IPS stated that the process as described by the requestor is not applied by the IPS, and that such records do not exist. It said that drug seizures are reported on a case by case basis, and that statistical records on drug seizures were provided to the requester. The IPS said that it does not have the facility to test for quantity or substance type of drug; that records are not kept as to how the seizure of drugs were detected and that any suspected drug seizure is passed on to An Garda Síochána for examination. It said that statistics are reported in the Annual Report of the IPS.

The IPS explained that each prison facility was requested to search for records. According to the IPS, the search involved interviews with individual members of staff who had responsibility to deal with security matters. The IPS said it also had detailed contact with the Governors in each prison and conducted a search of the electronic databases and records held. It stated that "no records have been located on this matter".

The position of the IPS is that it has taken all reasonable steps to look for records of relevance to the applicant's request. I do not believe that the FOI Act requires me to direct the IPS to carry out indefinite new searches. In view of the information provided by it relating to the search undertaken, I consider that the IPS has taken all reasonable steps to ascertain the whereabouts of any further relevant records. In addition, I have examined minutes of Security Committee meetings of the various prisons and am satisfied that these do not contain the information sought by the applicant. I find, therefore, that section 15(1)(a) of the FOI Act applies.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the IPS to refuse to release records to the applicant under section 15(1)(a) of the FOI Act on the ground that no relevant records exist.

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 to the person bringing the appeal.

Elizabeth Dolan
Senior Investigator