Whether the ODCE was justified in refusing access to CCTV footage that was preserved and shown at a trial

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

At a trial earlier this year, a staff member of the ODCE admitted to having shredded a number of documents that were relevant to the investigation of the defendant, who was the former chairman of Anglo Irish Bank.  The shredding incident, which occurred in May 2015, was captured on CCTV footage that was preserved and shown to the jury at the trial.  In a request dated 7 July 2017, the applicant sought access to the CCTV footage from May 2015 that shows ODCE staff before, during and after the shredding incident.  He stated that there is a "strong public interest" in the footage being released.  

The ODCE refused the request on the basis that the FOI Act does not apply to the footage by virtue of Schedule 1, Part 1(g).  In its decision on internal review, the ODCE acknowledged that CCTV recordings may normally concern the general administration of the Office, but it stated that these recordings are usually destroyed or overwritten by later recordings after a period of approximately one month in accordance with data protection requirements.  In this case, however, the footage was preserved because of its potential relevance to the trial that was ongoing at the time and it therefore became a record held under the Companies Act rather than a record concerning general administration.  The ODCE alternatively found that, even if the footage fell within the ambit of the FOI Act, it would be exempt under section 37(1) of the Act on the basis that it would involve the disclosure of personal information relating to the staff members depicted.  On 28 September 2017, the applicant applied to this Office for review of the ODCE's decision.

I have now completed my review in accordance with section 22(2) of the FOI Act.  In carrying out my review, I have had regard to the submissions made to date.  I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review 

This review is concerned solely with the question of whether the ODCE was justified in refusing access to the CCTV footage requested.

Analysis and Findings

Section 6(2)(a) of the FOI Act provides that an entity specified in Schedule 1, Part 1 of the Act shall, subject to the provisions of that Part, be a public body for the purposes of the Act.  Schedule 1, Part 1 contains details of bodies that are partially included for the purposes of the Act and also details of the certain specified records that are excluded.  If the records sought come within the description of the exclusions in Part 1, then the Act does not apply and no right of access exists. 

Schedule 1, Part 1(g) provides that the ODCE is not a public body for the purposes of the FOI Act in relation to records held or created under the Companies Acts (save as regards a record concerning the general administration of the ODCE).  In other words, if the record sought is held or created by the ODCE under the Companies Acts, the FOI Act does not apply to the record and no right of access exists, unless the record concerns the general administration of the ODCE.

While the term "general administration" is not defined in the Act, this Office considers that it clearly refers to matters concerning the management of the ODCE such as personnel, pay matters, recruitment, accounts, information technology, accommodation, internal organisation, office procedures and the like.  It does not refer to matters concerning the core business of the ODCE such as the investigation or prosecution of alleged offences under the Companies Acts.

In this case, I accept that at the time CCTV recordings are made, they may concern matters of general administration.  However, the ODCE has stated that CCTV recordings are usually destroyed or overwritten after approximately one month in order to comply with its data protection obligations.  While I find no reason to dispute the ODCE's statements regarding its normal treatment of CCTV recordings, I note that the ODCE has supported its submissions with relevant extracts from its Data Protection Registration.  The footage at issue in this case, however, became relevant to the ongoing trial that was being prosecuted at the time by the Director of Public Prosecutions (DPP) on foot of files provided to it by the ODCE following extensive investigations under the Companies Act.  As media reports confirm, one of the staff members depicted in the footage notified the Director of the ODCE of the shredding of relevant documents shortly after the shredding incident occurred.  The ODCE has explained that the footage of the shredding incident was then downloaded and provided to the DPP for disclosure to the defence.  As the applicant is aware, the footage of the shredding incident was eventually admitted into evidence at the trial.

Nevertheless, the applicant suggests that, now that the trial is over, the footage has reverted to being an administrative record and should be released.  However, the footage was downloaded, i.e. retained rather than being subject to destruction or erasure, once its relevance to the prosecution of the defendant under the Companies Act became apparent.  I consider that the footage became relevant to the core business of the ODCE under the Companies Act at that point and that it is not possible for it to revert to being merely a record concerning general administration.  In any event, the ODCE has also explained that the footage continues to be held by the Garda Evidence Officer in the ODCE as part of the evidence in other Anglo cases.

In the circumstances, I am satisfied that the ODCE was justified in its decision to refuse access to the footage sought on the ground that it is excluded from the scope of the FOI Act.  While the description of the footage indicates that it also contains personal information relating to staff members that would be exempt under section 37(1) of the Act, I consider that, as the FOI Act does not apply, it is unnecessary for me to make any definitive findings in relation to this or any other exemption provisions.

Decision 

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the ODCE in this case.

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