Whether the Council was justified in refusing access, under section 32(1)(a)(iv), to the Data Protection Commission’s (DPC’s) decision in relation to the Council’s use of CCTV

1 December 2020

Background

In a request dated 14 June 2020, the applicant sought access to the DPC’s decision regarding the Council’s use of CCTV. The subject matter of the decision was the conclusion of an own volition inquiry into the lawful basis under the General Data Protection Regulation (GDPR) for the use of CCTV by the Council. At the time, the Council had appealed the DPC’s decision to the Circuit Court. The Council’s decision of 13 July 2020 refused the request under section 32(1)(a)(iv) of the FOI Act (prejudice to the fairness of proceedings in a court). The applicant sought an internal review on 25 July 2020. On 27 August 2020, the Council affirmed its decision on the request, saying that the matter was still under appeal to the Circuit Court. On 28 August 2020, the applicant applied to this Office for a review of the Council’s decision.

I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to correspondence between this Office, the Council and the applicant, the contents of the requested report and the provisions of the FOI Act. 

Scope of the Review

The scope of this review is confined to whether the Council was justified in refusing the request under section 32(1)(a)(iv) of the FOI Act.

Findings

Section 32(1)(a)(iv) provides for the refusal of an FOI request if access to the record concerned could, in the opinion of the head, reasonably be expected to prejudice or impair 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. In doing this, the FOI body should show how or why releasing the particular record could reasonably be expected to cause the harm which it has identified. This is an important issue for the FOI body to address and its submission to the Commissioner should explain this.

In the initial stages of this review, the Council told this Office that it had withdrawn its court appeal further to discussions with the DPC. It said that it would be in a position to grant the request after the conclusion of certain matters as agreed to by both bodies. Upon assignment of the review on 8 October 2020, this Office’s Investigator asked the Council for an update on the possible release of the record. No update was received. On 12 October, the Investigator invited the Council’s submissions as to why section 32(1)(a)(iv) applies at this point in time, given that the appeal has been withdrawn. She said that the Council’s submissions should explain how the requirements of any other exemption that it may wish to rely on are met and address the public interest where relevant. She also asked the Council to advise if it was willing to release the record, in which case a submission would not be needed.

No submission or response has been received from the Council. In the circumstances, and having considered the record at issue here, I have no reason to consider that releasing the record could reasonably be expected to prejudice or impair the fairness of any proceedings in a court. I find that section 32(1)(a)(iv) does not apply.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Council’s refusal of the applicant’s request. I direct that access be granted to the requested record.

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.

Deirdre McGoldrick

Senior Investigator