Whether An Garda Síochána was justified in refusing access to records relating to the Jerusalema Challenge under sections 15(1)(a) and 37(1) of the FOI Act

20 July 2021

Background

On 2 February 2021, a video was released through the social media channels of An Garda Síochána (AGS) showing members of AGS participating in a dance known as the Jerusalema Challenge.

On 3 February 2021, the applicant submitted a four-part FOI request to AGS. Specifically, she sought access to the below records, in their original format:

1. “Any and all communications, including emails, minutes of meetings and messages on services such as WhatsApp, regarding the commissioning of the "Jerusalema Challenge" viral video, between any representatives or employees of an Garda Síochána, an Garda Síochána communications department, and any and all creative collaborators including videographers, drone operatives, choreographers and external PR companies etc.
2. Records of any and all costs incurred in the production of the Jerusalema Challenge video.
3. Records of any non-Garda personnel employed to dance in the Jerusalema Challenge video.
4. Records of travel for members of an Garda Síochána engaged to perform in the Jerusalema Challenge video.”

In a decision dated 1 March 2021, AGS refused parts 1, 2 and 3 of the request under section 15(1)(d) of the FOI Act on the basis that the records had already been subject to an FOI request, the response to which had been published on the website of AGS in its FOI decision log. It refused part 4 of the request pursuant to Part 1(n) of Schedule 1 of the FOI Act which provides that AGS is a public body for FOI purposes only insofar as it relates to administrative records relating to human resources, or finance or procurement matters.

The applicant sought an internal review of that decision. She disputed the statement that the information sought was already in the private domain, noting that while a figure of €1,020.38 had been quoted in the response to that earlier FOI request as the total cost incurred in making the video, no records had been released. That earlier decision also refused to release communication records related to the video under section 15(1)(a) on the basis that all communication was conducted over the telephone and therefore no records existed. The applicant stated that she did not find this explanation to be plausible given the scale of the video and number of people involved. She stated that the third part of her request had not been addressed and she challenged the finding that part 4 of her request did not fall within the category of administrative records relating to human resources, or finance or procurement matters.

On 18 March 2021, following an internal review, AGS varied its original decision. It refused part 1 of the request pursuant to Schedule 1, Part 1(n) of the FOI Act on the grounds that the records requested fall outside the scope of the FOI Act as it relates to AGS.  It provided a breakdown of the total cost of the production, namely subsistence and travel cost €732.38 and overtime cost €288. It stated that there were no payments to external service providers in the production of the video. It also stated that no non-Garda personnel had been employed to dance in the video. In respect of part 4, it provided details of the locations where filming took place. It stated that as the participants at each location were members of AGS from the local Garda divisions, that no further records in respect of travel by members and staff exist and it therefore refused part 4 under section 15(1)(a). On 12 April 2021, the applicant sought a review by this Office of the decision of AGS. 

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 correspondence between the applicant and AGS as outlined above and to correspondence between this Office and both parties on the matter. I have decided to conclude this review by way of a formal, binding decision.

Scope of the review

While the applicant sought access to various records relating to the Jerusalema Challenge video, no records have been released by AGS and she has instead been given discrete pieces of information in the body of correspondence i.e. the total costs incurred in making the video and a list of locations where filming took place. In justifying this approach in its submissions to this Office, AGS relied on section 37(1) of the FOI Act and referred to sections 17(1)(g), 17(2), and 18(1).

Accordingly, this review is concerned with whether AGS was justified in refusing access to the various records sought under sections 15(1)(a) and 37(1) of the Act and pursuant to Schedule 1, Part 1(n) of the Act.

Preliminary Matter

In addition to seeking a review of the decision of AGS, the applicant stated that she wished to make a complaint against the FOI Officer who she alleged to be purposefully concealing the existence of relevant records. The FOI officer, in his submissions to this Office and in communication with the applicant, rejected the allegations made by the applicant and asked that the matter be addressed in the course of this review. While the review, undertaken pursuant to section 22(2) of the Act, is confined to a consideration of whether the decision taken by AGS on the request was justified, I can say that no evidence has been presented to this Office to support the allegations made. The fact that an applicant may be dissatisfied with the extent of the records considered for release on foot of a request does not, of itself, mean that records have been wilfully concealed, even if it subsequently transpires that additional records should have been considered.

Analysis and Findings

In its submission to this Office, AGS explained that the decision to participate in the Jerusalema Challenge was taken at short notice and was organised on an ad hoc basis within a short timeframe. It said Garda Press Office staff contacted Garda members by phone and these individuals were asked to organise groups at their particular locations to participate. It said no formal meetings took place, that approval was given verbally by the Director of Communications, and that no external service providers were used. AGS stated that this kind of approach was not unusual in the Garda Press Office when producing light-hearted social media content. While the applicant did not find this explanation to be credible, I have no reason to doubt the explanation given as to the informal manner of the process.

Sections 37 - Personal information

The only records identified by AGS following the applicant’s request were the travel and subsistence and overtime claim forms submitted by the videographer attached to the Garda Press Office. These are relevant to part 2 and part 4 of the request. AGS did not release the records to the applicant on the grounds that they comprise personal information of the particular staff member and are exempt under section 37.

Section 2 of the FOI Act defines the term “personal information” as 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 the body as confidential. Without prejudice to the generality of the foregoing definition, section 2 also lists 14 non-exhaustive examples of what must be considered to be personal information, including information relating to the financial affairs of the individual. I am satisfied that the release of travel and subsistence forms, and overtime claim forms, of the videographer would involve the release of personal information and that section 37(1) applies.

Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. None of these circumstances arise in this case. Section 37(5) of the FOI Act 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.

There is nothing to suggest that the release of the records at issue would be to the benefit of the individual concerned and section 37(5)(b) therefore does not apply. In relation to paragraph (a), I must consider whether the public interest in releasing the records outweighs, on balance, the public interest in protecting the right of privacy of the individual to whom the information contained in the records relates.

In carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. Section 11(3) provides that an FOI body must have regard to the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. It is important to note that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57, the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and “there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure”. Although the Court’s comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.

Both 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). Unlike other public interest tests provided for in the FOI Act, there is also a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. Privacy rights will therefore 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. It is also important to bear in mind that the release of records under FOI is regarded, in essence, as release to the world at large, given that the Act imposes no constraints on the uses to which information released under FOI may be put.

In this case, AGS provided the applicant with the total figures for travel and subsistence costs and overtime costs incurred by AGS in the making of the Jerusalema Challenge video, and the list of locations where filming took place. AGS submitted that by providing the information in “narrative form”, it sought to strike a balance between the requirement to provide information in an open and transparent manner and the requirement to preserve the confidentiality of personal information.

The details already released disclose the costs incurred by AGS in making the Jerusalema Challenge video and the locations of filming. It does not seem to me that the release of the individual claim forms submitted by the videographer for travel and subsistence, and for overtime, would enhance transparency and accountability of AGS to the extent that it would outweigh the videographer’s right to privacy. I am aware of no specific public interest factors in favour of the release of these records that would lead me to conclude that the public interest would, on balance, be better served by their release and I find that section 37(5)(a) does not apply.

I therefore find these records to be exempt under section 37(1) of the FOI Act.

Section 15(1)(a): Adequacy of search

Section 15(1)(a) of the FOI Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner’s role in such cases is to review the decision of the FOI body and to decide whether the decision was justified. This means that the Commissioner must have regard to the evidence available to the decision maker in arriving at his/her decision.

The evidence in “search” cases generally consists of the steps actually taken to search for the records along with miscellaneous and other information about the record management practices of the FOI body, insofar as those practices relate to the records in question. It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations arise where the records are lost or simply cannot be found. Furthermore, this Office can find that an FOI body has satisfied the requirements of section 15(1)(a), even where records that an applicant believes ought to exist have not been located.

I note at the outset that AGS stated that no external service providers were used and that all participants who danced in the video were Garda members or Garda staff, and that therefore no records exist in relation to non-Garda personnel employed to dance. I have no reason not to accept this and as such I am satisfied that AGS was justified in refusing to grant access to any relevant records coming within the scope of part 3 of the request under section 15(1)(a) on the ground that no such records exist

It is the position of AGS that apart from the travel & subsistence and overtime claim forms discussed above, no further records relevant to the applicant’s request exist.  However, part 1 of the applicant’s request was refused under Schedule 1, Part 1(n) of the FOI Act, i.e. that if records relevant to this part of the request did exist, they would fall outside the scope of the FOI Act. Nevertheless, it seems to me that section1 5(1)(a) is also of relevance to part 1 of the request.

During the course of the review, AGS provided submissions to this Office in which it outlined details of the searches carried out and of its explanation as to why it believes no further relevant records exist. As this Office has already provided the applicant with those details, I do not propose to repeat them in full here. In short, AGS’s position is that relevant staff members of the Press Office conducted several searches of their electronic and paper files and the only records found were the videographer’s claim forms for travel and subsistence and overtime. In light of the circumstances in which AGS produced its Jerusalema Challenge video, it was satisfied that no other relevant records exist.

Commenting on the search details provided, the applicant reiterated that she found it implausible that further records do not exist. She also referred to AGS stating that the Director of Communications had “signed off on the campaign” and then later stating that approval had been given verbally. She submitted that this was a contradiction and that “signed off” refers to written, rather than verbal, approval. I am satisfied that the term “sign off” can be used colloquially to mean giving approval to something; I do not accept that it always has to involve written approval and do not consider this to be a contradiction that implies additional records exist.

The question for me is whether, taking all of the circumstances into account, it was reasonable for AGS to refuse access to further records on the grounds that they do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken.

It is important to note that schedule 1, Part 1(n) of the Act provides that AGS is not a public body for the purposes of the Act other than insofar as it relates to administrative records relating to human resources, or finance, or procurement matters. The Act does not define the term "administrative records" as provided for in Part 1(n) apart from stating that they relate to human resources, or finance or procurement matters. The term "administrative records" is commonly understood to mean records relating to the processes of running/managing a business or organisation. This, of itself, necessarily limits the extent to which AGS must search for relevant records. For example, if a written record of a request for approval to a senior member of AGS to participate in the Jerusalema Challenge and the resulting approval granted did exist, it would not, in my view, fall within any of the categories of Part 1(n) and would not have to be considered for release under FOI.

Given the explanation as to the informality of the process and that it was all completed in-house, I am satisfied that AGS was justified in refusing to release further records on the grounds that they do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken.

Decision

Having carried out a review under section 22 of the FOI Act, I hereby affirm AGS’s decision to refuse access to records relating to the Jerusalema Challenge under sections 15(1)(a) and 37(1) of the FOI 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 to the person bringing the appeal.

 

Stephen Rafferty

Senior Investigator