Whether the OPW was justified in refusing access, under sections 32(1)(a)(ix), 32(1)(b), 32(1)(c) and 42(h) of the Act, to details of expenditure in specified years on security at private residences including the homes of members of the Oireachtas, Judges, CAB officials, the President and/or former President(s)

14 September 2021

Background

This case has its background in an earlier OIC decision issued on 27 January 2021 (Case OIC-93056). In that case, the Senior Investigator found that the OPW was justified in refusing to grant a request for details of the amount of money spent on providing security at the homes of members of the Oireachtas during a specified period on the ground that no record containing the specific information sought existed and that the OPW was not obliged to create a new record to grant the request.

In essence, while the OPW indicated that it held information in relation to security at private residences, that information included details relating to various parties, including members of the Oireachtas, judges, CAB officials, the President and/or former Presidents. Having considered the OPW‘s description of its records management practices in respect of the information at issue, this Office accepted that the work involved in providing the specific information sought was such that it would involve the creation of a new record and that the OPW was not required to do so.

On 26 March 2021, the applicant submitted a request for the information the OPW indicated it holds “in relation to ‘security at private residences’ which includes members of the Oireachtas, Judges, CAB officials, the President and/or former President(s)”. He later clarified that the request covered the years 2018, 2019, 2020, and 2021 to date. In a decision dated 16 April 2021, the OPW refused the request under sections 15(1)(a), 32(1)(a)(ix), 32(1)(b), 32(1)(c) and 37(1) of the FOI Act.

The applicant sought an internal review of that decision. He referred back to his previous correspondence with the OPW and reiterated that he was seeking aggregated total costs associated with the provision of security at private residences by the OPW, and was not seeking any names or addresses associated with that expenditure. The OPW issued its internal appeal decision on 12 May 2021, affirming the original decision. On 18 May 2021, the applicant sought a review by this Office of the OPW’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 by the applicant and by the OPW and to the correspondence between the parties. I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

During the review process, the OPW also sought to rely on section 42(h) as a ground for refusing the request. This review is therefore concerned with whether the OPW was justified in refusing access, under sections 15(1)(a), 32(1)(a)(ix), 32(1)(b), 32(1)(c), and 42(h) of the FOI Act, to details of the amount spent on security at private residences in each of the years 2018, 2019, 2020, and 2021 to the date of the request.

Preliminary Matter

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 OPW to satisfy the Commissioner that its decision to refuse access to certain records, either in whole or in part, was justified.

Analysis and Findings

Section 15(1)(a) – Do the records sought exist?

Section 15(1)(a) of the Act provides for the refusal of a request where the records sought do not exist or cannot be found. In its submissions to this Office, the OPW drew a distinction between how it records expenditure on the installation of security measures at private residences and how it records expenditure on the ongoing maintenance of these security measures. It stated that while reports can be generated electronically on the yearly cost of installing security at private residences, ongoing maintenance costs are recorded on the accounting system in a different way and would require extensive cross-checking against paper files which, it argued, would constitute the creation of a new record. It submitted that the creation of such a record would involve going beyond the “reasonable steps” envisaged by section 17(4) of the FOI Act and concluded, therefore, that the records sought do not exist, in accordance with section 15(1)(a) of the Act.

The applicant was informed of the OPW’s position and he agreed to narrow the scope of the review to include only the annual expenditure on the installation of security measures at private residences and not the expenditure on the maintenance of such measures. I consider this an appropriate position to take. In essence, the applicant is seeking details of the amount spent each year, in so far as that information is held by the OPW. Accordingly, in circumstances where the OPW has confirmed that it can, indeed, generate reports on the yearly cost of installing security at private residences, I do not consider it necessary to further consider the OPW’s arguments in support of refusing the request under section 15(1)(a).

Section 42(h) – Records relating to the President

While the OPW confirmed that it can generate reports from its accounting system of the total annual security installation costs at private residences, it stated that these costs may include costs relating to the private residences of the President and/or former Presidents which are specifically excluded from release under FOI by section 42(h) of the Act. It stated that it would have to create a separate record, which would involve trawling through individual files, in order to identify and, I presume, exclude these costs from the overall figures.

Section 42(h) provides that the FOI Act does not apply to a record relating to the President. In H.(E). v the Information Commissioner [2001] IEHC 182, the High Court considered the question of whether records “related to” the requester’s personal information. The Court found that the test to be applied to determine whether a record “relates to” the personal information is “whether there is a sufficiently substantial link” between the requester’s personal information and the record in question. I find it useful to adopt this reasoning in examining whether the records at issue in this case can be considered records “relating to” the President, given the use of the phrase “relating to”.

The records under consideration are reports from the OPW’s accounting system that show the total amount of money spent per year on the installation of security at private residences of a wide variety of individuals, including members of the Oireachtas, Judges, CAB officials, the President and/or former President(s). No names, addresses, positions held, or even individual amounts of money spent per residence would be released. In fact, the OPW has explained that in order to identify whether the total figures do, in fact, include expenditure relating to the President or former Presidents, a significant amount of additional work would need to be undertaken in checking through the individual files.

It seems to me that the release of details of the overall amount spent in a particular year would not, of itself, disclose any information relating to the President, in circumstances where no other identifying information, in terms of the premises or individuals involved, is available. In these circumstances, I cannot see a sufficiently substantial link between the release of aggregated costs for each year, that may, or may not, include amounts spent on the private residence of the President and/or former President(s), and the President. I do not accept that these reports from the accounting system can reasonably be described as records relating to the President. I find, therefore, that section 42(h) does not apply.

Section 32(1) - Law enforcement and public safety

The OPW has cited sections 32(1)(a)(ix), 32(1)(b) and 32(1)(c) in support of its refusal of the request. Section 32 is a harm based exemption which allows a body to refuse a request if it considers that access to the record sought could reasonably be expected to give rise to any of the harms set out in subsection (1). Where an FOI body relies on section 32(1), it should identify the potential harm to the matters specified in the relevant sub-paragraph or sub-section that might arise from disclosure and having identified that harm, consider the reasonableness of any expectation that the harm will occur. The contents of the record(s) at issue are important and consideration should be given to what they reveal.

Subsection (1)(a)(ix) of section 32 is concerned with prejudice or impairment to the security of a building or other structure. Subsection (1)(b) is concerned with endangerment to the life or safety of any person, while subsection (1)(c) is concerned with the facilitation of the commission of an offence.

In its submissions to this Office, the OPW did not specifically address the different subsections of section 32 it relied upon; instead, it provided an overall explanation of why it considered the records to be exempt under section 32. In essence, the OPW argued that releasing any information on the cost of carrying out security works on private residences gives an insight into the level and extent of the security measures and puts people and property at risk.

While it acknowledged that the aggregate annual figures would not identify individuals, it submitted that subsets of the annual figures could be used to draw conclusions in relation to individuals and could potentially jeopardise the security of a building and/or potentially endanger the life or safety of an individual. It argued that any breakdown of expenditure relating to security at private residences has the potential to reveal the identity of individuals, should this information be linked with other details e.g. information on cost of security at private residences based on geographical location. It submitted that other information may provide indicators to identify security at private residences of individual office holders e.g. a change of Government or the provision of monthly or quarterly stats. It pointed to the applicant’s request for details for the first three months of 2021, which it described as a breakdown of the annual aggregated figures. It concluded that establishing the identity of individuals could undermine, prejudice or impair the security at their private residences.

I fully accept that details of security measures put in place at the homes of members of the Oireachtas, Judges, CAB officials, the President and/or former President(s) is highly sensitive. I also accept the OPW’s argument that the release of aggregate figures on annual expenditure on the installation of security measures at private residences may give an insight into the level of security measures carried out on such properties in any particular year. For example, if the OPW incurred no such expenditure in a particular year, disclosure of that fact would disclose the fact that no such work was undertaken.

However, such disclosure gives no indication of the level of security that might already exist in relation to any particular premises or what security measures may have been put in place previously for any particular premises. Indeed, the disclosure of the aggregate amount of expenditure could not possibly, in my view, allow for informed conclusions to be drawn as to the level of security at any particular private residence, such that it might potentially jeopardise the security of a building and/or potentially endanger the life or safety of an individual or facilitate the commission of an offence.

In relation to the OPW’s suggestion that other available information such as a change of Government or the provision of monthly or quarterly statistics may provide indicators to identify security at private residences of individual office holders, it seems to me that this is, in essence an argument for refusing access to any information relating to expenditure on security for private residences as a class. Section 32 is not a class based exemption; the body must be in a position to show that it considers it reasonable to expect that the harm identified will arise from the release of the particular information at issue. I fail to see how the release of the specific information sought in this case could reasonably be expected to give rise to the harms identified by the OPW. Disclosure of the amount of expenditure incurred in each of the years in question or, indeed, in the first quarter of 2021 could not, in my view, reasonably be expected to allow for the identification of any particular premises or office holder that, in turn, might give rise to the harms identified. In the circumstances, I find that section 32(1) does not apply.

Decision

Having carried out a review under section 22(2) of the FOI Act, I annul the OPW’s decision to refuse access to the aggregate amounts spent on the installation of security measures at private residences in 2018, 2019, 2020 and in 2021 to the date of the request, and I direct the release of the information sought.

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