Whether the Defence Forces was justified in refusing access to a copy of reports/investigations in relation to a shooting incident on 18 May 1988 in Portlaoise Prison on the ground that the Act does not provide for a right of access to the records sought as they were created prior to the effective date of the FOI Act as it applies to the Defence Forces i.e. 21 April 1998

2 November 2021

 

Background

On 18 May 1988, an individual was re-arrested following his release from Portlaoise Prison, during which warning shots were fired by members of the Defence Forces. On 10 June 2021, I annulled a decision of the Defence Forces to refuse the applicant’s request for a copy of reports or investigations in relation to that shooting incident, as it transpired during the review that certain relevant records did, indeed, exist (case OIC-106789 refers). I directed the Defence Forces to conduct a fresh decision-making process in respect of the applicant’s request.

On 13 July 2021, the Defence Forces refused the request on the ground that the records sought were created before the effective date of the Act for the Defence Forces (21 April 1998). On 21 July 2021, the applicant sought an internal review of the refusal of his request, following which the Defence Forces affirmed its original decision. On 10 August 2021, the applicant sought a review by this Office of the decision of the Defence Forces.

I have now completed my review in accordance with section 22(2) of the FOI Act. In conducting my review, I have had regard to the correspondence between the Defence Forces and the applicant as outlined above and to correspondence between this Office and both the Defence Forces and the applicant on the matter. I have also had regard to the contents of the records the Defence Forces identified as coming within the scope of the applicant’s request, copies of which were provided to this Office for the purposes of the review.

Scope of the Review

This review is concerned with whether the Defence Forces was justified in refusing the applicant’s request for access to a copy of reports/investigations in relation to a shooting incident on 18 May 1988 in Portlaoise Prison on the ground that no right of access exists to the records as they were created before the effective date of the Act, i.e. before 21 April 1998.

Preliminary Matter

In his submissions, the applicant outlined his reasons for seeking the records and why these records should be released to him. It is important to note that I am required under section 13(4) to disregard any reasons the applicant has for seeking access to the records in question.

Analysis and Findings

Section 11 of the Act provides for a right of access to records held by public bodies that were created on or after the effective date. The effective date in respect of the Defence Forces is 21 April 1998. Section 11(5) provides for a right of access to records created after the effective date in certain limited circumstances, namely;

a) where access is necessary or expedient to understand records created after the effective date or

b) where the records relate to personal information about the requester. It has not been argued that section 11(5)(a) applies in this case.

All of the records the Defence Forces identified as coming within the scope of the applicant’s request were created before 21 April 1998. As such, no right of access to those records exists unless either paragraph a) or b) applies.

Whilst the applicant made submissions to this Office in the course of the review, he has not identified any record created after 21 April 1998 that cannot be understood without access to records created before this date. Without an identified record that was created after 21 April 1998, I find that section 11(5)(a) does not apply.

On the applicability of paragraph b), the applicant essentially argued that the records relate to personal information about him as he was involved in the incident in question as a prison officer. The question I must consider, therefore, is whether the records identified by the Defence Forces as relevant to the request relate to personal information about the applicant.

Section 2 of the Act defines 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 that body as confidential. Section 2 goes on to specify 14 categories of information that, without prejudice to the generality of (a) or (b), is personal information for the purposes of the Act.

Certain information is excluded from the definition of personal information. Where the individual holds or held a position as a member of the staff of an FOI body, the name of the individual is excluded, as is information relating to the position held or its functions or the terms upon and subject to which the individual occupies or occupied that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of the functions stated.

Having examined the records in question, I am satisfied that they do not relate to personal information about the applicant.

The records include Defence Forces reports of the incident in question and accompanying statements from members of the Defence Forces, and related records. The applicant is not mentioned or referenced in any of the records. Even if he had been referenced or mentioned, it seems to me that the exclusion to the definition of personal information described above would, in all likelihood, have applied. More importantly, the fact that he may have been involved in the incident does not, of itself, mean that the records relate to personal information about him.

In its judgment in EH and the Information Commissioner [2001] IEHC 182, the High Court found that the test to be applied to determine whether or not a record “relates to” is whether there is a

sufficiently substantial link between the requester’s personal information and the record in question. I am satisfied that no such link exists in this case. I find, therefore, that section 11(5)(b) does not apply.

In conclusion, therefore, I find that the Defence Forces was justified in refusing the applicant's request on the ground that the records containing the information sought were created before the effective date of the FOI Act and that the FOI Act does not for provide a right of access to such records.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Defence Forces to refuse the applicant’s request for records relating to a shooting incident at Portlaoise Prison on 18 May 1988 on the ground that they were created before the effective date of the FOI Act and that the Act does not provide for a right of access to such records.

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