Whether AGS was justified in refusing access to further records relating to the applicant’s proposed temporary transfer and his appeal of same under section 15(1)(a) of the FOI Act on the ground that no further records exist or can be found and whether it was justified in redacting certain information under section 37 of the FOI Act

03 November 2021

Background

In a request received by AGS on 10 August 2020, the applicant sought all records relating to a temporary transfer order made in respect of him moving to another part of the organisation and relating to his subsequent appeal of that order. On 31 August 2020, AGS decided to part-grant the request. Of the six records it identified as coming within the scope of the request, it released one in full and the remaining five in part, with the redaction of certain information under sections 37 and 42 of the FOI Act. On 5 September 2020, the applicant sought an internal review of that decision, following which AGS affirmed its original decision.

On 5 October 2020, the applicant sought a review by this Office of AGS’s decision. Among other things, the applicant said he made his request initially in order to discover why his name had been proposed for temporary transfer and that the records provided did not reveal the reason for this.

During the course of the review, AGS located and released to the applicant a further record falling within the scope of his request. Ms Whelan of this Office provided the applicant with details of submissions made by AGS, during the course of the review, regarding the searches it had conducted in response to his request. She informed him of her view that AGS had carried out all reasonable steps in an effort to ascertain the whereabouts of the records sought and that it was justified in refusing to release additional records on the ground that no further relevant records exist. She invited the applicant to make a further submission on the matter. The applicant has made no further submission to date.

I have now completed my review in this case. I have decided to conclude the review by way of a formal, binding decision. In conducting the review, I have had regard to the correspondence between the applicant and AGS as set out above and to the communications between this Office and both AGS and the applicant on the matter. I have also had regard to the contents of the records coming within the scope of the applicant’s request.

Scope of Review

This review is concerned with the question of whether AGS was justified in refusing access, under section 15(1)(a) of the Act, to further records relating to the temporary transfer order and the applicant’s related appeal on the ground that no further records exist or can be found and whether it was justified, sections 37 and 42(b), in withholding certain information from the records released.

Analysis and Findings
Section 15(1)(a)

Section 15(1)(a) of the FOI Act provides that a request for access to records may be refused if the records sought either do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The role of this Office in such cases is to review the decision of the FOI body and to decide whether the decision was justified. We 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 other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.

In submissions to this Office, AGS explained that a Cohort model is currently used for the allocation of personnel within AGS. The Cohort model provides a surplus or deficit figure for each Division, based on the difference between the current allocation of personnel to the Division and the allocation figure, based on the Cohort model. This information is considered in conjunction with comprehensive and an up-to-date working knowledge of current resources in each Division and the business needs of same to facilitate an equitable and balanced deployment of personnel to all Divisions, National Units and Sections. The model allows for consideration of allocations of Trainee and Student Gardaí, newly allocated staff and newly promoted personnel. The model allows applications for transfers to be considered and facilitated, in conjunction with allocations and deployments of Trainee and Probationer Gardaí, while simultaneously facilitating the extraction of frontline uniformed operational personnel. AGS stated that the Cohort model enables it to manage and monitor its capacity and ability to deliver a policing service.

AGS explained that the Human Resources & People Development Office (HR&PD) has responsibility for the transfer of all personnel within AGS, by way of application and allocations, on promotion or other application, direction and instruction, on the basis of operational policing requirements. AGS stated that records in respect of those matters are created at HR&PD. Decisions are communicated by HR&PD through Divisional and District Officers to the member concerned.

AGS stated that the Office of Deputy Commissioner, Policing & Security has ultimate responsibility for all operational policing matters, including the allocation of staffing resources. AGS explained that decisions by the Deputy Commissioner, Policing & Security are forwarded to the Executive Director of HR&PD.

In this instance, AGS stated that the Cohort model was not used in respect of the applicant’s temporary transfer. Rather, AGS explained that the Superintendent of the relevant division made verbal enquiries with other managers seeking Garda members with the required skills who could potentially transfer to that division on a temporary basis. AGS stated that following verbal enquiries, the applicant was recommended to that Superintendent, who forwarded his name to the Deputy Commissioner’s Office for consideration for temporary transfer. AGS provided a record showing this correspondence and released same to the applicant in the course of the review. AGS explained that communication from the Deputy Commissioner of Policing & Security to the Executive Director of HR&PD dated 13 March 2020, directed the applicant’s temporary transfer (among other transfers). This correspondence was included in records initially released to the applicant.

AGS stated that electronic and hardcopy searches were conducted using the applicant’s name and Reg Number. AGS confined searches to HR&PD as it explained that it alone has responsibility for the matters relating to the applicant’s request. Relevant records were located in the Resource Allocation Office within HR&PD on the applicant’s personnel file and other general correspondence files. AGS stated that records from the Deputy Commissioner were included in the records held in HR&PD.

In his application for review, the applicant noted that neither a reply to an email from the Assistant Commissioner of the Dublin Metropolitan Region to the Deputy Commissioner Policing and Security regarding the temporary transfer, or any documentation in relation to the initial proposing of his name for the purpose of a temporary transfer were included in the records released to him. In this regard, AGS explained that because the applicant was subsequently promoted to Sergeant and transferred on allocation, a response was not issued to the Office of Assistant Commissioner, as a temporary transfer was no longer being proposed.

In summary, AGS’s position is that, based on the searches it carried out and circumstances of this case, it holds no further records coming within the scope of the request. Having considered the nature of the records sought and AGS’s explanations of the circumstances in this case, I am satisfied that it has carried out all reasonable steps in an effort to locate relevant records. I find, therefore, that AGS was justified in refusing access to the records sought on the ground that the records cannot be found or do not exist.

Redacted Information

AGS redacted information from one record (record 2) under section 42(b) of the FOI Act. That section states that the Act does not apply to records held or created by AGS that relate to the following:

(i) the Emergency Response Unit;

(ii) the Secret Service Fund;

(iii) the Special Detective Unit;

(iv) the witness protection programme;

(v) the Security and Intelligence Section;

(vi) the management and use of covert intelligence operations;

(vii) the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993;

(viii) the Criminal Justice (Terrorist Offences) Act 2005;

(ix) the Criminal Justice (Surveillance) Act 2009; and

(x) the Communications (Retention of Data) Act 2011.

The applicant, in his application for review, suggested that AGS was using section 42(b) as a blanket exemption for the purposes of withholding information falling under the scope of his request. I note, however, that the only information withheld on this basis is the information redacted from record 2, as outlined.

AGS also redacted information from five records under section 37 of the FOI Act. Section 37(1) of the FOI Act provides for the mandatory refusal of a request where access to the record sought would involve the disclosure of personal information relating to individuals other than the applicant. For the purposes of the Act, personal information is defined as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or his/her family or friends, of the individual or (b) is held by an FOI body on the understanding that it would be treated by it as confidential.

Having reviewed the redacted information, I am satisfied that save for certain information redacted from record 4, which I will deal with below, the remainder of the redacted information does not relate to the applicant’s temporary transfer order, nor his subsequent appeal of same. The information relates to third parties and other matters and as such, I am satisfied that the information redacted from records 1, 2, 3, 5 and 6 are outside the scope of the applicant’s request.

Section 37

AGS redacted certain information from record 4 under section 37 which, as outlined above, provides for the mandatory refusal of a request where access to the record sought would involve the disclosure of personal information relating to individuals other than the applicant. Section 37(7) provides that access to a record which relates to the requester shall be refused if access to the record would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to people other than the requester. This is subject to certain exceptions, which I consider below.

Having reviewed the redacted information in record 4, I am satisfied that the redacted information includes either personal information solely relating to third parties, or personal information relating to the applicant that is inextricably linked to personal information relating to third parties (i.e. joint personal information). I am satisfied that section 37(1) applies to all of the withheld information and records at issue. However, that is not the end of the matter as section 37(1) is subject to the provisions of subsections (2) and (5).

Subsection (2) provides that subsection (1) does not apply in certain circumstances. Having examined the records, and having regard to the correspondence between this Office and the parties to this review, I am satisfied that the circumstances identified at section 37(2) do not arise in this case.

Subsection (5) provides that a request that would fall to be refused under subsection (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. I am satisfied that subsection 5(b) does not apply in the circumstances of this case.

On the matter of whether the public interest in granting access to the information at issue would, on balance, outweigh the privacy rights of the individuals concerned, I have had regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner [2011] 1 IR 729, [2011] IESC 26) (“the Rotunda case”). It is noted that a public interest (“a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law”) should be distinguished from a private interest.

On the matter of the type of public interest factors that might be considered in support of the release of the information at issue in this case, I have had regard to the findings of the Supreme Court in The Minister for Communications, Energy and Natural Resources v The Information Commissioner & Ors. In her judgment, Baker J. indicated that the public interest in favour of disclosure cannot be the same public interest as that broadly stated in the Act. She said the public interest in disclosure must be something more than the general public interest in disclosure and the reason must be found from the scrutiny of the contents of the record. She said there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure.

While the comments of the Supreme Court in both judgments cited above were made in relation to provisions of the FOI Act other than section 37, 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 relevant to note that the release of records under FOI is, in effect, regarded as release to the world at large, given that the Act places no constraints on the uses to which the information contained in those records may be put.

I find no relevant public interest in granting access to the information that on balance outweighs the public interest in upholding the privacy rights of the individuals whose personal information would be disclosed by releasing the records. In the circumstances, I find that section 37(5)(a) does not apply. I find that AGS was justified in refusing access to the records under section 37(1) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of AGS to refuse access to further records relating to the applicant’s temporary transfer and appeal of same on the grounds that no further relevant records can be found or do not exist. I also affirm the decision of AGS to redact certain information from record 4 under section 37 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