Whether GSOC was justified in refusing access to records, for the period 1 January 2018 to the date of the request, of all communications concerning the applicant’s suspension for a specified period from An Garda Síochána, on the basis that the records sought are exempt under sections 31 and 37 or excluded under Schedule 1, Part 1(y) of the FOI Act

26 May 2021

Background

In a request dated 1 January 2020, the applicant sought access to records, from 1 January 2018 to the date of his request, of all communications concerning his suspension for a specified period from An Garda Síochána. On 3 March 2020, following the provision of identification by the applicant, GSOC issued its decision on the request. In a schedule accompanying the decision, it identified 158 pages of records and, separately, two files, as coming within the scope of the request. Of the 158 pages identified, it released 51 pages in full and it refused access to 85 pages and redacted information from the remaining 22 pages pursuant to Schedule 1, Part 1(y) of the Act and/or under section 37, which is concerned with the protection of personal information relating to third parties. It refused access to the two files pursuant to Schedule 1, Part 1(y) and to the second under section 31(1)(a) also, which is concerned with the protection of records that attract legal professional privilege.

On 3 March 2020, the applicant sought an internal review of that decision, wherein he argued that some records had not been considered for release. On 27 April 2020, GSOC affirmed its original decision. On 30 October 2020, the applicant sought a review by this Office of GSOC’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 correspondence between the applicant and GSOC as outlined above and to the correspondence between this Office and both the applicant and GSOC on the matter. I have also had regard to the nature and contents of the records concerned.  I have decided to conclude this review by way of a formal, binding decision. In referring to the records at issue, I have adopted the numbering system used by GSOC in the schedule of records it prepared when processing the request.

Scope of Review

GSOC redacted certain information from pages 5, 7 to 12, 14, 15 and 32 under section 37 of the Act. The redacted information in question does not relate to the applicant or his request, and as such, I am satisfied that these pages can be excluded from the scope of the review. Furthermore, no information was redacted from pages 26 and 31, which simply comprise parts of email correspondence. As such, I have also excluded those pages from the scope of the review. 

The pages/records remaining in scope, therefore, are pages 4, 6, 13, 16 to 21, 27, 28, 36 to 38, 45 to 53, 70 to 73, 75 to 92, 95 to 132, 157 and 58 to which access was refused in full, the two files that were withheld in full, and the information redacted from pages 2, 3, 22, 23, 25, 30, 33, 54, 55, and 133. During the course of the review the applicant also argued that further relevant records should exist and had not been identified by GSOC.

Accordingly, this review is concerned solely with whether GSOC was justified in refusing access, in whole or in part, to the pages and records identified above pursuant to Schedule 1, Part 1(y) of the Act and/or under sections 31 and 37 and in refusing to release, under section 15(1)(a) of the Act, any further relevant records apart from those identified in the prepared schedule. 

Analysis and Findings

Schedule 1, Part 1(y)

GSOC refused access to pages 4, 6, 13, 16 to 21, 27, 28, 36 to 38, 45 to 53, 70 to 73, 75 to 92, 95 to 132, 157, 158 and two files pursuant to Schedule 1, Part 1(y) of the Act. Section 6(2)(a) of the Act provides that an entity specified in Part 1 of Schedule 1 shall, subject to the provisions of that Part, be a public body for the purposes of the Act. Schedule 1, Part 1 contains details of bodies that are partially included for the purposes of the Act and also details of certain specified records that are excluded. If the records sought come within the descriptions of the exclusions in Part 1, then the Act does not apply and no right of access exists.

Schedule 1, Part 1(y) provides that GSOC is not a public body for the purposes of the Act in relation to records concerning an examination or investigation carried out by it under Part 4 of the Garda Síochána Act 2005 (the 2005 Act).

In its submission to this Office, GSOC said that the records relevant to this request contained on a specified GSOC investigation file, concern an ongoing criminal investigation under Part 4 of the 2005 Act.  It also said that the legal services file in relation to the specified investigation contains copies of correspondence between GSOC and An Garda Síochána that are part of the specified investigation. In relation to the other numbered pages to which access has been refused pursuant to Schedule 1, Part 1(y), GSOC stated that these records contained detailed references and information concerning GSOC investigations conducted under Part 4 of the 2005 Act, and that these records are part of the investigation file and directly concern an investigation. As such, GSOC’s position is that the records sought are excluded from the FOI Act pursuant to Schedule 1, Part 1(y), as they relate to an investigation under Part 4 of the 2005 Act.  

Having regard to the nature and description of the records on the investigation file and the legal services file, and having examined the other records at issue, I am satisfied that they concern an examination or investigation carried out by GSOC under Part 4 of the 2005 Act. Accordingly, I find that GSOC was justified in its decision to refuse access to those records pursuant to Schedule 1, Part 1(y).

As I have found the legal services file to be excluded under Schedule 1, Part 1(y), I do not need to consider the application of section 31(1)(a) to this file.

Section 37 Personal Information

GSOC redacted certain information from pages 2, 3, 22, 23, 25, 30, 33, 54, 55 and 133 under section 37. Section 37(1) provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information. This does not apply where the information involved relates to the requester (section 37(2)(a) refers). However, section 37(7) provides that, notwithstanding section 37(2)(a), an FOI body shall refuse to grant a request if access to the record concerned would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester (commonly known as joint personal information).

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. The definition also contains a list of 14 specific types of information that is personal information, without prejudice to the foregoing definition, including information relating to the employment or employment history of an individual and the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to, establish that any personal information held by the FOI body concerned relates to the individual.

Having examined the records, I am satisfied that the information in the records to which access has been refused under section 37 is personal information of individuals other than the applicant to which section 37(1) applies.  

There are some circumstances, provided for at section 37(2) of the FOI Act, in which the exemption at section 37(1) does not apply. I am satisfied that those circumstances do not arise in this case. Section 37(5) provides that a request which would fall to be refused under section 37(1) may still be granted where the FOI body considers that, on balance, (a) the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld, or (b) the grant of the request would benefit the individual concerned.

In my view, the release of the information to which I have found section 37(1) to apply would not benefit the third parties to whom the information relates. I am satisfied that section 37(5)(b) does not apply.

In relation to the public interest test contained in section 37(5)(a), I wish to emphasise that 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. In sum, section 11(3) recognises the need to enhance public scrutiny and accountability of government and public affairs, particularly the activities and decision making of FOI bodies. However, in a judgment delivered on 25 September 2020 (The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors, available on our website), the Supreme Court held that general principles of openness and transparency do not provide a sufficient basis for directing the release of otherwise exempt information in the public interest. Rather, a “sufficiently specific, cogent and fact-based reason” is required “to tip the balance in favour of disclosure”.

Moreover, while the Court stated that the public interest balancing test involves a “weighing of the respective private and public interests in the analysis of the records in issue”, it did not disturb the guidance that it previously gave in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner [2011] IESC 26 ("the Rotunda Hospital case") in which it drew a distinction between private and public interests. Relevant private interests are those that are recognised by law and, in particular, through the protection afforded by the exemption provisions. 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.

The FOI Act recognises the public interest in the protection of the right to privacy both in the language of section 37 and the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with the right to privacy). It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. Moreover, unlike other public interest tests provided for in the FOI Act, there is 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 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.

In the circumstances, I find no relevant public interest in granting access to the withheld information that, on balance, outweighs the public interest in upholding the right to privacy of the third party individuals concerned. I find that section 37(5)(a) does not apply in this case. I find, therefore, that GSOC was justified in redacting certain information from pages 2, 3, 22, 23, 25, 30, 33, 54, 55 and 133 under section 37.

Section 15(1)(a)

During the course of the review, the applicant provided examples of records which he believed should be included in the records identified by GSOC as relevant to his request, and which he considered to be missing. 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 after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner's role in a case such as this is to review the decision of the FOI body and to decide whether that decision was justified.  This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision and also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.

The Investigator raised the matter with GSOC, identifying those records which the applicant had suggested were missing, and asking it to provide details of steps taken to search for records relevant to the request. In response, GSOC provided details of the searches carried out for relevant records and the nature or records which would be created in certain circumstances. It provided information on a subject access request made by the applicant under the Data Protection Act, 2018 and details of its response to the request. It said that some of the records identified by the applicant were provided him in response to this request. It also said that some of the records are contained on the specified investigation file to which access was refused. GSOC’s position is that all relevant records have been identified and that no records are missing. It said the vast majority of the records relevant to this request concern the specified investigation which is still ongoing. It acknowledges that it may be that records that the applicant wishes to obtain are part of the specified investigation file, but argued that access cannot be granted until such time as the matter is concluded. GSOC also noted that the applicant received copies of letters via his solicitor and is aware of the status of the ongoing investigation.

The Investigator provided the applicant with details of the responses provided by GSOC. As such, while I do not propose to repeat those details in full here, I can confirm that I have had regard to them for the purpose of the review. Based on the information provided by GSOC and the applicant’s response, it seems to me that all relevant records have been identified, and that some records which the applicant claimed were missing are ones to which the FOI Act does not apply or are exempt as set out above. I am satisfied that GSOC has taken reasonable steps to ascertain the whereabouts of any records relevant to the request and that GSOC was justified in refusing access, under section 15(1)(a), to any further relevant records other than those already identified and considered for released.    

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of GSOC to refuse access, in whole or in part, to certain records concerning the applicant’s suspension for a specified period from An Garda Síochána pursuant to Schedule 1, Part 1(y) of the Act and/or under section 37, and to refuse access, under section 15(1)(a) of the Act, to any further relevant records apart from those identified in the prepared schedule. 

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