Whether the OPW was justified in refusing access to records relating to records relating to CCTV camera usage in a number of public departments/buildings

24 March 2023

Background

In a request dated 7 October 2022, the applicant sought access to records relating to CCTV camera usage in a number of public departments/buildings. In particular, in relation to the Department of Enterprise, Trade and Employment, the Department of the Taoiseach and the Houses of the Oireachtas, the applicant sought access to records containing the following information:

-�- The total number of CCTV cameras in operation in each of these departments;

- Datasheets (where available) for cameras under operation and marketing materials provided by the vendor/manufacturer of these CCTV cameras to OPW-�.

In a decision dated 21 October 2022, the OPW refused the applicant-�s request, citing sections 32(1)(a), (b) and (c) as grounds for its decision. On 26 October 2022, the applicant sought an internal review of the OPW-�s decision. In its internal review decision dated 23 November 2022, the OPW upheld its original decision while varying the provisions of the FOI Act on which it relied, citing sections 32(1)(a) and 15(1)(a) and (c) in support of its decision. On 8 December 2022, the applicant applied to this Office for a review 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 information provided by the OPW in the course of the review, as well as the correspondence exchanged between the parties and correspondence received from the applicant. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with whether the OPW was justified in refusing access, under sections 32(1)(a) and 15(1)(a) and (c) of the FOI Act, to the records sought by the applicant.

Analysis and Findings

In the course of conducting this review, I contacted the OPW to invite it to make focussed submissions in support of its decision to refuse access to the records sought by the applicant.

In response, the OPW indicated that it had reviewed its decision in relation to the request and stated that certain concerns had arisen within the OPW in relation to same. In particular, the OPW indicated that all relevant records may not have been correctly collated at the beginning of its decision-making process. In essence, the OPW indicated that it was unable to stand over its decision on the request.

Under section 22(12)(b) of the FOI Act, a decision to refuse to grant an FOI request shall be presumed not to have been justified unless the FOI body concerned shows to the satisfaction of the Commissioner that the decision was justified. In light of the above-mentioned communications with the OPW, it would appear that in this instance the OPW is unable to justify its decision on your FOI request.

However, I do not believe that it would be appropriate to simply direct the release of the records sought in this case. This Office is not a first instance decision making body, but rather is tasked under the FOI Act with reviewing the decisions of such bodies. In circumstances where the OPW has indicated that it has concerns about its initial decision making process, it seems to me that it is therefore not in a position to justify its decision under section 22(12)(b). In those circumstances, I find that the most appropriate course of action is to annul the decision of the OPW in relation to the FOI request, and to remit the matter back to the OPW for consideration afresh.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the OPW in this case, and I direct it to consider the matter afresh.

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.

Neill Dougan
Investigator