Whether the Department was justified in refusing access, under section 11(4) of the FOI Act, to various records relating to or stemming from an incident that took place at a specific Prison (the Prison) on 18 May 1988

18 April 2023

Background

In a request dated 25 November 2022, the applicant made a six part request for access to records relating to -�The Prison-�s Governor's orders, Department of Justice records, emails, correspondence[], {-�] [p]rison minutes generated as a result of meetings between senior management of The Prison and senior military personnel in charge of Irish Military forces on guard duty in The Prison in the 1970s, the 1980s, and 1990s-� concerning various matters arising from a specific incident on 18 May 1988. In a decision dated 7 December 2022, the Department refused the applicant-�s request under section 11(4) of the FOI Act. It stated that the records requested were pre-commencement records created before the effective date of the FOI Act -� i.e. 21 April 1998, and were not his -�own personal records-�. The Department also said that the records sought were not held by the Department, -�but are held by other FOI bodies-� such as the Irish Prison Service (IPS) and possibly the Defence Forces.

On 10 December 2022, the applicant requested an internal review where he stated that the records sought directly involved him as well as the military. His request was sent to the Defence Forces in error. The Defence Forces in turn forwarded the request to the Department. The Department upheld its original decision on 5 January 2023 on the same basis. On 6 January 2023, the applicant applied to this Office for a review of the Department-�s decision, which he considered not to be in the -�spirit of [-�] FOI-�.

During the course of this review, the Investigating Officer invited the applicant to make submissions in support of his view that pre-commencement records, if they exist, contain his personal information and/or whether they were required in order to understand records created after the effective date. This applicant has not made any further submissions or comments in response.

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 Department in support of its decision and to the applicant-�s correspondence with this Office. 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 Department was justified in its decision to refuse the applicant-�s request for records under section 11(4) of the FOI Act.

Preliminary Matters

I note that in his correspondence with this Office, the applicant has expressed concerns regarding certain actions around concerned and subsequent matters. It is important to note, as a preliminary matter, that this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.

Analysis and Findings

Section 11 of the FOI Act provides for a right of access to records held by public bodies that were created on or after the effective date. The relevant part of section 2 of the FOI Act provides that -�effective date-� means -�(a) in the case of an entity that immediately prior to enactment of this Act was a public body within the meaning of the Act of 1997 (other than the Health Service Executive or a local authority), 21 April 1998-�. I am satisfied that the effective date in respect of the Department is 21 April 1998. In its submissions to this Office, the Department said that any records relating to the applicant-�s request were created before the enactment of the FOI legislation and, as they were not personal records relating to him, they were exempt from release.

Section 11(5) provides for a right of access to records created after the effective date in certain limited circumstances, namely where: -�a) access to records created before the effective date is necessary or expedient in order to understand records created after such date, or b) records created before the effective date relate to personal information about the person seeking access to them.-�

As the applicant-�s request in this case mainly referred to records which would have been created before the effective date, no right of access to such records exist unless either paragraph a) or b) applies. I note that the Department has not argued that section 11(5)(a) applies in this case. I also note that the applicant 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 cannot find that section 11(5)(a) applies.

The Department is of the view that the records sought, if they exist, would not contain the personal information of the applicant in this case. The applicant-�s position is that any relevant records would contain information that directly relates to him. In correspondence with this Office, he stated that any investigation into the incident would involve and centre around him and that -�all of the inv[e]stigations and subsequent reports-� involved him.

Following further queries from this Office, regarding relevant records, which may have been created in the1990s, the Department stated that searches were carried out and no relevant records exist or were located within the scope of the applicant-�s request. In other words, the Department-�s position is that no records relating to his request created after the effective date were located.

Section 2 of the FOI 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.

I note that the applicant has made a number of applications for review to this Office relating to decisions on requests he made to various bodies concerning records relating to an incident that occurred in May 1998. My understanding is that the incident concerned occurred when he was employed as a staff member of the IPS. 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.

I have had close regard to the wording of the applicant-�s request in this case, and to the nature of the incident concerned, as well as to the likely nature of any records that exist relating to these matters. In the absence of any arguments to the contrary, and having regard to the fact that no submissions were made by the applicant to support his arguments, I am not satisfied that section 11(5)(b) applies to the information sought by the applicant in this case. I find, therefore, that section 11(5) in its entirety does not apply.

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

Section 32

In its submissions to this Office, the Department also indicated that it was of the view that section 32 of the FOI Act would apply to the records sought, if they existed. As I have found that its decision to refuse access to relevant records was justified on the basis that any such records, if held by the Department, are outside the scope of the FOI Act, I do not need to consider the application of section 32.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department-�s decision. I find that the Department was justified in refusing the applicant-�s request on the ground that any relevant records were created before the effective date of the FOI Act; and that the FOI 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.

Sandra Murdiff
Investigator