Whether the Department was justified in refusing access to certain reports by the Office of the Inspectorate of Prisons under sections 29, 30 or 37 of the FOI Act

29 January 2024

Background

In a request dated 13 December 2022, the applicant sought access to:

• Copies of the 3-day monitoring report on the Dóchas Centre conducted in August 2021, the Section 31(2) report on the Dóchas Centre submitted on 15 February 2022, and the subsequent report by Mark Toland which was submitted in July 2022.
• The terms of reference provided to Mark Toland of the Office of the Inspectorate of Prisons for the supplementary report in relation to matters arising from a section 31(2) report authored by Patricia Gilheaney.
• All communications between the Minister for Justice and Mark Toland within the time frame of 16 February 2022 to 20 August 2022.
• The minutes from meetings conducted between the Department of Justice and the Office of the Inspectorate of Prisons on 11 March 2021, 15 July 2021, 13 December 2021, and the meeting held on the week of the 14 February 2022.
• Any internal correspondence between officials in the Department regarding the resignation of Patricia Gilheaney, from 15 February 2022 to 28 February 2022.
• All communications between Department of Justice officials and the Office of the Inspectorate of Prisons in relation to the Inspectorate of Prisons 2021 Annual Report, within the time frame of 1 February 2022 to 30 September 2022.
• Internal correspondence between officials regarding the Annual Report between the same dates.

In a decision dated 27 March 2023, the Department granted access to certain records and refused access to the remaining records in full or in part under sections 15(1)(d) (information already in the public domain), 29 (deliberations of FOI bodies), 30 (functions and negotiations of FOI bodies), 35 (confidential information) and 37 (personal information) of the FOI Act. The applicant sought an internal review of that decision on the same day. On 17 April 2023, the Department affirmed its original decision. On 18 April 2023, the applicant applied to this Office for a review of the Department's decision.

Following communications with this Office, the applicant agreed to limit the scope of this review to the Department's decision to refuse access to the 3-day monitoring report on the Dóchas Centre (record 1.1 on the Department's schedule), the Section 31(2) report on the Dóchas Centre (record 1.2 on the Department's schedule), the subsequent report authored by Mark Toland (record 1.3 on the Department's schedule) and the terms of reference provided to Mark Toland for the subsequent report (record 2.1 on the Department's schedule).

In its submissions to this Office, the Department said it had released record 2.1 to the applicant and it provided additional material information in relation to its decision to refuse access to records 1.1, 1.2 and 1.3. The Department also provided certain clarifications in relation to its submissions following queries from this Office. This Office notified the applicant of this new material information and of the Department's clarifications and provided her with an opportunity to make comments or observations in reply.

In further communications with this Office, the Department confirmed that the correct date for record 1.1 is August 2020 and not August 2021. It said it was agreeable to releasing this record to the applicant with the redaction of two paragraphs which it said are relevant to an investigation and are exempt under section 30(1)(a) of the Act. This Office informed the applicant of the Department's revised position and the applicant confirmed that she was agreeable to removing record 1.1 from the scope of the review on that basis. The Department provided the applicant with a copy of this record with the agreed redactions and it also published the redacted record on its website.

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 to date. I have also had regard to the contents of the records concerned and to the provisions of the FOI Act. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

Record 1.1 was released with the redaction of two paragraphs, as agreed with the applicant and record 2.1 was released in full. I will therefore give no further consideration to these records. The scope of this review is confined to whether the Department was justified in its decision to refuse access to records 1.2 and 1.3 under sections 29(1), 30(1)(a)/(b)/(c) or 37(1) of the FOI Act.

Preliminary Matters                                                                       

Section 18(1) of the Act provides that if it is practicable to do so, access to an otherwise exempt record shall be granted by preparing a copy, in such form as the body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). This Office considers that neither the definition of a record under section 2 of the Act nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, this Office is not in favour of the cutting or "dissecting" of records to such an extent.

Although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the records at issue and the material that I can refer to in the analysis may be limited in places.

Analysis and Findings

The Records

While I am limited in the extent to which I can describe the contents of the records at issue, I believe it would be useful to provide a brief overview of same. Record 1.2 is an Inspector of Prisons Investigation, pursuant to section 31(2) of the Prisons Act 2007, into matters arising in the Dóchas Centre. Record 1.2 is dated 15 February 2022, and it contains information in relation to the investigation, the terms of reference, lines of enquiry, legislation governing the investigation, relevant communications, summary of findings and recommendations. Record 1.3 is an Initial Assessment of material gathered by the Office of Inspector of Prisons during the course of a section 31(2) investigation in the Dóchas Centre and from other relevant reports. The report is dated 14 July 2022, and it also contains information in relation to the terms of reference, material examined, review stages, initial assessment of material, investigation report recommendations and further steps.

Section 37 - Personal Information

The Department refused access to records 1.2 and 1.3 under sections 29, 30 and 37 of the FOI Act. As section 37 is a mandatory exemption provision, I will consider it first. Section 37(1) of the Act provides for the refusal of a request where access to the record sought would involve the disclosure of personal information relating to an individual other than the requester. For the purposes of the Act, personal information is defined as information about an identifiable individual that either (a) would ordinarily 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 of Act details fourteen specific categories of information that is personal without prejudice to the generality of the foregoing definition. These categories include (iii) information relating to the employment or employment history of the individual; (v) information relating to the individual in a record falling within section 11(6)(a) i.e. a personnel record that is to say, a record relating wholly or mainly to one or more of the following, that is to say, the competence or ability of the individual in his or her capacity as a member of staff of an FOI body or his or her employment or employment history or an evaluation of the performance of his or her functions generally and (xiv) the views or opinions of another person about the individual.

The Department states that the records in question contain the views and opinions of the Inspector of Prisons about individual members of staff who are capable of being identified by reference to their grades and roles within the prison. It states that the Dóchas Centre is a relatively small institution with under 100 staff members.  It states that the release of the grades of staff referred to in the report would likely identify the individuals involved and make public the views or opinions relating to the competence or ability of the individuals in their capacities as members of staff of the Irish Prison Service. It states that the records also contain information that was provided in confidence by prisoners during the investigative process which is exempt under section 37 of the Act.

I am satisfied that record 1.2 contains information in relation to identifiable individuals in their capacities as members of staff. As the individuals concerned are staff members of an FOI body, section 2(I) is relevant. This paragraph excludes certain matters from the definition of "personal information", including the names of staff members of an FOI body or information relating to the position, the functions of the position, the terms upon and subject to which the individual holds or held 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 his or her functions.

The exclusion at section 2(I) does not provide for the exclusion of all information relating to staff members of FOI bodies. The exclusion is intended to ensure that section 37 will not be used to exempt the identity of a staff member of an FOI body in the context of the particular position held or any records created by the staff member while carrying out his or her official functions. The exclusion does not deprive public servants of the right to privacy generally. The Commissioner takes the view that it does not exclude personnel records relating to the "competence or ability of the individual in his or her capacity as a member of staff of an FOI body".

I am satisfied that record 1.2 contains views relating to the competence or ability of staff members of an FOI body and the qualification on the definition of "personal information" in section 2(1) does not apply to this information. I am also satisfied that record 1.2 contains information that was provided in confidence by prisoners during the investigative process. I find that record 1.2 is exempt under section 37(1) of the FOI Act.

Record 1.3 contains an assessment of the type of material gathered, the type of themes identified, the nature of complaints disclosed, recommendations and further steps. I am not satisfied that record 1.3 contains the personal information of identifiable individuals and I find that it is not exempt under section 37(1) of the Act. As I have found that record 1.2 is exempt under section 37(1) of the Act, I am required to consider sections 37(2) and 37(5) in relation to this record.

Section 37(2)

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 none of the circumstances identified at section 37(2) (a), (b), (c), (d), or (e) arise in this case in relation to record 1.2. 

Section 37(5) The Public Interest

Section 37(5) of the FOI Act provides that access to the personal information of a third party may be granted where (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 request would benefit the person to whom the information relates. It has not been argued that releasing the records would benefit the individuals to whom the information relates and I find that section 37(5)(b) does not apply.

In considering where the balance of the public interest lies in this case, I have had regard to section 11(3) of the Act which provides that in performing any functions under the Act, an FOI body must have regard to, among other things, the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. However, in doing so, I have also had regard to the judgment of the Supreme Court inThe Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors[2020] IESC 57 ("the Enet case"). In that case, the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and "there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure". 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.

It seems to me that there is a public interest in knowing that prisons operate within the standards prescribed by law. In my view, there is also a public interest in facilitating scrutiny of how the Inspector of Prisons carries out its functions and in knowing that the regulatory functions assigned to the Inspector of Prisons achieves the purposes of the relevant legislation.

On the other hand, 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. 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. Moreover, even where an overriding public interest in granting the request exists, there is a discretionary element to the application of section 37(5)(a).

I accept that releasing the information at issue would allow for a greater level of transparency concerning the manner in which the Dóchas Center operates. On the other hand, the record contains sensitive and private information relating to the competence or ability of identifiable members of staff and information provided by prisoners on the understanding that it would be treated as confidential. In the circumstances, I do not accept that the public interest in releasing the records outweighs, on balance, the privacy rights of the individuals concerned. I find, therefore, that section 37(5)(a) does not apply. As I have found that record 1.2 is exempt under section 37(1), it is not necessary to consider whether this record is also exempt under sections 29 or 30.

Section 30 Functions and negotiations of FOI Bodies

The Department also relied on sections 29(1) and 30(1)(a)/(b)/(c) of the Act in refusing access to record 1.3. I will consider section 30(1)(a) first. Section 30(1)(a) of the Act provides for the refusal of a request if the FOI body considers that access to the record concerned could reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct thereof. Section 30(1) is also subject to a public interest balancing test.

Section 30(1)(a) envisages two potential types of "prejudice" or harm. The decision maker must hold the view that the release of the record could reasonably be expected to prejudice the "effectiveness" of the tests, examinations, investigations, inquiries or audits, or prejudice the "procedures or methods employed for the conduct thereof". Where an FOI body relies on this provision, it should identify the potential harm in relation to the relevant function specified in paragraph (a) that might arise from disclosure. Having identified that harm, it should consider the reasonableness of any expectation that the harm will occur. The FOI body should explain how and why, in its opinion, release of the record(s) could reasonably be expected to give rise to the harm envisaged. A claim for exemption under section 30(1)(a) must be made on its merits, in light of the contents of each particular record concerned and the relevant facts and circumstances of the case.

The record at issue is an assessment of material gathered by Office of Inspector of Prisons during the course of a section 31(2) investigation. Section 31(2) of the Prisons Act 2007 provides: "The Inspector may, and shall if so requested by the Minister, investigate any matter arising out of the management or operation of a prison and shall submit to the Minister a report on such investigation." For the purposes of this decision, sections 31(3) and 31(4) of the Prisons Act 2007 Act are also relevant. They provide as follows:

"31(3) As soon as practicable after receiving the report, the Minister shall, subject to subsection (4), cause a copy of it to be laid before each House of the Oireachtas and to be published.

31(4) The Minister may omit any matter from any report so laid or published where he or she is of opinion -

a. that its disclosure may be prejudicial to the security of the prison or of the State or

b. after consultation with the Secretary-General to the Government, that its disclosure -

i. would be contrary to the public interest, or

ii. may infringe the constitutional rights of any person."

In its submission to this Office, the Department argued that release of the record would undermine the provisions allowed for in section 31(4) of the Prisons Act 2007 by releasing information into the public domain which the Minister may decide should be omitted from the report upon publication. It said the record contains recommendations and opinions and the release of this information into the public domain would prevent the Minister from giving those recommendations due consideration and may undermine the Department's deliberative processes. It said deliberations regarding the publication of the section 31(2) report and what information, if any, should be omitted from the published report, as provided for under section 31(4), are ongoing and it is receiving legal advice from the Office of the Attorney General in this regard. The Department also states that serious allegations have been made which are central to the reports concerned. It states that these allegations are being investigated by the Department and release of the report would undermine any actions the Department may see fit to undertake in response to same.

I have examined the contents of the report at issue. The report contains information in relation to material gathered and detailed recommendations on foot of the section 31(2) report. In my view, this information contains a level of detail such that disclosure of the record would involve the disclosure of information that the Minister may wish to omit from the report prior to publication.  I am satisfied that release of record 1.3 before the Minister has come to a final decision as to the need for redactions under section 31(4) of the Act, could reasonably be expected to prejudice procedures used for the conduct of investigations. I find, therefore that section 30(1)(a) applies to the record 1.3.

Section 30(2) The Public Interest

Section 30(2) of the Act provides that section 30(1) shall not apply if the public interest would, on balance, be better served by granting than by refusing to grant the FOI request concerned. 

In its submissions to this Office, the Department stated that factors that were considered in favour of release include: openness and transparency, accountability of public bodies and the information will contribute to public debate on the matter. It stated that factors that were considered against the release of the record include: release of the record will prejudice a decision yet to be made by the Department and release of the record will place the Department at a disadvantage in the current process which has yet to conclude. The Department submits that the public interest factors against release outweigh those in favour of release. It said that release of record 1.3 would harm the process for carrying out section 31(2) investigations in the future.

I am satisfied that that there is a public interest in facilitating public scrutiny of how the Office of Inspector of Prisons carries out its functions. I accept that the release of the report at issue would bring further transparency to the investigation process. However, in my view if the Department was required to release information that is contained in a section 31(2) report prior to the Minister having an opportunity to consider what information, if any, should be omitted from the report prior to publication, the Ministers powers under section 31(4) of the 2007 Act would be undermined. I am satisfied that disclosure of the record at issue would involve the disclosure of information contained in a section 31(2) report that the Minister may wish to omit from the published report. In the circumstances, I find that the public interest would, on balance, be better served by refusing access to record 1.3. As I have found that record 1.3 is exempt under section 30(1)(a), it is not necessary to consider whether this record is also exempt under section 29(1) of the FOI Act.

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 access to the records at issue under sections 30(1)(a) and 37(1) 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.

Jim Stokes
Investigator