Decision
Ms X and An Garda Síochána
From Office of the Information Commissioner (OIC)
Case number: OIC-145129-V0V4T3
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URL: http://www.bailii.org/ie/cases/IEIC/2024/145129.html
Cite as: [2024] IEIC 145129
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Whether AGS was justified in refusing access to details of the Garda Stations at which a named member of AGS has been stationed over the years on the ground that the information sought is exempt from release under section 37(1) as disclosure of the information would involve the disclosure of personal information relating to a third party
31 May 2024
This review arises from a decision of the High Court to quash the decision issued by this Office in case OIC-121260-F6T4C6 and to remit the matter back to this Office for a fresh consideration of the case. As the current review arises from a successful appeal of the decision in case OIC-121260-F6T4C6, I will summarise the decision issued by this Office in that case and the successful appeal of that decision in the High Court. I will also summarise the communications between this Office and both parties when the case was remitted back for fresh consideration.
On 2 November 2021, the applicant sought details of the Garda Stations at which a named member of An Garda Síochána (AGS) has been stationed over the years. In a decision dated 4 November 2021, AGS refused the request on the ground that AGS is a partially included agency under Schedule 1, Part 1(n) of the FOI Act and as such the request did not come within the ambit of the Act. On 30 November 2021, the applicant requested an internal review of that decision. On 21 December 2021, AGS affirmed its refusal of the request. On 21 March 2022, the applicant applied to this Office for a review of the decision of AGS. During the course of the review, AGS cited section 37(1) of the FOI Act as a further ground for refusing the request. This Office informed the applicant of the additional ground cited by AGS for refusing the request and invited her to make submissions on the matter, which she did.
On 27 June 2022, this Office issued its decision following a review of the matter. It found that any records AGS holds that contain the information sought would properly be regarded as personnel records of the named Garda and that they can properly be described as administrative records relating to human resources. Accordingly, it found that AGS was not justified in refusing the request pursuant to Schedule 1, Part 1(n) of the Act. However, in relation to AGS's reliance on section 37 of the Act, this Office found that disclosure of the information sought would involve disclosure of personal information and it found no relevant public interest in granting access to the records that, on balance, outweighs the public interest in upholding the privacy rights of the individual whose personal information would be disclosed by releasing the records. It found, therefore, that AGS was justified in refusing the request under section 37(1) of the Act. The applicant appealed that decision to the High Court.
On 28 June 2023, Hyland J. delivered her judgment on the appeal. In her judgment she stated:
"32. The conclusion in the Decision is that there is no relevant public interest in granting access sufficient to outweigh the interest in privacy. There is no explanation of why this is so. It may be that this is because the interests are considered exclusively private. If that is so, one would expect the Commissioner to address why the public interest invoked by the appellant i.e., the administration of justice by AGS in accordance with its code of ethics and its policing principles, and the obligation on AGS under Article 38.1 of the Constitution to ensure a fair trial, are not matters of public interest and/or are not sufficiently engaged by the request having regard to the nature of the documents sought. 33. The distinction between private interests and public interests is a difficult one in certain contexts. The concepts are treated implicitly in the Decision as if they are mutually exclusive but that is not necessarily so. Certain requests under the FOIA might raise both private and public interests. Moreover, there is no engagement at all with the nature of the documents here. The appellant bears the burden of proof in any statutory appeal; nonetheless, the decision in Enet demonstrates the importance of an engagement with the documents and no such engagement is evident here. Nor is there an engagement with the nature of the privacy interests affected by any disclosure, having regard to the documents sought. 34. Counsel for the Commissioner reminded me of my decision in Jackson Way v Information Commissioner [2020] IEHC 73 where I identified that decisions of the Commissioner should not be treated as if they were a statute. I remain of that view. However, here it is not possible to understand why the request was treated as private, why the appellant's arguments were rejected and whether it was considered that there was any public interest in releasing those particular documents, albeit an interest outweighed by the privacy considerations. To place an obligation on the Commissioner to explain those matters does not appear to me to place an over onerous obligation on him, nor to expect a level of precision from his decisions that is disproportionate or excessive."
Hyland J. quashed this Office's decision on the basis of the failure to give reasons for the conclusion reached in respect of section 37(5) of the FOI Act and she remitted the matter back to this Office for further consideration.
Following Hyland J's decision, the review was reactivated under reference number OIC-145129-V0V4T3 for the purpose of making a fresh determination on the matter. Both the applicant and AGS were invited to make submissions as part of the review and both parties made submissions. In its submissions to this Office, AGS's said it is no longer refusing the applicant's request on the ground that the Act does not apply to such records pursuant to Schedule 1, Part 1(n) of the Act. AGS said, however, that it is refusing access the applicant's request under section 37(1) of the Act and its submissions contained additional material information in relation to its decision to refuse access to the record at issue. This Office notified the applicant of this new material information and the applicant provided comments and observations in reply.
Section 22(7) of the FOI Act provides for a statutory mediation process whereby the Commissioner can endeavour to effect a settlement between the parties. An attempt at settlement was made in this case which is summarised below, however that attempt was unsuccessful and it was necessary to conclude the review with a written 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 submissions made by the applicant and AGS as outlined above and to communications between this Office and both the applicant and AGS on the matter. I have also examined the record at issue. I have decided to conclude this review by way of a formal, binding decision.
The scope of this review is concerned solely with whether AGS was justified in refusing the applicant's request on the ground that the disclosure of the withheld information would involve the disclosure of personal information relating to a third party.
Section 37(1) Personal Information
Section 37(1) of the Act provides for the mandatory 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.
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 definition does not include his or her name, 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 (Paragraph I refers).
The exclusion at Paragraph I does not exclude all information relating to staff members. The exclusion is intended, in essence, to ensure that section 37 cannot be used to exempt the identity of a public servant in the context of the particular position held or any records created by the staff member while carrying out his or her official functions, or information relating to the terms, conditions and functions of positions. The exclusion does not deprive public servants of the right to privacy generally.
AGS states that the information sought, a list of Garda Stations at which a named Garda member has been stationed at over the years, represents "information relating to the employment or employment history of the individual" and as such amounts to the personal information of that individual Garda member.
I have considered whether the exclusion to the definition of personal information contained in Paragraph I applies to the record at issue. The record does not include 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 the individual's functions. I am satisfied that the record does not come within the exclusion in Paragraph I. The record contains a list of the Garda Stations at which the member has been stationed over the years. In my view the record contains information relating to the employment history of the individual and is a personnel record. I am satisfied that the record contains information that falls within the definition of personal information and I find that it is exempt under section 37(1) of the FOI Act.
Section 37(2)
Section 37(2) provides that section 37(1) does not apply if:
a. the information concerned relates to the requester concerned;
b. the individual to whom the information relates consents, in writing or such other form as may be determined, to its disclosure to the requester;
c. information of the same kind as that contained in the record in respect of individuals generally, or a class of individuals that is, having regard to all the circumstances, of significant size, is available to the general public;
d. the information was given to the FOI body concerned by the individual to whom it relates and the individual was informed on behalf of the body, before its being so given, that the information belongs to a class of information that would or might be made available to the general public; or
e. disclosure of the information is necessary in order to avoid a serious and imminent danger to the life or health of an individual.
No argument has been made that subsections (a), (b), (d) or (e) apply and I am satisfied that they do not apply in this case. In relation to the applicability of subsection (c), I note that in submissions to this Office, the applicant states that the named member is an employee of the State and serves as an acting member of AGS. She states that the member carries out his daily duties without the aid of camouflage, he is in the public eye and not under cover. She states that the member would have served his time in the Public Office and would have had to disclose his name and shoulder number for any official documents. In essence, she argues that information of the same kind as that contained in the record in respect of gardai is available to the general public.
In its submissions to this Office, AGS states that the names of certain senior Garda Officers and the specific position they are attached to are published on the Garda website. It states, however, that this only occurs in respect of the holders of particular posts. It states that the information on the Garda website (names of current Divisional Officers and members of Commissioner ranks) is of a completely different category to that sought by the applicant, namely a list of all stations a named Garda member has served at. AGS states that there are news articles identifying the Garda member as being attached to a particular Garda Station on-line, it states however that the specific record sought or similar information relating to other Garda members is not available on-line. It argues, therefore, that the provisions of Section 37(2)(c) do not apply in this case.
I accept that the named Garda member carries out daily duties in the public eye and I note that information identifying the Garda member as being attached to a particular Garda Station is available on-line. However, in my view this publically available information is not of the same kind as that contained in the record requested by the applicant. The applicant has requested details of the Garda Stations at which the named member of AGS has been stationed over the years. That information is not available to the general public. I find, therefore, that section 37(2)(c) does not serve to dis-apply section 37(1) in this case.
Section 37(5) The Public Interest
Section 37(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 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 person to whom the information relates. In the particular circumstances of this case, I find that section 37(5)(b) does not apply.
Before I consider the applicability of section 37(5)(a), there are a number of important points to note. First, section 13(4) provides that, subject to the Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. In relation to the question of the public interest, this means that I cannot have regard to the applicant's motives for seeking access to the records at issue, except in so far as those motives reflect, or overlap with, what might be regarded as true public interest factors in favour of release of the records, i.e. insofar as the concerns raised in relation to the request may also be matters of general concern to the wider public.
Secondly, it is important to note that the release of records under the FOI Act must be regarded, in effect, as release to the world at large, given that the Act places no constraints on the uses to which a record released under the Act can be put. With certain limited exceptions provided for under the Act, FOI is not about granting access to information to particular individuals only and as noted above, a requester's reasons for making a request are generally not of relevance. Thus, records are not released under FOI for any limited or restricted purpose.
All of this means that in considering whether a right of access exists to records under section 37(5)(a) of the Act, any decision to grant access would be on the basis that there is an overriding public interest in the release of the records effectively to the world at large that outweighs the privacy rights of the third party individuals concerned.
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 in The 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.
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).
Applicant's submissions
In her submissions, the applicant states that her father was convicted of historic sexual assault and he was investigated by the named Garda member who also investigated two further relatives. She states that the Garda member had been identified as being personally known to one of the complainants, although not the one who complained about her father. She states that the complainant knew of many matters in relation to her father's investigation that she should not have been aware of. The applicant believes that the Garda member was likely stationed in a certain Garda Station in Co. Kildare at some point during his career. She argues that the Garda member failed to identify himself as being personally known to one of the complainants, failed to conduct the investigation in line with the code of ethics as published by AGS, failed to comply with policing principles and failed to afford her father the entitlement to fair investigative procedures. The applicant states that the refusal to release the Garda member's service history is preventing her from making a formal application for a judicial review into the investigation of her father. The applicant states that the administration of justice by AGS in accordance with its code of ethics and its policing principles, and the obligation on AGS under Article 38.1 of the Constitution to ensure a fair trial, are matters of public interest and would be served by release of the records.
AGS's Submissions
AGS states that there is a clear public interest in AGS administering justice in accordance with its Code of Ethics and policing principles and in AGS operating in accordance with the obligation under Article 38.1 of the Constitution to ensure a fair trial. It submits, however, that the record sought does not in any way advance this public interest. AGS states that a list of stations the Garda member in question has been stationed at during his career does not provide the applicant or the general public with any information in respect of how AGS carried out its duties in investigating allegations against the applicant's father. AGS states that it is clear from examining the record sought, that there is no connection between granting access to the record and the public interests invoked by the applicant.
AGS states that the applicant has made a number of allegations against the Garda member in question. It states that these include allegations that the Garda member failed to identify himself as being personally known to one of the complainants; failed to conduct the investigation in line with the Garda Code of Ethics; failed to comply with policing principles; and that the Garda member in question failed to afford the applicant's father the entitlement to fair investigative procedures. It states that the record sought consists of a list of Garda stations the member in question has served at and the contents of this particular record are of no probative value one way or the other in respect of these allegations.
AGS states that the applicant also claims that the failure to release this record is preventing her making a formal application for judicial review into the investigation of her father and by extension is preventing her from ensuring that AGS conducted the investigation in a proper fashion. It states that this claim does not stand up to any form of scrutiny. It states that the absence of the record in question does not prevent the applicant from seeking judicial review of her fathers' case. It states that an application for judicial review requires more evidence than that contained in this record. It states that the release of this record does nothing to prove that the Garda member in question had any prior knowledge of or involvement with any of the parties in the case against the applicant's father. Nor does the record in question provide any evidence one way or the other of unfairness or bias in the conduct of the investigation into the applicants' father.
As AGS's submissions contain additional material information in relation to its decision to refuse access to the record at issue, this Office notified the applicant of this new material information and provided her with an opportunity to make further comments or observations in reply.
Applicant's further comments and observations
In her comments to this Office, the applicant states that this record provides another piece of evidence of a connection between the Garda member and one of the complainants. She says it is her understanding that the Garda member was stationed in a certain town in Kildare and the record will show this. She said that the complainant in question is also from that town. She said that the book of evidence in her father's case shows that there were emails between the Garda member and the complainant about the investigation and who was being investigated, she says the complainant was given information that she should not have been given and her father did not receive a fair trial and spent 3 years in prison. The applicant says taking judicial review proceedings is a very expensive process and she wishes to gather up as much information as possible showing the links between the garda member and the complainant. She said the information in the book of evidence shows these links and the record requested also shows the link and will be useful evidence for the purpose of her judicial review which will show that the investigation was not properly carried out. The applicant says her private interest in this matter is reflective of a wider public interest in ensuring garda investigations are properly carried out.
Settlement process
As outlined above, Section 22(7) of the FOI Act provides for a statutory mediation process whereby the Commissioner can endeavour to effect a settlement between the parties to a review. An attempt at settlement was made in this case. This Office informed AGS of the applicant's belief that the record will show that the Garda member was stationed in the same town that one of the complainants comes from and that it will provide her with evidence of a connection which will be useful for the purpose of her judicial review application. This Office asked AGS whether it would be willing to confirm whether or not the garda member served in the station mentioned by the applicant at any time. In reply, AGS stated that it would be agreeable to providing this information and it provided the applicant with a letter confirming that the Garda member in question has not served in any Co. Kildare Garda Station during his service. Following receipt of AGS's letter, this Office asked the applicant whether the review could be settled on the basis of the additional information provided. In reply, the applicant said that the information provided is not sufficient for her to consider settlement of the review and she requires the record requested. She said she continues to believe that there is a connection between the Garda member and the complainant in question.
Analysis
While the right to privacy is protected by the Constitution, the protection afforded is a spectrum. The Courts have found that information relating to a person's home and family life is likely to attract a high degree of constitutional protection. Conversely, the courts have found that a right to privacy in business affairs only exists at the 'outer reaches of and the furthest remove from the core personal right of privacy' and that, accordingly, the exigencies of the common good weigh all the more heavily against it (Caldwell v Mahon [2006] IEHC 86, per Hanna J).
The strength of the right to privacy depends on the facts of the case. In this case, the information consists of details of garda stations at which a named member was stationed over the years. In my view, this is not highly sensitive information. I would draw a distinction for example, between this type of information and details of a garda's home address or sick leave records which are inherently more private and sensitive and deserving of a higher weighting when balancing competing interests. On the other side of the balancing exercise is the applicant's contention that the garda investigation was not properly carried out and her father did not receive a fair trial and spent three years in prison.
I accept that the matters invoked by the applicant i.e. the administration of justice by AGS in accordance with its Code of Ethics and policing principles, and the obligation on AGS under Article 38.1 of the Constitution to ensure a fair trial are matters of public interest. However, I am not satisfied that these public interests are sufficiently engaged by the request, having regard to the content of the record sought, to justify release of the record in the public interest. I have examined the record which contains a list of the stations at which the named member served and the dates at which he served at those stations. It seems to me, that the record sheds no light on whether the Garda member knew one of the complainants, provided information to that complainant in relation to the investigation, failed to conduct the investigation in line with the code of ethics or policing principles or failed to afford the applicant's father the entitlement to fair investigative procedures.
I note that the applicant states that the refusal to release the Garda members service history is preventing her from making a formal application for a judicial review into the investigation of her father. I understand that in order to apply for leave to take judicial proceedings, you must show that you have "sufficient interest" in the matter. In other words, you must demonstrate that you are affected in some way by the decision you are challenging. It is not clear to me how the refusal to release the Garda members service history is preventing a formal application to be made for a judicial review. I have asked the applicant to explain this contention. The applicant has stated that the record will be useful evidence for the purpose of her judicial review and it will show that the Garda member was stationed in the same Co. Kildare town that one of the complainants comes from. As outlined above, AGS have confirmed that the applicant's belief in relation to the contents of the record is incorrect.
I am satisfied that releasing the withheld information into the public domain would breach the right to privacy of the Garda member. In my view, the public interest factors advanced by the applicant are not sufficiently engaged by the content of record at issue to justify the release of the record in the public interest. I cannot find any specific, cogent or fact based reason in the content of the record in question that outweighs the right to privacy of the Garda member. I find, therefore, that section 37(5)(a) does not apply and AGS was justified in refusing access to the record under section 37(1) of the FOI Act
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm An Garda Síochána's decision. I find that An Garda Síochána was justified in refusing access to the record at issue under section 37(1) of the FOI Act.
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.
Ger Deering
Information Commissioner