Decision
Mr X and Department of Justice
From Office of the Information Commissioner (OIC)
Case number: OIC-148533-W9Q3M2
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URL: http://www.bailii.org/ie/cases/IEIC/2024/148533.html
Cite as: [2024] IEIC 148533
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Whether the Department was justified in refusing access, under section 15(1)(a) of the FOI Act, to records containing the names of the initiators of a statement made in correspondence with the Applicant's solicitor on the ground that no relevant records exist
6 December 2024
This case has its background in correspondence between the applicant's solicitor and the Department of Justice regarding parole eligibility and the interpretation of the Parole Act 2019 and amendments to the Act. Referring to correspondence his solicitor received, the applicant sought the document showing "the names of the initiators, that advised the Minister for Justice (McEntee):
"-¦ it should be noted that all those serving sentences of 8 years will not become eligible to apply for parole (subject to serving a portion of the sentence yet to be set). The Parole Act 2019 makes clear that the regulations will prescribe a term regarding eligibility that can be no lower than 8 years but this is a minimum point provided for under this legislation, and the Minister is under no obligation to set this as a point of entry"."
It appears the applicant was subsequently asked to clarify his request, following which he said in his response that;
"Initiators are the person or persons who conceived the premise that "the Minister is under no obligation to set this as a point of entry".
The applicant set out his understanding that "As it has been the procedure since 2001 -¦ that 8 years was the point of entry, [the statement represents] "a new and perhaps illegal departure from legislation".
He said he needed to know who initiated the following:
-¢ the deliberate amendment to the Parole Bill in July 2019, a week before being signed by the President
-¢ the deliberate continuing delay in implementing the full enactment of the Parol Act 2019
-¢ the deliberate refusal to review those disenfranchised and a result of the non-enactment of Sec 24(1)(b) as it is supposed to be "administrated by IPS" but it is not
-¢ now, the theory that those serving 8 years and more are not entitled to due process
On 21 February 2024, the Department issued an original decision in which it said it had decided to part grant the request. In its decision, it said it assigned the request to two areas within the Department, the Criminal -“ Penal and Policing Policy area and the Transparency -“ Criminal Contents and Events area. It said searches had been carried out in both areas of the Department. It provided certain background information relating to the Parole Act 2019. It said the Act was initiated in the Oireachtas as the Parole Bill 2016. It said the Office of Parliamentary Counsel was directly involved in the drafting and amending of the Bill as it passed through all stages through both Houses of the Oireachtas. It said the Parole Act 2019, containing section 24 referring to eligibility, was signed into law by the President on 23 July 2019.
Additionally, it said the Transparency area of the Department refused the request under section 15(1)(a) of the FOI Act which provides for the refusal of a request where the records sought do not exist or cannot be found.
On 5 March 2024, the Applicant sought an internal review of the Department's decision. He said the decision did not address his request. He said the statement that the Minister is under no obligation to set [8 years] as a point of entry is an interpretation of the 2019 Act that is not in compliance with the Act. He said the Act does not state that and he wanted to know who had made this interpretation and forwarded it to his legal representative.
On 3 April 2024, the Department affirmed its original decision. It said section 24 of the Parole Act 2019 provides for eligibility criteria for applications for parole. It said section 24(1)(a) provides for the eligibility to apply of those serving life sentences when they have served 12 years of that sentence. It said that under section 24(1)(b), the Minister is empowered to introduce regulations regarding those serving determinate sentences. It said section 24(3) stipulates that regulations made under section 24(1)(b) must prescribe a term of imprisonment of not less than 8 years, and must prescribe the portion of such a term to be served by a person prior to becoming eligible for parole. It said section 23(3) (sic) does not determine that regulations must be in place for those serving a sentence of 8 years or more, rather that the regulations must not apply to those serving sentences of less than 8 years.
On 23 April 2024, the applicant sought a review by this Office of the Department's decision to refuse his request. He said the quote he referenced in the correspondence that issued to his solicitor is an interpretation of the Parole Act 2019 which implies that the Act was intended to exclude categories of prisoners from receiving parole. He said he has not received the names of the initiators.
During the course of this review, the Investigating Officer provided the applicant with details of the Department's submissions to this Office wherein it outlined its reasons for concluding that records relating to the applicant's request do not exist or cannot be found. The Investigating Officer invited the applicant to make submissions on the matter. To date, no reply has been received.
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 applicant's comments in his application for review and to the submissions made by the Department in support of its decision. I have decided to conclude this review by way of a formal, binding decision.
While the purpose of the Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. Requests for information or for answers to questions, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information or for an answer to a question can reasonably be inferred to be a request for a record containing the information or answer sought.
Accordingly, having regard to wording of both the applicant's application for internal review and his application for review to this Office, this review is concerned solely with whether the Department was justified in refusing access, under section 15(1)(a) of the FOI Act, to any records that contain the name of the individual(s) who initiated the statement (or interpretation) that the Minister is under no obligation to set 8 years as a point of entry.
Section 15(1)(a)
Section 15(1)(a) of the FOI 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. Our 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 their decision and also must assess the adequacy of the searches conducted by the public body in looking for relevant records.
The evidence in "search" cases generally consists of the steps actually taken to search for the records along with miscellaneous and other information about the record management practices of the FOI body, insofar as those practices relate to the records in question. It is important to note that the FOI Act is concerned with access to records that a public body holds as opposed to records that a requester considers ought to exist. It is also worth noting that the Act does not require FOI bodies to create records if none exist, apart from a specific requirement under section 17(4) of the Act, which is not relevant in this case, to extract records or existing information held on electronic devices.
In its submissions to this Office, the Department said that the original request fundamentally misunderstands or misrepresents the information shared with the applicant in previous correspondence. It said that, in relation to the substantive point at the heart of this correspondence, relating to the introduction of regulations establishing eligibility for those serving determinate sentences to apply for parole, at no point was the Minister advised that she 'is under no obligation to set [8 years] as a point of entry'. It said no initiator conceived this premise, as the applicant argues. It said this is a statement of fact, rather than advice, and its point of origin is from a faithful reading of the relevant section of the Parole Act 2019. It said section 24 of the Parole Act 2019 provides for the eligibility of those in prison to apply for parole. It said this is limited to (a) those serving life sentences, after having served 12 years of the sentence, and (b) those serving custodial sentences of a determinate length according to eligibility criteria to be introduced by the Minister for Justice by way of regulations. It said these regulations have not yet been introduced, that policy work is ongoing, and at present only those serving life sentences who have served 12 years or more are currently eligible to apply for parole. It said section 24(3) provides for what must be established in the relevant regulations to determine the eligibility of those serving custodial sentences of determinate length. It said the Minister must set the term of imprisonment to be served by an individual to qualify them for eligibility for applying parole and must also set the portion of such a term to be served by the person before they become eligible. It said that on the latter, the Parole Act 2019 provides no limitations. It said, however, that on the former, section 24(3)(a) provides that the term of imprisonment to qualify for eligibility must be no shorter than 8 years. It said that in this provision, the Act does not state that the regulations must determine that 8 years is the term of imprisonment which will qualify for eligibility, rather that the qualification for eligibility must not be lower than 8 years. It said there is no legislative provision which would prevent the Minister from introducing regulations just for those serving sentences of 10 years or longer, or just for those serving 15 years or longer, for example.
The Department added that the applicant is seeking details of the initiator of advice to the Minister when, firstly, the Minister received no such advice, and secondly, the material fact in question is provided for under primary legislation and as such, the originator of this information is already in the public domain.
Analysis
While the role of this Office is confined to a consideration of whether or not the Department was justified in refusing the request under section 15(1)(a), and does not extend to making a binding determination as to the accuracy or otherwise of the Department's interpretation of the relevant provisions of the Parole Act 2019, it seems to me that the Department's explanation of the provisions as set out in its internal review decision of 3 April 2024 accurately describes the relevant provisions.
Section 24(1)(b) of the 2019 Act empowers the Minister to make regulations to provide for the eligibility for parole of persons serving sentences of a term equivalent to or longer than such term as is prescribed in such regulations. Pursuant to section 24(3), in making such regulations the sentence term for eligibility must be not less than 8 years. The Act does not require the Minister, when making such regulations, to set the term for eligibility at 8 years. Instead, it requires that any such term set in the regulations must be not less than 8 years. Accordingly, it seems to me that the statement in the correspondence at issue, that the Minister is under no obligation to set 8 years as a point of entry, is an accurate reflection of the statutory provision.
Accordingly, I accept the Department's contention that the statement is a statement of fact rather than advice, that its point of origin is from a faithful reading of the relevant section of the Parole Act 2019, and that no initiator conceived this premise, as the applicant argues. In essence, I accept the Department's explanation for its position that no record of the type sought exists as no such record was ever created.
Therefore, having regard to the information before this Office, and in the absence of any evidence to the contrary, I am satisfied that the Department has taken all reasonable steps to locate the records sought by the applicant and that it has provided adequate reasons for its conclusion that no records relating to the applicant's request exist. In the circumstances, I find that the Department was justified in refusing access, under section 15(1)(a) of the FOI Act, to any records that contain the name of the individual(s) who initiated the statement (or interpretation) that the Minister is under no obligation to set 8 years as a point of entry.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department's decision to refuse, under section 15(1)(a), the applicant's request for the names of the initiators of a statement made in correspondence with the Applicant's solicitor on the ground that no relevant records exist.
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