Decision
Mr. X & Probation Service
From Office of the Information Commissioner (OIC)
Case number: OIC-153235-T4J0P1
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-153235-T4J0P1
Published on
Whether the Probation Service was justified in redacting, under sections 32(1)(a) and 37(1) of the FOI Act, certain information from records held relating to the applicant
29 July 2025
In a request dated 29 July 2024, the applicant sought access to any reports or records relating to his imprisonment in two named institutions. In its decision dated 25 September 2024, the Probation Service part-granted the request, relying on sections 32(1)(a)(v), 32(1)(b) and 37(1) of the FOI Act to redact certain information. The applicant requested an internal review of that decision, following which the Probation Service affirmed the original decision. On 30 October 2024, the applicant applied to this Office for a review of the Probation Service’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 the submissions made by the Probation Service and the applicant. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.
The Probation service identified eight records as falling within the scope of the applicant’s request, comprising 26 pages. It redacted information from 15 of the pages across seven of the records. Record 3 was released in full. The information redacted comprises the names of prison-based staff of the Probation Service and information relating to a third party. In submissions to this Office the Probation Service sought to rely on section 32(1)(a)(iii) of the FOI Act which had not been relied upon in either decision issued to the applicant. Submissions were invited from the applicant in relation to this provision which were duly received and have been considered.
The scope of this review is concerned with whether the Probation Service was justified in withholding the redacted information from the seven records under sections 32(1)(a)(iii), 32(1)(a)(v), 32(1)(b) and 37(1) of the FOI Act.
Section 32 – Law enforcement and public safety
The Probation Service said the names of various Probation Officers were redacted and that sections 32(1)(a)(iii), 32(1)(a)(v) and 32(1)(b) are applicable.
Section 32(1)(a)(iii) provides for the refusal of a request if the FOI body considers that access to the record concerned could reasonably be expected to prejudice or impair lawful methods, systems, plans or procedures for ensuring the safety of the public and the safety or security of persons and property. Section 32(1)(a)(v) provides for the refusal of a request if access to the record concerned could, in the opinion of the head, reasonably be expected to prejudice or impair the security of a penal institution. Section 32(1)(b) provides for the refusal of a request where the FOI body considers that access to the record concerned could reasonably be expected to endanger the life or safety of any person.
Submissions of the Probation Service
The Probation Service submitted that to release the information would be akin to releasing it to the world at large. It said the potential harm is that the lawful methods systems, plans or procedures for ensuring the safety of the public and the safety and security of persons and property may be compromised by the passing of such information to/by unintended individuals. It said it is also of the opinion that a risk to life or safety to staff themselves (and others) exists should the personal data of prison-based Probation Service staff be made available to the world at large.
On the applicability of section 32(1)(a)(v), the Probation Service said the Penal Institution in question is Portlaoise Prison, which is a closed, high security prison and it is considered that a real risk of intimidation by inmates or criminal elements arises should the names or contact details of its staff be released and by extension, the security of the Institution may be compromised. It said its concerns include the possibility of threats against families to achieve favourable treatment or to facilitate smuggling and it considers that the FOI process should not be a tool to help achieve such aims.
The Probation Service also said that the decision to redact the names of individuals working in a prison setting was not particular to the applicant’s request but is applied in the case of all such individuals. It argued that the safety of such individuals could be prejudiced or impaired by the release of their names. It said they could be subject to threats or intimidation as a result of their role within the prison setting and that this could reasonably be expected to result in harm occurring to their safety. It said that the rationale for redacting staff names has previously been accepted by this Office in previous decisions in cases OIC-135453 and 135454. In the composite decision I issued in those cases, I found that section 32(1)(a)(iii) applied to the names of staff members of the Probation Service contained in certain records.
Submissions of the Applicant
The applicant said it was concerning that section 32(1)(a)(iii) was being invoked at such stage of the process when the original FOI decision and the internal review decision made no reference to the section. He argued that it is procedurally unfair to raise a new ground for refusal at the review stage, which deprives him of the opportunity to have had this matter assessed at the earlier stages, as envisaged by the Act. He said section 32(1)(a)(iii) is a discretionary exemption that must be clearly justified, and it is not enough to assert a general risk to safety or procedures. He said there must be specific and evidence-based reasoning as to how the release of the names of Probation Service staff would “reasonably be expected to prejudice or impair lawful methods, systems, plans or procedures for ensuring the safety of the public and the safety and security of persons and property.” He said no such justification has been provided, nor is any obvious from the context.
The applicant added that the individuals whose names were redacted are public servants carrying out their official duties and, in general, the identity of such officials is not regarded as sensitive under the FOI Act unless there is a credible risk of harm. He said he was not seeking private or personal data, only the names of persons acting in an official capacity which, he said, is routinely released in other contexts and is important for the transparency and accountability of public services.
He said that, even if the exemption is deemed to apply, section 32 is subject to a public interest override under section 32(3). He submitted that the public interest in accountability, transparency in the administration of justice, and his own right to understand and challenge the actions taken by state actors in his case, outweighs any hypothetical or speculative risks. He said the Probation Service had not demonstrated how any individual would be endangered by this disclosure. He said he was aware that similar names of Gardaí, social workers, prison staff, and other officials have been released under FOI where no specific risk was shown. He said the selective application of this exemption raised concerns about consistency and fairness. For these reasons he requested that the redactions under section 32(1)(a)(iii) be reconsidered and that the names of the staff members be released in full.
It is important to note that a review by this Office is considered to be “de novo”, which means that in this case, it is based on the circumstances and the law as they pertain at the time of the decision and is not confined to the basis upon which the FOI body reached its decision. Accordingly, in light of the “de novo” nature of our reviews, I deem it appropriate to consider the applicability of section 32(1)(a)(iii), notwithstanding the fact that the Probation Service did not initially rely upon that provision as a ground for refusing access to the names of its staff members. Moreover, in the interests of procedural fairness, the applicant was invited to make submissions on the Probation Service’s reliance on section 32(1)(a)(iii). He did so and I have fully considered those submissions.
In my composite decision in cases OIC-135453 and 135454, I noted that section 32(1)(a)(iii) is not directly concerned with the safety or security of persons and property and is concerned instead with the protection of lawful methods, systems, plans or procedures for ensuring the safety of the public or the safety or security of persons and property. I noted, for example, that where a system operates to ensure safety, and that system could reasonably be expected to be prejudiced or impaired, then this exemption may be relevant. I noted that the essence of the arguments put forward by the Probation Service were that it operates a procedure of not disclosing the names of officials working in certain areas of the Probation Service itself. I noted that I understood that the purpose of such a procedure is to ensure the safety and security of its officials.
I further noted in my earlier composite decision that whilst expressing no opinion on its appropriateness or efficiency, this Office had previously accepted that the Department of Justice operates a policy of not disclosing the names of officials working in certain Divisions in view of the sensitivity of the work generally carried out by those Divisions and that the purpose of such a policy is to ensure the safety and security of its officials. I noted that we had found in previous decisions that the disclosure of the identities of the officials named could reasonably be expected to prejudice or impair that policy or system and that section 32(1)(a)(iii) applied to the names concerned. I noted that similar considerations arose in cases OIC-135453 and 135454. I accepted that the Probation Service has a policy of not disclosing the names of officials working in certain areas of the Probation Service itself in an effort to ensure their safety and security and I found section 32(1)(a)(iii) to apply to the names of those staff members.
The Probation Service has made identical arguments in this case. While I note the applicant’s argument that the identity of public servants carrying out their official duties is not generally regarded as sensitive under the FOI Act unless there is a credible risk of harm, I must again note that section 32(1)(a)(iii) is not concerned with the safety or security of persons and property and is concerned instead with the protection of methods, systems, plans or procedures for ensuring the safety of persons and property. I accept that the Probation Service has a policy of not disclosing the names of officials working in certain areas of the Probation Service itself in an effort to ensure their safety and security. While I make no comment on the appropriateness or efficiency of that policy, I accept that the disclosure of the names of staff members of the Probation Service could reasonably be expected to prejudice that policy. I find, therefore, that section 32(1)(a)(iii) applies to the names of the staff members in question.
Section 32(3) provides that section 32(1) does not apply to a record in certain limited circumstances and where the body considers that the public interest would, on balance, be better served by granting the request. While the applicant has advanced certain arguments as to why the public interest would be better served by the release of the names in question, his arguments fail to acknowledge that the question of where the balance of the public interest lies falls to be considered only where any of the circumstances set out in section 32(3) arise. I am satisfied that none of the limited circumstances provided for in section 32(3) arise in this case.
Having found that section 32(1)(a)(iii) applies to the names of the staff members of the Probation Service, I do not need to consider the applicability of sections 32(1)(a)(v) or 32(1)(b) to that information.
Section 37(1) personal information
Section 37(1) of the FOI Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information. This does not apply where the information involved relates to the requester (section 37(2)(a) refers). However, section 37(7) provides that, notwithstanding section 37(2)(a), an FOI body shall refuse to grant a request if access to the record concerned would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester (commonly known as joint personal information).
Personal information is defined in section 2 of the FOI Act as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or their family or friends or, (b) is held by a public body on the understanding that it would be treated by it as confidential.
The Probation Service has redacted certain information from an Interview Form, a Probation Service Report and Follower Notes. Although I am obliged to give reasons for my decision, section 25(3) of the FOI Act 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 information at issue is limited. I can say, however, that it includes the name of a third party, information about the third party derived from a consultation the Probation Service conducted with a named member of An Garda Siochana, information provided by the third party and information from a book of evidence. I am satisfied that all of the information at issue comprises either personal information relating to a third party or joint personal information relating to the applicant and a third party. I am therefore satisfied that section 37(1) applies to all of the information withheld on this basis in the records at issue. However, that is not the end of the matter as section 37(1) is subject to the provisions of subsections (2) and (5).
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 other such form as may be determined, to its disclosure to the requester,
(c) information of the same kind as that available 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 it 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 any of the circumstances outlined above at subsections (a) to (e) are relevant in this case, nor do I consider any to apply. I find that section 37(2) does not apply.
Section 37(5)
Section 37(5) provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance (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. No argument has been made that the release of the information at issue in this case would benefit the third parties to whom the information relates. I am satisfied 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, such as under sections 37(2)(a), 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.
In his correspondence with the Probation Service and with this Office, the applicant essentially argued that the information sought in his FOI request would disclose details of his mistreatment within the Irish Prison Service
In its submissions, the Probation Service said it considered the following factors in favour of release:
• Openness and transparency
• Accountability of Public Bodies
It said it considered the following factors against release:
• The right of individuals to privacy in their communications with Government Departments.
• The information contained in the record would only be known to those referenced in the record and to release the record would identify them.
Having considered the nature and contents of the information at issue, which essentially concerns a third party, I am not satisfied that its release would, in any way, shed light on the applicant’s treatment within the prison service. I also note that the Probation Service sought to release the vast majority of the information in the records coming within the scope of the applicant’s request while seeking to protect third party privacy rights.
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 it 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).
Having considered the matter and bearing in mind the strong public interest in protecting the right to privacy, I do not accept that there is any public interest in releasing the information at issue that outweighs the privacy rights of the relevant third party. I am not satisfied that any sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure of the information at issue exists in this case. Accordingly, I find that section 37(5) does not serve to disapply section 37(1) in respect of any of the information at issue.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Probation Service’s decision. I find that the Probation Service was justified in withholding access to parts of the records under sections 32(1)(a)(iii) and 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.
Stephen Rafferty
Senior Investigator