Decision
Ms Y and Irish Prison Service
From Office of the Information Commissioner (OIC)
Case number: OIC-125314-S3B6C2
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-125314-S3B6C2
Published on
Whether the IPS was justified in refusing access to records relating to concerns or allegations about her attendance at her workplace on a specified date, as set out in her request, on the basis that sections 30(1)(a), 31(1)(a), 32, 35 and 37 of the FOI Act applied or on the basis that the Act does not apply to them, pursuant to Schedule 1, Parts 1(n) and (f)
23 October 2024
On 15 September 2021, the applicant, who is a member of the staff of the IPS, submitted a request for all records relating to concerns or allegations about her attendance at her workplace on a specified date, setting out details of the records to be included in the request. The applicant attended her workplace on the date in question in order to access records further to an investigation undertaken by the Office of the Inspector of Prisons (IOP). The IPS subsequently commenced disciplinary proceedings against the applicant in light of concerns which were expressed around the manner in which she had accessed such records.
In a decision dated 16 November 2021, the IPS identified 109 pages of records, of which 102 were released in full and the remaining seven were released in part with certain information redacted under section 37(1) of the Act. The decision letter also indicated that the records sought formed part of an ongoing deliberative process and could not be released, under section 29(1) of the Act. No specific details were provided of the number or types of records being withheld under that section.
On 22 November 2021, the applicant sought an internal review of that decision wherein she raised issues with the manner in which access had been granted and the timeliness of the decision. She also argued that not all relevant records had been identified by the IPS in response to her request.
In its internal review decision of 16 December 2021, the IPS purported to affirm the original decision. However, it also noted that it had omitted to include details of the records being refused under section 29(1)(a) and apologised for the oversight. It provided an updated schedule of records which indicated that a further 209 pages of records were being withheld under that section. On 20 June 2022, this Office received an application from the applicant for a review of the decision of the IPS.
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 the applicant and to the submissions made by the IPS in support of its decision. I have also had regard to the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision. I wish to apologise at the outset for the delay in finalising the review, which was due, in apart, to staff resourcing matters and to the volume of material requiring examination.
During the course of the review, the IPS indicated that it was relying solely on section 37(1) of the Act as the basis for withholding information from seven of the 109 records originally identified as coming within the scope of the request, namely pages 33, 36, 42, 101, 105, 107 and 108. It also indicated that the redaction of the mobile phone number on page 36 was an administrative error and it was no longer seeking to rely on section 37(1) with respect to that information. It said it released page 36 in full to the applicant on 28/29 September 2022. As such, it is not necessary for me to consider this record any further as part of my review. However, the Service did indicate that, contrary to what had been set out in the schedule of records supplied to this Office, it had withheld certain information on page 37 on the basis of section 37(1). I will therefore consider the applicability of section 37(1) to pages 33, 37, 42, 101, 105, 107 and 108 further below. I will refer to these seven pages of records as Part 1 records.
Moreover, the IPS revised its position with regard to the second batch of 209 pages of records which had been withheld under section 29(1). On 28 September 2022, a number of those records were released, in whole or in part, to the applicant. In accordance with our normal procedures, we asked the IPS to provide us with a copy of the relevant records. The accompanying schedule listed 216 pages of records rather than the 209 referred to in the internal review decision. The schedule indicated that certain records were withheld in whole or in part under sections 30(1)(a), 31(1)(a), 32(1)(a), 37(1), and Schedule 1 Part 1(n). It said pages 1 to 216 have been grouped to form records 1 to 49 for ease of reference. I will refer to these records as Part 2 records. For ease of reference, I will use the record numbers identified by the IPS in the revised schedule in referring to the records at issue in this decision.
In response to our enquiries as to the discrepancy in the number of pages involved, the IPS said that during the course of reviewing the records for this Office, page numbers were re-ordered to take account of page numbers duplicated and some not numbered (referencing pages 141, 142, 164, 176, 204, back of page 206, 207, 208 and 209). It said this brought the total number of pages to 216, encompassed in 49 records. It added that additional pages of records were being provided as part of the review, and it included them on the schedule as “an additional letter to the existing record”. This specifically relates to pages 15a and 15b, which comprise one letter appended to record 3, and page 50a which comprises a printer log which is appended to record 11. Pages 15a, 15b and 50a have all been granted to the applicant.
With regard to record 30, the schedule indicated that this record was “withheld pending receipt of submission from” the Office of the Inspector of Prisons (IOP). The IPS subsequently indicated that it had not received a submission from the IOP on the matter. In the course of my review, I wrote to the IOP to see if that Office wished to make any submissions in this matter but I did not receive any response.
The schedule also indicated that part of page 127, which forms part of record 20, was refused on basis that the information fell outside the scope of the applicant’s request. Having examined page 127 I am satisfied that this is indeed the case and I do not need to consider this part of the record further as part of my review.
I subsequently sought further details from the IPS with regard to the email contained in the first two pages of record 11 in the Part 2 records. The IPS said the email contained five attachments as follows:
1. PIMS Database Log
2. PIMS Database Log
3. print_logs_by_user.csv
4. Multi File Download 1
5. Multi File Download 2
In light of this, I subsequently queried why the fourth and fifth attachments to the email did not appear on the schedule and were not supplied to this Office. In response, the IPS said that the records comprise the personal and operational records of persons in custody of the IPS. It said that if such records were to be considered to fall within the scope of the applicant’s request then the majority of them would be exempt on the basis of sections 32(1)(a)(v) and 37(1).
Following further engagement, the IPS provided these records to this Office. In doing so, it provided the records with the names and/or initials of prisoners in the records redacted as well as certain other identifying information. The IPS also indicated that with respect to pages 14-15 of these records, relating to a sick certificate for the applicant, these pages have already been released to the applicant and as such I am satisfied that they fall outside the scope of the current review. With respect to the remainder of the records, the IPS reiterated its position that it considers these records to fall outside the scope of the applicant’s request as the dates of the records pre-date the specified date on which the applicant attended her place of work, it also indicated that it considered them to be exempt pursuant to sections 32(1)(a)(v), 32(1)(b), 32(1)(c), 35(1)(a), 35(1)(b) and 37(1). Previous submissions of the IPS also indicated that it also considered sections 32(1)(a)(ii) and (x) to be of relevance with respect to these records.
I have carefully considered the matter and have reviewed records at issue. Bearing in mind the exact wording of the applicant’s request, I am satisfied that these records fall within the scope of the applicant’s request. I will therefore consider them further below.
Taking all of the above into account, the revised position of the IPS with respect to the 49 Part 2 records is as follows:
• Records granted in full: 3 including pages 15a-15b, 9-10, page 50a which is part of record 11, 17-19, 23 and 32-33;
• Records refused: 1-2, 14-15, 27, 30, 38, 40 and 48; and
• Records part granted: 4-8, 11 (covering email and third attachment granted (referred to as page 50a above), remaining four attachments refused), 12-13, 16, 20-22, 24-26, 28-29, 31, 34-37, 39, 41-47 and 49.
Following her examination of the Part 2 records that were released in full or in part, the applicant suggested that the IPS held additional relevant records relating to interaction with the Data Protection Commissioner. Following communications with this Office, the IPS identified six additional relevant records, of which record 2 was released to the applicant. The remaining five records were withheld pursuant to Schedule 1, Part 1 (f) of the Act. In the accompanying correspondence, the IPS also indicated that it deemed section 37 to apply to parts of record 4. I will refer to these records as Part 3 records.
Finally, in the course of the review, two further records were identified by the IPS as falling within the scope of the applicant’s request, namely a letter from the Inspector of Prisons to the IPS dated 12 October 2020 and a letter from the Director General of the IPS to the Inspector of Prisons dated 16 October 2020. The IPS refused access to these records on the basis of sections 30(1)(a) and 32(1)(a)(v). I will refer to these two records as Part 4 records.
As it now stands, the position of the IPS in respect of the records withheld in whole or in part is that they are exempt under sections 30(1)(a), 31(1)(a), 32(1)(a), 32(1)(b), 32(1)(c), 35(1)(a), 35(1)(b) and 37(1) and pursuant to Schedule 1, Part 1 (f) and Part 1(n) of the FOI Act. This review is therefore concerned with whether the IPS was justified in withholding those records in whole or in part under the provisions cited.
Before I address the substantive issues arising, I would like to make a number of preliminary comments. First, as has previously been explained to the applicant, 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.
Secondly, 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. Thus, while certain provisions of the Act implicitly render the motive of the requester relevant, as a general rule, the actual or perceived reasons for a request must be disregarded in deciding whether to grant or refuse an access request under the FOI Act.
Thirdly, it is important to note that release under the FOI Act is considered to be release to the world at large. The applicant has made a number of arguments to the effect that as a serving staff member of the IPS she is subject to certain obligations under the Official Secrets Act 1963, the Prisons Act 2007, the Prison Rules 2007 and the Data Protection Act 2018 and as such, release of the relevant records to her differs from the release of records to a member of the public. In considering the applicant’s contention, it is important to recall the comments of O’Neill J. in H.(E.) v Information Commissioner [2001] IEHC 58 as follows:
‘neither a head of public body or the [Information] Commissioner has any jurisdiction under the Act to impose any conditions on the type or extent of disclosure or the use of the documents after disclosure and hence in permitting disclosure a head of public body and the Commissioner must assume that the disclosure of a record will be to the world at large.’
In circumstances where no restrictions can be placed on the uses to which a record released under FOI can be put, this Office takes the view that when considering the release of a record, the FOI body must regard release of the record as being effectively, or at least potentially, to the world at large. However, this does not mean, of itself, that the record is actually available to the world at large once it has been released, although the recipient may well choose to make it so, e.g. by publishing the record. Accordingly, this is not a question of whether to disclose the records solely to the applicant. It is a question of whether to disclose the records to the world at large.
Fourthly, section 18(1) of the FOI 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 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.
Fifthly, 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 on which the FOI body reached its decision. Accordingly, in light of the ‘de novo’ nature of our reviews, I consider it appropriate to consider the applicability of certain provisions, notwithstanding the fact that the IPS did not rely on such provisions in its decisions on the applicant’s requests.
Finally, while I am required by section 22(10) of the FOI Act to give reasons for my decisions, this is subject to the requirement at section 25(3) that I take all reasonable precautions to prevent the disclosure of information contained in an exempt record or matter that, if it were included in a record, would cause the record to be exempt. Therefore, the description I can provide of certain parts of the record at issue and of my reasoning in this case is somewhat limited.
Section 30(1)(a)
The IPS relied on section 30(1)(a) to refuse access to records 1, 2, 14, 15 and 27 and parts of records 6 and 8 of the Part 2 records. It also relied on this provision to refuse access to the two Part 4 records.
Records 1, 2, 14, 15 and 27 comprise email exchanges both within the IPS and with an external investigator relating to the terms of reference for an investigation into the applicant. The draft terms of reference circulated for review are appended to records 2, 14 and 27. In addition, these terms of reference also comprise the information refused in records 6 and 8.
As set out above, the two Part 4 records comprise a letter from the Inspector of Prisons to the IPS dated 12 October 2020 and a letter from the Director General of the IPS to the Inspector of Prisons dated 16 October 2020. In both cases the records relate to matters associated with the applicant’s actions which subsequently resulted in the IPS investigation.
Section 30(1)(a) 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)(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 (i) prejudice the "effectiveness" of the tests, examinations, investigations, inquiries or audits, or (ii) 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.
Where a record is exempt under section 30(1)(a), the public interest test at section 30(2) must be considered.
IPS submissions
In its submission to this Office, the IPS said the records at issue contain deliberations on the Terms of Reference of the investigation between the IPS and the investigator and include correspondence from the IPS and the Office of Government Procurement for the procurement of the services of the investigator. It argued that the release of this information would divulge procedures and methods employed in agreeing Terms of Reference and undermine the functions of the IPS and investigators contracted to undertake investigations. It said that release of information relating to the methods by which it agrees on Terms of Reference of investigation would undermine the ability of investigators working on behalf of the IPS to seek advice in respect of such investigations and result in investigators being less likely to seek information on procedural matters relating to an investigation. It said it consulted with investigators as part of this review, who advised that they would consider discussions surrounding Terms of Reference to be highly
sensitive. The IPS further indicated that while investigators procured through the Office of Government Procurement (OGP) framework are not subject to the FOI Act, they have advised that deliberations on Terms of Reference could be refused under Section 60(3)(iv) of the Data Protection Act 2018, given that that they could be considered as part of litigation proceedings. It said that at the time of its submission, there were 12 matters under investigation by external investigators with a potential for five to be undertaken in the near future. It said there is a relatively small pool of investigators on the OGP’s investigative framework and that the same investigating company can be put forward for other investigations.
The IPS further argued that the release of the information at issue could lessen the willingness of HR staff working on the Terms of Reference to be fully forthright and honest in their deliberations within the team and with investigators in arriving at agreed terms. It said it is reasonable to expect that staff would be more cautious in their deliberations on such processes if their questions and advice could become public knowledge, particularly among prison staff, and would therefore undermine their confidence in the delivery of their functions.
The IPS added that while this particular investigation is complete, the disclosure of the information could have a significant adverse impact on further investigations being carried out on or on behalf of the IPS in that if released, such deliberations and methods employed by HR management could become a matter for discussion among the wider prison staff and the general public. It said that despite the confidentiality of the disciplinary process, relationships and networks between Prison Officers are strong, and if released to the general public, information relating to any HR matter could become widely known within the staff grouping. It said that given that there are a significant number of disciplinary processes ongoing at any given time, the effectiveness and integrity of any of these processes has the potential to be adversely effected.
In addition, the IPS said that the Disciplinary Process also contains an appeal mechanism, whereby the subject of a ‘concern raised’ can appeal the process by which an investigation has been carried out. It said that if access to a record were to be granted in circumstances where the disciplinary process is ongoing, it could risk the progress of such investigations, in that they could be delayed significantly with a potentially protracted FOI process. The IPS said that it is reasonable to expect that any records granted could become the subject of consideration of an appeal and even though this may not constitute any prejudice to the process, it could be perceived as such and could potentially delay or harm the process.
Applicant’s submissions
In the course of correspondence with this Office, the applicant argued that without sight of these records she is at a disadvantage in presenting her case. Nevertheless, she argued that the IPS had not demonstrated that any real harm will be caused to its procedures and methods for progressing future investigations if the relevant records were released nor that there was a reasonable expectation of such harm being caused. She said the records at issue relate to discussions aimed at agreeing specific Terms of Reference for an investigation into allegations made against her.
The applicant also referred to section 8 of the FOI Act wherein public bodies are obliged, as part of their FOI publication schemes, to publish rules, procedures, practices, guidelines, and interpretations used by the body. She argued that this would include those used for agreeing investigation terms of reference and argued that if it complied with its obligations under section 8 then the release of the terms of reference to her would not involve the release of any new material.
The applicant also said that the investigators did not provide any reasons for concluding that the information at issue was highly sensitive, following the consultation process referred to above. She referred to the Request for Tenders (RFT) document issued by the Office of Government Procurement for a multi-supplier framework agreement for the provision of external workplace investigation services. It is my understanding that the services of the investigator were engaged under this framework agreement. The applicant specifically referred to paragraph 18 of the framework agreement and clause 7 of the service contract.
The applicant contended that these provisions require the investigators to specify information not to be disclosed on the grounds of confidentiality or commercial sensitivity and to state the reasons for this sensitivity which will then be considered by the IPS in deciding whether or not to release it under the FOI Act. She said the reason proffered by the investigators, namely that it could be used as part of litigation proceedings, is not sufficient.
Further, the applicant disagreed with the arguments put forward by the IPS that release of the information at issue would inhibit HR staff of the IPS in being fully forthright and honest in their internal deliberations and engagement with the investigators to agree the terms of reference. She said the Civil Service Code of Standards and Behaviour requires civil servants to be impartial in the performance of their duties, to respect the constraints of the law, to maintain high standards of service in all their dealings with the public and to show due respect to their colleagues including their beliefs and values. She argued that assuming the relevant staff members adhered to these standards, then there should be no concerns about releasing the records at issue.
The applicant also disagreed with the position of the IPS that release of the relevant records could result in HR processes and procedures being discussed amongst staff of the IPS, thereby potentially negatively affecting future investigations. She said that as an employee of the IPS, she is bound by various obligations set out in the Official Secrets Act, the General Data Protection Regulation and the Data Protection Acts. The applicant disputed the IPS’s contention that she would discuss the contents of the records at issue with other staff members. She also refuted the IPS’s argument that a protracted FOI process could unduly delay disciplinary investigations, arguing instead that any delays to the process were the fault of the IPS.
Part 2 records
As set out above, the Part 2 records at issue comprise email exchanges between staff of the IPS and the external investigator appointed to investigate the allegations against the applicant seeking to finalise the terms of reference for the investigation. The draft terms of reference included in the various records contain details of the concerns to be investigated and details of the procedure the investigation will follow. The disclosure of the records would disclose details of exchanges between the IPS and the investigator in respect of those procedural arrangements, such as the length of time the investigation might take. I simply cannot see how their release might undermine the functions of the IPS or the ability of investigators working on behalf of the IPS to seek advice in respect of such investigations. It seems to me that both parties would consider it important to ensure that the terms of reference of a proposed investigation accurately reflected the agreed procedures to be followed and I do not accept that the release of the records at issue might result in investigators or IPS staff being less likely to seek information on procedural matters relating to an investigation in the future. Moreover, while I note that investigators consulted by the IPS as part of this review said they would consider discussions surrounding terms of reference to be highly sensitive, this does not explain how the release of the records could reasonably be expected to give rise to the harms outlined in section 30(1)(a).
Neither is it apparent to me how the fact that the disclosure of information relating to deliberations and methods employed by HR management in relation to the settling of terms of reference might become a matter for discussion among the wider prison staff and the general public could have a significant adverse impact on further investigations being carried out on or on behalf of the IPS.
On the matter of the argument that deliberations on terms of reference could be refused under Section 60(3)(iv) of the Data Protection Act 2018, Article 86 of the General Data Protection Regulation provides that personal data in official documents held by a public authority or a public body or a private body for the performance of a task carried out in the public interest may be disclosed by the authority or body in accordance with Union or Member State law to which the public authority or body is subject in order to reconcile public access to official documents with the right to the protection of personal data pursuant to the Regulation. Section 44 of the Data Protection Act 2018 provides that, for the purposes of Article 86, personal data contained in a record may be disclosed where a request for access to a record is granted under and in accordance with the FOI Act 2014 pursuant to an FOI request. The FOI Act is entirely independent of data protection legislation and FOI requests for access to records must be processed in accordance with the provisions of the FOI Act.
Finally, I note the argument of the IPS that granting access to a record in circumstances where the disciplinary process is ongoing could risk the progress of such investigations, in that they could be delayed significantly with a potentially protracted FOI process and/or that any records granted could become the subject of consideration of an appeal and even though this may not constitute any prejudice to the process, it could be perceived as such and could potentially delay or harm the process. This seems to me to be a class based argument for the protection of records relating to an investigation while an investigation is ongoing, regardless of their contents. The disclosure of the records at issue would disclose nothing more than the engagements between the IPS and the investigator on the drafting of terms of reference. I fail to see how the release of those records could possible give rise to the harms identified.
Accordingly, I am satisfied that section 30(1)(a) does not apply, in whole or in part, to records 1, 2, 6, 8, 14, 15 or 27 of the Part 2 records.
Part 4 records
In relation to the two Part 4 records, the IPS said that the Inspector of Prisons (IOP) is a statutory body created by the Prisons Act 2007 and independent in its functions. It said that release of these records would impede the IOP in effectively carrying out its investigations. Beyond that, it did not make any specific arguments with respect to its reliance on section 30(1)(a) with respect to these records. In addition, as set above, in the course of my review, I wrote to the IOP and provided it with an opportunity to comment on whether it considered the information contained in these records to be exempt. I did not receive a response to this correspondence.
Having examined the records at issue, I am satisfied that they relate to an investigation conducted by the IOP. However, it is important to note that, as set out above, section 30(1)(a) is a harm based exemption and any claim for exemption under this provision must be made on its merits and in light of the contents of each particular record concerned and the relevant facts and circumstances of the case. A claim for exemption pursuant to section 30(1)(a) which is class-based is not sustainable e.g. a claim for exemption for ‘any’ IOP document.
The IPS said that the two part 4 records are exempt under section 30(1)(a) as they relate to an investigation undertaken by the IOP. It said that the IOP is an independent statutory body set up under the Prisons Act 2007 and the release of the relevant records would prejudice the effectiveness of the IOP to carry out their investigations.
It seems to me that the IPS is essentially arguing for the protection of records relating to the IOP as a class under section 30(1)(a). As I have outlined above, such an argument is not sustainable. In particular, the IPS has not explained how the release of the Part 4 records might cause the harms outlined in that provision, nor is it apparent to me, having examined the records, how such harm might arise. The records at issue are concerned simply with how the IOP might treat correspondence received from the applicant in circumstances where concerns had arisen with respect to manner and format in which such records had been submitted. The IPS has not pointed to any particular information in the records concerned, the release of which would undermine the IOP’s investigative role or the methods and procedures employed for such investigations. Having regard to the specific contents of the records at issue, I am not satisfied that the IPS has justified its decision to refuse access to the Part 4 records on the basis of section 30(1)(a). I find therefore that section 30(1)(a) does not apply to the two Part 4 records.
The IPS has also sought to rely on section 32(1)(a)(v) with respect to these records and I will consider this further below.
Section 31(1)(a)
The IPS relied on section 31(1)(a) to refuse access to certain information on page 1 of record 1, page 1 of record 16 and parts of record 22 within the Part 2 records. The information at issue relates to email correspondence from a member of staff of the IPS who is identified as working in the area of employment law.
Section 31(1)(a) provides for the mandatory refusal of a request if the record concerned would be exempt from production in proceedings in a court on the ground of legal professional privilege. Legal professional privilege enables the client to maintain the confidentiality of two types of communication:
• confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege), and
• confidential communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation (litigation privilege).
Where a claim for exemption is made on the basis that the records are covered by legal professional privilege, each record should be considered in its own right. It is important to note that, provided the prerequisites of advice privilege or litigation privilege are present, the fact that a professional legal adviser is employed as an in-house legal adviser does not prevent the client from asserting privilege over the communications at issue. Furthermore, records which may not, on an individual basis, satisfy the criteria for legal advice privilege may nevertheless qualify for exemption under section 31(1)(a) where they form part of a continuum of correspondence resulting from the original request for advice. Privilege may, in certain circumstances, also apply to communications between non-legal advisory staff which detail legal advice sought or received or are part of a continuum of communications arising from an initial request for legal advice.
The IPS said that the information in the relevant records comprises advice from a named individual acting in her capacity as legal adviser to the IPS. It said that the individual in question was employed by the IPS’ HR Directorate as a legal adviser specialising in employment law at the time of the investigation. It supplied this Office with a copy of the job description which it used to advertise the position of employment law specialist in the IPS.
In correspondence with this Office, the applicant said that the relevant records relate to correspondence with a person described in the schedule as an ‘internal legal representative’ who was acting ‘in her capacity as legal advisor to the IPS and was employed by the IPS HR Directorate as a legal advisor on all matters related to employment law at the time of this investigation’. The applicant said that the individual in question cannot hold the role of legal adviser as she considers that the Attorney General is the legal adviser to the Government, including Government Departments and Offices while the Chief State Solicitor's Office (CSSO) provides litigation, advisory and conveyancing services to Government Departments and Offices and to certain other State agencies. The applicant also referred to three recent Court judgments which she said demonstrated that the Attorney General and/or the CSSO were the IPS’ legal representatives and advisers. The applicant said that for the IPS to rely on section 31(1)(a) it must demonstrate that the advisory functions of the Attorney General's Office and/or the CSSO have been devolved in some way to the individual in question. In addition, the applicant referred to the job description referenced above and in which, the applicant argued, no reference is made to such a devolution of powers.
The essence of the applicant’s arguments is that only the Attorney General and/or the CSSO, or individuals to whom these entities have devolved their functions to, can be considered to be legal advisers to the IPS. Having carefully considered the matter, I am satisfied that this is not a correct interpretation of the confines of legal professional privilege. The High Court (Barr J.) in McMahon v Irish Aviation Authority [2016] IEHC 221 noted that the definition of a lawyer, when looking at legal professional privilege ‘includes solicitors, barristers, salaried in-house legal advisers, foreign lawyers and the Attorney General’.
The information to which access has been refused is contained in emails from an individual in the IPS’ HR directorate to other members of staff. The individual in question is specifically identified as being a barrister specialising in employment law on her email signature. Having reviewed the information, I am satisfied that the relevant parts of the correspondence attract legal advice privilege as they relate to the seeking of legal advice with regard to certain aspects of the disciplinary process relating to the applicant. In particular, I am satisfied that the advice is emanating from an internal legal adviser employed by the IPS. Indeed, it is clear from the job description supplied by both parties to this Office, that one of the necessary requirements for the IPS’s internal legal representative is that s/he be a practicing solicitor or barrister.
I am satisfied that the records concerned comprise confidential communications made between the IPS and its professional legal adviser for the purpose of obtaining and giving legal advice. Accordingly, I find that section 31(1)(a) applies to the information which has been refused on that basis in records 1, 16 and 22 within the Part 2 records
Section 37
The IPS has relied on section 37(1) to refuse access to information on pages 33, 37, 42, 101, 105, 107 and 108 of the Part 1 records. It has also relied on this provision to refuse access to certain information in records 4-5, 7, 16, 20-21, 24-26, 28-29, 31, 34-37, 39, 41-47 in the Part 2 records. In addition, the IPS has relied on this provision to refuse access to the fourth and fifth attachment to record 11 in the Part 2 records, with the exception of pages 14-15 of these records which have already been released to the applicant.
Part 1 and Part 2 records, with the exception of record 11
The information which has been refused in the Part 1 and Part 2 records relates to prisoner names, initials and identification numbers. In addition, the mobile phone numbers of staff have also been refused, as well as name of an external investigator. Finally, while in the majority of records the names of staff members of the IPS have been released, in a small number of circumstances access to the names of staff members has been refused.
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).
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. The Act details fourteen specific categories of information which are included in the definition without prejudice to the generality of the forgoing definition, including (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) (a personnel record of a member of staff of an FOI body), (vi) information relating to any criminal history of, or the commission or alleged commission of any offence, by the individual, (ix) a number, letter, symbol, work, mark or other thing assigned to the individual by an FOI body for the purpose of identification or any mark or other thing used for that purpose, and (xiv) the views or opinions of another person about the individual.
Certain information is excluded from the definition of personal information, as set out in section 2 of the FOI Act. Paragraph (I) provides that where the individual is or was a staff member, the definition does not include the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or 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 those functions.
Paragraph (I) does not provide for the exclusion of all information relating to staff of an FOI body. The Commissioner takes the view that the exclusion is intended to ensure that section 37 will not be used to exempt the identity of a public servant in the context of the particular position held or any records created by the public servant while carrying out his or her functions. The exclusion to the definition of personal information at Paragraph (I) does not deprive staff members in FOI bodies of the right to privacy generally.
Having examined the information to which access has been refused in the relevant records, I am satisfied that the release of this information would involve the disclosure of personal information relating to individuals other than the applicant and that section 37 applies to the redacted information. I am satisfied that all information comprising prisoner names, initials and identification numbers falls within the definition of personal information. I am also satisfied that the mobile phone number contained on page 37 of the Part 1 records comprises the personal information of a third party and that section 37 applies to it.
With regard to the names of staff members which have been redacted, while I am constrained by the requirements of section 25(3) in the description I can give of this information, I can say that it relates to certain allegations of misconduct made by other staff members. In the circumstances, I am satisfied that such information contains the views or opinions of other individuals about the applicant. I am therefore satisfied that given the specific circumstances of this case, the information does not fall within the exclusion provided for by Paragraph (I) as outlined above. I am also satisfied that the name of the external investigator and the mobile phone numbers of staff members is their personal information.
I am therefore satisfied that section 37(1) applies to the information which has been refused in the Part 1 and Part 2 records, with the exception of the fourth and fifth attachments to record 11 which I will now consider.
Fourth & Fifth Attachment to Record 11 (Part 2 records)
The fourth and fifth attachments to record 11 comprise the specific multi-file downloads accessed by the applicant on the specified date. As set out above, pages 14-15 of these records have already been released to the applicant.
In its submissions to this Office, the IPS consist of operational records of a prison, the release of which would impact the Service’s ability to provide safe and secure custody to the prisoners involved and could endanger their safety. It said that these records contain the personal information of the individuals, both members of staff and individual prisoners and as such section 37(1) applies to the information.
In the course of the review by this Office, I considered it appropriate to seek further submissions from the applicant with respect to these specific records. In response, the applicant provided me with the following background information with respect to these records. The applicant said that she accessed these records further to an investigation undertaken by the Office of the Inspector of Prisons (IOP) as she considered these records to be relevant to that investigation. The applicant further indicated that following that, concerns were expressed by the management of the prison around her attendance at the prison on the day in question and the accessing of records. The applicant further said that the IPS commenced disciplinary proceedings against her alongside complaints to An Garda Síochána and the Data Protection Commissioner. The applicant said she was instructed to return the relevant records to the IPS but that at that point she had already provided them to the IOP.
In addition, the applicant clarified that although she had accessed the records in question and had provided them to the IOP, they are not currently in her possession. She indicated that she had originally submitted her FOI request to assist her preparing her defence for the disciplinary process. The applicant further indicated that, although this process had concluded in January 2023, it is her understanding that the IPS is seeking to comment a new disciplinary process with respect to the events in question and for that reason she is continuing to seek access to these records to prepare her defence.
I have carefully examined the records at issue. While I am constrained by the requirements of section 25(3) in the description I can give of the information contained in these records, I can say that they contain certain allegations of improper conduct, including bullying, amongst prisoners and investigations into such behaviour. The fact that the applicant may be aware of the contents of the records or may have been involved in matters detailed therein does not serve to disapply section 37.
Having carefully considered the matter, I am satisfied that the release of the information to which I will now refer to would involve the disclosure of personal information relating to individuals other than the applicant. I am satisfied that information contained in the records relating to individual prisoners is their personal information. I am also satisfied that the information relating to other staff members of the Service is, in the particular context of the records, not captured by the exclusion at Paragraph (I) as set out above. In certain cases the applicant is herself mentioned in the records. However, I am satisfied that in such cases the information relating to the applicant is so closely intertwined with personal information relating to another party or parties such that it is not feasible to separate the personal information relating to the applicant from that relating to the other party or parties. As such, I consider that such information is joint personal information for the purposes of section 37(7) of the FOI Act.
More particularly, I am satisfied that, bearing in mind the definition of ‘personal information’ as set out above and the provisions of section 18, pages 1-13, 20-56 and 61-63 of the fourth and fifth attachments to record 11 contain either personal information relating to individuals other than the applicant or personal information relating to individuals other than the applicant which is intertwined with information relating to the applicant. I am therefore satisfied that section 37(1) applies to pages 1-13, 20-56 and 61-63 of the fourth and fifth attachments to record 11.
However, with regard to pages 16-18, 19, 57-60 and 64-67, as these parts of the record do not contain personal information of third party individuals, other than the names of staff members of the IPS acting in their official capacity, I am satisfied that section 37 cannot apply to these pages and I will consider them further below.
With regard to the information to which I have found section 37(1) to apply, I must now consider whether any of the other provisions of section 37 serve to disapply this exemption.
Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. I am satisfied that none of those circumstances arise in this case.
Section 37(5) of the FOI Act 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 information would be to the benefit of the person to whom the information relates. I am satisfied that the release of the information at issue would not be to the benefit of the individuals concerned and that section 37(5)(b) does not apply.
In relation to paragraph (a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the right of privacy of the individuals to whom the information relates.
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 FOI 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, and as noted above, 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 FOI Act places no constraints on the uses to which a record released under FOI can be put. With certain limited exceptions provided for under the FOI Act, such as under sections 37(2)(a) and 37(8), 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 FOI 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) which provides that in performing any functions under the FOI 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 her submissions to this Office, the applicant indicated that she was seeking access to the records at issue to assist her in preparing her defence for any further disciplinary process.
I have considered the argument of the applicant and on the whole take the view that, while she is seeking the release of the records in pursuance of what I believe to be largely a private interest, nonetheless I am prepared to accept that she has identified a valid public interest in ensuring that disciplinary processes undertaken by the IPS are conducted in a manner that is correct and appropriate.
However, 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 FOI 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 the release of the information in the records that I have identified as personal, for the purposes of section 2 of the FOI Act, would tend to serve the public interest in ensuring that staff members of the IPS who are subject to a disciplinary process are provided with an appropriate and informed opportunity to address the concerns raised.
However, it seems to me that the degree to which the release of the specific information that I have found to be within the scope of section 37(1) would strengthen this public interest is quite limited. On the other hand, the records at issue are of an inherently sensitive and private nature and I must regard their release as being effectively, or at least potentially, to the world at large. In the circumstances, I do not accept that the public interest in releasing the records outweighs, on balance, the privacy rights of the relevant third parties. I find, therefore, that section 37(5)(a) does not apply.
I find, therefore, that the IPS was justified in refusing access to information on pages 33, 37, 42, 101, 105, 107 and 108 of the Part 1 records and information in records 4-5, 7, 16, 20-21, 24-26, 28-29, 31, 34-37, 39, 41-47 of the Part 2 records on the basis of section 37(1). I am also satisfied that the IPS was justified in refusing access to pages 1-13, 20-56 and 61-63 of the fourth and fifth attachments to record 11 in the Part 2 records.
As set out above, record 11 in the Part 2 records comprises an email as well as five attachments appended to the email as follows:
1. PIMS Database Log
2. PIMS Database Log
3. print_logs_by_user.csv
4. Multi File Download 1
5. Multi File Download 2
The IPS has released the email comprising the first two pages of the record (pages 45 and 46). It has also released the third attachment, corresponding to record 50a (pages 91-101).
The IPS refused access to the first and second attachment (corresponding to pages 47-90) on the basis of sections 32(1)(a)(i), (ii), (iii), (v) and (x) and 32(1)(b). As outlined above, the IPS has refused access to the fourth and fifth attachments on the basis of sections 32(1)(a)(ii), 32(1)(a)(v), 32(1)(a)(x), 32(1)(b) and 32(1)(c). Finally, with respect to what was termed the Part 4 records referred to above, the IPS is relying on section 32(1)(a)(v) to refuse access to these records.
Section 32(1)(a)(i) provides that a head may refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, reasonably be expected to prejudice or impair the prevention, detection or investigation of offences, the apprehension or prosecution of offenders or the effectiveness of lawful methods, systems, plans or procedures employed for the purposes of the matters aforesaid. Section 32(1)(a)(ii) provides that a head may refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, reasonably be expected to prejudice or impair the enforcement of, compliance with or administration of any law.
Section 32(1)(a)(iii) provides for the refusal of a request where the 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 where the body considers that access to the record concern could prejudice or impair the security of a penal institution.
Section 32(1)(a)(x) provides that a head may refuse to grant an FOI request if request if access to the record concerned could, in the opinion of the head, reasonably be expected to prejudice or impair the security of any system of communications, whether internal or external, of the Garda Síochána, the Defence Forces, the Revenue Commissioners or a penal institution. Section 32(1)(b) provides for the refusal of a request where the body considers that access to record concerned could reasonably be expected to endanger the life or safety of any person. Finally, section 32(1)(c) provides for the refusal of a request where the body considers that access to the record concerned could reasonably be expected to facilitate the commission of an offence.
First & Second Attachment to Record 11 (Part 2 records)
In its submission to this Office, the IPS said the information in pages 47-90 comprises detailed extracts from the Prisoner Information Management System (PIMS) which is used for the management of prisoner information and is integral to the security of the prison and is a communication system within the prison. It said that these specific pages constitute a log of those files accessed by the applicant when she attended her workplace on the specified date. It argued that the release of the information would comprise a breach of the data of prisons and prisoners, and would seriously impact security of prisons and prisoners and the communication system the IPS operates to guarantee security of prisoners. It said that by bringing this information into the public domain, it could compromise the capacity in which the IPS can deliver its core function of the secure custody of prisoners and their personal information. It said the release of the information could reasonably be expected to prejudice such security, and damage or impair the ability of the IPS to deliver its core function.
More particularly, with regard to the first attachment (pages 47-52), the IPS said these pages show access to prisoners’ files and as such comprise the personal information of the respective prisoners. Having reviewed the records, I am satisfied that these arguments specifically relate to information contained on pages 48, 50 and 52. In addition, the IPS said that the corresponding columns contained on pages 47, 49 and 51 were refused as without the equivalent columns on pages 48, 50 and 52 they do not provide any useful information and may therefore be misleading under section 18(2) of the FOI Act.
With respect to the second attachment (pages 53-90) the IPS said that these pages contain further details in relation to the applicant’s log-ins into PIMS. It also said that they constitute records of access to prisoner files and, as the applicant is an employee of the Service, the prisoner(s) would be identifiable to the applicant.
As set out above, the IPS has refused access to pages 47-90 on the basis of sections 32(1)(a)(i), (ii), (iii), (v) and (x) and 32(1)(b).
Where an FOI body relies on any sub-section of section 32(1), it should identify the potential harm to the matters specified in the relevant sub-paragraph that might arise from disclosure and having identified that harm, explain how releasing the particular record could reasonably be expected to cause the harm which it has identified. It must also consider the reasonableness of any expectation that the harm will occur. A mere assertion of an expectation of harm is not sufficient.
I accept that the records, comprising as they do a log of certain files accessed by the applicant on the PIMS system on the specified date, can be said to relate to the internal communication system in operation in the prison. However, this does not mean that the records quality for exemption under section 32(1)(a) by virtue of this alone. The IPS asserts that release of these records would impact the security of the prison and comprise a data breach with respect to prisoner information and thereby compromise its ability to maintain prisoner security. However, while the IPS has argued that the release of the first and second attachment to record 11 (comprising pages 47-90) could lead to the harms set out in sub-sections (i), (ii), (iii), (v) and (x) of section 32(1)(a), it has not explained how such harms could reasonably occur by the release of the records at issue, nor has it explained why such harms could reasonably be expected to occur. In addition, the IPS has also not explained how release of the two attachments could reasonably be expected to endanger the life or safety of any person nor it is apparent to me in the circumstances of the case.
Having carefully examined the records, with the exception of what I will refer to below, it is not apparent to me how disclosure of computer-generated information logging various operational actions undertaken with respect to prisoner files could reasonably be expected to cause the harms set out in these provisions. I am therefore not satisfied that the release of the records at issue could reasonably be expected to result in the harms envisaged by sections 32(1)(a)(i), (ii), (iii), (v) and (x) and section 32(1)(b).
I am therefore satisfied that sections 32(1)(a)(i), (ii), (iii), (v) and (x) and section 32(1)(b) do not apply to the first and second attachments of record 11 in the Part 2 records, with the exception of what I will now refer to.
However, having reviewed the records at issue, I am satisfied that pages 48 and 50 contain a small amount of personal information relating to individual prisoners, comprising both the names of prisoners, initials of prisoners and prisoner identification numbers. Bearing in mind the definition of personal information as set out above, I am satisfied that section 37(1) applies to this information and no other provision of section 37 serves to disapply this finding. I therefore find that section 37(1) applies to the names and initials of prisoners as well as prisoner identification numbers contained on pages 48 and 50.
Fourth & Fifth Attachment to Record 11 (Part 2 records)
The fourth and fifth attachments to record 11 comprise the specific multi-file downloads accessed by the applicant on the specified date. As set out above, pages 14-15 of these records have already been released to the applicant. I have also found section 37 to apply to pages 1-13, 20-56 and 61-63 of the fourth and fifth attachments to record 11 and I am therefore satisfied that I do not need to consider these pages any further under section 32. I will therefore consider the applicability of the claimed-for provisions of section 32 to pages 16-18, 19, 57-60 and 64-67.
In its submissions to this Office, the IPS said that the records consist of operational records of a prison, the release of which would impact the Service’s ability to provide safe and secure custody to the prisoners involved and could endanger their safety. It said that they relate to a separate investigation underway relating to prisoners in the prison. The IPS also said that these records are the subject of a high risk security breach which is under investigation. It has therefore sought to rely on sections 32(1)(a)(ii), 32(1)(a)(v), 32(1)(a)(x), 32(1)(b) and 32(1)(c) to refuse access to these records.
While I am constrained by the requirements of section 25(3) in the description I can give of the information contained in these records, I can say that it relates to certain allegations of improper conduct, including bullying, amongst prisoners and investigations into such behaviour.
With respect to the applicability of the various sub-sections of section 32, in her submissions to this Office, the applicant said that this provision provides that the onus is on the IPS to demonstrate the specific harms which it believes would arise from disclosure and why it is reasonable to expect that such harms would occur following the release of the relevant records.
The information at issue in pages 16-18 relates to internal procedures within the prison with respect to the handling of postal communications and complaints. Having carefully considered the matter, it is not apparent to me how release of this information could lead to any of the harms set out in on sections 32(1)(a)(ii), 32(1)(a)(v) and 32(1)(a)(x). Indeed, while the IPS asserts that release of these records could lead to the harms set out in these sub-sections, it has not explained how such harms could reasonably occur by the release of the records at issue, nor has it explained why such harms could reasonably be expected to occur. In addition, the IPS has also not explained how release of these records could reasonably be expected to endanger the life or safety of any person or facilitate the commission of an offence nor it is apparent to me in the circumstances of the case. Having carefully considered the matter, I am not satisfied that sections 32(1)(a)(ii), 32(1)(a)(v), 32(1)(a)(x), 32(1)(b) and 32(1)(c) apply to pages 16-18.
Page 19 of the fourth and fifth attachments is referred to a ‘Location of Campus Boards?’ in the associated schedule. While the record is somewhat illegible, having carefully reviewed it, I am satisfied that it is instead entitled ‘Location of Complaint Boxes’ which would be in keeping with the contents of page 18. I have also considered whether sections 32(1)(a)(ii), 32(1)(a)(v), 32(1)(a)(x), 32(1)(b) and 32(1)(c) could apply to this page of records. Having done so, it is not apparent to be how release of information in relation to the location of complaint boxes in the prison in question could lead to any of the harms set out in the above provisions. I am therefore satisfied that these provisions do not apply to page 19.
Pages 57-60 and 64-67 of the fourth and fifth attachments comprise two identical versions of the same correspondence from the Inspector of Prisons (IOP) to prison offers working in the prison in question relating to an investigation following a complaint which has been received. I have carefully considered whether sections 32(1)(a)(ii), 32(1)(a)(v), 32(1)(a)(x), 32(1)(b) and 32(1)(c) could apply to these pages of records. While the IPS has sought to rely on the above harm-based exemptions, it has not explained how release of the information at issue could reasonably be expected to lead to the relevant harms.
I would expect an FOI body seeking to rely on section 32(1)(a)(ii) would be in a position to identify a specific law, the enforcement of which would be impaired by the release of the relevant information. While the IPS has not referred to a specific law in its submissions with respect to these records, I note that in its submissions in relation to the separate IOP correspondence in the Part 4 records, that it considers that release of that information could impair the procedures in place in relation to the publishing of IOP reports under the Prisons Act 2007. I have therefore considered whether release of pages 57-60 and 64-67 of the fourth and fifth attachments could reasonably be expected to prejudice the administration of the Prisons Act 2007 and in particular, investigations undertaken by the IOP which are provided for in that legislation. Having carefully considered the matter, I cannot accept that release of the terms of reference of such an investigation could reasonably be expected to impair the administration of that piece of legislation. The terms of reference as drafted are general in nature and provide only a short and very high-level description of the nature of the investigative process. I do not see how release of information notifying IPS staff of the general terms of reference of an IOP investigation could reasonably be expected to prejudice the enforcement of, compliance with or administration of any law. I am therefore satisfied that section 32(1)(a)(ii) does not apply.
Equally, it is not apparent to me how release of the broad terms of reference relating to an IOP investigation could reasonably be expected to impair the security of the prison in question or any penal institution in circumstances where the IPS has not advanced any arguments to support this proposition. I similarly cannot envisage a way where the release of the information in pages 57-60 and 64-67 could impair the security of any system of internal or external communication used by the Gardaí, Defence Forces, the Revenue Commissioners or prison. It is also not apparent to me how release of the information in pages 57-60 and 64-67 could endanger the life or safety of any person as information relating to the complainant is anonymised. Finally, I am not satisfied that there could be a reasonable expectation that release of the very general terms of reference at issue would facilitate the commission of an offence, nor has the IPS provided any arguments in support of this position.
Having considered the matter, I do not accept that the release of the information on pages 57-60 and 64-67 could reasonably be expected to cause the harms provided for in the above provisions. Accordingly, I do not accept that the IPS has satisfactorily shown that the release of the information on pages 57-60 and 64-67 of the fourth and fifth attachments to record 11 could reasonably be expected to give rise to the harms identified. I find therefore that sections 32(1)(a)(ii), 32(1)(a)(v), 32(1)(a)(x), 32(1)(b) and 32(1)(c) do not apply.
However, and bearing in mind the de novo aspect of reviews by this Office, I note that previous decisions of this Office have accepted that disclosure of the names of staff members of the IPS could reasonably be expected to prejudice procedures to ensure the safety of individuals. I am therefore satisfied that the staff names contained on pages 58, 65 and 66 are exempt by virtue of section 32(1)(a)(iii).
In conclusion, I am satisfied that sections 32(1)(a)(ii), 32(1)(a)(v), 32(1)(a)(x), 32(1)(b) and 32(1)(c) do not apply to pages 16-18, 19, 57-60 and 64-67 of the fourth and fifth attachments to record 11. However, I am satisfied that section 32(1)(a)(iii) applies to the staff names on pages 58, 65 and 66 of these records.
Part 4 records
The IPS has also sought to rely on section 32(1)(a)(v) with respect to the following two records; a letter from the Inspector of Prisons (IOP) to the IPS dated 12 October 2020 and a letter from the Director General of the IPS to the IOP dated 16 October 2020. As set out above, both pieces of correspondence relate to matters associated with an IOP investigation.
In submissions to this Office, the IPS said that these records are operational records of the IPS the release of which would impair the security of the prison in question. It said that the records contain information relating to the transmission of sensitive, confidential and secure prisoner information outside of the prisoner environment. It further said that the release of such information could negatively impact the ability of the IPS and/or the IOP to identify and investigate matters in relation to the management or operation of a prison. It further said that release of these records could circumvent the procedures in place in relation to the publishing of IOP reports under the Prisons Act 2007.
Once again, I am constrained by the provisions of section 25(3) in the description I can give of these records. However, I can say that they relate to the IOP investigation referred to above and in particular to the manner in which the applicant provided certain information as part of this investigation. Again as set out above, while I had sought submissions from the IOP with respect to the potential release of these records, I did not receive any response to this request.
Again as referred to above, in circumstances where an FOI is relying on the various sub-sections of section 32(1), it should identify the potential harm to the matters specified in explain how releasing the particular record could reasonably be expected to cause the harm which it has identified. It must also consider the reasonableness of any expectation that the harm will occur. A mere assertion of an expectation of harm is not sufficient.
While the IPS has said that release of the records at issue could reasonably be expected to impair the security of a penal institution, it has not explained how the release of the specific information in the records at issue could reasonably lead to such an outcome. Having carefully considered the matter, and reviewed the records at issue, I do not accept that release of this information could reasonably be expected to cause the harms provided for in section 32(1)(a)(v). My view is that the information relates solely to administrative arrangements relating to manner in which information provided by the applicant to the IOP would be accessed. While I accept that it would appear that the manner in which such information was provided by the applicant was unusual, nonetheless I cannot envisage a way in which release of such information could prejudice the security of the prison in question. I find therefore that section 32(1)(a)(v) does not apply to the Part 4 records.
In sum, I am satisfied that sections 32(1)(a)(i), (ii), (iii), (v) and (x) and 32(1)(b) do not apply to the first and second attachments of record 11 of the Part 2 records. However, I am satisfied that section 37(1) applies to the names and initials of prisoners as well as prisoner identification numbers contained on pages 48 and 50 of the first and second attachments to record 11.
I am also satisfied that sections 32(1)(a)(ii), 32(1)(a)(v), 32(1)(a)(x), 32(1)(b) and 32(1)(c) do not apply to the fourth and fifth attachments of record 11 of the Part 2 records. However, I am satisfied that section 32(1)(a)(iii) applies to the staff names contained on pages 58, 65 and 66 of the fourth and fifth attachments.
Finally, I am not satisfied that section 32(1)(a)(v) applies to the Part 4 records.
The IPS has also sought to rely on sections 35(1)(a) and 35(1)(b) with respect to the fourth and fifth attachments to record 11. I will therefore consider the applicability of these provisions to pages 16-18, 19, 57-60 and 64-67 of the fourth and fifth attachments to record 11 further below.
Section 35
The IPS has sought to rely on sections 35(1)(a) and 35(1)(b), amongst other exemptions, to refuse access to information on pages 16-18, 19, 57-60 and 64-67 of the fourth and fifth attachments to record 11 in the Part 2 records.
Section 35(1)(a) provides for the protection of information given to an FOI body in confidence. For the exemption to apply, it is necessary to show the following –
• That the information contained in the records was given to an FOI body in confidence,
• That it was given on the understanding that it would be treated as confidential,
• That the disclosure of the information would be likely to prejudice the giving to the FOI body of further similar information from the same or other persons, and
• That it is of importance to the body that such further similar information should continue to be given to it.
Section 35(1)(b) of the Act provides that an FOI body shall refuse to grant an FOI request if disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment (other than a provision of an enactment specified in Schedule 3) or otherwise by law. A duty of confidence provided for “otherwise by law” is generally accepted to include a duty of confidence arising in equity. This Office accepts that breach of an equitable duty of confidence is comprehended by section 35(1)(b).
In the Supreme Court decision in the case of Mahon v Post Publications Ltd [2007] 3 I.R. 338, Fennelly J confirmed that the requirements for a successful action based on a breach of an equitable duty of confidence, at least in a commercial setting, are found in the judgment of Megarry J in Coco v. A. N. Clark (Engineers) Ltd. [1969] R.P.C. 41, at 47:
“[T]hree elements are normally required if, apart from contract, a case of breach of confidence is to succeed. First, the information itself ... must 'have the necessary quality of confidence about it'. Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it.”
Fennelly J summarised or restated the requirements of what he called “the contours” of the equitable doctrine of confidence as follows:
1. “the information must in fact be confidential or secret: it must ... ‘have the necessary quality of confidence about it’;
2. it must have been communicated by the possessor of the information in circumstances which impose an obligation of confidence or trust on the person receiving it;
3. it must be wrongfully communicated by the person receiving it or by another person who is aware of the obligation of confidence.”
In the course of her submissions to this Office, the applicant said as a serving staff member of the IPS she does not consider that release of the records at issue would breach a duty of confidence owed to another individual, including a prisoner. The applicant also said that it is in the public interest for the IPS to respect the human rights of its employees including the right to constitutional justice and fair procedures and meeting its public sector duty commitments under section 42 of the Irish Human Rights and Equality Commission Act 2014.
Section 35(2) serves to disapply section 35(1). That section provides that subsection (1) does not apply to a record that is prepared by a member of the staff of an FOI body or a service provider in the course of the performance of his or her functions unless disclosure of the information concerned would constitute a breach of a duty of confidence owed to a person other than an FOI body or a service provider or to a member of the staff of an FOI body or a service provider. Section 2 of the FOI Act defines “service provider” as “a person who, at the time the request was made, was not an FOI body, but was providing a service for an FOI body under a contract for services and contract for services in this definition includes an administrative arrangement between an FOI body and another person”.
As section 35(1) does not apply where the records fall within the terms of section 35(2), I deem it appropriate to consider the applicability of section 35(2) at the outset.
With regard to pages 16-18 and 19, these records are clearly prepared by a member of staff of the IPS. The IPS have made no arguments to the effect that a duty of confidence is owed to a person other than an FOI body, a service provider or a member of staff nor is it apparent to me how this could be the case. In the circumstances, I am satisfied that section 35(2) applies and as such section 35(1) cannot apply to pages 16-18 and 19 of the fourth and fifth attachments to record 11.
With regard to pages 57-60 and 64-67, having reviewed these records, it is clear that they relate to an investigation that was initiated following a complaint received by the IOP from a prisoner. While the IPS have not made any specific arguments, I am prepared to accept that it considers that a duty of confidence could exist with respect to the complainant in this matter. I therefore consider that section 35(2) does not apply in this case and I can therefore proceed to examine the applicability of section 35(1).
It is important to recall my comments above to the effect that while a person may have access to records or information in the course of their work, or may know some or all of a record’s contents, this does not necessarily mean that the person has a right of access to those records/information under FOI. Therefore, although the applicant may be in a position to access the information at issue as a staff member of the IPS, this does not automatically mean that she is entitled to release of these records under FOI.
I have carefully considered the information at issue. Having done so, I am not satisfied that the four conditions outlined in section 35(1)(a) have been met. More particularly, I do not accept that the generic information relating to the complaint at issue can be said to comprise confidential information given on the understanding that it be treated as confidential. While the terms of reference of the IOP’s investigation refer to an obligation to maintain the confidentiality of the investigation, I am satisfied that this does not mean that the information contained in the terms of reference are themselves confidential. I am therefore satisfied that section 35(1)(a) does not apply.
In addition, I am also not satisfied that the ‘contours’ of the equitable duty of confidence has been met. I cannot accept that the very generic information contained on pages 57-60 and 64-67 has the necessary quality of confidence about it, nor can be said be said that it was communicated in circumstances which impose an obligation of confidence or trust. In the circumstances, I find that the release of the information contained on pages 57-60 and 64-67 does not breach a duty of confidence owed to a third party. I find therefore that section 35(1) does not apply.
Accordingly, I find that section 35 does not apply to pages 16-18, 19, 57-60 and 64-67 of the fourth and fifth attachments to record 11 in the Part 2 records.
The IPS has refused access to records 1 and 3-6 in the Part 3 records on the basis that the information comes within the exclusion set out at Schedule 1, Part 1(f).
The vast majority of relevant bodies are deemed to be public bodies for the purposes of the Act by virtue of their inclusion in the categories set out in section 6 of the Act. Section 6(2) provides that an entity specified in Part 1 of Schedule 1 shall, subject to the provisions of Part 1, be a public body for the purposes of the Act. Part 1(f) of Schedule 1 provides that section 6 does not include a reference to the Data Protection Commissioner, or an officer of the Commissioner, in relation to a record (save as regards a record concerning the general administration of the Office of the Commissioner).
Record 1 is a data breach notification submitted by the Data Protection Officer (DPO) in the IPS. The IPS indicated that the form was filled out on the Data Protection Commission’s (DPC’s) website and said that it is therefore considered as a record of the DPC.
Records 3 and 4 comprise correspondence between officials of the DPC and the IPS relating the data breach notification. Record 5 comprises correspondence from the DPC to the IPS and contains two attachments. Record 6 is email correspondence from the IPS to the IPS responding to record 5 and contains two attachments.
In the course of correspondence with this Office, the applicant argued that the records in question cannot be said to be records of the Data Protection Commission (DPC) as they are the applicant’s personnel records. The applicant referred to the definition of ‘personal information’ as set out in the FOI Act which includes information contained in personnel records of staff members of an FOI body information relating to the commission or alleged commission of any offence by the individual and the views or opinions of another person about the individual.
The applicant further argued that the correspondence between the IPS and the DPC commenced as a direct consequence of her work-related activities at her place of employment on a specific date and led to the subsequent referral by the IPS to the DPC concerning a potential data breach. The applicant further argued that the referral to the DPC would have contained information relating to the applicant’s competence or ability to perform her role as well as allegations of a commission of an offence under data protection legislation. As such, the applicant has argued that the records at issue are inextricably linked to the disciplinary process underway and she said that such records are crucial to allow her to mount a proper defence in this matter. Separately, the applicant supplied this Office with correspondence from a member of An Garda Síochána indicating that an investigation was not warranted in the matter.
The IPS has argued that records 1 and 3-6 in the part 3 records on the basis that the information comes within the exclusion set out at Schedule 1, Part 1(f). In addition, in the course of the review by this Office, I contacted the DPC and invited it to make submissions on the matter. In response, the DPC referred to Schedule 1, Part 1(f) and said that, in line with this provision, as the relevant records relate to the DPC’s core function and not its general administration, they are exempt under the FOI Act.
As set out above, Schedule 1, Part 1(f) provides that the DPC is not a public body for the purposes of the Act except in relation to records concerning the general administration of the Commission. The sole purpose of the provision is to prescribe the extent to which, as a partially included agency, the DPC is deemed to be a public body for the purposes of the FOI Act. The provision is concerned with the body itself and does not provide a general exclusion for such records that may be held by other bodies. Had the Oireachtas wished to provide a blanket protection for such records regardless of what body might hold them, it could have done so by including a provision in section 42 of the Act, as it did in relation to a wide range of record types. The records at issue in this case are held by the IPS. Accordingly, I am satisfied that Part 1(f) cannot apply to the records 1 and 3-6 in the part 3 records.
However, as set out above, the IPS has also argued that section 37(1) applies to part of record 4 as it contains the personal information of a staff member. Bearing in mind the definition of section 37 as outlined above, I am satisfied that it applies to the email dated 25 November 2020 in record 4. I am also satisfied that no other part of section 37 serves to disapply this finding.
The IPS has refused access to records 38, 40 and 48 and part of record 49 in the Part 2 records on the basis that the information comes within the exclusion set out at Schedule 1, Part 1(n).
As set out above, section 6(2) of the FOI Act provides that an entity specified in Schedule 1, Part 1 of the Act shall, subject to the provisions of that Part, be a public body for the purposes of the Act. Schedule 1, Part 1 contains details of bodies that are partially included for the purposes of the Act and also details of the certain specified records that are excluded. If the records sought come within the description of the exclusions in Part 1, then the Act does not apply and no right of access exists to such records held by the body.
Schedule 1, Part 1(n) provides that An Garda Síochana (AGS) is not a public body for the purposes of the FOI Act other than in relation to administrative records relating to human resources, or finance or procurement matters. In other words, the only records held by AGS that are subject to the FOI Act are those that relate to administrative matters concerning human resources, finance, or procurement. In accordance with Part 1(n), all other records held by AGS are excluded.
The IPS said that the records at issue comprise correspondence between it and AGS which relate directly to a Garda investigation.
I also contacted AGS and provided them with the opportunity to make submissions on the matter. In response AGS said that it had sought to obtain copies of the relevant records from the IPS in order to make its submissions to this Office. However, given the fact that the records contained an allegation of criminal conduct against a named individual, the IPS indicated that it was reluctant to circulate such sensitive information to another agency. However, the IPS did supply AGS with a short summary of each record which allowed AGS to make the following submissions, albeit without sight of the actual records.
AGS referred to the fact that the IPS is seeking to rely on Schedule 1, Part 1(n) to refuse access to the relevant records. AGS said that it was its understanding that this provision only applies to records held by AGS and does not extend to such records as held by other public bodies. However, AGS also said that the names of the Garda members or Garda staff, if contained in the records, would comprise their personal information. AGS said that it is a public body only in respect of administrative records relating to finance, procurement and human resources matters only and as such Garda members and staff are considered employees of a public body for FOI purposes only when they are engaged in such administrative matters. If, as in this instance, the members and/or staff of AGS are involved in operational policing matters, they are not acting as employees of an FOI body and their names constitute personal information as it comprises information relating to their employment history and the provisions of section 37(1) would apply to this information. Finally, AGS said that if the complaint of criminal conduct against the applicant is not complete, then certain provisions of section 32 may be of relevance in the matter.
The applicant in her submissions argued that Schedule 1, Part 1(n) removes AGS from the definition of a public body in Section 6 of the Act, with the exception of certain administrative documents, meaning that AGS alone may rely on this section to refuse access to records. The applicant further argued that this privilege does not extend to the IPS. In addition, the applicant argued that moreover, the records are issue are more appropriately seen as comprising part of the applicant’s personnel record as held by the IPS.
The records at issue comprise email correspondence between members of AGS and staff of the IPS as well as one email between members of AGS in relation to a possible Garda investigation into the actions of the applicant. As I have explained above, if a body is listed in Schedule 1, the Act applies only to those records described in the Schedule that are held by the body and all other records it holds are excluded
However, in the current case, the records are held by the IPS and not AGS. I am therefore satisfied that Schedule 1, Part 1(n) cannot apply to pages 38, 40 and 48 and part of record 49 in the Part 2 records. However, in line with previous decisions of this Office, I am satisfied that, as in the current case, where the names of Garda members and staff are contained in records which do not relate to administrative matters, such names cannot be regarded as the name of a member of staff of a public body for FOI purposes. In line with my findings above, I am also satisfied that the mobile phone numbers of staff of AGS on these pages is personal information within the meaning of section 37(1). Accordingly, I find that section 37(1) applies to the names of members and staff of AGS and their mobile phone numbers contained 38, 40 and 48 and part of record 49 of the Part 2 records.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of the IPS. I find that it was justified in refusing access to information in the records on the basis of sections 31(1)(a), 32(1)(a)(iii) and 37(1) of the FOI Act. However, I find it was not justified in refusing access to the following and direct that this information be released to the applicant:
- the first and second attachments to record 11 in the Part 2 records, with the exception of the names and initials of prisoners and prisoner identification numbers;
- pages 16-18, 19, 57-60 and 64-67 of the fourth and fifth attachments to record 11 in the Part 2 records, with the exception of the staff names on pages 58, 65 and 66 of these records;
- records 38, 40 and 48 and part of record 49 in the Part 2 records, with the exception of the names of the members and staff of AGS and their mobile phone numbers;
- records 1 and 3-6 in the Part 3 records, with the exception of the email dated 25 November 2020 in record 4; and
- the two Part 4 records.
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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.
Mary Connery
Investigator