Decision
Mr Ken Foxe, Right to Know CLG & The Irish Prison Service (IPS)
From Office of the Information Commissioner (OIC)
Case number: OIC-154314-F5Q0M4
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-154314-F5Q0M4
Published on
Whether the IPS was justified in refusing access, under sections 15(1)(c), 32(1)(a)(v), 32(1)(b) and/or 37(1) of the FOI Act, to a record containing details, broken down by prison, of the loss of privileges applied to prisoners in 2023 and a record containing those details but not broken down by prison
21 November 2025
In a request dated 20 September 2024, the applicant sought access to (i) a list or record of loss of privilege actions/proceedings that can be instituted against a prisoner at any of the prisons in Ireland, and (ii) a database/spreadsheet/record broken down by institution of the number of times in which there was a loss of privileges applied to a prisoner in 2023, further broken down according to category indicating the type of privileges lost. In its decision dated 31 October 2024, the IPS part-granted the request. The list requested at part 1 of the request was provided to the applicant but the information requested at part 2 was refused under sections 32(1)(a)(v), 32(1)(b) and 37(1) of the Act. The applicant requested an internal review of the decision. In its internal review decision, the IPS affirmed its original decisions, whilst also relying on section 15(1)(c) of the Act to refuse part 2 of the request. On 6 December 2024, the applicant applied to this Office for a review of the IPS’s decision.
During the course of the review, this Office sought copies of the records coming within the scope of the applicant’s request for the purpose of conducting the review. In response, the IPS provided this Office with a single report which it said was used to consider the second part of the applicant’s request. It contains details of all P19 records (a disciplinary system used in the IPS to deal with prisoners who breach prison rules) for 2023 broken down by prisoner but not by prison. For each instance, it contains details of the prisoner’s ID number, a misconduct summary, the nature of the misconduct, sanctions, the hearing status, and the date reported.
I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the applicant’s comments in his application for review and to the submissions made by the FOI body in support of its decision. I have also had regard to the contents of the spreadsheet provided by the IPS. I have decided to conclude this review by way of a formal, binding decision.
During the course of the review, this Office’s Investigator asked the applicant if he was satisfied that part 1 of his request had been granted. In response, he said that if the record provided constituted a full list of privilege actions/proceedings that can be instituted against a prisoner, he was happy to exclude it from the scope of the review. In its submissions, the IPS confirmed that this was the case. I will therefore give no further consideration to part 1 of the request.
In relation to the record that the IPS provided to this Office for the purpose of conducting the review, the IPS said the record provided was not released to the applicant as it was not the record requested, presumably based on the fact that the record does not contain the information broken down by prison. It said the record it provided is the only report that the IPS has available in relation to P19 activity. In my view, the record provided contains at least some of the information sought, in so far as it provides a breakdown of the type of privileges lost. As such, I am satisfied that the record falls to be considered for release in this review.
Accordingly, this review is concerned with (i) whether the IPS holds, for the purposes of the FOI Act, a record that contains a breakdown by prison of the number of times in which there was a loss of privileges applied to a prisoner in 2023, further broken down according to category indicating the type of privileges lost and (ii) whether the IPS was justified in refusing access to such a record if I find that the IPS holds it and/or the record provided to this Office, under sections 15(1)(c), 32(1)(a)(v), 32(1)(b) and/or 37(1) of the FOI Act.
As it is apparent from his correspondence with the IPS and with this Office that the applicant is not seeking access to the names or prisoner ID numbers of the individual prisoners to whom the P19 reports relate, I have excluded such information from the scope of this review.
Before I address the substantive matters arising, I wish to make a number of preliminary comments. First, section 22(12)(b) of the FOI Act provides that a decision to refuse to grant an FOI request shall be presumed not to have been justified unless the FOI body satisfies the Information Commissioner that the decision was justified. This means that the onus is on the IPS of satisfying this Office that its decision to refuse the request was justified in this case. In it judgment in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57, the Supreme Court found that the head of the FOI body dealing with the request must be conscious at all stages of the process that the overriding presumption is one of disclosure, with the result that any refusal to disclose must be fully reasoned and sufficiently coherent, fact specific, and logically connected to the document or record such that the justification is sufficient.
Secondly, in his application for review, the applicant expressed his dissatisfaction with what he described as a new access system being used by the IPS for sending all FOI correspondence which, he said, sometimes includes reference numbers and sometimes does not. He said it makes it extremely difficult to keep track of the documentation. He questioned the necessity of using this system for non-personal requests, as he considers that it creates an unnecessary complication for requesters and is not designed with ease of access in mind. This matter falls outside the scope of my review which has been conducted under section 22 of the Act and I would suggest that the applicant direct his feedback directly to the IPS for consideration.
Does the Record Sought Exist
In its submissions, the IPS said the P19 report it forwarded to this Office during the review is the only report that it has available in relation to P19 activity. It said it does not hold a record that contains the information sought. It said that in order to produce the information broken down by institution, it would need to access each individual P19 record and manually record the location of the prisoner at the time the P19 was issued.
Section 15(1)(a) provides for the refusal of a request where the record sought does not exist or cannot be found. The FOI Act does not require public bodies to create records if none exist, apart from a specific requirement, under section 17(4), to extract records or existing information held on electronic devices. Under section 17(4), where a request relates to data contained in more than one record held on an electronic device by the FOI body concerned, the body must take reasonable steps to search for and extract the records to which the request relates. The reasonable steps are those that involve the use of any facility for electronic search or extraction that existed on the date of the request and was ordinarily used by the FOI body. Where those reasonable steps result in the creation of a new record, that record is deemed to have been created on the date of receipt of the request for the purposes of considering whether or not such a new record should be disclosed in response to the request.
Following receipt of the IPS’ submissions, this Office’s Investigator sought further information concerning its Prisoner Information Management System (PIMS) database. Specifically, he queried whether it would be possible to electronically extract the details sought from the system pursuant to section 17(4). In response, the IPS said prisoner records are held electronically on its PIMS database which is a bespoke database managed by IPS staff. It said PIMS has a multitude of fields that can be extracted from the system to produce reports. It said any field can be extracted in real time but to design a report to bring back specific information over a specific period of time can be very resource intensive and it also has to be taken into account that the majority of staff responsible for this task are contract staff. It said there is a reporting tool that sits on top of the database which allows reports to be generated from the records held within the database. It said these reports have to be written by an ICT expert and each report is developed in response to the business needs of the IPS on a case by case basis. It said there is a waiting time for development of new reports which are prioritized in accordance with the business needs of the IPS. It said existing reports can be used as the basis for a new report in response to the business needs of the IPS on a case by case basis. It said the reports required to generate the requested information do not currently exist and as there is currently no identifiable business need for the above report it will not be developed by the IPS.
The IPS further said that the prison in which the prisoner is located may not be the prison in which a P19 was issued in 2023. It said prisoners are moved between prisons for operational reasons. It said that if the report existed it could bring back where the location of the P19 was issued but that may not be the location of where the prisoner is currently. It said it has to be factored in that a prisoner may transfer on several occasions over a short period of time if they had court appearances in a different location and then return to their prison of origin following the court case. It said this can go on for months while a prisoner is on remand. It said that in order to produce the records requested the IPS would need the system to access each individual P19 record (9,757 for 2023) to record the location of the prisoner at the time the P19 was issued. It said any new report would have to be purposely developed by specific staff members at a significant resource cost. It said there is a standard report already in existence that brings back the number of P19 disciplinary reports per year which is readily available, and which was provided to the OIC.
Section 17(4) essentially ensures that an FOI body cannot refuse a request for information that is held electronically in more than one record solely on the ground that extracting the information would involve the creation of a new record. However, the steps a body must take to extract the information are limited to the use of any facility for electronic search or extraction that (i) existed on the date of the request and (ii) was ordinarily used by the FOI body.
The IPS does not dispute that the information sought is contained on its PIMS database, i.e. that it is held electronically in more than one record. Moreover, it has confirmed that PIMS has a multitude of fields that can extracted from the system to produce reports, that any field can be extracted in real time, and that there is a reporting tool that sits on top of the database which allows reports to be generated from the records held within the database. On the matter of its argument that the prison in which the prisoner is located may not be the prison in which a P19 was issued in 2023, I note that it expressly said that in order to produce the records requested “the [IPS] would need the system to access each individual P19 record (9,757 for 2023) to record the location of the prisoner at the time the P19 was issued .” (my emphasis). As such, it seems to me that the IPS is, indeed, in a position to extract the information sought by using a facility that existed on the date of the request, namely the reporting tool that sits on top of the database. I am also satisfied that the reporting tool must reasonably be regarded as a facility that is ordinarily used by the IPS. The fact that the specific report sought does not currently exist does not mean that the facility for electronic search or extraction does not exist and is not ordinarily used, nor is the question of whether or not there is a business need for the report of any relevance to these matters. Having carefully considered the matter, I find that section 17(4) applies in this case.
I note, in any event, that the primary concern of the IPS does not appear to be that it cannot extract the information pursuant to section 17(4). Rather, its concern appears to be that to produce the report that would extract the information would be resource intensive. It seems to me that this is more properly an argument that it is not required to provide the record pursuant to section 15(1)(c), which I will address below.
Section 15(1)(c)
Section 15(1)(c) provides for the refusal of a request where the FOI body considers that granting the request would, by reason of the number or nature of the records concerned or the nature of the information concerned, require the retrieval and examination of such number of records or an examination of such kind of records concerned as to cause a substantial and unreasonable interference with, or disruption of, work of the body (including disruption of work in a particular functional area). However, section 15(4) provides that a request cannot be refused under section 15(1)(c) unless the body has first assisted, or offered to assist, the requester in amending the request so that it no longer falls to be refused under that section.
The IPS said section 15(1)(c) was not relied on at the initial decision stage and the requester was not asked to narrow the scope of the request. It said section 15(1)(c) was only included at the internal review stage. It is evident that the IPS made no offer of assistance to the applicant to refine his request. The terms of section 15(4) are clear. The FOI body must assist, or offer to assist, the requester in amending the request before it can be refused under section 15(1)(c).
While it is not immediately apparent to me how the applicant might have reasonably amended his request had he been invited to do so, the fact remains that the IPS did not comply with the provisions of section 15(4) in this case. This, of itself, is sufficient for me to find that it was not justified in refusing part 2 of the applicant’s request under section 15(1)(c) of the FOI Act, and I find accordingly.
I will now proceed to consider the applicability of the other exemptions cited by the IPS to both the record broken down by prison and to the record the IPS provided to this Office in which the information is not broken down by prison.
Section 32(1)(a)(v) – security of a penal institution
Section 32(1)(a)(v) provides for the refusal of an FOI request if the FOI body considers that access to the record sought could reasonably be expected to prejudice or impair the security of a penal institution. Where an FOI body relies on section 32(1)(a)(v), it should show how the release of the information in the record could reasonably be expected to give rise to that harm.
In its submissions, the IPS said the record relates to the security of all prisons within the IPS. It said the provision of the information by institution could be expected to compromise the operational security of the prisons and undermine the ability of the IPS to manage the prisoners. It said the record contains details of the confidential internal procedures of the IPS and are not releasable in the public domain. It said that divulging which prisons impose certain sanctions or the number of P19s imposed in each prison could encourage prisoners to manipulate transfers to other prisons. In addition, it said the provision of the record could be misleading to the public due to different population size within the prisons, and the different prisoner cohorts within the prisons.
As I have outlined above, section 32(1)(a)(v) is concerned with protecting the security of a penal institution. I find it difficult to accept that the disclosure of the information sought would lead to efforts by prisoners to attempt to manipulate transfers to other prisons based, presumably, on a perception that certain prisons might be more lenient in terms of enforcement of prison conduct and or imposition of sanctions. Even if I did, it does not follow that such transfers would be facilitated to the extent that the IPS would allow itself to be placed in a position where its ability to manage prisoners is undermined and thus prejudice or impair the security of the prisons. Moreover, this Office has explained in many previous decisions that the possibility of information being misunderstood is not a good reason to refuse access to records under FOI as apart from anything else, such an argument seems to be based on an assumption, which we do not accept, that public bodies are incapable of explaining their records to the public and are unable to present information to the public in a way which will allow any objective observer to draw accurate and balanced conclusions. I find that section 32(1)(a)(v) of the FOI Act does not apply.
Section 32(1)(b) – endanger the life or safety of any person
Section 32(1)(b) provides for the refusal of an FOI request if the FOI body considers that access to the record concerned could reasonably be expected to endanger the life or safety of any person.
The IPS made no submissions in respect of its reliance on section 32(1)(b) during the course of the review. In its decision on the request, it made the same argument in support of its reliance on section 32(1)(b) as it made in support of its reliance on section 32(1)(a)(v), namely that the provision of the information by institution could be expected to compromise the operational security of the prisons and undermine the ability of the IPS to manage the prisons. It did not explain how the release of the information might endanger the life or safety of any person, nor is it apparent to me how the release of the record might cause such harm. Having regard to the provisions of section 22(12)(b) as outlined above, I find that the IPS has not justified its refusal of the request under section 32(1)(b). I find, therefore, that section 32(1)(b) does not apply.
Section 37(1)
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 third party personal information. Section 2 of the FOI Act defines personal information as information about an identifiable individual that, either (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or (b) is held by an FOI body on the understanding that it would be treated by that body as confidential. Section 2 goes on to specify 14 categories of information which, without prejudice to the generality of the above definition, constitute personal information, including (vi) any criminal history of, or the commission or alleged commission of any offence by, the individual and (xii) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to, establish that any personal information held by the FOI body concerned relates to the individual.
It is apparent from the definition of personal information that a record does not have to specifically name a particular individual for the information in the record to comprise personal information relating to that individual. It is sufficient that the individual is identifiable from the information in question.
I am satisfied that the release of details of the misconduct and sanctions imposed on identified prisoners would involve the disclosure of personal information relating to those individuals. However, as I have outlined above, the applicant does not require access to the identities of the prisoners or their prison numbers. Accordingly, the question I must consider is whether the release of the details of the misconducts, sanctions and location of the prisoner at the time would involve the disclosure of information relating to identifiable individuals.
The IPS said P19 records are the individual records of a prisoner. It said section 2 of the FOI Act defines personal records to include information relating to any criminal history of, or the commission or alleged commission of any offence by, the individual, and is exempt from release under Section 37(1) of the Act. The IPS has not explained how the release of the record, with the redaction of the identifying information of the prisoners, might possibly allow for the identification of the individuals concerned, nor is it apparent to me how it might. Accordingly, I find that the IPS has not satisfactorily shown that the release of the requested information would involve the disclosure of personal information relating to identifiable individuals. I find, therefore, that section 37(1) does not apply.
Conclusion
In sum, I find that sections 32(1)(a)(v), 32(1)(b), and 37(1) do not apply either to the record that I believe the IPS must create pursuant to section 17(4) of the Act or to the record that was provided to this Office. I therefore direct the IPS to grant access to the record that contains details of the privileges lost but is not broken down by prison, subject to the redaction of information in the record that identifies individual prisoners.
On the matter of the record broken down by prison, while I have found that the sections cited by IPS, including section 15(1)(c), do not apply, I do not consider it appropriate to simply direct the release of that record. This is because I have essentially found that section 15(1)(c) does not apply on, essentially, a technicality and because I am cognisant of the arguments of the IPS that to design a report to bring back specific information over a specific period of time can be very resource intensive and that any new report would have to be purposely developed by specific staff members at a significant resource cost. Instead, I consider that the appropriate course of action to take is to annul the decision to refuse access to the record broken down by prison and to remit the matter back for consideration afresh. If the IPS wishes to rely on section 15(1)(c) to refuse the request, it will first have to comply with section 15(4) before doing so. It may also be the case that the applicant is satisfied with the record I have directed for release, in which case it will be open to him to withdraw his request for the record broken down by prison. On the other hand, if he still wishes to obtain access to the record and he is not satisfied with the fresh decision of the IPS on the matter, it will be open to him to apply for an internal review and, if necessary, a further review by this Office.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the IPS to refuse access to a breakdown by prison of the number of times in which there was a loss of privileges applied to a prisoner in 2023, further broken down according to category indicating the type of privileges lost. I direct it to consider the request for that record afresh. I also annul its decision to refuse access to the record containing details of the privileges lost but not broken down by prison, and I direct its release, subject to the redaction of information that identifies individual prisoners.
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.
Stephen Rafferty
Senior Investigator