Decision
Ms. Y & Irish Prison Service
From Office of the Information Commissioner (OIC)
Case number: OIC-150132-Q4D1L8
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-150132-Q4D1L8
Published on
On 5 March 2024, the applicant, who is a member of staff of the IPS, submitted a request for all records relating to a Category A complaint made in relation to her. The complaint related to allegations that the applicant encouraged a prisoner to submit a complaint in relation to another member of staff of the IPS.
In a decision dated 25 April 2024 the IPS refused access to records falling within the scope of the applicant’s request on the basis of sections 32(1)(a), 32(1)(a)(iii), 32(1)(a)(v), 32(1)(b), 35(1)(a), 37(1) and 37(7) of the FOI Act. No schedule outlining the records which IPS deemed to fall within the scope of her request was provided to the applicant.
The applicant appealed this decision and on 14 May 2024 the internal reviewer affirmed the original decision. Once again, no schedule was provided to the applicant.
On 27 June 2024 the applicant applied to this Office for a review of the IPS’s decision.
I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the applicant’s comments in his application for review 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.
Neither at the original decision or at the internal review stage did the IPS inform the applicant how many records, if any, it considered to fall within her request. In its initial correspondence with this Office, the IPS provided a schedule which indicated that it had identified eight records as falling within the scope of the applicant’s request. However, it subsequently supplied nine records to this Office. When I queried this discrepancy, the IPS apologised for this oversight and clarified that in fact nine records had been identified as falling within the applicant’s request. At my request, it subsequently provided a schedule to the applicant outlining the nine records deemed to fall within the scope of her request on 11 March 2025.
In addition, the original decision which issued to the applicant on 25 April 2024 contained the following reference:
‘The Governor’s Findings have been released to you under SAR/023/2024 and are therefore refused’
As part of my review I sought further information from the IPS with regard to this reference. In response the IPS said that it did not consider this record for release under the current FOI request as it had previously been released in full on 25 June 2024 further to the applicant’s Subject Access Request. In light of the IPS’s comments I contacted the applicant on 13 March 2025 to confirm that she had previously received this record and if, in the circumstances, I could exclude this record from the scope of my review. I did not receive any response to this correspondence. I again contacted the applicant on 2 April 2025 and once again received no response to my query. In the circumstances, and in the absence of any further comment from the applicant, I see no reason to doubt the IPS’s position that it previously released the record entitled ‘The Governor’s Findings’ to the applicant. I am therefore satisfied that I can exclude this record from the scope of the review.
Finally, in the course of the review by this Office, the IPS confirmed that with regard to section 32(1)(a) the sole sub-sections it was seeking to rely on were sub-sections 32(1)(a)(iii) and 32(1)(a)(v).
The review is solely therefore concerned with whether the IPS was justified in refusing the applicant’s request for records falling within the scope of the applicant’s request on the basis of sections 32(1)(a)(iii), 32(1)(a)(v), 32(1)(b), 35(1)(a), 37(1) and 37(7) of the FOI Act.
Before I address the substantive issues arising, I would like to make a number of preliminary comments.
First, I would like to address the failure to provide the applicant with a schedule itemising the records deemed to fall within the scope of her request.
I am sure that the IPS is familiar with the Code of Practice published by the Central Policy Unit (CPU) of the Department of Public Expenditure and Reform which provides that a schedule should be attached to decision letters. In order to assist public bodies, a sample FOI Decision Schedule is also provided as well as general guidance on preparing schedules. I urge the IPS to take appropriate measures to ensure that its decision makers are all familiar with the CPU guidance materials and that they are used when processing requests, including the provision of a Schedule of Records in the recommended format to requesters when a decision on their FOI request is made in the first instance.
Secondly, 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.
Thirdly, 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.
Fourthly, 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, 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. Fifthly, 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.
Sixthly, 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 records at issue and of my reasoning in this case is somewhat limited.
As set out above, following the applicant’s appeal to this Office, the IPS provided a schedule to this Office which indicated that nine records fell within the scope of the applicant’s request. The IPS has refused access to the records at issue on the basis of sections 32(1)(a)(iii), 32(1)(a)(v), 32(1)(b), 35(1)(a), 37(1) and 37(7) of the FOI Act.
As I consider section 35(1)(a) to be of the most relevance, I propose to consider that exemption first.
Section 35
The IPS has sought to rely on section 35(1)(a) to refuse access to records 1, 5, 6 and 9.
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(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 ”.
The records at issue relate to an investigation under Prison Rule 57B that was initiated following a complaint received in relation to the applicant. They comprise complaint forms, notes made by the external investigator engaged from a panel of External Investigators for Serious Complaints as created under Rule 57B of the Prison Rules to investigate the complaint, as well as the final report, including executive summary and recommendations, prepared by the external investigator. While I am constrained by the requirements of section 25(3) in providing a fuller description of the records, I can say that they include witness statements from prisoners as well as staff members of the IPS other than the applicant.
In its submission to this Office, the IPS said the complaints procedure, as introduced under S.I. 11/2013 – Prison Rules (Amendment) 2013 amending the Prison Rules 2007, has assisted local management and the IPS in the effective provision of the safe and secure custody of inmates. The IPS said it considers that Rule 57B of the Prison Rules, as amended, to demonstrate that a duty of confidence is owed to persons in the custody of the IPS. More specifically, the IPS referred to Rule 57B(2)(c), Rule 57B(10)(c) and Rule 57B(10)(e)which respectively provide as follows:
Rule 57B(2)(c) - If necessary the complainant shall be given assistance to record his or her complaint in writing. The prisoner shall be assured that the complaint can be made without fear of repercussions and the Governor shall take any steps necessary to ensure that here is no victimisation of the prisoner.
Rule 57B(10)(c) – Subject to paragraph (d) below no part of the report shall be made public or made known to the complainant or the person against who the complaint is made if it contains adverse findings about an identifiable person or if it might prejudice any criminal proceedings. A prisoner may be told that disciplinary proceedings have been initiated and the outcome of such proceedings.
Rule 57B(10)(e) – Statements made by an officer, prisoner or the Governor to the investigating team shall not be used in disciplinary proceedings against that officer or the Governor or the prisoner in proceedings for breach of prison discipline without his or her consent.
The IPS further indicated that it has taken important steps to ensure investigations under Rule 57B of the Prison Rules are conducted in a transparent, open and efficient manner, with due regard to fair procedures and confidentiality. It said that release of the records at issue would clearly identify the third parties involved in the complaint process. It said that prisoners who provide a statement do so in confidence knowing that other prisoners or staff will not have sight of the information they have provided. It said that were such information to be released it could lead to intimidation or pressure from other prisoners or their associates, on the prisoners or their families. It also said that release of statements could place staff at a potential risk of being targeted either at their place of work or at their homes.
In the course of her submissions to this Office, the applicant contends that as the records at issue were prepared either by the IPS or a service provider; namely the external investigator, section 35(1)(a) can only apply where a duty of confidence is owed to an individual other than the IPS or the external investigator. The applicant further said that while the IPS has made reference to Rule 57B as providing a duty of confidence, other than making a reference to prisoners being under a strict duty of confidentiality, it has not explained to whom a duty of confidence is owed.
The applicant argued that the only duty of confidence provided for by Rule 57B is provided in section 10(c) which refers to the investigation report only. The applicant said that this provision states that no part of the report shall be made public or made known to the complainant or the person against whom the compliant is made if it contains adverse findings about an identifiable person or if it might prejudice any criminal proceedings. The applicant further argued that, accordingly, a duty of confidence is only owed in relation to an investigation report and it is only owed to an identifiable person against whom adverse findings are contained in the report, or where criminal proceedings may be prejudiced. The applicant said that as criminal proceedings are not a factor in this case and as adverse findings in the report are made against the applicant herself, then any duty of confidence is owned to her; the applicant.
The applicant also referred to paragraph 1.2 of the Prisoner Complaints Policy which states that ‘all complaints are dealt with in confidence’. She said that this commitment does not specify to whom any duty of confidence is owed and the applicant has argued that the IPS cannot rely on this provision to demonstrate a duty of confidence exists.
In sum, the applicant said that the IPS cannot rely on section 35(1)(a) to refuse access to records prepared by its own staff or the external investigator in the performance of their duties unless a breach of a duty of confidence is likely to arise. The applicant argued that a duty of confidence can only arise under Rule 57B with respect to the investigation report and an identifiable person and in such circumstances where the applicant considers herself to be the identifiable person, she considers that the report can be released to her.
The applicant also made reference to Rule 57B(10)(d) which she has indicated provides that the investigation report, and any additional statements or information, may be used to ground a disciplinary complaint. The applicant said that she considers that the investigation report and ancillary documentation is being used by the IPS to ground a complaint against her under the Civil Service Disciplinary Code. The applicant further argued that Rule 57B(10)(d) allows for the release of the report to her as someone who is the subject of disciplinary proceedings. She further stated that she considers that this position is supported by paragraph 3.2.14 of the Disciplinary Code which states that a civil servant under investigation will be given a complete copy of the investigation report. In addition, the applicant said that the associated Disciplinary Handbook provides that all information that is relevant to the investigation should normally be provided to the civil servant.
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.
In certain cases, parts of the records at issue were clearly prepared by the external investigator who is a service provider to the IPS. In addition, in certain cases the records comprise witness statements provided by staff members of the IPS wherein they outlined certain information provided to them by prisoners. Accordingly, pursuant to section 35(2), section 35(1)(a) cannot apply to these parts of the relevant records unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than an FOI body or member of staff of an FOI body or a service provider.
No argument has been made that a duty of confidence is provided for by an agreement or statute. However, a duty of confidence provided for “otherwise by law ” is generally accepted to include a duty of confidence arising in equity.
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_.”
I have adopted this approach in considering whether disclosure of the information in the relevant records would constitute a breach of an equitable duty of confidence owed to the complainant and other witnesses who have provided witness statements to the external investigator. Having done so, I have satisfied that the information in the records has the necessary quality of confidence and was communicated by the relevant witnesses in circumstances which impose an obligation of confidence or trust.
I am therefore satisfied that an equitable duty of confidence exists with respect to the complainant in this matter as well as prisoners and IPS staff members who provided witness statements to the external investigator. With regard to those records prepared by IPS staff members detailing information provided to them by prisoners, I am also satisfied that a duty of confidence could exist with respect to these prisoners. 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.
In respect of the requirements of section 35(1)(a), the first question I must consider is whether the information was given to the external investigator appointed by the IPS in confidence and on the understanding that it would be treated by the FOI body as confidential. In determining whether the information was given or imparted in confidence, a number of factors may be relevant, for example, the expectations of the person giving the information, any assurances sought regarding the information, or the purpose for which the information was provided. In respect of whether the information was given on the understanding that it would be treated as confidential, factors that may be relevant include the purpose for which the information was sought or provided, the practice, procedure or policy of the FOI body with regard to such information generally, or the nature of the relationship between the provider of the information and the FOI body.
This Office has previously drawn a distinction between information communicated to an FOI body and information which comprises the opinion or observations of the FOI body or its staff. The Commissioner generally takes the view that in so far as information consists of opinions and observations formed by members of staff of an FOI body, the opinions and observations concerned are not imparted to them by anyone. However, I accept that the disclosure of findings may, in certain cases, also involve the disclosure of information communicated by a relevant party. It can occasionally be difficult to separate observations formed by staff members from information provided. The former may be predicated on the latter. That said, even if information communicated by the third party is contained within an opinion or observation, such information would still need to meet the requirements of the exemption provision.
It is the circumstances in which the information was imparted and received that is important in determining whether the first two requirements of subsection (a) are met. The records contain sensitive matters and in my view the parties who provided such information had a reasonable expectation of confidentiality. I accept in the circumstances that disclosure would likely prejudice the giving, to the IPS or any external investigator appointed to examine complaints, of further similar information in the future. I also accept that it is of importance to the IPS that further similar information should continue to be given to it. It seems to me that it is important that the IPS continue to receive complaints from prisoners so it can effectively provide for the safe and secure custody of inmates.
In the circumstances of this case, I am satisfied that, with the exception of what I will now refer to, all four requirements have been met for section 35(1)(a) to apply to records 1, 5, 6 and 9.
With regard to record 6, which is termed appendices to the investigation report, Appendix 4 (pages 13-19 of the record) comprises extracts from internal procedures within the prison in which the applicant works with respect to the handling of postal communications and complaints. The first page of Appendix 5 (page 21 of record 6) comprises an extract from the Prison Rules 2007 which came into force following S.I. No. 252 of 2007. Having carefully considered the matter, it is not apparent to me how section 35(1)(a) could apply to such information.
As I have found section 35(1)(a) to apply to records 1, 5 and 9 and record 6, with the exception of pages 13-19 and 21 of the latter record, I will now go on to consider the other provisions of section 35.
Section 35(3)
Section 35(3) provides that section 35(1)(a) does not apply where the FOI body considers that the public interest would, on balance, be better served by granting the FOI request.
In considering where the balance of the public interest lies in this case, I have had regard to section 11(3) of the FOI Act which provides that in performing any functions under the Act, an FOI body must have regard to (a) 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, (b) the need to strengthen the accountability and improve the quality of decision making of FOI bodies and (c) the need to inform scrutiny, discussion, comment and review by the public of the activities of FOI bodies and facilitate more effective participation by the public in consultations relating to the role, responsibilities and performance of FOI bodies.
I have also had regard to the findings of the Supreme Court in The Minister for Communications, Energy and Natural Resources v The Information Commissioner & Ors [2020] IESC 5. In her judgment, Baker J. indicated that the public interest in favour of disclosure cannot be the same public interest as that broadly stated in the Act. She said the public interest in disclosure must be something more than the general public interest in disclosure and the reason must be found from the scrutiny of the contents of the record. She said there must be a “sufficiently specific, cogent and fact-based reason” in order “to tip the balance in favour of disclosure”.
Moreover, while the Court stated that the public interest balancing test involves a “weighing of the respective private and public interests in the analysis of the records in issue”, it did not disturb the guidance that it previously gave in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner [2011] IESC 26 ("the Rotunda Hospital case") in which it drew a distinction between private and public interests. I therefore consider that, if I am to direct the release of the records at issue, I am required to identify a specific public interest, identifiable following an analysis of the records at issue, which is sufficiently strong as to outweigh the interests of protecting information that was given in confidence.
In its submissions to this Office, the IPS accepts that there is a public interest in openness and transparency around the manner in which public bodies carry out their functions. However, the IPS also considers that there is a public interest in protecting the flow of information to public bodies and in ensuring that public bodies can carry out their duties without undue intrusion. In addition, the IPS said there is a strong public interest in protecting the right to privacy of individuals as well as protecting the confidentiality of the relationship between a client and the IPS. On balance, the IPS said that it considers that in the public interest is greater served by refusing access to the records at issue.
The applicant in her submissions said that the IPS had not appropriately considered the public interest in this case.
It seems to me, that there is a significant public interest in the IPS being in a position to carry out its functions with respect to ensuring the safety and security of prisoners. It also seems to me that in order to carry out its functions, it is important for it to receive complaints from prisoners which may contain highly confidential and sensitive information. I accept the IPS’s argument that to release records containing information relating to prisoner complaints given to it in confidence risks undermining its effectiveness in terms of handling such complaints in an effective manner. It is not apparent to me, having carefully considered the content of each record, that there is any sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure of the information in this case. I consider that the public interest would, on balance, be better served by refusing to release the records at issue. I find therefore that records 1, 5 and 9 and record 6, with the exception of pages 13-19 and 21, are exempt from release under section 35(1)(a) of the FOI Act
Section 37
The IPS has refused access to all nine records on the basis of sections 37(1) and 37(7). As I have already found section 35 to apply to records 1, 5 and 9 and record 6, with the exception of pages 13-19 and 21, I do not consider it necessary to also consider the applicability of section 37 to these records.
I will therefore consider the applicability of section 37 to records 2-4, 7-8 and pages 13-19 and 21 of record 6.
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). Essentially this means that while section 37(1) does not provide a basis for refusing access to personal information that relates solely to the requester, the request shall be refused pursuant to section 37(7) if that personal information is inextricably linked to personal information relating to the parties other than the applicant.
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 (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), and (xiv) views or opinions of another person about the individual. Section 11(6)(a) is defined as:
“a personnel record, that is to say, a record relating wholly or mainly to one or more of the following, that is to say, the competence or ability of the individual in his or her capacity as a member of the staff of an FOI body or his or her employment or employment history or an evaluation of the performance of his or her functions generally or a particular such function as such member ".
Certain information is excluded from the definition of personal information. Paragraph (I) of section 2 provides that where an individual is a member of staff of an FOI body, personal information does not include the name of the individual, or information relating to the position held or its functions, or the terms upon and subject to which the individual 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 the functions of the position.
The exclusion at paragraph (I) does not provide for the exclusion of all information relating to such directors, staff or office holders. This Office considers that the exclusion is intended to ensure that section 37 will not be used to exempt the identity of a staff member or director of, or office/position holder in, an FOI body in the context of the particular position held or any records created by the staff member, director or office/position holder while carrying out their official functions. The exclusion does not deprive such individuals of the right to privacy generally.
The records at issue comprises contemporaneous notes, both typed and handwritten, made by the external investigator in the course of his investigation. The records also contain correspondence between the external investigator and staff members of the IPS in relation to his investigation as well as correspondence between staff members of the IPS in relation to the complaint at issue. While I am constrained by the requirements of section 25(3) in providing a fuller description of the records, I can say that they include notes of interviews with prisoners as well as staff members of the IPS other than the applicant.
In its submissions to this Office, the IPS said the records at issue contain personal information in relation to prisoners as well as staff members of the IPS. More specifically, it said the records contain witness statements taken by the external investigator in relation to the prisoner complaint process, the views or opinions of prisoners and staff in relation to the complaint, information in relation to the criminal history of individuals, information relating to sentences imposed by the courts, the names of third party individuals and information relating to sentences imposed by the courts. The IPS accepts that certain records contain information relating to the applicant, however, it said that in such cases the information relating to the applicant is inextricably linked to information relating to other individuals such that section 37(7) applies.
The applicant in her appeal to this Office said that the expressions of opinions by IPS staff and other individuals about the IPS, other IPS staff or the business or performance of IPS functions do not comprise personal information within the meaning of the FOI Act.
I have carefully examined the records at issue. Having done so, and with the exception of what I will refer to below, I am satisfied that the relevant records contain either personal information relating to other third parties or joint personal information relating to the applicant and other third parties. 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 which resulted in the complaint made against the applicant. I am therefore satisfied that given the specific circumstances of the case, the information does not fall within the exclusion provided for by Paragraph (I) as outlined above. I am therefore satisfied that section 37(1) applies to records 2-4 and 7-8, with the exception of what I will now refer to.
Page 33 of record 4 relates to specific duties assigned to a particular role in the prison while pages 34-35 of the same record relates to the duties and responsibilities attached to a specific grade in the Irish Prison Service. Having considered the matter, I am not satisfied that section 37(1) applies to this information. In addition, I have also considered whether section 37(1) applies to pages exception of pages 13-19 and 21 of record 6 and having done so I am satisfied that it does not.
As I have found that section 37(1) applies records to records 2-3, 7-8 and record 4 with the exception of pages 33-35, I must proceed to consider the other provisions of section 37.
Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply:
a) subject to subsection (3), the information concerned relates to the requester concerned,
b) any individual to whom the information relates consents, in writing or such other form as may be determined, to its disclosure to the requester,
c) information of the same kind as that contained in the record in respect of individuals generally, or a class of individuals that is, having regard to all the circumstances, of significant size, is available to the general public,
d) the information was given to the FOI body concerned by the individual to whom it relates and the individual was informed on behalf of the body, before its being so given, that the information belongs to a class of information that would or might be made available to the general public, or
e) disclosure of the information is necessary in order to avoid a serious and imminent danger to the life or health of an individual.
I am satisfied that subsections (a), (b), (c), (d) and (e) do not apply in this case.
Section 37(5) provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the request would benefit the person to whom the information relates. Given the circumstances of this case, I find that section 37(5)(b) does not apply.
In considering whether a right of access exists to records under section 37(5)(a), 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 its submissions to this Office, the IPS said that it considers that the public interest in preserving the privacy of the third parties referred to in the records outweighs any public interest in release of the records at issue. The applicant has argued that the public interest test carried out by the IPS was incorrectly focused on the impact on the investigation itself and not on the individual’s right to privacy.
In considering where the balance of the public interest lies in this case, I have had regard to section 11(3) of the Act which provides that in performing any functions under the Act, an FOI body must have regard to, among other things, the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. However, in doing so, I have also had regard to the judgment of the Supreme Court in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 ("the Enet case "). In that case, the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and "there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure ". Although the Court's comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.
Both the language of section 37 and the Long Title to the FOI Act recognise that there is a strong public interest in protecting the right to privacy. The right to privacy also 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 have carefully considered the records at issue and the submissions made by the applicant in support of its release in the public interest. I accept that there is a public interest in the manner in which the IPS performs its functions. While I accept that the release of records at issue may serve to somewhat enhance transparency around the manner in which complaints are dealt with in the IPS, any enhancement must be balanced against the breach of privacy rights that would entail. 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 information outweighs, on balance, the privacy rights of the individuals referenced therein. I find, therefore, that section 37(5)(a) does not apply.
I find therefore that records 2-3, 7-8 and record 4 with the exception of pages 33-35 are exempt under section 37(1) of the FOI Act.
Section 32
In light of my findings above, the sole remaining records for which I need to consider the applicability of section 32 are pages 33-35 of record 4 and pages 13-19 and 21 of record 6.
The IPS has sought to rely on sections 32(1)(a)(iii), 32(1)(a)(v) and 32(1)(b) to refuse access to these parts of records.
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)(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.
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.
In its submissions to this Office, the IPS has made a number of arguments in relation to applicability of section 32 to the records at issue in this case. However, its arguments relate primarily to the prisoner complaints process in general and it has not made any particular arguments in relation to the specific information contained on pages 33-35 of record 4 and pages 13-19 and 21 of record 6.
As set out above, pages 13-19 of record 6 comprises extracts from internal procedures within the prison in which the applicant works with respect to the handling of postal communications and complaints as well as an extract from the 2007 Prison Rules. 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 sections 32(1)(a)(iii), 32(1)(a)(v) and 32(1)(b). 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 specific parts of records 4 and 6, 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. My view is that the information relates solely to administrative arrangements within the relevant prison. I cannot envisage a way in which release of such information could prejudice the security of the prison in question. Having carefully considered the matter, I am not satisfied that sections 32(1)(a)(iii), 32(1)(a)(v) and 32(1)(b) apply to pages 13-19 of record 6.
Again, as set out above, page 33 of record 4 relates to specific duties assigned to a particular role in the prison while pages 34-35 of the same record relates to the duties and responsibilities attached to a specific grade in the Irish Prison Service. While the IPS has argued that the release of pages 33-35 of record 4 could lead to the harms set out in sub-sections (iii) and (v) 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 relevant pages 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 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 sections 32(1)(a)(iii), 32(1)(a)(v) and 32(1)(b). I find therefore that these provisions do not apply to pages 33-35 of record 4.
I am therefore satisfied that sections 32(1)(a)(iii) and (v) and section 32(1)(b) do not apply to the remaining information in records 4 and 6.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the IPS’s decision. I find it was justified in refusing access to the records at issue on the basis of sections 35(1)(a) and 37(1) with the exception of the following:
• pages 33-35 of record 4; and
• pages 13-19 and 21 of record 6.
I direct that the above information be released to the applicant.
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