Decision
Right to Know CLG and Department of Justice
From Office of the Information Commissioner (OIC)
Case number: OIC-153783-Y2K1M0
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-153783-Y2K1M0
Published on
Whether the Department was justified in refusing access to correspondence with the Inspector of Prisons and/or the Prison Officers’ Association regarding overcrowding in jails
10 November 2025
On 30 August 2024, the applicant made an FOI request for copies of any correspondence dating from 1 Jan 2024, between the Department and the Inspector of Prisons (the Inspector) and/or the Prison Officers' Association (the POA) regarding overcrowding in Irish jails.
The Department did not issue a decision on the matter within the timeframes specified in the FOI Act. Effectively, this amounts to a refusal of the applicant’s request. On 4 October 2024, the applicant sought an internal review of the Department’s effective decision.
The Department part-granted the applicant’s request on 15 November 2024. Its decision-making covered 13 Minister’s Office (MO) records and five Criminal Governance (CG) records. While the Department purported to fully release record MO 7, it released the record subject to the redaction of a name and signature. It withheld the remaining records in full or in part under sections 15(1)(a) (reasonable searches/records do not exist), 29 (deliberative process), 30 (functions and negotiations of an FOI body), 32(1)(a)(v) (security of a penal institution), 35 (confidential information) and 37 (personal information) of the FOI Act. According to the attached schedule, the Department also said that the covering emails/letter in records CG 4 and CG 5 were outside the scope of the request.
On 19 November 2024, the applicant applied to this Office for a review of the Department’s decision. He confirmed that he wanted the review to consider the adequacy of the Department’s searches for records covered by his request generally.
Subsequently, the Department granted further partial access to records MO 6, MO 8-10 and CG 3. While it redacted certain headings from record CG 3 at this point, I see no need to consider these details further given that they were released earlier in the FOI process. The Department also confirms that it is no longer relying on sections 29, 30 or 35 of the FOI Act. Instead, it says that various additional details are not covered by the request and that sections 15(1)(d) (information in public domain), 32(1)(a)(iv) and 37 apply to the remainder. It continues to rely on section 15(1)(a).
I informed the applicant of the Department’s reliance on section 15(1)(d) of the FOI Act in relation to record MO 13 and the copies thereof in records CG 4 and 5. These are copies of the Inspector’s Annual Report for 2023, which has now been published and is available online. The applicant confirms that I need not consider these records further.
I also informed the applicant of my view that various details in records CG 1-3, MO 4, MO 5 and MO 9, and the remainder of records MO 1-3, MO 6-8 and MO 10 consist of personal information. As well as names, signatures and contact details of non-public servants and mobile phone numbers for public servants, the relevant details also include the job titles/grades of certain public servants. I told the applicant that, in their particular contexts, the relevant job titles/grades could identify the individuals concerned regarding particular matters that are not covered by the exclusions to what may be considered as personal information of public servants (section 2 of the FOI Act refers). The applicant has excluded all of these details from my review.
I sought comment from the POA as to whether disclosure of the remaining details at issue might affect its interests. It makes no arguments that release of the records would affect its interests for the purposes of sections 35 or 36 (commercial sensitivity) of the FOI Act. However, it makes comments in support of the Department’s reliance on section 32(1)(a)(iv), which I will address in the relevant part of my decision.
I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges, to correspondence between this Office, the Department and the applicant, to the contents of the records at issue and to the provisions of the FOI Act.
The scope of this review is confined to the sole issue of whether the Department was justified under the FOI Act in refusing to fully release the remaining records at issue, and whether it has taken reasonable steps to look for the records covered by the request.
Section 25(3) of the FOI Act requires the Information Commissioner to take all reasonable precautions in the performance of his functions to prevent the disclosure of information contained in an exempt record or that would cause the record to be exempt if it contained that information. This provision has implications for the extent to which I can describe the withheld details and give reasons for my decision.
I also wish to highlight section 22(12)(b) of the FOI Act which, as the Department is aware, 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 Department of satisfying this Office that its decision to refuse the request was justified in this case. In the case of 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.
Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused where the record does not exist or where it cannot be found after all reasonable steps to ascertain its whereabouts have been taken. A review of an FOI body's refusal of records under this provision assesses whether or not it is justified in claiming that it has taken all reasonable steps to locate all records of relevance to a request or that the requested records do not exist. It is not normally the function of this Office to search for records. The evidence in "search" cases generally consists of the steps actually taken to search for the records along with miscellaneous other information about the records management practices of the public body insofar as those practices relate to the records in question.
The Department’s letter to the applicant of 15 November 2024 says that it carried out searches in four areas i.e. the Minister’s Office (MO), Criminal Governance (CG), the Secretary General's Office (SGO) and Transparency - Criminal Contents (TTC). It says that while it located 13 MO records and five CG records, it found no SGO or TTC records. It relies on section 15(1)(a) of the FOI Act (reasonable searches/records do not exist) accordingly. As noted, the applicant also expresses concern about the adequacy of the Department’s searches generally.
I do not intend to set out each query that I put to the Department in this case. However, I noted the relatively small number of, and duplication between, the identified records, and that they largely concern communications with the POA. Inter alia, I asked the Department to explain why the four areas were deemed most likely to hold the requested records. I asked it to describe the steps taken to search these and any another relevant location(s) to account for misfiling, etc. I also noted that while the released parts of record MO 5 (a POA email) refer to the Minister’s “response below”, the Minister’s response has not been considered for release. I asked the Department to comment on this. In addition, I noted from internet searches that the Inspector issued an “Immediate Action Notification” to the Department and the Irish Prison Service (the IPS) in 2023 concerning overcrowding. While such records would fall outside of the scope of the request, I queried whether the Department had taken any steps to establish whether the Inspector sent similar notifications or other relevant correspondence during the timeframe covered by the FOI request.
The Department’s position is that correspondence of the sort requested is generally sent to and answered by the SGO or the MO. It says that the CG and TTC teams may also have sight of such correspondence because they may provide material or assistance in drafting any replies. It says that CG may also correspond directly with the Inspector and the POA, but generally not in relation to matters such as prison overcrowding.
The Department maintains that it has taken reasonable steps to look for records covered by the request. It cannot explain why there are so few records on the matter, but suggests that the Inspector and the POA may have corresponded directly with the IPS on the matter.
The Department says that all four areas only hold electronic files and that none were identified as specifically relating to the POA or prison overcrowding. It says that CG identified some electronic files concerning Inspector of Prisons governance-related matters, and that these were searched and any relevant documents considered for release.
The Department says that because records are held electronically, the search terms it used would identify any misfiled or backup versions of relevant records. It says also that key personnel dealing with the issue of prison overcrowding were consulted and appropriate searches carried out.
SGO
The Department says that this area records all email and hardcopy correspondence, and related emails, on a case management system called eCorrespondence. It says that correspondence is recorded under details such as names, organisation (if relevant), and the general subject matter. It says that unless hardcopy correspondence is of historical or legal value (such as a stamped draft of a bill, Dail or Seanad resolution, etc.), it is retained for a short time after being scanned on and is then shredded. It says that correspondence is not recorded on any other tracking systems in use in this area.
The Department says that its correspondence tracking system is optimised to search for persons and organisations rather than the contents of correspondence. It says that the SGO searched eCorrespondence, and also its shared email account and the email accounts of individual SGO officers, including those of the Secretary General and Deputy Secretary General. It says that these searches used the phrases “Inspector of Prisons”, “Prison Officers’ Association”, “POA”, “overcrowding”, “immediate action notification” and the names of the Inspector and eight key POA personnel.
TTC
The Department says that this team drafts replies to assigned correspondence on behalf of the Department, and uses the eCorrespondence system to record correspondence addressed to and sent from the Minister. It says that it has searched this system using the same phrases and names as the SGO. It says in particular that its searches using the term “overcrowding” identified six records that were not to or from the Inspector or the POA.
The Department says that this area does not have a shared email inbox. It says also that staff in this area do not receive correspondence directly, either hardcopy or outside of the eCorrespondence system, and that they do not engage directly with correspondents using their own email accounts. It says that such staff are neither named nor are their details provided in any correspondence issued from the Department. It says that, in the circumstances, it has not asked this area’s staff to search their own email accounts.
CG
Three of the five records found by this section concern a meeting between the Department and the POA. The other two concern the Inspector’s 2023 Annual Report.
The Department says that CG’s function concerns the corporate governance of certain criminal governance agencies and that it holds its electronic “correspondence of consequence” in a system called eDocs.
The Department says that while CG staff would correspond with the Inspector in the normal course of their work, they would have no reason in the normal course to deal with the POA. It says that the contacts with the POA were incidental to CG’s core function and specifically concerned the making of arrangements for a particular meeting between the POA and the Minister. It says that direct contact between CG and the POA is infrequent, possibly to the point of this being the only such occasion.
The Department says that it has searched eDocs, particularly the “Office of the Inspector of Prisons” container (a form of electronic folder) therein. It says that it maintains no containers or folders for the POA. It says that it has read through all letters from the Inspector to the Minister that its searches identified. It says that it found no relevant letters from the Minister to the Inspector or to the POA. It says that it found no correspondence or documentation referring to overcrowding and which came from the Inspector or the POA, other than the Inspector’s 2023 Annual Report.
The Department says that it searched the email accounts of staff who were likely to have relevant records. It says that only one staff member held relevant records, which have been considered for release. It says that any staff members who could have had any dealings with the POA would have regular dealings with the Inspector in the normal course of their work and so their email searches would have encompassed both aspects of the request. It says that this area does not have a shared email account.
The Department says that CG’s searches used the same names and phrases used by SG and TTC.
MO
Ten of the 13 records found by this section consist of communications with the POA, while the rest concern the Inspector’s 2023 Annual Report.
The Department says that emailed requests to meet with the Minister, invitations and submissions are uploaded to eCorrespondence for recording and tracking purposes, and that received hardcopy post is scanned onto eCorrespondence and retained for a year.
The Department says that the majority of responses are issued through the eCorrespondence system or very occasionally by emails from the Minister’s office inbox or from the Private Secretary. It says that if no email address is available a hard copy letter will be posted to the correspondent, and a copy saved to eCorrespondence for recording purposes.
The Department says that the MO searched eCorrespondence, eDocs, the shared email account and staff email accounts using same phrases and names as the other three areas.
The released parts of record MO 5 consists of a POA email that refers to the Minister’s “response below”. However, as I have already noted, the Minister’s response has not been considered for release and I asked the Department for its comments on this. It says that it has searched the email accounts of the then diary secretary and the Private Secretary, as well as the office manager’s email and eCorrespondence, but has not identified the response concerned.
The applicant says that overcrowding in jails is a crisis in the Irish prison system and has been the subject of very frequent public discussion and pleas from organisations such as the POA and the Inspector of Prisons for more resources, new measures, etc. He says it is difficult to have confidence in the Department’s search and retrieval process when it did not comply with the FOI Act’s timeframes for the issuing of decisions in the first place. He also notes the Department’s inability to locate the Minister’s response as referred to in record MO 5, which he says raises concerns around the adequacy of the Department’s searches and record-keeping.
I note the small number of records that the Department has identified in this case and also that it has been unable to find the Minister’s response as referred to in record 5. However, the FOI Act acknowledges that such situations can arise, in that section 15(1)(a) requires FOI bodies to take all reasonable steps to look for requested records, rather than exhaustive steps.
It seems to me that the Department has provided a sufficiently detailed and cogent explanation regarding how correspondence of the sort requested is normally dealt with and filed, and also of the searches that it says were carried out of relevant filing systems and emails. I am satisfied from its submissions that the steps it took to look for the requested records were reasonable. I find that the Department was justified in relying on section 15(1)(a) of the FOI Act to refuse access to further records covered by the request on the basis that such records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken.
The schedules to the Department’s decisions indicate that the covering correspondence in records CG 4 and 5, and various unspecified details in records CG 1-3 are outside the scope of the request.
While the Department now clarifies that it is referring to the redactions on page 3 of record CG 1 and pages 2-5 of record CG 2 as being outside the scope of the request, it does not clarify the position with record CG 3. However, noting its argument that one paragraph of this record is exempt under section 32(1)(a)(iv) and that certain excerpts comprise personal information, I am taking it to argue that the remainder of record CG 3 is not covered by the request.
Furthermore, the Department now argues that a compliance statement in record CG 5, the remainder of record MO 4, the redaction to paragraph four in record MO 5, some redactions to page 1 of record MO 9, and records MO 11 and 12 are not covered by the request. In relation to record MO 9, the Department argues that details of security incidents and third-party information are exempt under sections 32 and 37. I take it to argue that the remaining details are not covered by the request i.e. the details redacted from the second and final paragraphs of a POA email to the Minister.
It maintains that the relevant details concern industrial relations or prison operational matters other than overcrowding.
The applicant says that references to prison population pressures, capacity issues, or associated operational consequences form part of the context of overcrowding and should be regarded as within scope. He says that the Director General of the IPS and the POA have acknowledged that overcrowding leads to a much higher risk of violence, assault, and other health and safety issues in jails. He says that he is not seeking to broaden the request, but simply wishing to ensure that relevant contextual material is not excluded. He also refers me to a media article, dated 6 November 2025, concerning the increase in prison deaths arising from factors such as overcrowding. He says that the issue of "overcrowding" cannot be taken in isolation against the many other challenges the Irish Prison Service.
I have examined the excerpts identified by the Department and considered the arguments made by it and the applicant. I have also considered the specific nature of the applicant’s FOI request, i.e. for correspondence concerning overcrowding.
I am satisfied that some of the details identified by the Department concern specific issues other than overcrowding (or the related matters outlined by the applicant) that were raised with the Department by the POA. Others concern the finalisation/submission of the Inspector’s 2023 Annual Report. I am satisfied that the details concerned are not covered by the request or this review.
However, it seems to me that the remaining details identified by the Department concern both overcrowding and other topics. I consider that any excerpts that are largely concerned with overcrowding and related matters are covered by the request and this review, notwithstanding that they may also briefly refer to other different and specific issues. I see no reason to consider such excerpts to be outside the scope of the request.
Further to the above, I find that the following details do not fall for further consideration:
• Record CG 1: the details between the released words “meaningless” and “Minister” on page 3;
• Record CG 2: the last two of the three withheld paragraphs on page 2, and the details between the released words “meaningless” and “Minister” on page 4;
• Record CG 3: all details in the briefing note except for those concerning “Prisons” (from which one paragraph has been withheld);
• Record CG 4: the covering email and letter (i.e. the remainder of the record);
• Record CG 5: the cover emails and the compliance statement (i.e. the remainder of the record);
• Record MO 4: the withheld text in the body of the record (i.e. the remainder of the record);
• Record MO 5: the details between the released words “meaningless” and “Minister”;
• Record MO 11: cover email concerning the Inspector’s annual report (i.e. the remainder of the record);
• Record MO 12: letter concerning the Inspector’s annual report (i.e. the remainder of the record).
Having regard to the details excluded by the applicant, and the details I have found to be outside the scope of his request, all that remains to be decided on is the following:
• Record CG 1: the final two withheld paragraphs on page 3;
• Record CG 2: the remaining withheld paragraph on page 2 and the final two paragraphs on page 5 (the details on page 3 having been excluded on the basis that they comprise personal information);
• Record CG 3: the withheld paragraph under “Prisons”;
• Record MO 5: the final two withheld paragraphs;
• Record MO 9: all remaining details.
The Department claims that section 32(1)(a)(iv) applies to these details, which provides for the refusal of an FOI request if access to the record concerned could, in the opinion of the head, reasonably be expected to prejudice or impair the security of a penal institution.
Where an FOI body relies on section 32(1)(a), it should identify the potential harm to the matters specified in the relevant sub-paragraph that might arise from disclosure. Having identified that harm, it should then consider the reasonableness of any expectation that the harm will occur. In doing this, the FOI body should show how or why releasing the relevant record could reasonably be expected to cause the harm which it has identified.
When inviting the Department’s submissions on section 32(1)(a)(iv), I noted that it had not explained why it felt that the records qualified for exemption under the provision. I noted that that the details contain no information about security arrangements within prisons. I also referred the Department to various material in the public domain, which I cannot describe here due to the requirements of section 25(3).
The Department acknowledges that the details at issue do not disclose security arrangements. However, it says that they concern IPS operational matters, in that they disclose specific security related incidents and, in some instances, the timelines in which they occurred. It claims that the disclosure of such details could or would potentially negatively impact on the good order and operational security of a penal institution. However, the Department does not explain how the disclosure of such details could result in the harms it envisages. Neither does it address the material in the public domain that I referred to in my request for submissions.
Given the harms envisaged by the Department, I considered it appropriate to invite comment from the IPS on the matter. In so doing, I again described the details in general terms. I also referred the IPS to the material in the public domain. I said that the details do not appear to specify any security arrangements and that it was not clear to me how the harms envisaged by the Department could reasonably be expected to flow from release.
The IPS’s response says that it “operates as an Office of [the Department] with political responsibility for the Service vested in the Minister for Justice. Accordingly, it is our view that it would not be appropriate for [the IPS] to make any submission regarding a decision of the Department, of which the [IPS] is a part.” It went on to note that while the details “refer … to matters relating to the operation of prisons, [they] have been considered as falling within the scope of section 32 of the Act by the Department”.
As noted at the outset of this decision, I consulted with the POA as to whether disclosure of the records might affect its own interests. While it made no submissions on this matter, it supports the Department’s refusal of the details under section 32(1)(a)(iv). It says that the withheld details include issues of concern to it. It says that material referencing the problems being faced by prison personnel, and which puts personnel in direct conflict with organised crime gangs, should not be released. It says that such disclosure may endanger its membership and representatives.
I have given careful consideration to the arguments before me and to the content of the withheld information.
I will firstly address the POA’s comments, which appear to me to reflect its general and understandable concerns about its membership and staff. It is worth noting here that the applicant has excluded any personal information in the records, including details that would identify POA staff and, in the particular circumstances of this case, prison personnel. I can assure the POA that each case by this Office is dealt with on its own merits and that the decision on one review does not necessarily set a precedent for any other. However, the POA’s comments do not, of themselves, provide me with a basis on which I can affirm the Department’s reliance on section 32(1)(a)(iv) in this case.
As noted above, the details at issue do not disclose any information about security arrangements within prisons. While the details concern specific security-related incidents, it has not been explained how disclosure of such information could reasonably be expected to prejudice or impair the good order and operational security of prisons, or otherwise prejudice or impair the security of a penal institution, particularly given the material in the public domain. I find that section 32(1)(a)(iv) of the FOI Act does not apply to the relevant details.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Department’s decision. I find that section 15(1)(a) of the FOI Act applies. I find that section 32(1)(a)(iv) does not apply, and I direct the Department to grant access to the following details, subject to the redaction of the excluded personal information:
• Record CG 1: the final two withheld paragraphs on page 3;
• Record CG 2: one paragraph on page 2 and the final two paragraphs on page 5;
• Record CG 3: the withheld paragraph under “Prisons”;
• Record MO 5: the final two withheld paragraphs;
• Record MO 9: the remainder.
Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.
Anne Lyons
Investigator