Decision
Mr X and Irish Prison Service
From Office of the Information Commissioner (OIC)
Case number: OIC-148878-Q8J0S2
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-148878-Q8J0S2
Published on
Whether the IPS was justified in refusing access to a parts of a procedures document concerning the authorisation of prison concessions
15 April 2025
The applicant made an FOI request to the IPS on 1 October 2023 for access to a copy of the “Operations Directorate Operational Procedures 2021 Authorisation of Prison Concessions” (the record).
The IPS’s decision of 7 November 2023 refused the request under section 32(1)(a)(v) of the FOI Act, on the basis that disclosure of the record could compromise operational security.
The applicant sought an internal review of the IPS’s decision on 1 December 2023. The IPS’s internal review decision (which the IPS says was dated 4 January 2024) affirmed its refusal of the request.
On 1 May 2024, the applicant applied to this Office for a review of the IPS’s decision. During the review, the IPS agreed to release parts 1, 2, and 4(b) of the record. Parts 1 and 2 concern decisions on concessions to be made by the Minister. Part 4(b) concerns the particular grade of IPS staff that deals with one particular type of concession application (i.e. concessions for sex offenders serving less than 12 months). I understand that the same details were released to the applicant from an earlier version of the record at issue, further to his earlier FOI request for access to the Operational Procedures insofar as they concern concessions for sex offenders.
The IPS also informed this Office that it had relied in error on section 32(1)(a)(v) of the FOI Act. It said that it was seeking to rely on sections 32(1)(a)(iii) (plans for ensuring safety/security) and 32(1)(b) (endanger the life or safety of any person) in relation to the remainder of the record.
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 and to contacts between this Office, the IPS and the applicant, as well as the content of the record at issue and the provisions of the FOI Act.
This review is confined to the sole issue of whether the IPS’s refusal to grant access to the remainder of the record is justified under the FOI Acts.
The applicant says that his internal review decision issued from the Operations Directorate, which is also responsible for applying the procedures in the record at issue. He says that he is unsure whether the decision is an official refusal under the FOI Act in such circumstances. He says also that the relevant decision maker refused his application for temporary release.
The applicant says the record concerns his and other prisoners’ entitlement to temporary release, and is vitally important to him. He said that a state body cannot refuse to disclose regulations affecting his rights and which are only to be viewed by a select few individuals.
I note that the applicant has concerns about the integrity of the FOI process where a decision maker also considered his application for temporary release. However, this Office has previously accepted that it is appropriate for subject matter experts to be designated FOI Officers. I am satisfied that the internal review decision in this case was valid for the purposes of the FOI Act.
I note the applicant’s comment about the record being viewed by a select few individuals. This may be a general reference to staff in the Operations Directorate. However, the applicant may be suggesting that he does not intend to make the record publicly available and that he will not share it beyond a small group of people. If this is the case, it should be noted that the release of records under FOI is generally understood to have the same effect as publishing them to the world at large. This is because the Act places no constraints on the uses to which the information contained in those records may be put.
I also note the importance of the record to the applicant and others. However, section 13(4) of the FOI Act provides that any reason that a requester gives for his or her request shall be disregarded. Accordingly, my decision cannot have regard to the applicant’s arguments as set out above, except insofar as they reflect what might be regarded as public interest factors in favour of release of the record where the Act requires a consideration of the public interest.
It is important to note that section 25(3) of the FOI Act requires the Information Commissioner to take all reasonable precautions in the course of a review 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 also has implications for the extent to which I can describe the IPS’s submission and also give reasons for my decision in this case.
Section 32(1)(a)(iii) – methods for ensuring safety or security of persons
Section 32(1)(a)(iii) of the FOI Act provides that a head of an FOI body may refuse a request if access to the record concerned could, in the opinion of the head, 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.
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.
Bearing in mind the requirements of section 25(3), the withheld details set out the grades of IPS staff that deal with various types of concession applications from prisoners serving sentences for a wide range of offences (that is, other than sex offenders serving less than 12 months). I understand that it is IPS policy not to identify staff who make decisions on such applications. The IPS says that this is to ensure that such staff are not subjected to intimidation in order to influence their decisions, or are otherwise endangered. It is also my understanding that the prisoner is notified by the relevant Prison Governor of the outcome of their concession application, and that prisoners are not provided with any letter signed by the relevant decision maker.
I note that the record does not name any staff. However, the IPS says that there is a small number of staff in the relevant section. It says that at least some of the staff would be known to the prison population from visits, meetings etc. Its position is that, in such circumstances, disclosing the record would effectively identify the staff members that would deal with the remaining types of concession application. It says that such an outcome could reasonably be expected to undermine its policy of not identifying the staff concerned.
I informed the applicant of the IPS’s arguments as set out above. I have not received any comments from him in response.
It is important to note that section 32(1)(a)(iii) is not directly concerned with the safety or security of persons and property. Rather, it is concerned with the protection of lawful methods, systems, plans or procedures for ensuring the safety of the public or the safety or security of persons and property. Where, for example, a system operates to ensure safety and that system could reasonably be expected to be prejudiced or impaired, then this exemption may be relevant.
It is not for this Office to comment on the appropriateness or efficiency of the IPS’s policy. Neither is it for this Office to consider whether this policy has been affected by the IPS’s earlier disclosure of the grade of staff that deals with concessions for sex offenders serving less than 12 months. As I have outlined, the remaining withheld details concern the grades of staff that deal with various concession applications from prisoners serving sentences for a wide range of other offences, and it is IPS policy not to disclose the names of the officials concerned in order to ensure their safety and security.
The IPS has explained why, having regard to particular circumstances, it contends that this policy could be undermined by disclosure of the remaining details at issue. Having considered the IPS’s arguments, I accept that disclosure of the remainder of the record could reasonably be expected to prejudice the IPS’s procedures for ensuring the safety of persons (i.e. its staff). I find, therefore, that section 32(1)(a)(iii) applies to the remainder of the record.
Section 32(3) – the public interest
Many exemptions in the FOI Act are subject to the application of a public interest balancing test. However, the public interest test in section 32 is limited to certain specified circumstances. Section 32(3) provides that section 32(1)(a) does not apply to a record -
(a) if it
(i) discloses that an investigation for the purpose of the enforcement of any law, or anything done in the course of such an investigation or for the purposes of the prevention or detection of offences or the apprehension or prosecution of offenders, is not authorised by law or contravenes any law,
or
(ii) contains information concerning-
(I) the performance of the functions of an FOI body whose functions include functions relating to the enforcement of law or the ensuring of the safety of the public (including the effectiveness and efficiency of such performance), or
(II) the merits or otherwise or the success or otherwise of any programme, scheme or policy of an FOI body for preventing, detecting or investigating contraventions of the law or the effectiveness or efficiency of the implementation of any such programme, scheme or policy by an FOI body,
and
(b) in the opinion of the head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the request concerned.
Having regard to the contents and nature of the remainder of the record and to the IPS’s submissions, it is not apparent to me that any of the circumstances outlined in paragraphs (a)(i) or (a)(ii) above apply in this case. Neither has any evidence been presented to this Office to suggest that they might. Therefore, I need not consider paragraph (b), or any of the applicant’s arguments, as set out earlier, that may represent public interests.
In conclusion, therefore, I find that the IPS was justified in refusing access to the remainder of the record under section 32(1)(a)(iii) of the FOI Act. Given this finding, I do not need to proceed to consider the applicability of section 32(1)(b).
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the IPS’s decision to refuse access to the remainder of the record at issue. I find that the details concerned are exempt under section 32(1)(a)(iii) of the FOI Act.
Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.
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Anne Lyons
Investigator