Decision
Mr H and Irish Prison Service
From Office of the Information Commissioner (OIC)
Case number: OIC-152041-B3Y0G1
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-152041-B3Y0G1
Published on
Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review
30 July 2025
In a request dated 27 June 2024, the applicant sought access to emails, memos, minutes, letters, written notes including deleted emails held by the IPS that mention him by name from 2 October 2023 to 27 June 2024. As the IPS failed to issue a decision within the statutory time-frame, the applicant sought an internal review of the deemed refusal of his request on 31 July 2024. On 10 September 2024, the IPS part-granted the request. Of the 142 pages of records identified, it withheld certain records and parts of records under section 37(1) of the FOI Act and on the ground that certain pages fell outside the scope of the request. On 13 September 2024, the applicant applied to this Office for a review of that decision. He referred to excessive and unaccounted for redactions and certain records not having been included. He specifically referenced the absence of meeting minutes.
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 correspondence between the IPS and the applicant as set out above and to the communications between this Office and both parties on the matter. 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.
During the course of the review, the applicant confirmed that the two pages withheld on the ground that they fell outside the scope of the request could be removed from the scope of this review. Accordingly, I will give no further consideration to pages 14 and 21.
During the review, the IPS also said it wished to rely on Section 32(1)(a)(x) of the FOI Act in support of its redaction of certain information on pages 4, 23, 43, 65, 66, 77, 84 and 85. It said the redactions made included the Tetra Radio contact numbers of prison-based staff and should have been redacted under section 32(1)(a)(x) and not section 37(1) as originally cited as they consist of an internal communication system used by Prison Officers throughout the prison estate. The applicant said he was satisfied that this was appropriately exempt and I will give no further consideration to such information.
Accordingly, the scope of this review is concerned with whether the IPS was justified in redacting, under section 37(1) of the Act, certain information from the remaining records at issue. In circumstances, where the applicant also argued that the IPS did not include all relevant records in its decision, the review is also concerned with whether the IPS was justified in refusing to release any other relevant records.
Before I address the substantive issues arising, I wish to make some preliminary comments. First, section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request under section 12 shall be presumed not to have been justified unless the relevant FOI body shows to the Commissioner's satisfaction that its decision was justified. This means that the onus is on the IPS to satisfy this Office that its decision to refuse access to the records sought was justified.
Secondly, while section 22(10) of the FOI Act requires that I give reasons for my decisions, section 25(3) requires 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 extent to which I can describe the redacted information at issue is somewhat limited.
Finally, I note that the IPS’s decision on the applicant’s request was not issued within the timeframe set down in the FOI Act. The IPS should be well aware of its obligations in this regard. It is incumbent on me to emphasise to the IPS that the requirement to issue decisions on FOI requests within the periods set out in the FOI Act is clear and unequivocal. The IPS should take steps to ensure that its decisions on FOI requests issue within the relevant statutory timeframes.
As I have outlined above, in his application to this Office, the applicant argued that not all relevant records had been considered for release. In its submission, which I will summarise below, the IPS essentially said it had taken all reasonable steps to identify the records sought. It seems to me that this is, in essence, a refusal to grant access to any further relevant records under section 15(1)(a) of the FOI Act. That section provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps have been taken to locate them. The role of this Office in such cases is to review the basis on which the FOI body has taken the position that the relevant record(s) do not exist or cannot be found after all reasonable steps to ascertain the location of the record(s) have been taken and make a finding on whether the FOI body’s position is reasonable.
As I have already outlined, the applicant considers that further records relating to his request should exist, in particular minutes of meetings which he said were not included. During the course of the review, the IPS was invited to make submissions detailing the steps it took to identify and search for relevant records and about its records management practices generally. In its submissions, the IPS said a request was sent to the Governors of Cork and Limerick prisons, other doctors, nurse officers and health care staff who worked with the applicant to provide the records requested. It said all the records provided that fell within the timeframe of the request were considered as part of the request. It said IPS records are a class of records that warrant permanent preservation as archives that will eventually be transferred to the National Archives and must be retained. It said the only records held in relation to the applicant would have been e-mails and because he was not an IPS employee he would not have had an employment file. It said that medical records (notes) created by the applicant would be held on the Prisoner Health Management System (PHMS). It said these records are the personal medical records of third parties and were not considered as part of the request.
The IPS added that searches were carried out electronically/by computer using as references the applicant’s name and title. It said section 12 of the FOI Act 2014 requires the taking of reasonable steps to identify records requested under FOI and it considered that it had complied with this requirement of the Act.
Notwithstanding those submissions, in addressing its rationale for redacting certain records under section 37(1), the IPS also said that in the course of the review a further 280 records, covering 28 meetings, were identified which it considers to fall within the scope of the applicant’s request. It said the records consist of the minutes of IPS Multi-Disciplinary Team Meetings which the applicant would have attended or would have been mentioned by name in a medical capacity, and would have received a copy of at the time. It said the notes record the discussion by the team of the medical care of prisoners and are not releasable under the Act. It provided an updated schedule including the additional 280 records but did not provide copies of the records in question to this Office. It said release of these records was being refused under Section 37(1) of the FOI Act as they consist of the personal information of identifiable third parties.
Having regard to the fact that the IPS located 280 additional records that were not originally considered in its processing of the request, I simply cannot find that the IPS took all reasonable steps to ascertain the whereabouts of relevant records when processing the request. I am not aware of how the additional records came to be located, nor has it explained why the original searches, which it detailed in its submissions, failed to identify the records. In the circumstances, I find that the IPS’s effective refusal, under section 15(1)(a) of the FOI Act, to provide access to any further relevant records was not justified.
I do not, however, propose to simply direct the release of the additional 280 records in circumstances where the IPS has argued that they are exempt under section 37(1). Neither do I propose to consider the applicability of section 37 to such a large tranche of records that have not been formally decided upon or considered in the course of internal review by the IPS. In the circumstances, I consider that the most appropriate course of action is to annul the IPS’s decision to refuse access to any records that were not considered during its processing of the request, the effect of which is that it must consider the applicant’s request afresh and make a new, first instance, decision in accordance with the provisions of the FOI Act. The applicant will have a right to an internal review and a review by this Office if he is not satisfied with the IPS’s decision.
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.
Certain information is excluded from the definition of personal information. Paragraph (I) provides that where an individual is or was 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 staff members. This Office considers that the exclusion is intended to ensure that section 37 will not be used to exempt the identity of a staff of an FOI body in the context of the particular position held or any records created by the staff member while carrying out his or her official functions. The exclusion does not deprive such individuals of the right to privacy generally.
In its submissions, the IPS said the personal information redacted in pages 1 to 13 comprised the contact details of staff, and discussions about other staff and/or prisoners. It said the information redacted in pages 15 to 20 and 22 to 85 comprised the contact details of staff, and discussions about prisoners. It said the information redacted in pages 86 to 139 and 140 to 142 comprised the personal medical records of third parties. It said the names and addresses of IPS and HSE staff that were redacted were considered to be incidental to the main e-mails and were only included as part of e-mail threads. It said it does not consider that the records are impacted by the redaction of this information but it can review the records again with a view to releasing this information.
Having reviewed the records I am satisfied that the majority of the redacted information in pages 1 to 13, 15 to 20 and 22 to 85 comprises names, titles and email addresses of staff members of FOI bodies. I find that such information is not personal information for the purposes of the FOI Act, pursuant to Paragraph I of the definition and that section 37(1) does not, therefore, apply. I direct the release of all such information that has been redacted from the records.
On the other hand, I find that the information below that has been redacted from the records relating to identifiable prisoners is, indeed, personal information for the purposes of the FOI Act and that section 37(1) applies to that information:
Page 1: The redaction on final line
Page 3: The first two sentences and the name redacted form the second paragraph
Page 28: The first redaction
Page 33: The two sentences in the body of the email
Page 35: The text redacted form the body of the email
Page 44: The mobile phone number in paragraph 3
Page 45: The first redaction
Page 46: The first redaction
Page 47: The third sentence in the email dated 6 February 2024
Page 49: The text after “contract” in the redacted first sentence in the body of the email
Page 52: The first redaction in the body of the email
Page 62: All redactions
Page 63: All redactions
Page 64: All redactions
Page 77: the date of birth and address
Page 84: The redaction in the body of the email
Pages 86 to 142: All records
I am also satisfied that section 37(1) applies to the mobile phone numbers of the various staff members contained in the records. In making this finding, I am cognisant of the fact that many staff commonly use their own personal phone numbers in the course of their official functions.
Pages 86 to 142 contain sensitive personal medical information relating to prisoners. In finding that section 37(1) applies to those records, I have had regard to section 18(1) of the FOI Act which 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). I take the view that 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, I am not in favour of the cutting or "dissecting" of records to such an extent. In my view, while it might be possible to release parts of records 86 to 142, the partial copies would be misleading. Accordingly, I am satisfied that section 37(1) serves to protect all of the records in their entirety.
Having found section 37(1) to apply to certain information, I must proceed to consider whether any of the other relevant provisions of section 37 serve to disapply section 37(1) in respect of any or all of the information at issue.
Section 37(2) provides that section 37(1) does not apply if;
(a) the information concerned relates to the requester concerned,
(b) the individual to whom the information relates consents, in writing or other such form as may be determined, to its disclosure to the requester,
(c) information of the same kind as that available 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 it 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.
No argument has been made that any of the circumstances outlined above at subsections (a) to (e) are relevant in this case, nor do I consider any to apply. I find that section 37(2) does not apply.
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. No argument has been made that section 37(5)(b) applies in this case and I am satisfied that it does not apply.
Before I consider the applicability of section 37(5)(a), there are a number of important points to note. First, section 13(4) provides that, subject to the Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. In relation to the question of the public interest, this means that I cannot have regard to the applicant's motives for seeking access to the records at issue, except in so far as those motives reflect, or overlap with, what might be regarded as true public interest factors in favour of release of the records, i.e. insofar as the concerns raised in relation to the request may also be matters of general concern to the wider public.
Secondly, it is important to note that the release of records under the FOI Act must be regarded, in effect, as release to the world at large, given that the Act places no constraints on the uses to which a record released under the Act can be put. With certain limited exceptions provided for under the Act, such as under sections 37(2)(a) and 37(8), FOI is not about granting access to information to particular individuals only and as noted above, a requester's reasons for making a request are generally not of relevance. Thus, records are not released under FOI for any limited or restricted purpose.
All of this means that in considering whether a right of access exists to records under section 37(5)(a) of the Act, any decision to grant access would be on the basis that there is an overriding public interest in the release of the records effectively to the world at large that outweighs the privacy rights of the third-party individuals concerned.
In considering where the balance of the public interest lies in this case, I have had regard to section 11(3) 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.
The IPS said it considered the following factors in favour of release:
• the public interest in members of the public knowing that information held by public bodies about them, or those they represent, is accurate
• the public interest in members of the public exercising their rights under the FOI Acts
It said it considered the following factors against release:
• the public interest in protecting the right to privacy of members of the public
• the public interest in members of the public being able to communicate in confidence with the Department without fear of disclosure in relation to personal or sensitive matters
• the public interest in the Department being able to perform its functions effectively
• the public interest in safeguarding the flow of information to the Department
• the requirement of the IPS to provide safe and secure custody to prisoners including the safe and secure custody of their personal data
It said it considers that the public interest in preserving the privacy of the third parties involved outweighs the public interest that would be served were the records to be released to the applicant.
The applicant made no specific submissions to this Office in respect of the applicability of the public interest test at section 37. In his application for review, he simply said he considered the redactions unaccounted for and excessive. I accept that the applicant has an interest in being able to access information relating to him which is held by the FOI body. However, it seems to me that such an interest is a private one rather than a public one.
The FOI Act recognises the public interest in the protection of the right to privacy both in the language of section 37 and the Long Title to the Act (which makes it clear that the release of records under FOI must be consistent with the right to privacy). It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. Privacy rights will therefore be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy. Moreover, even where an overriding public interest in granting the request exists, there is a discretionary element to the application of section 37(5)(a).
Having considered the matter, and bearing in mind the strong public interest in protecting the right to privacy, I do not accept that there is any public interest in releasing the information at issue that outweighs the privacy rights of the relevant third parties. I am not satisfied that any sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure of the information at issue exists in this case. Accordingly, I find that section 37(5) does not serve to disapply section 37(1) in respect of any of the information at issue.
I find that the IPS was not justified in effectively refusing access, under section 15(1)(a) of the FOI Act, to any further relevant records other than the 142 records initially identified and I direct the IPS to consider afresh the applicant’s request for further relevant records, including the additional 280 records it located during the course of the review. I find that the IPS was justified in refusing access to the mobile phone numbers of the various staff members contained in the records and to the following information:
Page 1: The redaction on final line
Page 3: The first two sentences and the name redacted form the second paragraph
Page 28: The first redaction
Page 33: The two sentences in the body of the email
Page 35: The text redacted form the body of the email
Page 44: The mobile phone number in paragraph 3
Page 45: The first redaction
Page 46: The first redaction
Page 47: The third sentence in the email dated 6 February 2024
Page 49: The text after “contract” in the redacted first sentence in the body of the email
Page 52: The first redaction in the body of the email
Page 62: All redactions
Page 63: All redactions
Page 64: All redactions
Page 77: the date of birth and address
Page 84: The redaction in the body of the email
Pages 86 to 142: All records
I find that it was not entitled to refuse access to any other information under section 37(1), which includes the names, titles, and email address of the staff members of FOI bodies.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the IPS’s decision. I affirm the decision of the IPS to refuse access, under section37(1) of the Act, to the information outlined above under the heading Summary of Findings. I annul its decision to refuse access, under section 37(1) to any other information. I also annul its effective refusal, under section 15(1)(a), to grant access to any further relevant records and I direct it to consider afresh the applicant’s request for further relevant records.
Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated by the requester 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