Decision
Mr X and Probation Service
From Office of the Information Commissioner (OIC)
Case number: OIC-135453-Q7N6C0, OIC-135454-Y3X4M7
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-135453-Q7N6C0, OIC-135454-Y3X4M7
Published on
Whether the Service was justified in refusing access to records relating to the applicant on the basis of section 29, 30, 32 and 37 of the FOI Act
26 July 2024
In a request dated 19 September 2021, the applicant sought access to all records relating to him as held by the Service from 1 January 2017 to the date of his request. That request was processed by the Service under reference number 202213. The Service’s decision on the request was the subject of a review by this Office, following which I issued a decision on 5 July 2022, (Case number OIC-119320 refers). I found that the Service’s handing of the request had been unsatisfactory and that it had misapplied the provisions of section 38. I annulled the Service’s decision and directed it to carry out a fresh decision making process on the request.
The Service issued a fresh decision on 16 August 2022. It provided two schedules of records, referred to as an email schedule and a records schedule. It part-granted the request, refusing access to parts of the records on the basis of section 32(1)(a), 32(1)(b) and 37(1) of the FOI Act.
On 8 September 2022, the applicant sought an internal review of that decision wherein he argued, among other things, that certain records had been omitted. On 28 September 2022 the Service issued its internal review decision wherein it identified a number of additional relevant records. Access was part-granted to the additional records, with certain information refused on the basis of section 30(1)(a), 32(1)(a), 32(1)(b) and 37(1) of the FOI Act. In addition, access was also granted to further information in record 1 of the records schedule.
In a separate request dated 21 August 2022, the applicant sought access to all records relating to him as held by the Service from 10 December 2021 to 21 August 2022. As part of that request, the applicant specifically sought access to a probation report that had been submitted to the Parole Board as well as handwritten notes of interviews undertaken in preparation of the probation report. This request was processed by the Service under reference number 202217.
The Service provided two further schedules of records, again referred to as an email schedule and a records schedule. It part-granted the request, refusing access to parts of the records on the basis of section 29(1), 30(1)(a), 32(1)(a), 32(1)(b) and 37(1) of the FOI Act. It refused access to the part of the applicant’s request referring to handwritten notes under section 15(1)(a) of the Act, on the ground that no such records exist.
On 19 October 2022, the applicant sought an internal review of that decision. On 14 November 2022, the Service issued its internal review decision. It identified five further records, which it included in the records schedule, and which it released in part. It also varied the subsection of section 32(1)(a) that had been relied upon to refuse access to certain information.
On 13 February 2023, the applicant applied to this Office for a review of both decisions. I have now completed my reviews in accordance with section 22(2) of the FOI Act. In carrying out my reviews, I have had regard to the submissions made by both parties. I have also had regard to the contents of the records concerned. Given the clear overlap between the two cases I have decided to issue a formal, binding decision covering both cases.
The subject records that have been supplied to this Office, both in their original and redacted formats, consist of the individual records inserted into a composite Microsoft Word document. In certain instances, where the records comprise emails, the sender and details such as times and dates are not included. The redacted records as released to the applicant were in a similar format. The Investigator queried the matter with the Service. In response, the Service said that due to the large volume of records falling within the scope of the request, and the considerable number of ‘out of scope’ emails the Mailmeter searches returned, the original set of email records were released to the requester with dates only. It said that following the applicant’s query in relation to the timing of the dated emails, the internal reviewer reviewed the email records and provided the applicant with the time stamp of these emails. In addition, the Service said that the schedule of email records identified the sender and recipient, whose names would have been redacted under section 32. However, the Probation Service also said that it could provide the requester with the email records with the names redacted if required.
In light of the Service’s express willingness to release the email records to the applicant with the exception of the names of staff of the Irish Prison Service and Probation Service, I expect it to do so at the earliest opportunity following receipt of this decision. I will consider separately, below, the question of whether the Service was justified in redacting the names of individuals working in a prison setting, including both Irish Prison Service and Probation Service staff.
In addition, during the course of the review, the Service sought for the first time to rely on section 32(2) with respect to what are termed the ‘follower note entries’ dated 25/03/2021 and 29/03/2021 in the records in the request processed under reference 202213. These two entries had previously been determined to be ‘out of scope’ in the internal review decision. As the Service had not previously relied on this provision in either case, the Investigator notified the applicant of the potential applicability of the provision and he provided further submissions on that matter.
The Investigator also sought clarification from the Service regarding two further records, termed acknowledgement letters, which issued to the applicant on 8 August 2018 and 9 October 2018. In response, the Service indicated that these records were released to the applicant on 25 May 2023.
Accordingly, the scope of this review is concerned with (i) whether the Service was justified in refusing access to certain information in records relating to the applicant as held by the Service from 1 January 2017 to 21 August 2022, on the basis of sections 30(1)(a), 32(1), 32(2) and 37(1) of the FOI Act, and (ii) whether it was justified in refusing access, under section 15(1)(a) of the Act, to any other records apart from those already identified during the processing of the requests on the ground that no further relevant records exist or can be found.
Before I consider the substantive issues arising, I would like to make a number of preliminary comments.
First, section 13(4) of the Act 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.
Secondly, although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description I can give of the records at issue and of the reasons for my findings are somewhat limited in this case.
Thirdly, 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. Our role is confined to a consideration of the decision made on the FOI requests.
Fourthly, 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 section 32(2) to the records at issue, notwithstanding the fact that the Service did not rely on this provision in its decisions on the applicant’s requests.
Finally, section 18(1) of the 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 takes the view that the provisions of section 18 do not 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. Being 'practicable' necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.
Section 15(1)(a) of the FOI Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. In such cases, the role of this Office is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision and I must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.
During the course of the review, the Service provided submissions to this Office in which it provided details of the searches carried out for relevant records and of its explanation as to why no further relevant records could be found. As this Office has already provided the applicant with those details, I do not propose to repeat them in full here but I will provide a summary of these explanations.
With regard to the Service’s records management and storage procedures more generally, it said that all records pertaining to the case file would be stored on the Probation Service Case Tracking System with a hard copy of these records held on the client paper file. In addition, further records can be stored on the Information Unit electronic divisional shared drive and Information Unit shared mailbox relating to FOI/ Subject Access Requests as appropriate. The Service also indicated that additional records relating to customer complaints may be stored on the Corporate Services electronic divisional shared drive and Customer Service shared mailbox. The Service further indicated that additional records may be stored in individual Probation Service staff Outlook mailboxes.
In terms of the filing of records, the Service indicated that all records pertaining to the applicant’s requests are filed in a hard copy case-file and electronically on the Probation Service Case Tracking System. In addition, the Service said that records relating to a requester’s FOI/data protection request and customer complaints are filed in paper files in both the Information Unit and Corporate Services.
In addition, the Service said that with regard to the policies around the retention of records, that all case-related records would be retained as the case-file relates to a life-sentenced prisoner. In addition, it said that FOI/Subject Access Requests would be held for five years following completion of the request and customer complaints would be held for seven years following the resolution/investigation of the complaint. It further said that all case-related records relating to High Risk/Exception files (defined as relating to certain specified categories of prisoner) are held for 99 years from the date of birth of the client or upon death of the client.
The Service said that following receipt of the applicant’s requests the following searches were conducted:
• The copy of the paper file records for the period of the FOI requests was examined
• A search was conducted by IT Division on the Mailmeter application for all email records across all @probation.ie mail accounts for the periods of the FOI requests with the applicant’s name as the search term
• a search was conducted within Corporate Services Division for records relating to the applicant’s engagement relating to his customer complaints.
• Upon further query from this Office, the Service also confirmed that searches were undertaken of the Case Tracking System and the divisional shared drive.
The Probation Service indicated that all relevant individuals were consulted. As one individual staff member had been on a long term absence, the Service requested the Mailmeter search referred to above, which was conducted by IT Division. The Service said that this search should have yielded any relevant records as it was conducted across all @probation.ie mailboxes, searching for all staff (both current and inactive) mailbox accounts for that period.
In sum, it is the Service’s position that all reasonable steps have been taken to locate all records relevant to the applicant’s requests. During the review, the Investigator also put a number of specific questions to the Service following queries raised by the applicant in correspondence with this Office. Following receipt of the Service’s submissions, the Investigator forwarded details of these responses to the applicant on 19 July 2023.
By letter dated 27 July 2023, the applicant responded and raised further queries concerning records which he believed should exist and which had not been identified by the Service in the searches conducted in both cases. The Investigator forwarded these specific queries to the Service on 5 October 2023 and sought further details in relation to the specific matters raised by the applicant. Following receipt of the Service’s response, the Investigator once again contacted the applicant on 8 November 2023 and provided him with the Service’s responses to the matters raised by him. The Investigator invited the applicant to make final submissions if he remained of the view that further relevant records should exist.
By letter dated 20 November 2023 the applicant responded. In a number of cases the applicant expressed himself satisfied with the answers provided. The applicant did not make any further substantive submissions on the applicability of section 15(1)(a).
It is important to note that it is possible, and it is clearly envisaged by the Act, that records may exist, but still may not be found after all reasonable steps have been taken to ascertain their whereabouts. In certain cases, and depending on the circumstances, an FOI body may not be a position to state definitively what happened to the records or why they cannot be found. However, this Office takes the view that, in acknowledgement of the fact that situations can arise where records cannot be found, the FOI Act does not require such certainty. Rather, it requires the body to take all reasonable steps to ascertain their whereabouts. Moreover, the FOI Act does not require an FOI body to continue searching indefinitely for records that cannot be found. We may conclude that an FOI body has conducted reasonable searches even where records were known to have existed but cannot be found.
The question I must consider in this case is whether the Service has taken all reasonable steps to ascertain the whereabouts of relevant records. Having considered the details of the searches undertaken and its explanation as to why no further records exist or can be found, and in the absence of further supporting evidence to suggest that specific additional searches may be warranted, I am satisfied that it has.
Accordingly, I find that the Service was justified in relying on section 15(1)(a) of the FOI Act to refuse access to any additional records on the ground that no further relevant records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.
The Service refused access to records 1 and 14 in respect of request reference 202217 on the basis of section 29 of the Act. Record 1 comprises a report prepared by the Probation Service for the Parole Board dated 21 June 2022 relating to the applicant. Record 14 is a report also prepared for the Parole Board by the Prison Review Committee dated 13 May 2022 relating to the applicant.
Section 29(1) provides for the discretionary refusal of a request if (a) the record concerned contains matter relating to the deliberative processes of an FOI body, including opinions, advice, recommendations and the results of consultations considered by the body for the purpose of those processes, and (b) the body considers that the granting of the request would be contrary to the public interest. These are two independent requirements and the fact that the first is met carries no presumption that the second is also met.
The first requirement which must be met in order for section 29(1) to apply is that the record must contain matter relating to the ‘deliberative processes’ of an FOI body. An FOI body relying on this exemption should identify both the deliberative processes concerned and any matter in particular records which relates to these processes. A deliberative process may be described as a thinking process which informs decision making in FOI bodies. It involves the gathering of information from a variety of sources and weighing or considering carefully all of the information and facts obtained with a view to making a decision or reflecting upon the reasons for or against a particular choice. Thus, it involves the consideration of various matters with a view to making a decision on a particular matter. It would, for example, include some weighing up or evaluation of competing options or the consideration of proposals or courses of action. The fact that a deliberative process exists and is ongoing does not mean that the exemption automatically applies without consideration of all of the provisions of section 29. Equally, the fact that a deliberative process is at an end does not mean that the exemption automatically does not apply. Any arguments against release under section 29 of the Act should be substantiated and supported by the facts of the case.
The public interest test at section 29(1)(b) is a stronger public interest test than the public interest test in many other sections of the Act, requiring the FOI body to show that the granting of the request would be contrary to the public interest. This Office has previously held that the Act clearly envisaged that there will be cases in which disclosure of the details of an FOI body’s deliberations – whether before or, in some cases, after a decision based on those deliberations has been made – would be against the public interest. However, this is not to say that such disclosure is always, as a matter of principle, against the public interest. Any arguments against release under section 29 should be substantiated and supported by the facts of the case. An FOI body should show how granting access to the particular record would be contrary to the public interest, e.g. by identifying a specific harm to the public interest flowing from release.
In his application to this Office, the applicant argued that the Service has not identified a specific harm that would occur if the records were to be released. He also referred to the High Court judgment in The National Maternity Hospital v The Information Commissioner [2007] IEHC 113, wherein Quirke J found that the preparation of submissions could not be characterised as a deliberative process. He further said that the public interest test in section 29 is such that a public body should tend more strongly towards release of the records. In addition, the applicant noted that under section 14(1)(b) of the Parole Act 2019, he is entitled to receive a copy of any document furnished to the Parole Board. He also said the probation report has already been shown to him.
In its submission to this Office, the Service said the Parole Board makes decisions about the release of prisoners from prison under certain conditions. It said that in making these decisions, the Parole Board is engaged in a deliberative process. It said that as part of this deliberative process the Parole Board may request reports about a prisoner from a number of sources including the prison governor, prison psychology service, the Probation Service, the Courts Service, An Garda Síochána and the Prison Review Committee. It said these reports are shared with the prisoner and his/her legal representative in all but exceptional circumstances. It said this information is discussed with the prisoner before any decision or recommendation is made. In addition, it said that members of the Parole Board will arrange to meet with the prisoner to discuss his/her application and the Parole Board will then decide if the prisoner can be released into the community on parole.
The Service said record 1 was submitted by the Probation Service to the Parole Board as provided for under Section 13 of the Parole Act 2019. With regard to record 14, it said that this record contained recommendations by the Prison Review Committee to the Parole Board in relation to the applicant’s request for parole. It said such records are submitted to the Parole Board to assist the Parole Board in making a decision in relation to granting parole to an applicant. Under Section 14(1) of the Parole Act 2019 the applicant and his/her legal representative will receive copies of these reports and as part of the parole process. The Service said that the release of these records at the time of the FOI request would lead the requester to become aware of the records whilst the Parole Board was engaged in its deliberative process.
In light of the above information, the Investigator in this case sought further details from the Service with regard to the timing of the release of the reports of the Parole Board to the applicant. In response, the Service said that the Parole Board perform a quasi-judicial function, provided for under the Parole Act 2019. It said that the Board performs a role that is akin to a judicial function as part of the criminal justice process and it argued that their records should be treated the same way as court records. It said the Board operates under similar due process procedures as courts including that the parties are provided with relevant records at specified times in the process. It argued that in refusing access to the reports, it is not restricting the applicant’s access as access will be routinely provided by the Parole Board as part of their processes - in much the same way as court records are circulated to parties in a court case. The Service argued that the premature release of records relating to a ‘live’ case, contrary to the Parole Board’s processes, will undermine the whole Parole Board process in a similar way to the release of court records concerning a ‘live’ case undermining the fairness of court proceedings. It also noted that the Parole Act 2019 process is a statutory process that post-dates the 2014 FOI Act and its processes and procedures post-date the FOI Act. In conclusion, the Service said that as part of the parole process the Parole Board will share such reports with the requester and the timing of this release would be the decision of the Parole Board.
The Service also informed this Office that while it is not aware of the internal processes and timelines within the Parole Board in relation to the sharing of reports, it is general Probation Service practice to go through the contents of statutory reports with clients in advance of deliberative processes, such as Court hearings for pre-sanction reports. It said that this is for reasons of courtesy, transparency and client relationships. It added that the reports are read out but the physical copy of the report is not handed to the client. More particularly, with regard to section 13 Parole Board reports, it said it is the established practice for a Probation Officer to go through the contents of the report with the parole candidate following submission to the Parole Board but before the Parole Board hearing takes place. The Service further indicated that the Parole Board itself then decides what documentation is shared with the parole candidate and their legal representative.
Turning to section 29(1)(b), the Service said that the release of the records was contrary to the public interest as it could interfere with the parole process which must be fair and delivered consistently to all applicants. It said the granting of these records before the Parole Board has had an opportunity to complete its deliberative process would be contrary to the public interest. It said victims can make submissions to the new Parole Board and can have legal representation during the submission process and the premature release of this record to the ‘world at large’ at this time would be contrary to the public interest.
The Service also recalled that reports prepared in line with section 13 of the Parole Act 2019 are statutory reports and section 14 of the same Act provides that it is a decision of the Parole Board which authorises the sharing of such reports with candidates for parole. The Service said it would be contrary to the public interest to interfere with such a statutory process as there is a clear public interest in ensuring that the Parole Board operates in line with its statutory basis. In addition, the Service said that as it considers the Parole Board process to be a quasi-judicial process, release of these reports to the applicant at this point in time should be seen as akin to release of court records from an active court case.
In addition, the Investigator in this case contacted the Parole Board and invited it to make any submissions it thought appropriate in relation to the possible release of these records. The Parole Board did not make a formal submission in relation to the matter but in the course of a telephone conversation with the Investigator, the Parole Board informed this Office that it did not wish to make any such submissions.
Having carefully considered the matter, I am satisfied that the deliberations of the Parole Board can be said to constitute a deliberative process for the purposes of section 29. I accept the Service’s argument that in making decisions about the release of prisoners from prison under certain conditions, the Parole Board is engaged in a deliberative process. In the circumstances, I am satisfied that the two reports at issue, which were submitted to the Parole Board to assist the Board in making a decision in relation to granting parole, relate to this deliberative process.
Having found section 29(1)(a) to apply to the reports, I must therefore consider whether their release would be contrary to the public interest. I note that under section 14 of the Parole Act 2019, while it is a matter for the Board to determine its own procedures in relation to the exercise of its functions, those procedures must make provision for the giving to the parole applicant of a copy of any document furnished to the Board by any person other than the parole applicant, other than where the Board is of the opinion that exceptional circumstances exist that warrant such a document not being so given (section 14(1)(b) refers). In essence, the Parole Board has the discretion to refuse to provide to a parole applicant a copy of a report given to it for the purpose of considering an application for parole if it considers that exceptional circumstances exist that warrant the withholding of the document.
It seems to me that to require, on foot of an FOI request, the release of a report submitted to the Parole Board before the Board has taken a decision, pursuant to the discretion afforded to it under statute, on whether the report should be released would serve to undermine the Board’s ability to make such decisions. In my view, it would be contrary to the public interest to undermine the statutory powers afforded to the Parole Board to exercise the discretion in relation to the giving of such reports to applicants for parole. I am therefore satisfied that section 29(1)(b) applies.
In conclusion, therefore, I find section 29(1) applies to records 1 and 14 in in respect of request reference 202217.
The Service refused access to record 30 in request reference 202213 and record 4 in request reference 202217 on the basis of section 30(1)(a). That section provides that an FOI body may refuse to grant a request if it considers that access to the record concerned could reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct thereof. Where an FOI body relies on section 30(1)(a), it should identify the potential harm in relation to the relevant function that might arise from disclosure. Having identified that harm, it should consider the reasonableness of any expectation that the harm will occur. The FOI body should explain how and why, in its opinion, release of the records could reasonably be expected to give rise to the harm envisaged.
Section 30(2) provides that subsection (1) shall not apply where the FOI body considers that the public interest would, on balance, be better served by granting than by refusing to grant the FOI request concerned.
In its submissions, the Service said that the records concerned relate to a structured professional process, known as the Probation Service Risk of Serious Harm Assessment (PS/RoSH), developed by the Probation Service to assess the risk of serious harm being caused by an offender. It said that this process is structured into five steps ‘designed to gradually screen out offenders, identifying and focusing on those likely to commit offences that could cause serious harm, as determined by specific criteria’. It said that this process is applied to all adult offenders over the age of 18 and examines patterns of previous behaviour as a basis for assessing the likelihood of future harmful behaviour, analysing both risk and protective factors. It said the PS/RoSH indicates (a) if an offender has caused serious harm in the past and (b) what level of risk there is of the commission of a further offence in which serious harm may occur. The Service added that the PS/RoSH indicates if the commission of such an offence is likely and its possible imminence and in addition, suggests areas for focused interventions that will mitigate against risk and increase protective factors.
The Service said that the PS/RoSH comprises a finite number of questions, along with guidance notes to assist Probation staff complete the assessment with offenders. The Service said that release to the ‘world at large’ of these finite number of questions and the methods used for conducting the assessment could prejudice the effectiveness of the process if these questions were known to others who would be subject to future assessments. In the Service’s view, this harm could reasonably be expected to occur if the contents of the record were shared with other offenders who may be subject to future assessments.
In his application to this Office, the applicant argued that the refusal of access to records on the basis of section 30(1)(a) denies him his right to have such records amended under section 9 of the FOI Act. The applicant referred to a separate risk assessment report which was released to him and which he considers to contain factual inaccuracies. He said that while it is open to him to seek corrections to this report under section 9, the failure to release the PS/RoSH reports to him means he has no way of establishing if there are similar mistakes present in these reports.
The applicant also disputed the assertion that the release of the records would reveal the methodologies used to determine risk. He said the records are more akin to guidance notes to assist Service staff in completing the assessment and the information contained in the report is not in any way linked to any calculation/assessment methodology that would follow from the answers to questions and how the scores would be evaluated. He said that in the absence of the scoring methodology employed he cannot see how release of the information could prejudice the effectiveness of the PS/RoSH process.
The applicant also said that the Service staff ‘complete the assessment with offenders’ and the information in the records is not in any way linked to any calculation/assessment that would follow from the answers to questions and how the scores should be evaluated. He said that as the report is prepared with offenders, then the questions are already known to the ‘world at large’ and the Service cannot rely on section 30(1)(a) to refuse access to the questions. He said that while the records may contain a ‘score’, they must also contain precise details of the scoring methodology employed for the relevant provision to apply.
As the Service explained in its submissions, the purpose of the records at issue is to assess the risk of serious harm being caused by an offender. I am satisfied that the assessment process in question can reasonably be described as coming within the scope of “tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body”. I am also satisfied, therefore, that the records at issue comprise “procedures or methods employed for the conduct” of that assessment process. I note the applicant’s argument that the release of the records would not reveal the methodologies used to determine risk and that the information contained in the report is not in any way linked to any calculation/assessment methodology that would follow from the answers to questions and how the scores would be evaluated. I disagree. The records contain a risk framework against which the information and evidence recorded on the forms is to be considered. I accept that the release of the records would, indeed, revel the methodologies used by the Service for its risk assessment process.
The question I must consider, therefore, is whether the release of the records could reasonably be expected to prejudice either the effectiveness of the assessment process or the methods employed for such a process. I am satisfied that it could reasonably be expected to prejudice both. In my view, if prisoners due to undergo the assessment were to have advance knowledge of the precise questions and information/evidence sought, they could prepare responses based on the information they believe would best serve their purposes, thereby impairing the effectiveness of the assessment process and the value of the assessment form itself. Accordingly, I am satisfied that section 30(1)(a) applies to record 30 in request reference 202213 and record 4 in request reference 202217.
Section 30(2) provides that section 30(1) shall not apply if the public interest would, on balance, be better served by granting than by refusing to grant the FOI request 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.
In his application to this Office, the applicant argued that the public interest favours the release of the relevant records as such release would help to improve the efficient and effective management of an FOI body and release could provide confidence to the public that law enforcement agencies are rightly scrutinised and held to account. He argued that the potential consequences of high error rates in a risk assessment are capable of compromising public safety in a significant manner and the release of these records may be essential in improving the safety of the public.
I accept that the release of the records would allow for the scrutiny of such an important risk assessment process that aims to protect the safety of the wider public. Against that, however, I must balance the public interest in ensuring that the risk assessment process itself is not prejudiced by the release of the records. If it was so prejudiced, then it seems to me that this would have the potential to increase risks to public safety. As such, I consider that the public interest in ensuring that the assessment process is not prejudiced carries significant weight. Accordingly, I am satisfied that the public interest would, on balance, be better served by withholding the records at issue. I find, therefore, that section 30(2) does not serve to disapply section 30(1)(a). Accordingly, I find that the Service was justified in refusing access, under section 30(1)(a) of the Act, to record 30 in request reference 202213 and record 4 in request reference 202217.
The Service refused access to certain information in the records in both request reference 202213 and request reference 202217 under sections 32(1)(a)(iii) and 32(1)(b). The information at issue primarily comprises the names of individuals working in a prison setting, including both Irish Prison Service and Probation Service staff. However, the Service also relied on those exemptions to withhold record 47 in the records schedule of request reference 202213, comprising a Garda report, as well as sections 32(1)(a)(i) and (ii).
In addition, as set out above, the Service also sought to rely on the provisions of section 32(2) with respect to certain information in the records in case 202213.
I will first deal with the information which has been refused in the relevant records, with the exception of record 47.
Section 32(1)
Section 32(1)(a)(i) provides for the refusal of a request where the FOI body considers that access to the record concerned could reasonably be expected to prejudice or impair the prevention, detection or investigation of offences, the apprehension or prosecution of offenders or the effectiveness of lawful methods, systems, plans or procedures employed for the purposes of the matters aforesaid.
Section 32(1)(a)(ii) provides for the refusal of a request where the FOI body considers that access to the record concerned could reasonably be expected to prejudice or impair the enforcement of, compliance with or administration of any law.
Section 32(1)(a)(iii) provides for the refusal of a request if the FOI 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)(b) provides for the refusal of a request where the FOI body considers that access to the record concerned could reasonably be expected to endanger the life or safety of any person.
Section 32(3) provides for the consideration of a public interest test, in certain limited circumstances only.
The Service redacted names of individuals working in a prison setting, including both Irish Prison Service and Probation Service staff, under section 32(1)(a)(iii). It also relied on section 32(1)(b) to refuse access to the names of individuals where the release of their names, in their particular function relating to law enforcement working in a prison setting, could reasonably be expected to result in harm occurring to their safety. It referred to previous decisions of this Office (case nos. OIC-53243 and 150383) wherein this Office accepted that the release of the names of staff of the Service as well as individuals working within the Prisons Operations Directorate of the Department of Justice could reasonably be expected to endanger the safety of the individuals and that section 32(1)(b) applied to the information.
In his application to this Office, the applicant said that the names of the individuals referred to in the records are widely known and he himself has a number of letters in his possession signed by the individuals in question and/or meets with them on a regular basis. He also argued that no link has been demonstrated which would show an increase in the risk to individual staff members if their names were to be released. He argued that the requirements of section 32(1)(a)(iii) oblige the Service to demonstrate a harm in excess of the existing risks attendant on employment within the prison system. He also referred to the decision of this Office in case OIC-120330 wherein neither section 32(1)(a)(iv) nor section 32(1)(b) was found to apply to the names of judges appointed to the Special Criminal Court.
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. The essence of the arguments put forward by the Service are that it operates a procedure of not disclosing the names of officials working in certain areas of the Service itself and also staff of the Irish Prison Service. I understand that the purpose of such a procedure is to ensure the safety and security of its officials.
In a number of previous decisions, whilst expressing no opinion on its appropriateness or efficiency, this Office has accepted that the Department of Justice operates a policy of not disclosing the names of officials working in certain Divisions in view of the sensitivity of the work generally carried out by those Divisions and that the purpose of such a policy is to ensure the safety and security of its officials. We have found that the disclosure of the identities of the officials named could reasonably be expected to prejudice or impair that policy or system and that section 32(1)(a)(iii) applies to the names concerned. It seems to me that similar considerations arise in this case. I accept that the Service has a policy of not disclosing the names of officials working in certain areas of the Service itself and also staff of the Irish Prison Service in an effort to ensure their safety and security. While I make no comment on the appropriateness or efficiency of such a policy, I accept that the disclosure of the names of staff members of the Probation Service and the Irish Prison Service in this case could reasonably be expected to prejudice the Service’s procedures for ensuring the safety of individuals. I find, therefore, that section 32(1)(a)(iii) applies to the names of these staff members. For the sake of completeness, I should say that the case cited by the applicant, namely OIC-120330, is of no relevance to this case in my view, as the applicability of section 32(1)(a)(iii) was not at issue in that case. Moreover, in that case we found that there was a significant level of widely available information relating to the identities of judges sitting on the Special Criminal Courts.
With regard to the Garda report (record 47 in request reference 202213), the Service has relied on sections 32(1)(a)(i), (ii) and (iii) and section 32(1)(b) to refuse access to the record. In its submission to this Office it said that this record was provided by a member of An Garda Síochána to an Irish Prison Service Senior Clinical Psychologist for the purposes of a psychology assessment of a prisoner serving a life sentence. It said that the purpose of the record was to assist with the work of the Service’s psychology services in working with the prisoner. It added that the content of the record was compiled by a member of An Garda Síochána in the context of law enforcement and the investigation and prosecution of an offence. The Service also referred to section 113(1) of S.I. No.252 of 2007 relating to Prison Rules which provides for the engagement of psychology services with prisoners, in order to address their mental health needs, to assist in their personal development and to encourage them to take responsibility for their lives, including their offending behaviour.
The Service argued that the release of the information in record 47 could impair the ability of the Irish Prison Service in relation to the enforcement of, and compliance with, the Order of the Court that the prisoner serve a life sentence. It said that as part of that process the Service is required to assess the risk factors associated with the detention of any prisoner. It said that as such, it is within their interests that they continue to receive information on high risk prisoners, such as those serving life sentences, from An Garda Síochána. The Service said that the specific harm which would occur if the Service were not to receive such information related to an inability to assess the appropriate place of detention and prison to reflect the risks posed by a prisoner.
The Service also emphasised the particular sensitivities associated with this record. It said that while it has released other psychological reports to the applicant, this record is considered to be particularly sensitive. It said that release of this record to the ‘world at large’ could cause potential harm and distress to the unnamed individuals referenced in the record. The Service also specifically referred to the contents of the record wherein reference is made to the Garda names contained in the report not being disclosed. While Record 47 is dated May 2011, the Service said that despite the passage of time, the release of the information in the report could still potentially harm the unnamed individuals due to the extremely sensitive nature of some of its contents.
The Service also made other specific arguments concerning the applicant that, in light of the constraints imposed on me by section 25(3) of the FOI Act, I do not consider it appropriate to repeat here. I can confirm, however, that I have had full regard to them. Finally, the Service said that the record contains the name of an individual working within a prison setting and release of this information could impair the safety of this individual.
As set out above, the Service has sought to rely on sections 32(1)(a)(i), (ii) and (iii) and section 32(1)(b) with regard to record 47. I have carefully examined record 47 and considered the submissions made by the Service. I am constrained by the provisions of section 25(3) in terms of the amount of detail I can give in relation to the precise information contained in the record, beyond the general information referred to by the Service in its submissions above. Having carefully considered the matter, it is not apparent to me that any of these provisions referred to above apply to record 47.
The Service’s argument in support of its reliance on section 32(1)(a)(iii) is based on an assumption that the release of the record would result in An Garda Síochána refusing to provide similar such information to the Service in the future. I do not accept this assumption to be reasonable, in circumstances where the record at issue was provided, as described by the Service, in the context of law enforcement and the investigation and prosecution of an offence. Neither is there anything in the record, in my view, that could reasonably be expected to prejudice or impair the effectiveness of methods, systems, plans or procedures employed for the purposes of the prevention, detection or investigation of offences or the apprehension or prosecution of offenders.
Equally I am not satisfied that release of this report, 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 or that could reasonably be expected to endanger the life or safety of any person. I note that part of the Service’s argument is the potential harm to the applicant’s safety in light of the fact that release of a record is essentially regarded as release to the world at large. Such an argument is based on an assumption that the applicant might put the record into the public domain. I do not consider this to be a reasonable proposition. I find that sections 32(1)(a)(i), (ii) and (iii) and section 32(1)(b) do not apply to this record.
I find, therefore, that the Service was justified in withholding the information concerned under section 32(1), with the exception of record 47 in request reference 202213. However, having regard to its contents, I consider section 37(1), relating to personal information, to be of relevance to this record and I will consider this further below.
Section 32(2)
As set out above, the Service has sought to rely on section 32(2) to refuse access to ‘follower note entries’ dated 25/03/2021 and 29/03/2021 in the records in case 202213. It is noted that the Service has released two follower note entries dated 25/03/2021 and one follower note entry dated 29/03/2021 to the applicant.
Section 32(2) provides that where an FOI request relates to a record to which subsection 32(1) applies, or would, if the record existed, apply, and the head concerned is satisfied that the disclosure of the existence or non-existence of the record would have an effect specified in paragraph (a), (b) or (c) of that subsection, he or she shall refuse to grant the request and shall not disclose to the requester concerned whether or not the record exists.
I am constrained by the provisions of section 25(3) in the description I can give of the Service’s arguments. However, I can say that the Service has said that if it were to confirm or deny the existence of such entries it would have the effect of endangering the life of a staff member of the Service.
As set out above, the Investigator provided the applicant with an opportunity to comment on the applicability of section 32(2) in this case. In response, the applicant referred to records released to him as part of the annulled decision referred to at the outset of this decision. The applicant said that it is clear from such records that there are additional entries in the follower notes for the dates of 25/03/2021 and 29/03/2021. As such, the applicant said that the Service cannot rely on the provisions of section 32(2) in circumstances where it is clear that entries for the dates in question exist.
The applicant also supplied this Office with the records which have previously been released to him under the annulled decision. I have examined these records and I am satisfied that it is clear from these records that there are three follower note entries dated 25/03/2021, two of which correspond with what was released to the applicant as part of case 202213. I am also satisfied that it is clear that there are three follower note entries dated 29/03/2021, one of which corresponds with what has been released to the applicant. I am therefore satisfied that it is clear that further entries exist dated 25/03/2021 and 29/03/2021. In such circumstances where is clear that entries for these dates exist, I do not consider it logical for the Service to now argue that it cannot confirm nor deny the existence of such entries. I am therefore satisfied that section 32(2) cannot apply to the third follower note entry dated 25/03/2021 and the two follower note entries dated 29/03/2021.
However, I have also examined the possibility that section 32(1) could apply to these entries. In addition, this Office sought further submissions from the Service in relation to this matter. In response the Service said that on further consideration it considers that sections 32(1)(a)(iii) and 32(1)(b) apply to these parts of the records. The Service said that the information to which access has been refused relates to the names of individuals working in a prison setting, including both Irish Prison Service and Probation Service staff. It said it is reasonable to expect that release of this information to the ‘world at large’ could leave these individuals subject to threats or intimidation as a result of their role. The Service referred to the following decisions of this Office in support of its position; OIC-53243-G5W8T5 (Case 180456) and Case 150383.
I am once again constrained by the provisions of section 25(3) in the description I can give of the information at issue. However, I can say that they relate to specific entries from staff members wherein they discuss concerns relating to their personal safety. Having carefully considered the matter, I am satisfied that, in the particular circumstances of this case, the release of these three entries could reasonably be expected to endanger the life or safety of an individual. I am therefore satisfied that section 32(1)(b) applies to the third follower note entry dated 25/03/2021 and the two follower note entries dated 29/03/2021.
The Service has refused access to certain information in request reference 202213 and request reference 202217 on the basis of section 37(1). As set out above, I also consider section 37(1) to be of relevance to record 47 in case reference 202213.
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, including information relating to a deceased individual. 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).
Personal information is defined in section 2 of the FOI Act as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or their family or friends or, (b) is held by a public body on the understanding that it would be treated by it as confidential. The FOI Act details fourteen specific categories of information which are included in the definition without prejudice to the generality of the foregoing definition, including (vi) information relating to any criminal history of, or the commission of alleged commission of any offence by, the individual, (vii) information relating to any proceedings for an offence committed, or alleged to have been committed, by the individual, the disposal of such proceedings or the sentence imposed by any court in such proceedings and (ix) a number, letter, symbol, word, mark or other thing assigned to the individual by an FOI body for the purpose of identification or any mark or other thing used for that purpose.
Certain information is excluded from the definition of personal information. Paragraph (I) provides that where the individual is or was a staff member, the definition does not include the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or 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 those functions.
Paragraph (I) does not provide for the exclusion of all information relating to staff of an FOI body. The Commissioner takes the view that the exclusion is intended to ensure that section 37 will not be used to exempt the identity of a public servant in the context of the particular position held or any records created by the public servant while carrying out his or her functions. The exclusion to the definition of personal information at paragraph (I) does not deprive staff members in FOI bodies of the right to privacy generally.
I will first deal with the information which has been refused on the basis of section 37(1), with the exception of record 47 in case reference 202213.
In its submission to this Office, the Service said it refused access to information in the relevant records relating to other prisoners on the basis of section 37. The Service also indicated that it refused access to mobile phone numbers on the same basis.
Having considered the submissions received and the content of the relevant records, I accept that release of the withheld records and information would involve the disclosure of personal information relating to identifiable individuals. I am satisfied that all information comprising prisoner names, initials and identification numbers falls within the definition of personal information. I am also satisfied that the mobile telephone numbers of staff and certain other contact information is not information captured by the exclusion to the definition of personal information at paragraph (I).
I am therefore satisfied that section 37(1) applies to all of the information withheld on this basis in the records at issue, with the exception of record 47 in request reference 202213. However, that is not the end of the matter as section 37(1) is subject to the provisions of subsections (2) and (5) and I will consider these further below.
As set out above, I also consider section 37 to be of relevance to the Garda report dated 4 May 2011 at record 47 in request reference 202213. The Investigator in this case informed the applicant that this provision may also be of relevance to this Office’s consideration of record 47 and invited him to make submissions on the applicability of this provision with respect to this record. In response, the applicant said that it was difficult for him to comment on the applicability of section 37 as he had not been provided with any of the information which requires to be considered under that provision. However, the applicant did make a number of specific comments. He said that the content and context of the information is of particular relevance when considering the matter. He said that the information in the record relates to information held by the Gardaí following a criminal investigation in 1992. He said that no privacy rights could attach to information gathered in such circumstances. He also said that the record was created in 2011 and it is his understanding that it is described as ‘collateral information’. He also said that it is his understanding that the information contained in the record was provided by a Garda member to the Psychology Section of the Irish Prison Service and further in 2019 the record was provided to the Probation Service. He said he considers it relevant to question the purpose as to why the information was sought by the Service and whether the provision of the record exceeded that purpose.
The applicant also said that he considers that the provisions of section 37(2)(c) are of relevance. He said that much of the information in the record may have been presented in open court and widely reported by the media at the time. In addition, he said that in refusing the record in full, the Service has not appropriately struck a balance between the competing public interests. He said that he has a right to a good name and to fair procedures and in addition, there is a public interest in ensuring information gathered and used by Gardaí is properly obtained in accordance with law. He said there is a further public interest in scrutinising the information provided to third parties outside the checks and balances of judicial oversight. He further said that there is a public interest in knowing how information is used by the Service and in scrutinising how the Service, as a body not subject to oversight, is carrying out its functions in protecting the public.
Bearing in mind the definition of personal information I have carefully examined record 47. I am satisfied that the following comprises either the personal information of individuals other than the applicant or comprises personal information relating to the applicant which is inextricably linked with personal information of third parties. It may well be the case that a substantial amount of the withheld information is generally known to the applicant. Nevertheless, I must consider that when a record is released under the FOI Act, this, in effect, amounts to disclosure to ‘the world at large’ as the Act places no restriction on the subsequent uses to which the record may be put.
In addition, previous decisions of this Office have found the names of Garda members to comprise their personal information and in line with this I am satisfied that section 37(1) applies to the names of Garda members throughout the record.
I find that section 37(1) applies to the following information in record 47;
• The names of Garda members throughout the record
• The second, third, and fourth sentences in the first paragraph;
• The third sentence in the second paragraph;
• The third to the twelfth bullet point;
• The fifteenth bullet point
• The eighteenth bullet point;
• The third party named in the nineteenth bullet point;
• The twenty-first bullet point; and
• All text after “crime” in the first sentence of the final paragraph
I will therefore proceed to examine whether any of the other provisions serve to disapply these findings.
Sections 37(2) and 37(5)
Subsection (2) provides that subsection (1) does not apply in certain circumstances. As set out above, the applicant has made specific arguments with respect to section 37(2)(c). This provision provides that section 37(1) does not apply if 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.
As set out above, the applicant has argued that much of the information in the record may have been presented in open court and widely reported by the media at the time and as such the requirements of section 37(2)(c) have been met. Section 37(2)(c) excludes from the definition of personal information such information which is of the same kind as that contained in records which are available to the general public.
Even if I was to accept that certain details relating to the applicant and the other individuals referenced in the report may have been presented in open court, this does not, in my view, mean that information in a Garda report can reasonably be described as containing information that is of the same kind as information in respect of individuals generally that is available to the general public. I am therefore satisfied that section 37(2)(c) does not apply to the information in record 47. In addition, I am also satisfied that none of the other circumstances identified at section 37(2) arise in this case.
Subsection (5) provides that a request that would fall to be refused under subsection (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 information would be to the benefit of the person to whom the information relates. I am satisfied that subsection (5)(b) does not apply in the circumstances of this case.
In relation to paragraph (a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the right of privacy of the individuals to whom the information relates.
As set out above, the applicant has set out a number of public interest arguments in favour of release of the information at issue, namely a public interest in ensuring information gathered and used by Gardaí is properly obtained in accordance with law, a public interest in scrutinising the information provided to third parties outside the checks and balances of judicial oversight, and a public interest in knowing how information is used by the Service and in scrutinising how the Service, as a body not subject to oversight, is carrying out its functions in protecting the public.
On the other hand, 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 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. Moreover, unlike other public interest tests provided for in the FOI Act, there is a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. 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.
I accept that the applicant has identified various public interest factors in favour of release of the information in the records. However, having regard to the nature of the information at issue, it seems to me that the degree to which the release of the specific information to which I have found section 37(1) to apply would serve the public interest to a quite limited extent. On the other hand, the information at issue is of an inherently sensitive and private nature and I must regard its release as being effectively, or at least potentially, to the world at large. I have not been able to identify any sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure in this case. In the circumstances, I do not accept that the public interest in releasing the information outweighs, on balance, the privacy rights of the individuals concerned. I find, therefore, that section 37(5)(a) does not apply.
Accordingly, I find that the Service was justified refusing access to the information to which I have found section 37(1) to apply as outlined above.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Service’s decision in request reference 202213. I find it was justified in refusing access to records or parts of records on the basis sections 30(1)(a), 32(1)(b) and 37(1) of the FOI Act, with the exception of record 47. With respect to that record, I find it was justified in refusing access to the following information only in that record on the basis of section 37(1):
• The names of Garda members throughout the record
• The second, third, and fourth sentences in the first paragraph;
• The third sentence in the second paragraph;
• The third to the twelfth bullet point;
• The fifteenth bullet point
• The eighteenth bullet point;
• The third party named in the nineteenth bullet point;
• The twenty-first bullet point; and
• All text after “crime” in the first sentence of the final paragraph
With regard to the remaining information in record 47, I find it was not justified in refusing access to this information on the basis of sections 32(1)(a)(i), (ii) and (iii), 32(1)(b) and 37(1) of the FOI Act and I direct that this record be released to the applicant, with the exception of the above information.
With regard to case 202217, I affirm the Service’s decision. I find it was justified in refusing access to records or parts of records on the basis sections 29(1), 30(1)(a), 32(1)(b) and 37(1) 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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.
Stephen Rafferty
Senior Investigator