Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-154258-P3Q7D7
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Committee was justified in refusing access to certain statistical data about the number of referrals made to and accepted by the Garda Youth Diversion Programme under sections 32(1)(a)(ii), 35(1) and 37(1) of the FOI Act
20 February 2025
The Garda Youth Diversion Programme aims to prevent young offenders and children involved in anti-social behaviour in Ireland from committing further offences and entering into the adult criminal justice system. The Monitoring Committee (the Committee), appointed under section 44(1) of the Children Act, 2001, provides support to the Diversion Programme by identifying areas for improvement, making recommendations and monitoring implementation of those recommendations to foster the Programme’s effectiveness in diverting children and young people from crime. The Chairperson of the Committee is an Assistant Garda Commissioner.
On 1 October 2024, the applicant made a request to the Committee for the following:
Part 1: A breakdown detailing the number of referrals made to the Garda Juvenile Diversion Programme for each year from 2010 to 2023, for the following offences/offence categories:
• Rape under the Criminal Law (Rape) Act 1981, Section2
• Rape under the Criminal Law (Rape) (Amendment) Act 1990, Section 4
• Child pornography
• Sexual assault (not aggravated)
• Sexual assault (aggravated)
• Indecency
• Section 2 of the Criminal Justice Act 2006 (Defilement of a child under 15)
Part 2: A breakdown detailing the number of referrals made to the Garda Juvenile Diversion Programme,which were accepted by the programme , for each year from 2010 to 2023, for the same offences/offence categories as outlined above in Part 1.
On 8 October 2024, An Garda Síochána (AGS) refused the request pursuant to Schedule 1, Part 1(n) of the FOI Act on the basis that AGS is only a partially included agency for the purposes of the FOI Act. On 9 October 2024, the applicant requested an internal review of the decision. He said, as he had done in his original request, that the Committee is a public body in its own right that is subject to the Freedom of Information Act. On 12 November 2024, the Chairperson of the Committee provided the applicant with a table containing statistics for the years 2010-2023 about the number of referrals ‘Made’ and ‘Accepted’ for various incident types (offences). The Chair said that due to the low volume of referrals ‘Made’ and ‘Accepted’ for specific incident types, redactions are necessary where volumes are less than 10. The decision provided no reasons for refusing the actual number “where volumes are less than 10”, nor did it refer to any provision in the FOI Act as a basis for refusing those numbers.
On 15 November 2024, the applicant requested an internal review of the Committee’s decision. He said the decision to withhold figures less than 10 is inconsistent with the Committee’s practices, as the Committee has a history of publishing referral data in its annual reports in instances where the volume is less than 10. The applicant said this data frequently pertains to sexual offence sub-categories (and other offences) where the volume has been documented as less than 10. He argued that this precedent demonstrates that similar data can, indeed, be shared publicly without posing a risk to the individuals involved. The applicant noted that the Central Statistics Office (CSO) also publishes crime-related data on sexual offences where the recorded figures are below 10. To reach an amicable compromise, the applicant said he would be willing to accept aggregated data for the years 2010 through 2024 (as opposed to a yearly breakdown), categorised by each of the specified sub-categories, and by referrals made, and separately, by referrals accepted. In response, the Committee said earlier years’ reports may indeed have provided values where the figures were less than 10 but there are continual efforts ongoing to ensure compliance with data protection legislation and these may change over time. The Committee referred to its policy in relation to the protection of personal data and outlined its approach not to publish statistical data where the numbers are less than 10, in order to ensure that any information released does not identify or make identifiable any data subject where it is not necessary to do so. The Committee informed the applicant that its letter of 12 November 2024 was its reply to the applicant’s request for internal review and advised the applicant of his right of appeal to this Office.
On 5 December 2024, the applicant applied to this Office for a review of the Committee’s decision. On 11 December 2024, this Office wrote to the Committee to establish (i) if it accepted that the Committee is an FOI body in its own right and (ii) the basis for refusing to provide the applicant with the data he requested where numbers involved are less than 10. In response, the Committee said it accepts it is a public body for FOI purposes. It also made submissions saying it refused the exact number in those cases where there are a very small number of referrals under sections 32(1)(a)(ii), 35(1) and 37(1) of the FOI Act. Details of the submissions made by the Committee were provided to the applicant, who subsequently made his own submissions in the matter.
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 referred to above and to the submissions made by both parties in this matter. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether the Committee was justified, under sections 32(1)(a)(ii), 35(1) and 37(1) of the FOI Act, in refusing access to annual statistics where the number of referrals made to and accepted by the Garda Youth Diversion Programme is less than 10.
It is important to note that section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request shall be presumed not to have been justified unless the head of the relevant FOI body shows to the Commissioner's satisfaction that its decision was justified. This means that the onus is on the Committee to satisfy this Office that its decision to refuse access to the information sought was justified.
Section 37(1)
Section 37(1) provides that, subject to the other provisions of the section, an FOI body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information relating to third parties. The effect of section 37 is that, generally speaking, access to a record shall be refused if it would involve the disclosure of personal information relating to individual(s) other than the requester, unless one of the other relevant provisions of section 37 applies.
Section 2 of the FOI Act defines personal information as information about an identifiable individual that either (a) would ordinarily be known only to the individual or to members of his/her family or to his/her friends, or (b) is held by an FOI body on the understanding that it would be treated by the FOI body as confidential. Furthermore, the Act details 14 specific categories of information that is personal information without prejudice to the generality of the foregoing definition, including (vi) information relating to any criminal history of, or the commission or alleged commission of any offence by, the individual.
Submissions from the Committee
In it submissions to this Office, the Committee said that a table of figures was provided to the applicant detailing the number of referrals made to the Youth Diversion Programme and the number of referrals accepted for the relevant incident types each year. It said, in those cases where there are a very small number of referrals made or accepted (less than 10), the exact figure was not supplied. The Committee said its decision to release the records in this manner, was informed by the extremely sensitive nature of the information in question. It said it must be borne in mind that these records concern children involved in very serious crimes of a sexual nature.
The Committee said it is aware of its obligations under the Act to provide access to records held to the greatest extent possible, and to promote openness and transparency in its operations. However, it said it is also cognisant of the obligation to preserve sensitive personal information in its possession, to uphold the constitutional right to privacy, to respect information received in confidence and to avoid the release of information which would likely prejudice or impair administration of the law. The Committee said that by supplying information in the manner it did, the Committee sought to strike a reasonable balance between the desire to provide information into the public domain against the obligation to preserve certain sensitive information. Rather than simply refuse certain parts of the request outright, the Committee has indicated that the number of young persons involved in each instance are very low. The Committee said, by further providing overall total figures the Committee has further demonstrated that each of the redacted figures are extremely low. In doing so, the Committee said it has endeavoured to provide access to records to the greatest extent possible, consistent with its other obligations.
The Committee said information in respect of individuals referred to or accepted into the Youth Diversion Programme is clearly information in respect of the criminal history of or the commission or alleged commission of an offence by the individual. It said, given that the individuals involved are under the age of 18, there are particular obligations on the Committee to treat information concerning these children in a confidential manner. The Committee noted that when young people charged with criminal offences appear before the Courts, it is not permissible to publicly identify the child in question outside of the Court and the law places very clear obligations to preserve the anonymity of children accused of criminal offences. It referred specifically to Section 52 and Section 93 of the Children Act 2001 which legislates for the Protection of identity of Children and Restrictions on reports of proceedings in which children are concerned. The Committee stated that as such, the involvement of the child in these offences is only known to their immediate circle.
The Committee said, in light of the fact that the request seeks information in respect of specific offences broken down by year and whether the young person was accepted or not into the Youth Diversion Programme is, in the view of the Committee, likely to significantly increase the probability of the individual child becoming more widely known to those outside their own close circle such as neighbours, associates, and individuals associated with the victim. It said, given that the Act places no restrictions on how information released may be used, it is clear that this information is likely to come into the public domain, increasing the likelihood that personal information of an extremely sensitive nature in respect of children becoming more widely known.
The Committee said it considered the provisions of Section 37(2) in reaching its decision in this matter. It said it is clear that sections 37(2)(a), (b), (d) and (e) do not apply in this case. In respect of section 37(2)(c), which concerns information available to the general public, the Committee said it does not publish in its annual report statistical information where the very low numbers of individual children involved, would likely make the identity of the child publically known. Therefore, the Committee is satisfied that section 37(2)(c) does not in fact apply in this case. In regard to the public interest requirements under section 37(5)(a) of the Act, the Committee said it accepted that there is indeed a public interest in information concerning the operation of the Youth Diversion Programme being available in the public domain. It said, over and above the general interest in openness and transparency in the work of public bodies, there is a public interest in ensuring that the administration of justice is properly conducted. However, against that public interest, it contends there is also a very strong public interest in preserving privacy in respect of children.
The Committee said, outside of the provisions of the FOI Act, the Children Act places significant obligations around protecting the identity of children accused of criminal offences, as outlined above. It stated, given the significant sensitive nature of the information in respect of children, the Committee must give very strong consideration to maintaining the individual right to privacy contained within the FOI Act and the obligations contained in the Children Act concerning children accused of criminal conduct. The Committee said, in presenting the information in the manner provided, the Committee has sought to strike the balance between those competing obligations and to favour the release of information to the greatest extent possible. It argued that to provide exact numbers of children as requested would however breach that obligation towards privacy. The Committee said it is particularly aware of the fact that every individual involved in these records was a child at the time of the alleged offence. On balance the Committee is firmly of the view that the public interest is best served by supplying information in the manner originally provided and in preventing the potential release of information likely to publicly identify the children concerned.
Submissions from the Applicant
In his submissions to this Office, the applicant said that for information to be considered personal information under the FOI Act, it must relate to an identifiable individual. He said that releasing purely statistical, anonymised data information does not do this. The applicant contends the Committee has failed to establish that releasing unredacted figures would lead to the identification of individuals. He argued that without accompanying details such as names, locations, or case specifics, numerical data alone does not constitute personal information. He said it is absurd to make the case that providing statistical data on the numbers of referrals made/accepted for certain sexual offences, which is national and yearly, and which gives no other information could lead to the identification of a victim or offender.
The applicant noted that the Central Statistics Office (CSO) routinely publishes crime statistics provided by An Garda Síochána (AGS) including small-number data related to serious crimes. As an example, the applicant highlighted a category of crime statistics published by the CSO called ‘Aggravated sexual assault’ of which he notes there are 7 such incidents recorded in 2023. The applicant said, since 2005 there have been 13 years in which there have been less than 10 entries for this offence recorded by the CSO. He said this category is worth highlighting because it is also one of the exact same types of offence categories included in his FOI request for which the Monitoring Committee is refusing to release unredacted data. The applicant asked if the CSO can release such information without compromising individual privacy, why does the Monitoring Committee holds itself to a completely different standard in replying to his request.
The applicant said the Committee published low number data for referrals to the Diversion Programme for 2004 (its first annual report) and as late as in its 2020 annual report, which was published in June 2023. The applicant said that the Committee’s 2020 Annual Reports contains over 40 separate categories of referrals made to the Diversion Programme where the entries are less than 10. The applicant noted these include, for example, incest (1); aggravated sexual assault (1); murder (4); child neglect and cruelty (1); prison break (1); and embracery (1). The applicant said there are scores of other examples relating to other offences in earlier annual reports, with low numbers.
In addition, the applicant said there is a provision within the Children’s Act worth highlighting in this context. He said Section 44(8) empowers the Minister of Justice to order the removal of any information in the Monitoring Committee’s annual reports that could identify an individual. It states: “Before laying a report before each House of the Oireachtas under subsection (7) the Minister may omit material from it where the omission is necessary to avoid the identification of any person.” The applicant said there is no indication that this section has ever been applied and argues it stands to reason, therefore, that the Minister of Justice, who is required to remove any identifying information contained in the Monitoring Committee’s annual reports, has taken the view that the small number of referral data published in the 2020 annual report (and in earlier annual reports) does not identify anyone.
The applicant noted the Children’s Act expressly permits the publication of statistical data relating to the Diversion Programme. Section 51 states that “no report shall be published, or included in a broadcast— (a) in relation to the admission of a child to the Programme or the proceedings at any conference relating to the child, including the contents of any action plan for the child and of the report of the conference, or (b) which reveals the name, address or school of the child or any other information, including any picture, which is likely to lead to identification of the child.” The applicant noted however that section 51 of the Children’s Act goes on to state that this above prohibition does not apply to the publication or broadcast of “(a) statistical information relating to the Programme, and (b) the results of any bona fide research relating to it.” The applicant said that as a journalist he is seeking to undertake bona fide research stemming from statistical information relating to the Diversion Programme. He said this is very much in the public interest, given that the Monitoring Committee refuses to publish a breakdown of acceptance data in its annual reports.
Analysis
I fully accept there is a very strong public interest in preserving the privacy rights of the children involved in the cases at issue. However, the question I must consider is whether the release of the particular annual statistical data at national level, where the number of referrals made or accepted is less than 10, constitutes personal information under the FOI Act.
It is important to note that personal information is information about an identifiable individual. Where information may not, on the face of it, be about an identifiable individual, I accept it may still be personal information if it allows the individual to be identified. An individual may not be named in a record, yet may still be identifiable.
In reviewing the Committee’s decision to refuse access to the number of cases where the number of referrals made or accepted is less than 10, the first thing I must consider is whether the release of the withheld information would involve the disclosure of personal information. As noted above, personal information for the purposes of the FOI Act means information about an identifiable individual (my emphasis) that either would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or is held by an FOI body on the understanding that it would be treated by that body as confidential. Where it is not apparent, I would expect an FOI body to be in a position to show clearly how the disclosure of the information would allow an individual to be identified.
I note that in its submissions to this Office, the Committee said it considers release of the numbers of referrals made and accepted in cases of less than 10 is likely to significantly increase the probability of the individual child becoming more widely known to those outside their own close circle. However, the Committee has not explained how or why it expects this to happen, nor is it evident to me. I note the Committee said it does not publish statistical information in its annual report where the very low numbers of individual children involved would likely make the identity of the child publically known. While I accept there may be certain circumstances where reporting information about a small group might involve the disclosure of personal information, I do not consider release of the annual statistics at national level sought in this case is one of those situations.
As the applicant noted, the Committee previously published numbers in cases of less than 10. No evidence or argument has presented that publication of low number statistics in the past led to the identification of individuals. Furthermore, I note that the CSO routinely publishes crime statistics provided by An Garda Síochána which include small-number data related to serious crimes. This, for example, includes small numbers (less than 10) of recorded crime incidents at Garda Division level on a quarterly basis.
Having considered the matter carefully, I do not accept that release of the annual statistical data at national level sought in this case would disclose personal information about identifiable individuals. I therefore find that section 37(1) of the Act does not apply. Having found that section 37(1) does not apply, it is not necessary for me to consider the remaining provisions in section 37.
Section 32(1)(a)(ii)
Section 32(1)(a)(ii) provides that an FOI body may refuse to grant an FOI request if access to the record concerned could, in its opinion, reasonably be expected to prejudice or impair the enforcement of, compliance with or administration of any law.
In its submissions to this Office, the Committee cited section 32(1)(a)(ii) of the FOI Act as grounds to withhold the information at issue. It said, the Committee is of the view that the release of information in the manner requested, making the identity of individual children likely to come into the public domain, will impair the effectiveness of the Youth Diversion Programme. It said the prospect of participant identities coming into the public domain will undermine confidence in the confidential nature of the Youth Diversion Programme, and discourage participation by young offenders and their families. The Committee said that placing participation in the Youth Diversion Programme at risk would fundamentally undermine and impair the administration of the Youth Diversion Programme legislation. It said, there is a strong public interest in the Youth Diversion Programme succeeding and diverting young people away from criminal behaviour which will negatively impact their future prospects. The Committee stated the long term public good of Youth Diversion should not be undermined by the unnecessary release of information prejudicing confidence in the programme.
Analysis
Where an FOI body relies on section 32(1)(a), it should identify the potential harm to the matters specified in the relevant sub-paragraph that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur. In doing so, the FOI body should show how or why releasing the particular record could reasonably be expected to cause the harm which it has identified.
Furthermore, the Commissioner’s view is that the test in section 32(1)(a) is not concerned with the question of probabilities or possibilities, but with whether or not the expectation of harm is reasonable. Moreover, an FOI body relying on section 32(1)(a) should show how release of the particular record could reasonably be expected to result in the harm(s) identified. A mere assertion of expected harm is insufficient.
It seems to me the Committee’s arguments about the potential harm to the Youth Diversion Programme centre on the prospect of participant identities coming into the public domain. As I have already outlined above, I am satisfied that releasing statistical data at national level would not involve the disclosure of personal information about identifiable individuals. As I do not consider release of the annual statistical data at national level in question will result in participants in the Programme being identified, in my view it is not reasonable to expect the harm to the Programme claimed by the Committee will materialise. The Children’s Act expressly permits the publication of statistical data relating to the Diversion Programme. As noted above, the Committee has previously published similar data in the past in cases where the numbers were less than 10. No evidence has been put forward that release of this data in the past impaired the effectiveness of the Youth Diversion Programme. In the circumstances, I can find no basis for concluding that publication of the additional statistics which the Committee refused in this case is likely to have the adverse effect suggested by the Committee. Accordingly, I find that the Committee was not justified in refusing the statistical data sought by the applicant under section 32(1)(a)(ii) of the Act.
Section 35
In its submissions to this Office, the Committee said the information held by it is information supplied to it by An Garda Síochána (AGS) in confidence in order to allow the Committee to exercise its statutory functions. In handling this information, the Committee said it has an obligation under the Children’s Act in respect of the anonymity of the child in question. It said the release of information in the exact manner sought, would the Committee believes, constitute a breach of its duty of confidence in this regard.
Section 35(1)(a) of the Act provides for the mandatory refusal of certain information given to an FOI body in confidence. For the exemption to apply it is necessary to show the following;
• that the information was given to an FOI body in confidence and,
• that the information was given on the understanding that it would be treated by the FOI body as confidential and,
• that disclosure of the information would be likely to prejudice the giving to the body of further similar information from the same person or other persons and,
• that it is of importance to the body that such further similar information should continue to be given to the body.
All four of the above requirements must be satisfied for section 35(1)(a) to apply. However even if all four requirements have been met, the section is subject to the public interest balancing test set out in section 35(3).
While the Committee said that AGS provides information to it in confidence, no claim has been made that disclosure of the relevant statistical information it receives from AGS would prejudice the giving to the Committee of further similar information by AGS in order to allow the Committee to exercise its statutory functions. Section 44(4) of the Children’s Act, 2001, provides “the committee shall have access to and may examine any documents relating to the operation of the Programme and may discuss any aspect of it with the Director and any other person concerned with its operation.” As such, it seems to me that the Committee has a legislative basis to access relevant records held by AGS related to the Diversion Programme, including statistical data. The Committee has not argued that disclosure of the information at issue is likely to prejudice the giving to the Committee of further similar information by AGS, nor do I consider this likely given the statutory functions of the Committee. Accordingly, I find that the Committee was not justified in refusing the information sought by the applicant under section 35(1)(a) of the Act.
A record is exempt under section 35(1)(b) of the Act where disclosure of the information would constitute breach of a duty of confidence provided for by agreement, enactment or otherwise by law. The Committee’s arguments under section 35 of the Act again revolve around it position that release of the information at issue would involve the disclosure of the identity of individual children. As I have already outlined above, I do not agree with the Committee’s position in this regard. Consequently, I do not accept that the release of the data at issue in this case would constitute a breach of a duty of confidence, in circumstances where no individuals are identifiable. Accordingly, I find that the Committee was not justified in refusing the information sought by the applicant under section 35(1)(b) of the Act.
In conclusion, I am not satisfied that the Committee was justified in its decision to refuse access to the statistical data it refused under sections 32, 35 and 37 of the Act and I direct the Committee to release the relevant statistical data that it holds to the applicant.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Committee’s decision to refuse the statistical data it withheld under section 32, 35 and 37 of the Act. I direct the Committee to release the statistical data of the number of referrals made to and accept by the Diversion Programme as set out in the applicant’s original request.
Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.
Richard Crowley
Investigator