Request for access to reports held by the Department regarding a Garda Complaints Board case concerning an alleged assault on the requester's wife - whether the information in the records consisted of information provided by An Garda Síochána to the Department in confidence - section 26(1)(a) - whether release of the record could reasonably be expected to prejudice or impair the security of any system of communications, whether internal or external, of the Garda Síochána - section 23(1)(a)(viii) - whether some of the details in the records related to personal information about the alleged assailant of the requester's wife - section 28(1)

Case Summary

Facts

The requester sought access to records held by the Department concerning a Garda Complaints Board case concerning an alleged assault on his wife. The Department refused the request on the grounds of section 26(1)(a), in that it contended that the records contained information provided to it in confidence by the Garda Complaints Board. During the Commissioner's review, the Department also sought to rely on section 23(1)(a)(viii), in that it contended release of the records would reveal the method by which reports are communicated with the Garda Síochána and between an Garda Síochána and the Department.

Decision

The Commissioner commented that in cases such as this, where the correspondence provided to the Department by An Garda Síochána arises out of a complaint made about the Gardaí, that it was apparent to him that the Department would, in some instances at least, disclose the broad contents of the reports, if not all of the details, in its response to the complainant. He noted that letters from the Department to the complainant drew heavily from the reports and contained many of the reports' details. He was not satisfied that the reports were given in confidence to the Department and on the understanding that they would remain confidential.

While this finding was enough for the Commissioner to decided that the Department was not entitled to rely on section 26(1)(a) in refusing access to the reports, he also considered the other tests that must be met in order for that exemption to apply. He said he accepted it was important for the Department to receive a certain level of information from an Garda Síochána, in order to properly discharge its functions in relation to queries or complaints relating to Garda investigations. However, he said he was not satisfied that, in this case, the impact of releasing the reports would be likely to result in an Garda Síochána not providing material properly required to enable the Department to respond to queries or complaints relating to a Garda investigation.

In relation to the Department's reliance on section 23(1)(a)(viii), the Commissioner commented that he considered this provision to cover a record which, for example, gave technical details of the location and/or type of equipment used by an Garda Síochána for their electronic communications, or one that gives details of codes or waveband frequencies used in the transmission of communications. He said he considered that, in the case at hand, all that was being disclosed was the fact that reports are passed between different levels within an Garda Síochána, and between an Garda Síochána and the Department. He considered this to be an administrative practice rather than a system of communication as envisaged by the Act. The Commissioner said it was not clear to him that suggestions by an Garda Síochána that the release of internal Garda reports on foot of FOI requests to the Department could have a detrimental effect on the manner in which such communications are carried out. He did not accept that the release of a report which was not inherently sensitive, and the contents of which had already been made known to the requester, could reasonably be expected to prejudice or impair the security of the system of communications, whether internal or external, of an Garda Síochána and he found that section 23(1)(a)(viii) did not apply in this case.

The Commissioner directed the release of the reports, subject to the deletion of the name and employment details of the alleged assailant of the requester's wife, as he considered these details to be exempt under section 28(1) of the FOI Act. He considered that there was no public interest in the release of these details to the requester.

Date of Decision: 07.12.2000

Our Reference: 99329

07.12.2000

Mr X

Dear Mr X

I refer to your application for a review, under section 34(2) of the Freedom of Information Act ("the FOI Act"), of the decision of the Department of Justice, Equality and Law Reform to refuse you access to its records regarding Garda Complaints Board [case reference number deleted] concerning an alleged assault on your wife. At the outset, please accept my apologies for the lengthy delay in bringing this matter to a conclusion. I appreciate that you wished to obtain a decision on your application at an earlier date but unfortunately due to the large number of cases pending before me this did not prove possible.

Background

I have now completed my review of the Department's decision. In carrying out that review, I have had regard to the submissions made to my Office by the Department on 31 August 1999 and 27 October 2000. I have also examined the records to which you were refused access.

In summary, I have decided to annul the decision of the Department and to grant you access to the two Garda reports that had been withheld, subject to deletion of personal information relating to your wife's alleged assailant.

Scope of Review

The Department refused you access to two Garda reports [particular dates of reports deleted] respectively in accordance with section 26 of the FOI Act. The first report comprises two records one of which is a cover note accompanying the report. The second report consists of a single record. During the course of my review, the Department also sought to have these records exempted under section 23(1)(a)(viii) of the Act. In your original request to the Department you made reference to the Garda Complaints Board case in question [case reference number deleted]. As Ms Ger Ryan of my Office explained to you in her letter of 25 May 1999, the FOI Act does not apply to the Garda Complaints Board and there is no right of access under the Act to records held by that body. My review is concerned solely with the Department's records relating to the case and whether you have a right of access to the two reports that have been withheld by the Department

Findings

The relevant part of section 26 relied upon by the Department in reaching its decision to refuse you access to the records in question is section 26(1)(a). Section 26(1)(a) provides that

"Subject to the provisions of this section, a head shall refuse to grant a request under section 7 if

(a) the record concerned contains information given to the public body concerned in confidence and on the understanding that it would be treated by it as confidential (including such information as aforesaid that a person was required by law, or could have been required by the body pursuant to law, to give to the body) and, in the opinion of the head, its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and it is of importance to the body that such further similar information as aforesaid should continue to be given to the body, "

For section 26(1)(a) to apply, it is necessary for the Department to show four things, viz.

• that the information was given in confidence, and
• that the information was given on the understanding that it would be treated as confidential, and
• that the 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 in the future, and
• that it is of importance to the body that such further similar information should continue to be given to the body.

In relation to the first two of these requirements, the Department says that "it is generally understood that documents received by this Department from the Garda Síochána in relation to matters such as this are deemed to have been received in confidence and on the understanding that they remain confidential". In case 98043- Mr AAN and the Department of Justice, Equality and Law Reform, I considered the question of the confidentiality of a report provided to the Department by the Garda Síochána. In that case I concluded that the contents of the document involved were not of such a sensitive nature as to imply that they were intended to be kept confidential. I take a similar view in relation to the records that were withheld in your case notwithstanding the views expressed by the Department regarding differences in the facts of the two cases. It is apparent to me in cases such as this where the correspondence arises out of a complaint made about the Gardaí that the Department would, in some instances at least, disclose the broad contents of the reports, if not all of the details, in its response to the complainant. Indeed the Department's letters of 2 November 1998 and 16 April 1999 to you draw heavily from the reports and contain many of the reports' details. In the circumstances, I am not satisfied that it can be said that the reports were given in confidence and on the understanding that they would remain confidential. This conclusion is sufficient for me to find that the exemption provided for in section 26(1)(a) does not apply in this case.

I decided, however, to also consider whether the other two requirements of section 26(1)(a), as outlined above, are met. The Department contends that in order for it to deal in a meaningful way with a query or complaint relating to a Garda investigation it is essential that it continues to receive reports from the Garda Siochana. It adds that anything done to prejudice the supply of such information would not be in the public interest. The public interests cited against releasing the reports are the need to preserve the confidentiality of the Department's dealings with the Garda Siochana and the need to guarantee the flow of future information relating to the investigation of crime. I accept that it is important for the Department to receive a certain level of information from the Garda Síochána in order to properly discharge its functions in relation to queries or complaints relating to Garda investigations. I am not satisfied, however, that in this case the impact of releasing the reports would be likely to result in the Garda Síochána not providing material properly required to enable the Department to respond to queries or complaints relating to a Garda investigation. I have decided that the Department was not entitled to refuse access to the two reports under section 26(1)(a).

As indicated above, the Department also sought to rely on section 23 (1)(a)(viii) to withhold the two reports. That section entitles a public body to refuse access to a record if the head of the body considers that the granting of access to the record could reasonably be expected to prejudice or impair the security of any system of communications, whether internal or external, of the Garda Síochána. The Department argues that disclosing the Garda reports in this case would have such an effect as it would reveal the method by which reports are communicated within the Garda Siochana and between the Garda Síochána and the Department. No evidence was submitted by the Department to support this argument. While the Act does not define what is meant by a system of communications, I consider that the type of record that would be covered by the exemption in section 23(1)(a)(viii) is, for example, one that gives technical details of the location and/or type of equipment used by the Garda Síochána for their electronic communications or one that gives details of codes or waveband frequencies used in the transmission of communications. In the present case all that is being disclosed is the fact that reports are passed between different levels within the Garda Síochána and between the Garda Síochána and the Department. I consider that this represents an administrative practice rather than a system of communication as envisaged by the Act. Administrative practices of this nature are common in many public bodies and would be generally known to members of the public. I do not accept the Department's argument in relation to this issue. The Garda Síochána suggested in correspondence which the Department made available to me that the release of internal Garda reports on foot of FOI requests to the Department could have a detrimental effect on the manner in which such communications are carried out. It is not clear to me how any such detrimental effect represents prejudice to or impairment of the 'security' of the system. There can be little doubt but that many internal reports of the Garda Síochána are exempt from disclosure under the FOI Act. However, I am unable to accept that the release of a report which is not inherently sensitive and the contents of which have already been made known to the requester could reasonably be expected to prejudice or impair the security of the system of communications, whether internal or external, of the Garda Síochána. I am not satisfied that the exemption provided for in section 23(1)(a)(viii) applies in this case.

Personal Information

The Garda report dated 28 September 1998 contains the name of your wife's alleged assailant. The first sentence of paragraph 4 of the report also contains details of his employment which I consider could lead to his identification. I find that both of these pieces of information are personal information as defined in section 2. I have decided that they should not be released in accordance with section 28(1) as the public interest that the details be released does not outweigh the right to privacy of the individual involved. The alleged assailant's name should therefore be deleted from the report and the words in the first sentence of paragraph 4 before the word "and" should also be deleted.

Decision

Having completed my review under section 34(2) of the Freedom of Information Act, I have decided to annul the decision of the Department and to grant you access to the two reports that had been withheld, subject to the deletions referred to above.

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from that decision. Such an appeal must be initiated not later than four weeks from the date of this letter.

Yours sincerely

Information Commissioner