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Whether the Department was justified in deciding to refuse access to certain records relating to a request for any correspondence between the Department and Gallagher Shatter in relation to the Irish Prison Officers Association (IPOA) since the start of 2010 and for records relating to the operation of the ASBO system.

Review Application to the Information Commissioner under the Freedom of Information Acts 1997 & 2003 (FOI Act)

Background

The applicant made a request to the Department for several categories of records, the relevant ones of which are as follows:

2(a) any correspondence between Gallagher Shatter and the Department in relation to the Irish Prison Officers Association (IPOA) since the start of 2010
3(a) a copy of any reviews of the Asbo system held by the Department, including a copy of the review requested by former Minister Dermot Ahern in 2009
3(b) any other memos/reports/briefings held by the Department in relation to the operation of the current Asbo system

In its original decision of 27 January 2012, the Department refused access to any records relating to part 2(a) of the request. In relation to parts 3(a) and 3(b), 22 records were identified and access was granted to five of these records. The applicant sought an internal review of the decision relating to parts 2(a) and 3(a) and 3(b) of his request only. In its internal review decision of 16 March 2012, the Department affirmed its original decision. In so doing it is not clear that it dealt with all the records identified as relevant to 3(a) and 3(b). This Office received an application for review from the applicant on 25 April 2012.

I have decided to bring this review to a conclusion by issuing a binding decision. In conducting this review, I have had regard to the submissions of the applicant, to the submissions of the Department, to the provisions of the FOI Acts, and to the content of the records. I have also had regard to submissions on behalf of the Prison Officers Association.(POA)

Scope of the Review

In referring to the records at issue in this case, I have adopted the numbering system used by the Department in its original decision. The Department identified three records as relevant to part 2(a) of the request, to which access was refused. A further 22 records were identified as relevant to part 3(a) and (b) of the request, of which 17 were withheld. During the course of the review, the Department agreed to release further records relating to parts 3(a) and 3(b) (IYJS records 4,7 and 18 in full and records 16 and 17 in part) and the applicant agreed that he did not require access to one record (IYJS record 8). Also during the course of the review, Ms. Brenda Lynch, Investigator, informed the parties of her view that certain parts only of two records (IYJS records 12 and 13) fell properly within scope of the request, and this was not disputed. Therefore, the records remaining at issue relating to parts 3(a) and 3(b) are IYJS records 1-3, 9-11, 12(part), 13(part), 14, 15, 16(part), 17(part) and Crime record 1. Therefore, the scope of the review relates to whether the Department was justified in its decision to refuse access to the three records relating to part 2(a) of the applicant's request and to the remaining records at issue relating to parts 3(a) and 3(b) of the request as described.

Analysis and Findings

3(a) and (b) - Material relating to ASBO's

Crime Record 1
This record is described as a "communication from the Garda Commissioner dated 3 April 2009". The Department has claimed that Sections 20(1) and 26(1)(a) apply to this record.

Section 20(1) of the FOI Act provides as follows:
"A head may refuse to grant a request under section 7 if the record concerned contains matter relating to the deliberative processes of a public body (including opinions, advice, recommendations, and the results of consultations, considered by the body, the head of the body, or a member of the body or of the staff of the body for the purpose of those processes)"

Section 20(2) provides that subsection (1) does not apply to a record if and in so far as it contains, inter alia, "factual information". Section 20(3) provides that a record to which section 20(1) has been found to apply may still be released if the public interest would, on balance, be better served by granting rather than refusing to grant the request.

This record is now four years old and ordinarily, due to the passage of time, the Information Commissioner would not consider a record created in 2009 to be eligible for exemption under section 20(1) as it would be expected that any decision making process to which the record relates would have been finalised at this stage. Subsection 20(1) provides that material forming part of the decision making process of a public body can be exempt from release if the public interest is not better served by such release. The deliberative process can be described as a thinking process that refers to the way a public body makes decisions. 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. Deliberations naturally involve stages and public bodies need to be free to bring matters to conclusion. It is also reasonable that certain sensitive information should not be prematurely released before the deliberative process, relevant to that information, has been completed.

The content of this record relates the amendment of the Children Act, 2001 which remains under consideration and the proposed legislation, the "Children (Amendment) Bill", appears in the Government's proposed legislation list published in September 2012. I am satisfied that the provisions of section 20(1) applies to the record under review and that it contains information which relates to the deliberative process and find accordingly.

I must then consider the provisions of Section 20(2) and 20(3). Section 20(2) is not relevant as I do not consider that the information can be described as "factual information". Consideration of the application of Section 20(3) goes to the content of the record and not only to the circumstances in which it was created. In deciding whether or not to release a record on public interest grounds, the FOI Act requires a balance to be struck between the competing public interest factors in favour of release of a record against those favouring exemption of a record.

Factors which could be considered in favour of release are the right of the public to have access to information; the accountability and scrutiny of the decision making process and the principles of openness and transparency including the release of information to allow for a more informed public debate. Factors against release would be the unnecessary intrusion at this point in time into the ongoing deliberative and decision making process and possible interference with the Minister's policy-making function.

In her letter of 7 December 2012, Ms. Lynch informed the Department of the basis on which she formed her preliminary view the majority of the record should be released in the public interest. In its response, the Department has reiterated its view that the public interest is not better served by the release of the material. It appears that the Department's concerns primarily relate to the need to preserve the confidentiality of all such correspondence so as to allow for unrestricted exchange of views in relation to legislation which the Gardaí are responsible for implementing. I find it difficult to accept as a general proposition that the release of any record containing the views of the Gardaí on specific legislation would result in a less than frank exchange of views in the future. In any event, I do not accept that all such correspondence can or should be protected as a class. Section 20 clearly envisages that there will be occasions where deliberative process type material should be released in the public interest. Accordingly, regard must be had to the contents of the record at issue.

Nevertheless, as I have outlined above, I accept that the record at issue in this case contains information relating to a deliberative process which remains current and which would appropriately be considered by the Department in conducting that deliberative process. While I accept that there is a positive public interest in optimising openness and transparency in relation to the decision making processes of public bodies, there is a strong countervailing public interest in allowing public bodies to engage fully in unimpaired pre-decision deliberative processes. Having regard to the content of the record at issue in this case, I am satisfied that the public interest in the release of this record at this time is not sufficiently strong to outweigh the public interest in refusing access to this record. I am satisfied that there is nothing in the record itself which would enhance the public interest sufficiently to outweigh the public interest in the Department having the space to engage in its deliberations without fear of intrusion. Accordingly I find that section 20(3) does not apply.

The Department also claimed that Section 26(1)(a) applies to this record. As I have found that the record is exempt from release under Section 20, I do not consider it necessary to address the application of Section 26 to the record.

Irish Youth Justice Service (IYJS) records 1-3, 9 and 14
I am satisfied that IYJS records 1 -3 are supplementary questions and briefing for oral parliamentary questions. The FOI Act does not apply to such records on the basis of Section 46(1)(db), which provides that the Act is not applicable to a record given by a public body to a member of the Government, or a Minister of State, for use by him or her for the purposes of any proceedings in either House of the Oireachtas.

Section 46(1)(b) provides that the Act does not apply to a record held or created by the Office of the Attorney General other than a record concerning the general administration of that Office. Record 14 is a record created by the Office of the Attorney General, and does not relate to the general administration of that Office. Record 9 is created by the Chief State Solicitor's Office (CSSO), which is a constituent part of the Office of the Attorney General. I am satisfied that Section 46(1)(b) applies to records 9 and 14.

IYJS Records 10, 11, 15, 16(part) and 17(part)
IYJS Records 10, 11, 15, part of 16, and part of 17 have been refused by the Department on the basis of Section 22(1)(a) and in some cases also on the basis of Section 20(1).

Section 22(1)(a) provides that : "A head shall refuse to grant a request under section 7 if the record concerned ­ (a) would be exempt from production in proceedings in a court on the ground of legal professional privilege,"

Unlike several other of the exemptions in the FOI Act, the provision at section 22(1)(a) does not provide for the setting aside of that exemption where to do so would serve the public interest. Legal professional privilege enables the client to maintain the confidentiality of two types of communication:
communications made between a client and professional legal adviser for the purpose of obtaining and/or giving legal advice; and
communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated or pending litigation.

In considering whether particular records would be exempt from production in a court, I have to bear in mind that legal professional privilege resides with the client and ignore the likelihood or otherwise of court proceedings taking place. The question comes down to whether the client would succeed in withholding the document on the ground of legal professional privilege in court proceedings. The Department has made no argument that the dominant purpose in preparing these records was the preparation for litigation and I do not find that the second limb of legal professional privilege would apply to the records at issue. I understand that the first limb of the rule of legal professional covers confidential communications between lawyer and client (which would include the seeking and giving of legal advice). I have examined the records in the context of whether they constitute confidential communications between professional legal advisers and their clients giving or seeking legal advice.

I am satisfied that record 11 is a communication between a client (the Department) and its legal advisor for the purpose of obtaining legal advice and therefore the first limb of legal professional privilege is satisfied. Records 10, 15, part of 16, and part of 17 are internal documents which disclose legal advice received by the Department from its legal advisors and as such satisfy the criteria for legal professional privilege. I find that the provisions of section 22(1)(a) apply to records 10, 11, 15, part of 16 and part of 17.

IYJS records 12 and 13
IYJS records 12 and 13 are described as a discussion paper on Amendments to the Children Act, 2001 and a summary of issues on Children Act Amendments. As set out above, the scope of this review relates only to parts of these records i.e. section 13 of record 12 and part of pages 10, 11 and 15 of record 13. Section 13 of record 12 is concerned with ASBOs for children. It comprises four paragraphs of text, followed by two separate "Notes" and some text under the heading "Issues". The information at issue on pages 10 and 11 of record 13 is a replica of the information at issue in record 12. The text at issue on page 15 of record 13 is concerned with previous counsel advice received.

The Department has claimed that sections 20(1) and 22(1)(a) apply to protect these records from release. I agree with Ms. Lynch's preliminary view that both records contain material which, if released, would disclose legal advice and I find, therefore, that section 22(1)(a) applies to paragraphs 3 and 4 and Note (i) of section 13 of record 12 and to the same content in record 13. I also find that section 22(1)(a) applies to the relevant material on page 15 of record 13.

The provisions of Section 20 are outlined above. I accept that the amendment of the Children Act, 2001 remains under consideration and the "Children (Amendment) Bill" appears in the Government's proposed legislation list published in September 2012. According to the list, this Bill "will amalgamate the children detention schools in the interests of cost/administrative efficiencies and the public interest. Also some technical amendments which will improve the workability of certain provisions are being provided for." In her preliminary views, Ms. Lynch accepted that these records in full relate to an ongoing deliberative process and Section 20(1) would apply. However, I must consider the provisions of Section 20 as they relate to those parts of the records coming within the scope of the review and to which other exemptions have not been found to apply. Therefore, the information being considered here is that contained in paragraphs 1 and 2 and Note (ii) of section 13 of IYJS record 12, and the same content in IYJS record 13, pages 10 and 11. In my view, paragraphs 1 and 2 of section 13 of record 12 contain factual information. As section 20(2)(b) provides that section 20(1) does not apply to a record in so far as it contains factual information, I find that the information contained in those paragraphs is not exempt under section 20(1) and should, therefore, be released.

Note (ii) of section 13 of record 12, which is repeated in record 13, essentially restates much of the content of the Crime record 1, dealt with above. As I have found that Section 20(1) applies to the content of Crime record 1, it follows that Section 20(1) also applies to the content of IYJS record 12, section 13 (note (ii)), and to the same content in record 13. I find accordingly. I also find that Section 20(1) applies to the remaining relevant text, headed "Issues" and that the public interest in release does not outweigh the public interest in protecting the information for the same reasons as set out above.

2(a) Correspondence between Gallagher Shatter and the Department in relation to the IPOA

The Department identified three records as relevant to this part of the request and refused access in full on the basis of Sections 20(1), 21(1)(b) and 23(1)(a)(i) of the FOI Act. Section 34(12)(b) of the FOI Act provides that a decision to refuse a request "shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified." In dealing with this part of the review, I have had regard to the content of the records identified by the Department as relevant to the request. Section 43(3) of the FOI Act requires the Information Commissioner to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. I do not consider it to be a breach of Section 43(3) to describe the records as relating to a query by/on behalf of the Prison Officers Association regarding the manner in which interviews were conducted with staff. I am satisfied that these records do not relate directly to the substance of the investigation, but to procedural matters.

The provisions of Section 20(1) are set out above. During the course of the review, the Department stated that the report of the investigation to which the records relate has been received by the Director General's Office (of the Prison Service), which suggested that the deliberative process which had been under way was complete. In response to Ms. Lynch's preliminary views, the Department stated that the report had been referred back to the prison for further enquiry. The Department's view is that Section 20(1) applies to the records in that a deliberative process remains in place. In my view, the records at issue do not contain deliberative process type material. I find, therefore, that Section 20 does not apply to these records.

Section 21(1)(b) allows a head, subject to consideration of the public interest, to refuse to grant a request if access to the record concerned could, in the opinion of the head, reasonably be expected to -

"have a significant, adverse effect on the performance by the body of any of its functions relating to management (including industrial relations and management of its staff) ..."

In order to apply this exemption it is necessary (1) to identify the potential harm to the functions, covered by the exemption, which might arise from disclosure and (2) having identified that harm, consider the reasonableness of any expectation that the harm will occur. It is not sufficient for the public body to state that the exemption applies. In this case, it is reasonable to expect that there will be communications between the Irish Prison Service and the Irish Prison Officers Association on an ongoing basis, in the normal course of the carrying out by both bodies of their functions. In view of this and in view of the content of these records, which is largely factual and in the case of record 3, contains material from the 2007 Prison Rules which are publicly available, I cannot see how the release of these records could give rise to the harm envisaged in this exemption i.e. a significant adverse affect. I am satisfied that the Department has not provided sufficient evidence that the harm envisaged in this provision, or the reasonable expectation of such harm, arising to justify its position. I find that Section 21(1)(b) does not apply.

Section 23(1)(a)(i) provides that:
"(1) A head may refuse to grant a request under section 7 if access to the record concerned could...reasonably be expected to -
(a) prejudice or impair
(i) 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 23(1)(a)(i) provides for a discretionary exemption, the application of which places the onus on the Department to provide some justification for the position that the exemption applies. As stated above, the content of the relevant records do not relate directly to the investigation of the matter the subject of the complaint. I am satisfied that the Department has not provided sufficient evidence of the harm that might arise under this exemption provision or that such harm could reasonably be expected to arise from the release of these particular records to justify the application of the exemption. I find that Section 23(1)(a)(i) does not apply.

During the course of the review, Ms. Lynch, Investigator advised the Prison Officers Association and Gallagher Shatter Solicitors of her preliminary views on the relevant parts of the review. In response, Gallagher Shatter Solicitors advised that the POA's chief concern related to the potential for the names of individual prison officers to be made public. These records contain no such information. They also asked that this Office consider the provisions of Sections 23(1)(aa) and 23(1)(a)(v) in relation to the review. Section 23 provides for exemptions that are discretionary to the Department and do not concern the interests of third parties. Therefore, as the Department does not seek to rely on these exemptions under section 23, I find that these provisions are not relevant to this review.

Decision

Having carried out a review under Section 34(2) of the FOI Act, I hereby vary the decision of the Department. I direct the Department to release in full the three records coming within the scope of part 2(a) of the applicant's request. In relation to the records coming covered by parts 3(a) and (b) of the request, I direct the Department to release the first two paragraphs of section 13 in IYJS record 12 and to the identical information contained in record 13.

Right of Appeal

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 the decision. Any such appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator

12 April 2013