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Whether the Department was justified in its decision to refuse access to a record under various provisions of the FOI Act.

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

Background

On 20 September 2011 the applicant submitted an FOI request to the Department, through his legal representative, seeking records relating to his arrest and detention in Clover Hill Prison, in particular his medical and custody files. Relevant records were held by two Divisions of the Department, the Healthcare Directorate and the Operations Directorate. The Department dealt with the request in two separate decisions.

In the decision made by the Healthcare Directorate dated 31 January 2012 the Department part granted the request for medical records with the redaction of the personal details of third parties. The applicant requested an internal review of this decision on 10 February 2012 in relation to the omission of any records of prescription drugs administered while in prison. In its Internal Review decision dated 12 April 2012 the Department refused access to any such records in accordance with the provisions of section 10(1)(a) of the FOI Act on the basis that no such records existed. On 5 October 2012 the applicant applied to this Office for a review of the Department's decision.

Following contact with this Office, the applicant accepted the decision of the Healthcare Directorate and accordingly that decision will not be considered further as part of this Office's review.

In a decision made by the Operations Directorate on 9 January 2012 the Department identified six records within the scope of the request, and granted full access to five of those records. It decided to refuse access to the remaining record (Record No. 6) on the basis that it was exempt from release under the provisions of section 26(1)(a) of the FOI Act. On 2 February the applicant sought an internal review of this decision. No internal review decision issued and the applicant applied to this Office for a review on 5 October 2012.

Preliminary Matters

During our review the Department stated that it had not received the applicant's letter dated 2 February 2012 seeking an internal review. A copy was provided to the Department who subsequently, on 15 November 2012, wrote to this Office affirming its original decision to refuse access to Record 6 and claiming further grounds for exemption under the provisions of section 23(1)(a)(v).

I note that Ms Anne O'Reilly of this Office wrote to the Department on 23 November 2012 outlining her preliminary view that the record in question was not exempt from release under the provisions of sections 26 and 23 of the FOI Act and that accordingly Record 6 should be released to the applicant. She further suggested that the names of the prison officers mentioned therein could be redacted , as the applicant in his application to this Office, stated that the record could be furnished with such redaction. The Department replied disagreeing with Ms O'Reilly's views and I consider that the review should now be brought to a close by the issue of a formal, binding decision. In conducting my review, I have had regard to details of the submissions of the applicant and the Department to this Office and to communications between this Office and both the applicant and the Department. I have also had regard to the provisions of the FOI Act.

Scope of the Review

The scope of this review is concerned solely with the question of whether the Department was justified in deciding that Record No. 6 is exempt from release under the provisions of section 26(1)(a) or section 23(1)(a)(v).

Analysis and Findings

Before I set out my findings on this record I wish to state that, under section 34(12)(b) of the FOI Act, a decision to refuse to grant access to a record is presumed not to have been justified unless it is shown to the satisfaction of the Commissioner that the decision was justified. This provision has the effect of placing the burden of proof in this matter on the Department in its decision to refuse access to the record in question. I must also point out that, in carrying out this review, I am required by section 43(3) of the FOI Act to take all reasonable precautions to prevent disclosure of information that is contained in a record that the public body has found to be exempt. This applies regardless of whether I decide to release some or all of the information withheld as I could prejudice the right of an affected party to appeal my decision to the High Court on a point of law if I were to reveal any information that the Department has withheld.

I can say that the record is a half page handwritten note by a prison officer relating to events which took place in the context of a Court appearance by the applicant.

Section 26(1)(a)
In its decision, and again in its submissions to this Office, the Department refused release of the record under section 26(1)(a) of the Act on the basis that the record contains information given to it in confidence, on the understanding that it would be treated as confidential, that the Department considers a flow of frank information from such sources to be essential for the performance of its duties and finally that the disclosure of such information to prisoners or ex-prisoners would seriously prejudice the future availability of such information.

It is clear that the record was created by a member of the prison staff in the course of the performance of his official duties. As pointed out to the Department by Ms O'Reilly, Section 26(2) provides that section 26(1) "shall not apply to a record which is prepared by a head or any other person (being a director, or member of the staff of, a public body or a person who is providing a service for a public body under a contract for services) in the course of the performance of his or her functions unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than a public body or head or a director, or member of the staff of, a public body or a person who is providing or provided a service for a public body under a contract for services."

It is clear from my examination of the record that its disclosure could not result in a breach of confidence owed to a person other than the prison officer who wrote the note, nor has the Department made such a case. Accordingly I find that section 26(1)(a) does not apply to this record.

Section 23(1)(a)(v)
The Department also refused access to the record on the basis of section 23(1)(a)(v) of the FOI Act. Section 23(1)(a)(v) of the FOI Act provides that a public body may refuse to grant a request if it considers that access to the record sought could: "reasonably be expected to prejudice or impair the security of a penal institution".

Having examined the record I find that there is nothing of a security nature in the record, and indeed all of the information contained in the record would be known to the applicant as he was present when the events described in the record occurred. In support of its claim to exemption under s23 the Department again expressed its view that were such reports to be released to a prisoner, this could result in a reduced quality of information being provided to the Operations Directorate by the prison staff, which in turn could impact on its capacity to make informed decisions in relation to the performance of its duties. This is properly an argument for exemption under s 26(1)(a) and I have already found that s26(1)(a) does not apply.

The Department has not provided this Office with any further explanation of its concerns as to how release of this particular record could "reasonably be expected to prejudice or impair the security of a penal institution", other than to state that in its view all such reports from prison staff should not be released. This would appear to be a claim for a class exemption in respect of reports prepared by prison officers. This Office has previously rejected claims by the Department for a class exemption in respect of these types of records but has stated that each case will be looked at individually. Having considered the matter I am satisfied that there is nothing in the record which if disclosed could reasonably be expected to prejudice or impair the security of a penal institution. I therefore find that section 23(1)(a)(v) does not apply to the record.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby annul the decision of the Department in this case and I direct that record 6 be released to the applicant with the redaction of the names of the prison officers contained therein.

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. Such an 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.

Sean Garvey
Senior Investigator