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Whether the Department was justified, pursuant to the provisions of the FOI Act, in refusing the applicant's request for access to records in relation to his application under the Transfer of Sentenced Persons Act.

Conducted in accordance with section 34(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review.

Background

On 2 January 2014, the applicant sought access under the FOI Act to copies of all correspondence between the "Departments of Justice and Prisons" in respect of his application under the Transfer of Sentenced Persons Act, for the period from 19 July 2010 to January 2014. On 7 February 2014, the Department informed the applicant that it had identified 45 records relating to his request. It decided to grant access to 44 of these records; 27 in full and 17 with redactions under sections 21 and 23 of the FOI Act, concerning information relating to the functions and negotiations of a public body and information relating to law enforcement and public safety, respectively. The Department also refused one record (Record No. 44) on the basis of section 26 of the Act (information obtained in confidence), which comprised correspondence received from An Garda Síochána relating to the applicant.

The applicant made an internal review request on 13 February 2014. He raised a number of issues at this point, including requests for amendment to errors in the records provided which I understand to be the subject of a separate FOI request. The applicant also stated that he had no interest in staff members' names or prison security and was not seeking such information. The Department took the view, therefore, that the internal review was confined solely to its decision to refuse access to Record No. 44. On 14 May 2014, the Department upheld its decision to withhold this record on the basis that Record No. 44 comprised confidential information and was therefore exempt from release under section 26(1)(a) of the Act. It did not address any of the other issues raised by the applicant. On 19 May 2014 the applicant applied to the Commissioner for a review of the Department's decision.

Ms Sandra Murdiff, Investigating Officer, sought the views of An Garda Síochána in regard to Record No. 44. An Garda Síochána stated that it had no objections to its release, but that details of charges preferred, amounts allegedly stolen and identifying particulars of injured parties in Garda investigation should be withheld. Ms Murdiff contacted the Department, setting out An Garda Síochána's view and on foot of this, it made a new decision to release Record No. 44, subject to some redactions. Ms Murdiff wrote to the applicant on 19 September 2014 and explained that the redactions made by the Department to the remaining records coming within the scope of the applicant's original FOI request related solely to the names and contact details of Irish Prison Service and Department officials, details of which the applicant stated he was not seeking. In her letter, Ms Murdiff outlined her view that the Department was justified in its amended decision (although she did not agree with all of the exemptions cited). The applicant did not agree with her view and accordingly, I have decided to conclude this review by way of a formal binding decision.

In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997 -2003, notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

In conducting this review I have had regard to the Department's decisions on the matter and its communications with this Office, to the applicant's communications with this Office and the Department, to the record(s) in question, and to the provisions of the FOI Act. I have also had regard to the views of An Garda Síochána in relation to Record No. 44.

Scope of Review

It is important to note that it is not open to this Office to review the refusal of any record where the applicant did not seek an internal review regarding its refusal. As noted above, the applicant clearly stated in his internal review request that he was not seeking access to the redacted information concerning staff members' names or prison security in the records which were part released to him. Accordingly, the scope of this review is solely concerned with whether or not the Department was justified, under the provisions of the FOI Act, in deciding to refuse access to certain parts of Record No. 44 to the applicant.

Record No. 44 comprises 13 pages numbered 129-142. I note that Ms Murdiff informed the Department of her view that pages No. 140-142 were copies of pages 136-138 and that no page 139 was included in the records supplied to this Office for the purposes of this review. I also note that the Department has confirmed that these were administrative errors made while copies were being prepared in response to the applicant's FOI request, and that no pages are missing from the copy of the record provided. During the course of this review the Department has released pages 129, 130 and 136 to the applicant in full, and page 131 in part. Therefore, pages 131 (in part), 132-135 and 137-138 of Record No. 44 are the only parts of the record under consideration in this review.

Preliminary Matters

It is important to note that the applicant's request is in relation to records held by the Department in regard to his application under the Transfer of Sentenced Persons Act. The Commissioner's review is concerned only with the matter of access to these records. The Commissioner's remit does not extend to examining the actions of a public body in dealing with matters raised in the records in question or in relation to its management of the applicant's FOI request, other than as part of its requirements under the FOI Act. In his application to this Office the applicant refers to his rights under the Data Protection Acts. Issues concerning the application of the Data Protection Acts are a matter for the Data Protection Commissioner.

Record No. 44
In its submission to this Office on 12 September 2014 the Department stated that it intended to release Record No. 44 to the applicant, subject to redactions relating to section 28(1), 28(5B) and 23(1)(a)(ii) of the Act, which are provisions relating to personal information, joint personal information and information the release of which could prejudice or impair the enforcement of, compliance with or administration of any law, respectively. I note, however, that the Department's letter to the applicant, dated 1 October 2014 enclosing Record No. 44 stated that the redactions related solely to section 28(1) of the FOI Act.

Analysis and Findings

Pages 131-135
Pages 131-135 comprise a report dated 28 July 2003 setting out details of the applicant's convictions and charges. In its amended decision the Department released the first section of page 131, from the words "Date: 28/7/2003" to the words "Sentence 3 Months". It redacted the remainder of Page 131 and all of pages 132-135 on the basis of sections 28(1) and 28(5B) of the Act.

An Garda Síochána stated that a portion of page 131 (the last 8 lines on the page) and the entirety of pages 132-135 revealed details of charges preferred, amounts allegedly stolen and identifying particulars of injured parties in a Garda investigation, but it did not identify a particular exemption under the FOI Act upon which a decision to withhold might be based.

Sections 28(1) and 28(5B)
Section 28(1) of the FOI Act provides that, subject to other provisions of section 28, a public body shall refuse a request for a record where granting it would involve the disclosure of personal information about an identifiable individual. Section 28(5B), also subject to other provisions of section 28, provides for the mandatory refusal of a record that contains the joint personal information of the person making the FOI request and that of another party or parties. The information withheld comprises details of the charges in relation to the applicant's conviction for forgery. It includes the names of third parties and, in the case of the first charge listed on page 131, the address of a third party. While the Department argues that the withheld information comprises joint personal information and is therefore exempt under section 28(5B), it seems to me that redaction of the names of the third parties and the address of the third party in the first charge listed would allow for the release of the remaining information to the applicant as section 28(5B) would no longer apply in my view. I find therefore that while 28(1) applies to the names of the third parties and the aforementioned address, the remaining information is not exempt under section 28.

Section 28(2)
There are some circumstances, provided for at section 28(2), in which the exemption at section 28(1) does not apply. Having carefully examined the details to be withheld, I am satisfied that none of the circumstances identified at section 28(2) arise in this case. That is to say, (a) that the third party information contained in the records does not relate solely to the applicant; (b) that the third parties have not consented to the release of their information; (c) that the information is not of a kind that is available to the general public; (d) that the information at issue does not belong to a class of information which would or might be made available to the general public; and (e) that the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual. No argument to the contrary has been made by the applicant, and I find that section 28(2) does not apply to the record at issue here.

Section 28(5)
Under section 28(5) access to the personal information of a third party may be granted where (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.

Under FOI, records are released without any restriction as to how they may be used and, thus, FOI release is regarded, in effect, as release to the world at large. 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 the right to privacy. Having considered the information at issue, it does not appear to me that the public interest in the release of this information would outweigh the right to privacy of the third parties concerned. The Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner [2011] IESC 26 (this and other decisions referred to below are available at www.oic.ie) set out the approach the Commissioner should take when balancing the public interest in granting access to personal information with the public interest in upholding the right to privacy of the individual(s) to whom that information relates. Essentially, a public interest ("a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law") must be distinguished from a private interest for the purpose of section 28(5)(a). The public interest test concerned would not weigh in favour of release where the interest identified is exclusively private. In my opinion, the release of this information would satisfy a private, not a public interest. The applicant has very clearly stated that he wishes the record in order to identify errors relating to information forming part of his Transfer of Sentenced Persons application. The FOI Act itself recognises the public interest in persons exercising their rights under the Act, and in ensuring openness and accountability in respect of how public bodies conduct their functions. In my view, these public interests have been served to a certain extent by the release of other details to the applicant. While details of the names and locations at issue may further serve the public interest, I would not be satisfied that they would be served to such an extent that they require the breach of the Constitutional rights to privacy of the third parties to whom the details also relate. I find therefore that no right of access to the record in question arises under section 28(5)(a) of the Act.

Having also considered the record in light of section 28(5)(b), I do not consider that the release of the information concerned would be to the benefit of the third parties involved. The applicant has not identified any benefit to the third parties in question in this record being released and I cannot see how, in the particular circumstances of this case, that the release to the applicant of this information would benefit the people concerned. Accordingly, I find that no right of access to the record concerned arises under section 28(5)(b) of the FOI Act.

Pages 137-138
These pages are a Garda Report setting out some details of the offences committed by the applicant and the subsequent Garda investigation prior to his conviction in 2003. The Department has now released these pages to the applicant, with the exception of the final paragraph on page 137 and the first paragraph on page 138.

An Garda Síochána stated that the portions of pages 137 and 138 which did not solely refer to the applicant's convictions comprised a narrative taken from Garda investigations and outlined circumstances of offences and other details from investigation files, which should not be released, but did not refer to a particular part of the Act.

During the course of this review it has come to the attention of this Office that, when the applicant was convicted in 2003, Carney J in the District Court made an order prohibiting the publication of certain details of the case, including, as I understand it, the name of the town in which the offences occurred. Having regard to the court order (although the exact terms of the order are not known to the Department or this Office) the Department contends that these paragraphs contain information exempt from release on the basis of section 23(1)(a)(ii) of the Act.

Section 23(1)(a)(ii)
Section 23(1)(a)(ii) provides that a request for access to a record may be refused where its release could reasonably be expected to prejudice or impair the enforcement of, compliance with or administration of any law. Having reviewed the transcript of the applicant's sentencing hearing on 28 July 2003, which states that there was a "ban on publication of details" in relation to this case, it seems to me to be more appropriate that this information be withheld on the basis of section 22(1)(b) of the Act.

Section 22(1)(b)
Section 22(1)(b) provides that a request shall be refused if the head knows or ought reasonably to have known that its disclosure would constitute contempt of court. In EH and EPH v. the Information Commissioner[2001] 2 IR 463, O'Neill J found that where the Commissioner or a public body becomes aware "that there is in existence an undertaking to a Court be it expressed or implied, ... disclosure [of the relevant records] must be refused on the basis of Section 22(1)(b)." While that case referred to an undertaking relating to discovery of records, in my view this would equally apply to the court order prohibiting the publication of details in this case.

While I note that the applicant contends that the information contained in this record is already known to him, the Department and this Office are obliged to have regard to the order issued by Carney J. As mentioned above, records released under FOI carry no restriction as to how they may be used, and this, in effect, is regarded as release to the world at large. I have carefully examined the record in question and I note that, while some of the details in the report are already in the public domain, as they were reported in the media at the time of the applicant's conviction, the information in the two paragraphs in question has not been made public. Despite the fact that the information also relates to the applicant, I am of the view that the level of detail provided in the last paragraph on page 137 and the first paragraph on page 138 of the Garda Report would be likely to reveal the identity of the victims of the crimes in question. Therefore, I consider that this is protected by the court order issued by Carney J and the Department would be in contempt of court if it released this information. I am satisfied that section 22(1)(b) of the Act applies to the information concerned. Accordingly, I find that this portion of Record No. 44 is exempt from release under section 22(1)(b) of the FOI Act. Furthermore, while the Department has not cited section 28 of the Act in relation to these paragraphs, I am satisfied that the information concerned would also be exempt from release as it comprises the personal information of third parties.

Decision

Having carried out a review under section 34(2) of the FOI Act 1997 (as amended) I hereby vary the Department's amended decision to refuse access to the records concerned. I direct the release of Pages 131-135 subject to the redaction of the names of the third parties and the address of the third party contained in the first charge listed on page 131, pursuant to section 28(1) of the Act. I affirm the Department's decision not to release the final paragraph on Page 137 and the first paragraph on Page 138, on the grounds of section 22(1)(b) of the Act.

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.

Stephen Rafferty
Senior Investigator