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Case Number: 160539

Whether the IPS was justified in refusing to release any further records to the applicant relating to reports or recommendations sought in respect of the consideration of his application under the enhanced remission scheme

Conducted in accordance with section 22(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

The applicant was serving a prison sentence and made an application under the enhanced remission scheme to have his sentence reduced. His application was refused. On 9 June 2016, he made a request to the IPS for a copy of any reports or recommendations sought by the Minister for Justice and Equality or her official in respect of her consideration of his application, including but not confined to those sought from the Prison Governor, the Works Manager/Training Supervisor, the Class Officer, the Education & Psychology Services, the Probation Service and the Prison Chaplain.

On 7 September 2016, the applicant sought an internal review on the basis of a deemed refusal as the IPS had not responded to his request. He appealed to the Commissioner on 30 September 2016 as he still had not had a reply from the IPS.

Following correspondence from this Office, the IPS issued an effective position on 21 November 2016, stating that it was part granting his request. It identified and released three records - his original enhanced remission scheme application form with supporting documents, an internal operations form relating to his application, and the decision letter sent to the applicant informing him of the refusal of his application. It stated that it was refusing the "other part of his request" as it related to information received in confidence from the Gardaí, the Probation Service and Prison Authorities, which was refused under section 35(1)(a) (information provided in confidence). This Office then closed the file relating to his application.

On 1 December 2016, the applicant applied to this Office for a review of the IPS's decision.

During the course of this review, Ms Sandra Murdiff, Investigator, wrote to the applicant on 1 March 2017 drawing some matters to his attention. She wrote to him again on 23 March 2017, explaining her view that the IPS was justified in refusing to release further relevant records to him on the ground that none existed. She invited him to comment on both occasions, but no reply has been received to date. Accordingly, I have decided to bring this review to a close by way of a formal binding decision.

In conducting this review, I have had regard to correspondence between the IPS and the applicant, to correspondence between the IPS and this Office and to correspondence between the applicant and this Office.

Preliminary Matters
I note that in his correspondence with this Office the applicant referred to his wish to refute the comments made in the decision on his remission application. It is important to note, as a preliminary matter, that this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.

It is also important to note that section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request under section 12 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 IPS to satisfy this Office that its decision to refuse access to the records sought, either in whole or in part, was justified.

Scope of Review

Accordingly, this review is solely concerned with whether the IPS was justified in refusing to release any additional records to the applicant.

Analysis and Findings

The applicant's request to the IPS sought copies of reports or recommendations in respect of his enhanced remission application. During the course of the review, some confusion arose as to which records were relevant to the applicant's request. The IPS initially provided a copy of the three records which had been released to the applicant to this Office and stated that all of the documents relating to the applicant's remission application had been released to him in full. It said that this was explained in the letter of 21 November 2016.

This Office requested a copy of the records which had been refused under section 35(1)(a). The IPS stated that the only records taken into account in making a decision on an enhanced remission application are those submitted by the prisoner. It also stated that the Prison Governor does not make a recommendation on an prisoner's enhanced remission application and that reports on the general management of a prisoner's sentence are not requested or considered as part of the process. However, it then went on to state that "all reports dealing with the general prisoner's management are refused as outlined in the decision letter", and that this included a Prison Review Committee Report (PRC Report). Following further requests from this Office to provide a copy of the records containing confidential information which had been withheld, the IPS provided a copy of the PRC Report.

The case was subsequently assigned to an investigator, Ms Murdiff, who sought a submission from the IPS. She asked it to clarify what information had been refused on the basis of section 35(1)(a), as no comments from the Gardaí, Probation Service reports and opinions or recommendations from Prison Authorities were contained in the PRC Report. She also asked the IPS to confirm whether other records existed relating to the applicant's request which had been withheld.

In its reply and subsequent correspondence, the IPS stated that the PRC report solely related to the applicant's Parole Board Review and was not considered as part of his enhanced remission application. In essence, it stated that this record had been identified to this Office as falling within the scope of the applicant's request in error. I am satisfied that this is the case.

Section 15(1)(a)
Section 15(1)(a) provides that access to records may be refused if the records concerned do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The role of the Commissioner in a "search case" is to decide whether the decision maker has had regard to all of the relevant evidence and, if so, whether the decision maker was justified in coming to the decision that the records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The evidence in search cases generally consists of the steps actually taken to search for records, along with miscellaneous other evidence about the record management practices of the FOI body, on the basis of which the decision maker concluded that the steps taken to search for records were reasonable.

It seems to me in this case that it is the procedures relating to the consideration of enhanced remission application which are most relevant in deciding whether the IPS was justified in not releasing any additional records. The IPS has explained to this Office that a prisoner's application form and supporting documents are taken into account when making a decision. It also stated that the nature and gravity of the offence(s) and the potential threat to public safety are key considerations.

The IPS stated that the Gardaí's views are sought on all prisoners who are committed to a sentence of three months or more, and that in the event these cannot be provided, a press report on the offence or court hearing may be attached to a prisoner's file. It said that Gardaí's views are sought as a matter of course, and not in relation to an application for enhanced remission. It also stated that in this case the nature of the offence and sentence were a matter of public record as the applicant was convicted in court.

Essentially, the IPS's position is that no reports or recommendations are sought from the Gardaí, prison authorities or any other body for the purpose of deciding on such an application. I note that Ms Murdiff informed the applicant of its position and he has not provided any evidence or argument which would cause me to question this.

Accordingly, the IPS states that no further relevant records exist relating to the applicant's request and that no information or records within the scope of his request have been withheld on the basis of section 35(1)(a) of the Act, despite what was set out in its letter dated 21 November 2016.

While the applicant was of the view that further records or information existed which had not been released to him, this was due at least in part to the letter of November 2016. In my view, this was further compounded by the IPS's identification of the PRC Report to this Office as coming within the scope of the applicant's request. Furthermore, it appears to me that the three records released to him do not fall within the scope of the applicant's request. Accordingly, I would expect the IPS to take care in future when determining the scope of a request and in its decision letters so that it is clear to an applicant what relevant records have been identified and/or refused, and to ensure that its decisions deal only with records which fall within the scope of a request.

In the particular circumstances of this case, and having regard to the information provided to this Office by the IPS and its explanation of the consideration of an enhanced remission application, I find that it was justified in refusing to release further records on the basis that no additional records exist relating to the applicant's request.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the IPS's decision to refuse to release any further records to the applicant under section 15(1)(a) of the FOI Act on the ground that no relevant records exist.

Right of Appeal

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.

Elizabeth Dolan
Senior Investigator