Whether the Department was justified in its decision to refuse access, under section 37(1) of the Act, to certain information concerning the extension of the retirement age of certain members of An Garda Síochana

18 May 2022

Background

The current compulsory retirement age for members of An Garda Síochana (AGS) is 60 years. The Garda Commissioner may, with the consent of the Minister for Justice, extend the retirement age in certain circumstances.

On 5 February 2022, the applicant sought access to all records relating to the exercise of such extension, from 2019 to the date of his request. He said the records sought included, but were not limited to;

1. The dates of and all the records concerning the matters as submitted by the Police Authority and/or AGS;
2. The dates such orders were granted by the Minister;
3. The ranks and station of each member of AGS for whom the Minister has exercised her statutory functions to permit the member of AGS to serve beyond their 60th birthday;
4. The duration of the periods granted by the Minister in each case and the age of each of the Garda at the end of the extensions (i.e. new compulsory retirement date);
5. The number of individuals and the duration of the time of the extension.

On 3 March 2022, the Department informed the applicant that the decision maker had identified over 200 documents relevant to the request that would require extensive redactions on the ground that they contain personal information of third parties, while other records would fall to refused in full. It said it could provide the information requested in tabular form. Following receipt of the applicant's response, the Department said it would issue a spreadsheet with the requested information. 

On 10 March 2022, the Department issued its decision wherein it part-granted the request. It released a spreadsheet comprising 68 entries under the following columns; -�Rank-�, -�Location-�, -�Date of AGS Request-�, -�Date of Minister's Consent-� and -�Extension From/To-�. It redacted the rank of the member in six cases, and the location details in all 68 cases under section 37(1) of the Act. On the same day, the applicant sought an internal review of the Department's decision, following which the Department affirmed its original decision. On 29 March 2022, the applicant sought a review by this Office of the Department's decision.

I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the submissions made by the applicant and to the submissions made by the Department in support of its decision. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with whether the Department was justified in its decision to withhold, under section 37(1) of the Act, certain information from the table of information released concerning the extension of the retirement age of certain members of AGS.

Analysis and Findings

Section 37(1) of the Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information relating to individuals other than the requester.

Section 2 of the FOI Act defines personal information as information about an identifiable individual that either (a) would ordinarily be known only to the individual or to members of his/her family or to his/her friends, or (b) is held by an FOI body on the understanding that it would be treated by the FOI body as confidential. Furthermore, the Act details fourteen specific categories of information that is personal without prejudice to the generality of the foregoing definition, including (ii) information relating to the financial affairs of the individuals, (iii) information relating to the employment or employment history of the individual and (viii) information relating to the age of the individual.

Certain information is excluded from the definition of personal information, as set out in section 2 of the FOI Act. Paragraph (I) provides that where the individual is or was a staff member, the definition does not include the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or occupies or occupied that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of those functions.

Paragraph (I) does not provide for the exclusion of all information relating to staff of an FOI body. This Office considers that the exclusion is intended to ensure that section 37 will not be used to exempt the identity of a public servant in the context of the particular position held or any records created by the public servant while carrying out his or her functions. The exclusion to the definition of personal information at Paragraph (I) does not deprive staff members in FOI bodies of the right to privacy generally.

As outlined above, the information redacted from the record at issue in this case comprises the rank of 6 AGS members and the location of 68 AGS members.

In submissions to this Office, the Department argued that the release of certain ranks would involve the disclosure of personal information relating to identifiable individuals. It said it did not redact the ranks of Gardaí where the number of individuals in those ranks mean that it would not be possible to identify an individual by reference to rank but that the senior ranks were redacted as only a handful of individuals serve in these posts due to their seniority and it is more likely that the information provided in the other columns could be linked back to an individual. It argued that the disclosure of those ranks would disclose both employment details and approximate age of identifiable individuals, in light of the other information released.

The Department added that, given that the ages of the Gardaí in question can be approximated from the provided record, were these ranks identified it would be possible for an individual to discover the names of these people, particularly because, as identified by the applicant, the names of Gardaí at these ranks are public information. It said this would mean that the ages of these Gardaí would also be publicly available.

In response to the Investigating Offer's observation that AGS has, in the past, announced extensions in respect of certain members, the Department said that understands that in certain circumstances, it may be in the public interest to publicise the extension of retirement age for certain members of AGS, and that when such situations arise, AGS may issue press releases which includes information which would otherwise be considered personal. It said the release of information in these circumstances is a matter between AGS and the person whose information is being released, and it argued that this does not justify release generally of personal information relating to members of AGS. The Department added that it would not generally be aware of the particular circumstances which led to such press releases or the level of involvement the individual had in determining what information was made available, and therefore could not be in a position to make such similar determinations in the process of responding to the applicant's request.

On the matter of the redacted locations of the members of AGS, the Department said that the information in question was redacted to ensure that the employment history or age of particular members of AGS cannot be identified by release of the record. It argued that if the record identified a Sergeant in Galway Division, for example, it would be possible for a person with sufficient knowledge of the staff in that Division to determine employment information and the approximate age of the Garda in question, all of which it said is personal information.

Having considered the Department's submissions, I accept that the disclosure of the redacted information would involve the disclosure of personal information relating to identifiable individuals. For the sake of completeness, I should add that I am satisfied that the exclusion in Paragraph I to the definition of personal information does not apply to the information at issue. The release of the information would involve the disclosure more than simply information relating to the positions held.

Section 37(2)

There are some circumstances, provided for at section 37(2), in which the exemptions at section 37(1) do not apply. I am satisfied that none of the circumstances identified at section 37(2) arise in this case. That is to say, (a) the information contained in the records does not relate solely to the applicant; (b) the third parties have not consented to the release of their information; (c) the information is not of a kind that is available to the general public; (d) 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) the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual. I find that section 37(2) does not apply to the withheld information.

Section 37(5)

Section 37(5) provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance, (a) the public interest that the request should be granted if it 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. I am satisfied that the release of the information at issue in this case would not be to the benefit of the individuals to whom the information relates and that section 37(5)(b) does not apply.

In relation to the applicability of section 37(5)(a), in carrying out any review this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. Section 11(3) provides that an FOI body must have regard to the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. It is important to note that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (-�the eNet Case-�), the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and -�there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure-�. Although the Court's comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.

The FOI Act recognises the public interest in the protection of the right to privacy both in the language of section 37 and the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with the right to privacy). It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. Moreover, unlike other public interest tests provided for in the FOI Act, there is a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. 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 privacy.

In considering where the balance of the public interest lies in this case, it is important to note that the release of records under FOI is regarded, in effect, as release to the world at large, given that the Act places no constraints on the uses to which a record released under the Act may be put. Having examined the record at issue in this case, I have not been able to identify any sufficiently specific, cogent and fact-based reason for finding that the public interest that the request should be granted outweighs the right to privacy of the individuals to whom the information relates. I find, therefore, that section 37(5)(a) does not apply.

In conclusion, therefore, I find that the Department was justified in withholding, under section 37(1) of the Act, details of the rank of certain members and details of the locations of the members included in the record released.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department's decision. I find that the Department was justified in refusing access under section 37(1) of the Act, to details of the rank of certain members and details of the locations of the members included in the table of information released concerning the extension of the retirement age of certain members of AGS.

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.

Stephen Rafferty
Senior Investigator