Whether the Department was justified in refusing access to records relating to an inquiry carried out under section 42 of the Garda Síochána Act 2005 under sections 15(1)(a) (records do not exist/reasonable searches), 37(1) (personal information) and 42(d) (restriction of Act) of the FOI Act

9 January 2023

Background

It is in the public domain that, on 15 May 2017, Mr Justice Patrick Clyne was appointed to conduct an inquiry under section 42 of the Garda Síochána Act 2005 (the 2005 Act) into the adequacy of investigations by An Garda Síochána (AGS) and AGS disciplinary inquiries, which took place between 1984 and 1986 following the death of a particular individual in 1984. Judge Clyne completed his inquiry on 31 October 2020. The Department received his report (the Clyne report) on 3 November 2020. 

The applicant-�s FOI request to the Department of 23 March 2022 sought access to a copy of the Clyne report. He also requested copies of minutes of meetings and correspondence (including notes of telephone calls) between the Minister for Justice (the Minister) and/or Department officials and the AGS Commissioner or senior management in relation to the report, from 2018.

The Department-�s decision of 25 May 2022 refused access to six records under various provisions of the FOI Act. It also relied on section 15(1)(a) in relation to minutes of meetings, saying that no such records were found.

The applicant sought an internal review on 24 June 2022. The Department-�s internal review decision of 11 July 2022 affirmed its refusal of the request.

On 16 September 2022, the applicant applied to this Office for a review of the Department-�s decision. I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges and to correspondence between this Office, the Department and the applicant. I have also taken account of the content of the records at issue and the provisions of the FOI Act.

Scope of Review

The scope of this review is confined to whether the Department-�s decision on the request was justified under the provisions of the FOI Act. As the applicant is aware, record 1 is the Clyne report, and records 2, 2A, 3, 4, and 5 comprise correspondence between the Minister/Department and AGS.

Preliminary Matters

Section 13(4) of the FOI Act requires me to disregard any reasons that the applicant has or may have for making his FOI request.

Section 25(3) of the FOI act requires the Information Commissioner to take all reasonable precautions in the performance of his functions to prevent the disclosure of information contained in an exempt record or that would cause the record to be exempt if it contained that information. This also has implications for the extent to which I can give reasons for certain parts of my decision in this case.

Release of records under FOI is generally understood to have the same effect as publishing them to the world at large, given that the Act places no constraints on the uses to which the information contained in those records may be put.

Finally, I have had regard to the comments of the Supreme Court-�s judgment inThe Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors, [2020] IESC 57 [59] (the eNet judgment). The Supreme Court said -�it is the FOI body that must explain and justify a conclusion that the records are exempt by reference to the relevant provisions of the Act, and equally, it is the FOI body that must explain why the public interest does not justify release in the public interest.-�

I also note that, in the Supreme Court case ofSheedy v the Information Commissioner[2005] IESC 35, Kearns, J. made it clear that a general prediction without any supporting evidence is not sufficient to satisfy the requirement that access to the record could reasonably be expected to result in the outcome envisaged. He stated that -�[a] mere assertion of an expectation of [prejudice] could never constitute sufficient evidence in this regard-�.

However, while FOI bodies must justify their decisions, the eNet judgment in particular also says that a failure by an FOI body to do so does not lead to an inevitable or statutorily mandated outcome. Rather, the Commissioner must adjudicate the merits of the decision to refuse by reason of an analysis of the records and the interests engaged, which might suggest either disclosure or refusal.

Analysis and Findings

Section 42(d) -� Restriction of FOI Act (records relating to an inquiry under section 42 of the 2005 Act)

The Department withheld record 1 further to various provisions of the FOI Act, including section 42(d), which I will consider first. Section 42(d) provides that the FOI Act does not apply to a record relating to an inquiry within the meaning of section 42 of the 2005 Act, whether the record concerned is held by (I) persons conducting the inquiry, or (II) on the dissolution of the inquiry, any other body having custody of such a record, other than (A) a record relating to the appointment of a person to conduct an inquiry under section 42 of the 2005 Act, or (B) a record relating to the expenses or other matters concerning the general administration of an inquiry under that section. Section 42 of the FOI Act does not require consideration of the public interest.

Section 42 of the 2005 Act empowers the Minister for Justice to appoint a person to inquire into any aspect of the administration, practice or procedure of AGS. The exclusion at section 42(d) of the FOI Act applies to records relating to such an inquiry apart from records relating to the appointment of a person to conduct an inquiry, or the expenses or other matters concerning the general administration of an inquiry. While the FOI Act is silent on the meaning of general administration, this Office considers that it refers to records such as records relating to personnel, pay matters, recruitment, accounts, information technology, accommodation, internal organisation, office procedures and the like.

The parties-� submissions

The Department-�s position is that the report relates to Judge Clyne-�s inquiry under section 42 of the 2005 Act. It says that the Minister does not propose to publish the report yet, in order not to potentially prejudice the fresh AGS investigation into matters that Judge Clyne determined to require further examination. 

The applicant disputes that the report is "a record relating to the inquiry". While he accepts that it may contain details relating to the inquiry, such as answers given to Judge Clyne, he suggests that these could be redacted.

Alternatively, the applicant gives reasons as to why this Office should make an exception. He refers to similar reports that have been published. He says that the 2005 Act enables the Minister to publish the record, and that in 2020 the Minister said that she would do so. He says that the report-�s non-disclosure is undermining the Minister, the Department and AGS. He says that it should be released in the public interest, to illustrate that the Department and AGS are willing to adhere to openness and transparency in the administration of justice.

The applicant says that he is not aware of other published reports (e.g. that in relation to the Mahon Planning Tribunal) having hindered any subsequent investigations, and he does not accept that publication of the report could hinder the fresh AGS investigation. He says that the circumstances of the deceased-�s death have yet to be explained. He suggests the redaction of the names of any persons who may be subject to further investigation, so that most of the report and the Judge-�s findings could be released. He describes how the family of the deceased are dissatisfied with various matters.

Analysis

As the applicant is aware, the FOI Act gives me no power to examine the actions of any party, including whether the Minister should have published the report outside of FOI.

I am satisfied that, in its entirety, record 1 relates to an inquiry within the meaning of section 42 of the 2005 Act. It is substantially linked to Judge Clyne-�s inquiry under that legislative provision, in that it describes the nature of the inquiry, its findings and its recommendations. I am also satisfied that it does not relate to Judge Clyne-�s appointment, or to the expenses or other matters concerning the inquiry-�s general administration (which are the only exceptions to the provision).

In the circumstances, I find that the FOI Act does not apply to record 1, further to the provisions of section 42(d) of the Act. In the circumstances, there is no need for me to consider the possibility of disclosure subject to redactions, or the applicant-�s public interest arguments, or the other provisions relied on by the Department in relation to record 1.

Section 31(1)(a) -� Legal professional privilege

The Department-�s decision says that record 2 is exempt under section 31(1)(c)(ii) of the FOI Act because it contains legal advice to the Minister. However, and as the applicant is now aware, the relevant exemption is section 31(1)(a). Section 31(1)(a) provides that a head shall refuse to grant an FOI request if the record concerned would be exempt from production in proceedings in a court on the ground of legal professional privilege (LPP). It does not require consideration of the public interest.

LPP enables the client to maintain the confidentiality of two types of communication, one of which is confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (legal advice privilege).  The concept of "once privileged always privileged" applies where privilege is based on legal advice privilege. Thus, unless otherwise lost or waived, legal advice privilege lasts indefinitely. The Commissioner-�s approach concerning the disclosure of a record to a third party is that it generally amounts to a waiver of privilege, except where there is "limited disclosure for a particular purpose, or to parties with a common interest", as per the Supreme Court judgment in the case of Redfern Limited v O'Mahony [2009] IESC 18.

The Department now confirms that it is relying on section 31(1)(a) in relation to parts of record 2, rather than to the record in full.

The applicant refers to Article 30.1 of the Constitution, which is concerned with the Attorney General-�s role as -�adviser of the Government in matters of law and legal opinion-�. He says that only legal advice to the Minister about her Department is privileged, and not advice to or regarding AGS. However, I do not accept the applicant-�s view about the narrow range of advice over which the Minister may generally claim LPP.

Record 2 is a letter from the Minister to the AGS Commissioner. I am satisfied that the last sentence of the third paragraph, and the final paragraph, of this record disclose legal advice given to the Minister by the Attorney General. I find that section 31(1)(a) applies to these excerpts. I am also satisfied that privilege has not been waived over the advice, in that there has been only limited disclosure thereof to a party with a common interest in the matter.

While the Department claims advice privilege over a further excerpt of record 2, it does not explain the basis for its claim. The details, on their face, appear to reflect Judge Clyne-�s recommendations rather than legal advice received. In the circumstances, I am not satisfied that section 31(1)(a) applies to them.

Section 37 - Personal Information

I will now consider the remaining withheld details i.e. records 2A, 3-5 and the remainder of record 2. Although the Department originally applied various provisions of section 32 of the FOI Act (law enforcement and public safety) to the records, it no longer considers these exemptions to apply.

However, given the circumstances of the case and the content of the records, I have decided to consider the application of section 37 (personal information) of the FOI Act. The applicant is aware that, even though the Department does not rely on this provision, it is a mandatory exemption.

Section 37(1)

Section 37(1), subject to other provisions of section 37, requires the refusal of access to a record containing personal information. It is not relevant whether the applicant or others may be aware of some of the information concerned.

For the purposes of the FOI Act, personal information is defined as information about an identifiable individual that (a) would ordinarily be known only to the individual or members of the family, or friends, of the individual, or (b) is held by a public body on the understanding that it would be treated by it as confidential. The definition also includes a list of 14 non-exhaustive examples of what must be considered to be personal information. Where information can be classified as one of these 14 examples, there is no need for the requirements at (a) or (b) of the definition to also be met.

Bearing in mind the requirements of section 25(3), I am satisfied that records contain information of a type that meets the definitions of personal information and also that is captured by one or more of the examples of what comprises personal information. The information relates to identifiable individuals other than the applicant, particularly the deceased person. I am satisfied that even if names were redacted, individuals would be identifiable from the context and content of the remaining details.

I am satisfied that records 2A, 3-5 and the remainder of record 2 contain sensitive third party personal information and I find that they are exempt under section 37(1) of the FOI Act. This is subject to the consideration of sections 37(2), (5) and (8), however.

Section 37(2) - exceptions to section 37(1)

Section 37(2) of the FOI Act sets out certain circumstances in which 37(1) does not apply. I am satisfied that none of those circumstances arise in this case.

In particular, the applicant refers to section 37(2)(b), which provides that section 37(1) does not apply if any individual to whom the record relates consents to its disclosure to the requester. He believes that this Office should seek consent from the family of the deceased.

When I notified the applicant of the various issues material to this decision, I referred him also to the Commissioner-�s Guidance Note on section 37. The note outlines the Commissioner-�s view that, generally, it is not appropriate for this Office to approach third parties to seek their consent to the release of their personal information. Having regard to the circumstances, I do not believe that it is appropriate to take the step suggested by the applicant. Furthermore, any such consent may not necessarily mean that the applicant is entitled to access to the records further to either section 37(2)(b) or the Regulations under section 37(8) (see below).

Section 37(5)(a) - the public interest

In considering section 37(5), I consider that only section 37(5)(a) is relevant in this case. This section provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of the individuals to whom the information relates should be upheld.

When considering the public interest, it is important to have regard to the comments of the Supreme Court inThe Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner[2011] IESC 26. It is noted that a true public interest should be distinguished from a private interest.

On the matter of the type of public interest factors that might be considered in support of the release of the information at issue in this case, I have had regard to the findings of the Supreme Court in the eNet judgment. In her judgment, Baker J. indicated that the public interest in favour of disclosure cannot be the same public interest as that broadly stated in the Act. She said the public interest in disclosure must be something more than the general public interest in disclosure and the reason must be found from the scrutiny of the contents of the record. She said there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure.

While the comments of the Supreme Court in both judgments cited above were made in relation to provisions of the FOI Act other than section 37, 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). Furthermore, 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. In addition, the 37(8) Regulations recognise a public interest in maintaining the confidentiality of personal information relating to a deceased individual.

The statutory privacy rights afforded by the FOI Act relating to personal information, including that of a deceased person, will be set aside by this Office only where the public interest served by granting the request (and breaching those rights) outweighs the public interest in protecting privacy.

It seems to me that disclosure of the records will give a limited amount of insight into how the Department and AGS perform their functions and into Judge Clyne-�s inquiry and findings. However, any insight that may be gained by such disclosure does not mean that there should be no protection of what is very sensitive third party personal information. Furthermore, I do not believe it is appropriate for me to direct the release in the public interest of such personal information, effectively to the world at large, on the basis that the applicant or others may be dissatisfied with the actions of the Department, AGS, other bodies or individuals. Neither, as already stated, do I have any remit to consider, or make findings on, those actions.

Given the strong public interest in protecting the right to privacy and having regard to the nature of the specific information at issue, I am aware of no public interest factors in favour of its release that, on balance, outweigh the right to privacy of the individuals to whom the information relates. I find, therefore, that section 37(5)(a) does not apply.

Section 37(8) -� records relating to deceased persons

Regulations made under section 37(8) of the FOI Act provide for the release of information about deceased persons to certain categories of requester (such as the next of kin) in certain circumstances.  The applicant is not in any of these categories. Furthermore, the Regulations do not provide for a right of access to information about parties other than the deceased person. In the circumstances, I see no basis for the Regulations to be potentially relevant. 

Section 15(1)(a) -� Adequacy of search

The Department relies on section 15(1)(a) of the FOI Act in relation to minutes of meetings between the Minister/Department and the AGS Commissioner/senior management in relation to the Clyne report. 

Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused where the record does not exist or where it cannot be found after all reasonable steps to ascertain its whereabouts have been taken. A review of an FOI body's refusal of records under this provision assesses whether or not it is justified in claiming that it has taken all reasonable steps to locate records of relevance to a request or that the requested records do not exist.

As I informed the applicant, the Department says that it searched eDocs and the Policing Division Document Library (i.e. the current and former Departmental filing systems), the paper files relating to Judge Clyne-�s inquiry, and emails of department officials working in the relevant area. Its position is that the Minister or Department senior officials did not meet with the Commissioner or senior AGS officers regarding the outcome of Judge Clyne-�s Inquiry. It confirms that there is nothing in the Minister-�s diary regarding the report or a meeting with the Commissioner of AGS.

In addition, the Department says that four of the five inquiries established by the Minister under section 42 of the 2005 Act have now concluded. It says that while each was conducted by a separate Judge and dealt with on a case by case basis, it is not usual practice to hold meetings with AGS following the conclusion of an inquiry. It says that any follow up is dealt with in writing, through emails or hardcopy correspondence. 

The applicant appears to interpret the Department-�s comments about its searches for minutes of meetings as saying that it holds no file or correspondence in relation to the Clyne inquiry. He says that, in such circumstances, this Office should inspect the Department-�s records to ensure that it taken reasonable steps to located the material he has requested. He says also that it is -�hard to believe that no meeting took place-� further to the Clyne report.

It is not normally the Commissioner-�s function to search for records when reviewing a decision under section 15(1)(a). I do not believe this to be a case where such a step is required. In particular, and as the applicant knows, the Department has located records concerning two parts of the request. The applicant makes no comment on the Department-�s description of its searches for the requested minutes, other than to dispute the Department-�s position that no meetings took place further to the Clyne report. However, this does not of itself give me a basis to put further questions to the Department on the matter. I note also the Department-�s position that any follow up regarding the four concluded inquiries has been in writing, rather than through meetings.

Having regard to the Department-�s submission, it is possible that the requested minutes do not exist. In any event, I am satisfied that the Department has taken all reasonable steps to ascertain the whereabouts of any such records that may exist. I find that section 15(1)(a) applies.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department-�s decision under sections 15(1)(a), 37(1) and 42(d) of the FOI Act.

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.

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Anne Lyons

Investigator