Whether the Department was justified, under section 15(1)(b) of the FOI Act, in refusing access to records relating to or arising from an incident which occurred at Prison X in 1988

7 November 2023

Background

In a request dated 4 May 2023, the applicant sought access to all records generated after 18 May 1988, concerning an incident that occurred on that date at a specified prison (Prison X), as well as all records relating to his dismissal from his post as a prison officer the following year. The applicant also indicated that he was particularly seeking access to records relating to reviews of possible malfeasance and/or breaches of the "Treason Ac]" or the "Offences against the State Act" by Irish Prison Service (IPS) officials since the establishment of the IPS to date; and/or by Secretary Generals, Ministers for Justice, Taoisigh or Department officials in 1988, 1989 and to date.

In a decision dated 15 June 2023, the Department refused the applicant's request under section 15(1)(b) of the FOI Act. It stated that he had been asked on 25 May 2023 to provide additional information to assist in identifying the records sought. It also stated that it informed the applicant on 2 June 2023, that should the Department not hear from him, it would proceed to issue a response on his request. It said that his response on the same date did not provide enough information to process his request. The Department also stated that it had reiterated its position in an email of 7 June 2023, but that he had not replied.

On 15 June 2023, the applicant requested an internal review. He referred to a recent High Court case which considered records which were subject to an order for discovery, over which privilege had been claimed. He stated that, on foot of the High Court's judgment, the Department's refusal to release the records sought was "criminal" and that the information must be released.

On 19 June 2023, the Department upheld its initial decision. It again referred to its letter of 25 May 2023, and stated that the applicant had been notified that two parts of his request (b and d) needed further clarification and that it appeared that the remaining parts of his request would be more appropriately addressed to An Garda SΓ­ochΓ‘na (AGS) and the IPS. On the same day, the applicant submitted an application for review of the Department's decision to this Office, wherein he described the Department's refusal of his request as the "suppression of criminal and fraudulent information".

During the course of this review, the Department provided submissions to this Office, setting out its reasons for concluding it had not received sufficient information from the applicant to identify the records sought. The Department also responded to some additional queries raised by the Investigating Officer. On 31 August 2023, the Investigating Officer provided the applicant with details of the Department's submissions in relation to its reliance on section 15(1)(b) and invited him to comment. I understand that some confusion arose concerning the relevant parts of his request, and following further correspondence, this Office sent him a copy of his original FOI request by email on 5 September 2023 for ease of reference. To date, the applicant has not made any substantive submissions in response.

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 Department in support of its decision, as well as the applicant's comments in his correspondence with this Office. 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 refusing the applicant's request for various records relating to his dismissal from the IPS and/or relating to or stemming from a specified incident that occurred on Prison X in May 1988, under section 15(1)(b) of the FOI Act.

Analysis and Findings

Section 15(1)(b) of the FOI Act allows an FOI body to refuse to grant a request if it considers that the request does not comply with section 12(1)(b), which requires that a request contain sufficient particulars in relation to the information sought to enable the record to be identified by the taking of reasonable steps. Section 12(1)(b) of the FOI Act is concerned with the processing of FOI requests and is not a valid ground of itself for refusing an FOI request. A refusal of a request on the basis that the applicant has not complied with section 12(1)(b) is, essentially, a refusal under section 15(1)(b).

Section 15(1)(b) is subject to section 15(4) of the FOI Act. Section 15(4) provides that an FOI body cannot refuse a request under section 15(1)(b) unless it has first assisted or offered to assist the requester to amend the request so that it would no longer fall to be refused under section 15(1)(b).

Section 15(4)

In its submissions to this Office, the Department stated that it attempted to assist the applicant by requesting further details, as well as setting out what was unclear in his original request. While the applicant responded to the Department's email of 2 June 2023, I note that his response solely related to its refusal to release records and that he did not provide any details that could be used to identify relevant records.

The Department said that it had engaged with the applicant on a number of occasions in relation to this and previous requests, seeking clarification as to the records sought. The Department referred to its letter dated 25 May 2023, and subsequent correspondence offering assistance to clarify the applicant's request. I note that in its correspondence with the applicant, the Department asked for clarification as to the nature of the malfeasance to which he was referring. It also asked him to provide key words to be used when searching for relevant records and to identify the particular staff members or individuals concerned. Essentially, its position was that it had fulfilled its obligations under section 15(4) of the FOI Act, but that the applicant had not provided any information which could assist it in identifying relevant records.

While there is an onus on FOI bodies to assist, or at least offer to assist, requesters (as required under section 15(4)), it is often the case that requesters are best placed to offer suggestions as to how a more focused search for relevant records might take place, based on their knowledge of the type of information they wish to access. This is not always straightforward, as requesters may not necessarily be aware of the type, nature and/or location of records held. However, I note that the Department asked the applicant to clarify what key words he suggested for searches and to name the individuals concerned. While the applicant may not have been aware of the names of all of the individuals that he considered may have been involved in the matters at issue, it seems to me that he could have engaged with the Department in this regard. From the records provided to this Office for the purposes of this review, it does not appear that the applicant provided any further information which would assist the Department in locating relevant records.

In all of the circumstances of this case, I am satisfied that the Department assisted or offered to assist the applicant to amend his request so that it would no longer fall to be refused under section 15(1)(b).

Section 15(1)(b)

As noted above, the Department's position was that only parts b and d of the applicant's request related to records it might hold. Part b sought access to "[a]ll records generated into reviews of possible malfeasance by [the] Department [of] Justice and its agents/officials surrounding 18 May 1988 and up to the present date". Part d sought "[a]ll records generated post ["¦] 18 May 1988 into possible malfeasance committed by Secretary Generals, Minister for Justice, [Taoisigh], Director General of the [IPS] in 1988, 1989, and up to the present date". As referenced above, the Department's position was that it would be more appropriate to address parts a, c and i of the applicant's request to the IPS. In its submission to this Office, it said that as parts e to h of the applicant's request referred to possible acts of treason, which it stated would be a criminal offence, that AGS would be the appropriate body.

The general thrust of the Department's submissions was that parts b and d of the applicant's request were very broad and vague. In its submissions to this Office, it stated that "malfeasance" meant "the doing of a wrongful or illegal act [committed] by a public official" and that "wrongful" in this instance meant an "illegal, immoral or unjust" act. It argued that essentially this meant that the applicant's request could cover any type of disciplinary incident concerning any staff member who worked in the Department since 1988. During the course of the review, the Investigating Officer queried this interpretation. She informed the Department that, having had close regard to the wording of the applicant's original request, in her view he was seeking records relating to malfeasance arising from or relating to the incident that occurred on 18 May 1988 at Prison X. In response, the Department contended that the specific wording of his request was ambiguous. It maintained its position that the request did not contain enough particulars to identify the records sought.

The Department also stated that it carried out preliminary searches using the words "malfeasance", "treason" and "staff" within the Department's file registry unit which resulted in no records found. The Department further added that it was unlikely for it to hold these types of records. In further communication with this Office, it stated that these sort of records would be held by AGS and not the Department as it interpreted malfeasance as relating to a criminal offence.

During the review, the Investigating Office also informed the Department that, in her view, a reasonable interpretation of the applicant's request would have led to searches of disciplinary records maintained by its HR Department. She also stated that it appeared to her that if reviews were carried out into possible malfeasance or issues arising based on the conduct of staff or other officials following the incident concerned, that such records could have reasonably been identified. She stated that it seemed that the Department would have been best placed to know where records relating to such reviews would be held, or even if such reviews were carried out by the Department at all. In response, the Department stated that it solely held manual files from 1988, and that searches of its file registry using relevant keywords did not locate any records relating to the applicant's request. Essentially, it stated that it would need the names of the individuals to which the applicant was referring so that the relevant files could be identified and searched. Its position, in effect, was that without knowing the identity of the individuals concerned, it would be required to check all files created around that time manually in an attempt to locate relevant records.

The FOI Act seeks to strike a balance between ensuring access to records to the greatest extent possible and managing the administrative burden on FOI bodies in dealing with requests that require a significant allocation of time and resources. I believe this is reflected in the requirement that requests contain sufficient particulars in relation to the records sought to allow for their identification by the taking of reasonable steps. As such, the question I must consider in this case is whether the request contains sufficient particulars to enable the records sought to be identified by the taking of reasonable steps.

As outlined above, the Department refused the applicant's request on the basis that it did not contain sufficient particulars in relation to the information sought to enable the record(s) to be identified. I have had close regard to the Department's submissions as set out above and to the lack of meaningful engagement from the applicant. I have also had regard to the fact any relevant records held dating back to an incident that happened 35 years ago are likely to be mostly held in hardcopy and that electronic searches cannot be carried out on them. In the circumstances, I am satisfied that the Department has taken reasonable steps to identify records relating to the applicant's request, but that it was unable to locate them. I am satisfied that the Department has justified its refusal of the applicant's request on the basis that it does not comply with section 15(1)(b) of the FOI Act.

Accordingly, I find that the Department was justified in refusing the applicant's request under section 15(1)(b) of the Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Department to refuse the applicant's request under section 15(1)(b) 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.
 

Sandra Murdiff
Investigator