Mr. Ken Foxe, Right to Know CLG and An Garda Síochána [2024] IEIC 145193 (16 September 2024)

Background
Scope of Review
Analysis and Findings
Decision
Right of Appeal

Background

In a request dated 27 October 2023, the applicant sought access to an anonymised record indicating the number of Gardaí who have been convicted of a crime since 1 January 2020, to include an identifier such as X, Y or Z, the gender of the officer, the nature/type of conviction, the status of any disciplinary action taken, and whether the officer remains a serving member.

On 27 November 2023, AGS issued a decision wherein it said it had decided to part-grant the request. It provided, from records held in its Internal Affairs Section, a table of the number of members who had been charged or convicted of criminal offences and details of the relevant offences. It refused access, under sections 35(1)(b) and 37(1) of the FOI Act, to the gender of each member, the status of any disciplinary action taken, and details of whether the member remains a serving member.

On 28 November 2023, the applicant sought an internal review of that decision. He argued that the disclosure of the information sought would not disclose any personal information as it is sufficiently anonymised to ensure that could not happen. He argued that in any event, a criminal conviction is not personal information because convictions in court are a matter of public

record. He suggested that the contention that the disclosure of information about disciplinary proceedings would be a breach of confidence is not supported by the fact that such data is routinely released in aggregate form by AGS in response to FOI requests. On 9 January 2024, AGS affirmed the original decision. The applicant sought a review of that decision by this Office on 9 January 2024.

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 correspondence outlined above and to the correspondence between this Office and both parties on the matter. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with whether AGS was justified in its decision to refuse, under sections 35(1)(b) and/or 37(1) of the Act, the applicant's request for the gender of each AGS member who was convicted of a crime during the period in question, the status of any disciplinary action taken, and whether the member remains a serving member.

Analysis and Findings

The Record

For the purposes of the review, AGS provided this Office with a table containing information of relevance to the request under a number of headings, including "Identifier", "Sex", "Disciplinary Outcome" and "Comment". While the table does not contain a specific heading to indicate whether the member remains a serving member, this can generally be inferred from the information included under the "Disciplinary Outcome" and "Comment" headings.

Having regard to the details of the submissions made by AGS in support of its refusal to release the remaining information at issue, I propose to consider the applicability of section 37(1) first.

Section 37(1)

Section 37(1) provides, subject to the other provisions of section 37, for the mandatory refusal of a request where access to the record sought would involve the disclosure of third party personal information. 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, including;

(iii) information relating to the employment or employment history of the individual,

(v) information relating to the individual in a record falling within section 11(6)(a), and

(vi) information relating to any criminal history of, or the commission or alleged commission of any offence by, the individual.

It is important to note that for the information at issue to qualify as personal information, it must be information about an identifiable individual. As I have outlined above, the applicant argued in his application for internal review that the disclosure of the information sought would not disclose any personal information as it is sufficiently anonymised to ensure that could not happen. In its submission to this Office, AGS said it has, over the years, received FOI requests in respect of the numbers of Garda members convicted of crimes and that it has facilitated such requests. It said that in this case, however, that the request in this case was for the provision of information on an individualised basis. It argued that providing the information sought on an individual basis will result in the release of personal information regarding specific individuals.

AGS said that the provision of the information sought in the exact manner requested by the applicant, along with other information in the public domain, would be certain to lead to the identification of individual Garda members by name. It said trials of Garda members (or former members) before the Courts inevitably attract attention and reporting in both national and local media. It said that if the information was provided in the format requested, this information, along with a simple Google search of media websites, would reveal the names of the individual Garda members involved and as a result, the outcome of any disciplinary action taken against the named individual, and if that named individual is still a Garda member becomes publically known. It provided, by way of example, copies of media articles identifying certain Garda members that it was able to locate simply by using the information contained in the Garda Internal Affairs record to conduct an internet search.

It is important to note here that the record AGS provided to this Office for the purposes of our review contains significantly more detail and information than is captured by the scope of this review. For each member, apart from the information that is captured by the scope of the review, the record also contains details of the member's rank and the precise year in which the conviction took place. It also contains a much more detailed description of the nature of the offences than was released to the applicant in the original decision on the request. The applicant raised no concerns about the adequacy of the information released. Instead, he sought a review of the decision of AGS to provide the remaining information he had sought, namely the gender of each member, the status of any disciplinary action taken, and whether the member remains a serving member.

The information already released to the applicant disclosed the number of AGS members who were charged or convicted during the entire period, spanning almost three years, while the description of the nature of the offences was quite high-level. For example, the information released disclosed that three members of AGS were convicted of "Assault". I can only assume that AGS had no concerns that the release of the information in the format provided would allow for the identification of individual members, nor is it apparent to me that such a concern would be justified. While it might be possible, based on internet searches, to identify media articles that may or may not refer to the members included in the table of information released, it seems to me that there can be no certainty about any such inferences drawn. In my view, the information already released does not involve the disclosure of personal information about identifiable individuals.

The question I must consider is whether the disclosure of the additional information sought would involve the disclosure of personal information relating to identifiable individuals. Given my view that the information already released does not involve the disclosure of personal information relating to identifiable individuals, I cannot see how the release of the additional information sought would involve such disclosure. For example, AGS has already disclosed that an unnamed Garda member was convicted or charged for an offence described as "Assault". The disclosure of the additional information sought would disclose the gender of that member, details of disciplinary action taken, if any, and details of whether the member remains as a serving member. I fail to see how the release of this additional information would, of itself, involve the disclosure of personal information relating to an identifiable individual, nor has AGS explained how it might. I accept that the disclosure of the gender may allow for a more refined internet search but I remain of the view that it would not result in the certain identification of any specific individual.

In conclusion, therefore, I am not satisfied that the release of the additional information sought would involve the disclosure of personal information about identifiable individuals. I find, therefore, that section 37(1) does not apply to the information sought.

Section 35(1)(b)

AGS argued that the disclosure of details of any disciplinary action taken and whether the AGS member remains a serving member would be a breach of an equitable duty of confidence owed to the relevant members and that section 35(1)(b) applies. That section provides for the mandatory refusal of a request where disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment (other than a provision specified in column (3) in Part 1 or 2 of Schedule 3 of an enactment specified in that Schedule) or otherwise by law.

However, section 35(2) provides that section 35(1) shall not apply to a record which is prepared by a staff member of an FOI body in the course of the performance of his or her functions unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than an FOI body or its staff.

I am satisfied that the record at issue was prepared by AGS in the course of the performance of its functions. Accordingly, section 35(1) cannot apply unless disclosure of the information sought would constitute a breach of a duty of confidence that is owed to a person other than a staff member of AGS. I find, therefore, that pursuant to section 35(2), section 35(1) cannot apply to any of the information at issue that relates to members of AGS who remain serving members. I will, therefore, limit my consideration of the applicability of section 35(1)(b) to the information that relates to individuals who are no longer staff members of AGS.

For section 35(1)(b) to apply, release of the information at issue must constitute a breach of a duty of confidence owed to those former members. In this case, however, I have already found that the release of the information at issue would not allow for the identification of any particular individual. As such, it is not apparent to me how the release of the information could possibly constitute a breach of a duty of confidence owed.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of AGS to refuse access, under sections 35(1) and/or 37(1) of the Act, to the gender of each AGS member who was convicted of a crime during the period specified in the FOI request, the status of any disciplinary action taken, and whether the member remains a serving member. I direct the release of the information contained in columns headed "Identifier", "Sex", "Disciplinary Outcome" and "Comment".

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

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	Irish Information Commissioner's Decisions
You are here: BAILII >> Databases >> Irish Information Commissioner's Decisions >> Mr. Ken Foxe, Right to Know CLG and An Garda Síochána [2024] IEIC 145193 (16 September 2024) URL: http://www.bailii.org/ie/cases/IEIC/2024/145193.html Cite as: [2024] IEIC 145193

Irish Information Commissioner's Decisions

Mr. Ken Foxe, Right to Know CLG and An Garda Síochána