Holland v Information Commissioner
| Jurisdiction | Ireland |
| Judge | MR. JUSTICE T.C. SMYTH |
| Judgment Date | 23 April 2004 |
| Neutral Citation | [2004] IEHC 176 |
| Court | High Court |
| Date | 23 April 2004 |
[2004] IEHC 176
THE HIGH COURT
Citations:
FREEDOM OF INFORMATION (AMDT) ACT 2003
FREEDOM OF INFORMATION ACT 1997 S42(1)
FREEDOM OF INFORMATION ACT 1997 S10(1)(A)
RSC (NO 3) (FREEDOM OF INFORMATION ACT 1997) SI 325/1998
RYAN & RYAN V INFORMATION CMSR UNREP QUIRKE 20.5.2003
DEELY V INFORMATION CMSR 2001 3 IR 439
MARA V HUMMINGBIRD LTD 1982 2 ILRM 421
EDWARDS V BERESTOW 156 AC 14
R V H UNREP HL 5.4.2003 (EX TEMPORE)
R V C UNREP HL 5.4.2003 (EX TEMPORE)
Freedom of Information - Administrative law - Garda Síochána - Practice and procedure - Powers and duties of Information Commissioner - Report of Internal inquiry - Whether appellant entitled to see report - Whether refusal justified - Freedom of Information Act, 1997.
The appellant had originally made a request for a copy of a report from An Garda Síochána relating to an internal inquiry conducted on behalf of the Garda Commissioner. The inquiry related to the conduct of certain Gardaí in the trial of another person. The appellant maintained that the Gardaí who were investigated were the same Gardaí that had given evidence at his trial. The request was refused by a Department of Justice official who maintained that the no copy of the report was held by the Department and that it was report held by the Garda authorities who were not a public body for the purposes of the Act. The appellant applied to the Information Commissioner (the respondent) to have the decision reviewed and the respondent upheld the decision. The appellant appealed to the High Court and submitted that the respondent in reaching his decision had based it upon unsatisfactory evidence and had construed his role in a restrictive manner. In addition it was contended that where matters of personal liberty were at stake the respondent should give a wide and broad interpretation to the scope of his investigations.
Held by Smyth J in dismissing the application. The respondent’s function was not to search for records but to review the decision of the public body in question. The respondent had ample evidence before him upon which to base his decision. There was no superficiality or inadequacy in the enquiries made by the respondent in the case. The Freedom of Information Act, 1997 clearly dealt with both the Department of Justice and An Garda Síochána in a quite separate and distinct fashion.
Reporter: R.F.
I hereby certify the following to be a true and accurate transcript of my shorthand notes of the evidence in the above-named action.
For the Appellent:
Applicant in person
For the Respondent:
Ms. N. Hyland
Instructed by:
Tanya Colbert
Mason Hayes & Curren
Solicitors
6 Fitzwilliam Square,
Dublin 2.
COPYRIGHT: Transcripts are the work of Gwen Malone Stenography Services and they must not be photocopied or reproduced in any manner or supplied or loaned by an appellant to a respondent or to any other party without written permission of Gwen Malone Stenography Services
This is an appeal on a point of law by the Appellant under the Freedom of Information Act, 1997 (as amended by the Freedom of Information Amendment Act, 2003) against a written decision of the Respondent dated 20th February 2002.
Section 42(1) of the Act of 1997 provides as follows:
"A party to a review under Section 34 or any other person affected by the decision of the Commissioner following such a review may appeal to the High Court on a point of law from the decision."
The Appellant appeared before the Special Criminal Court in relation to some drug charges. He was convicted and originally received a sentence of imprisonment of 20 years, which on appeal was reduced to 12 years. He is currently serving that sentence.
In the course of the trial of one Paul Ward in the Special Criminal Court, the Presiding Judge made criticisms of the conduct of certain Gardái. The Appellant in his submissions to this Court has cited and relied on a passage in that Judgment of 22nd March 2002. Arising from those criticisms apparently, the Garda Commissioner directed the holding of an inquiry within the force by Assistant Garda Commissioner Kevin Carty. It is the Appellant's position that the Gardái whose conduct was investigated in the course of the Carty inquiry are the same Gardái who gave evidence at his trial.
Pursuant to the provisions of the Act of 1997 the Appellant sought a copy of the report of Assistant Garda Commissioner Carty by letter dated 20th February 2000. On 21st March 2000 a Mr. Brendan Foy, the Freedom of Information Officer with the Department of Justice Equality and Law Reform, (the "Department"), refused to grant the Appellant's request under the provisions of Section 10(1)(a) of the Act of 1997. The refusal was on the basis that the records of the type requested did not exist within the Department; he informed the Appellant that the report requested was held by the Garda authorities and that no copy of same was held within the Department, and that the Garda Authorities were not a public body for the purposes of the Act (paragraph 8 of the Affidavit of Mr. David Nutley sworn on 5th July 2002, filed on 8th July 2002), and it is exhibited.
The Appellant brought a motion on 26th July 2002 seeking to cross-examine Mr. Nutley on the affidavits sworn by him. Leave was refused by O Caoimh J. on 14th October 2002, and that decision was affirmed by the Supreme Court on 15th December 2003.
The Appellant sought an internal review of the decision set out in the letter of 21st March 2000 by letter dated 29th March 2000. The response of the Department conveyed by letter dated 10th April 2000 indicated that the Appeal had been reviewed by a more senior official of the Department who decided to uphold the original decision and refused the Appellant's request under the provisions of Section 10(1)(a) of the Act, on the basis that the records of the type requested did not exist.
The Appellant applied to the Respondent to review the decision of the Department. On 20 February 2002 the Respondent made the decision that has led to the present appeal and in that decision the Respondent held that:
"His review was concerned solely with whether the Department's decision to refuse access pursuant to Section 10(1)(a) was justified.
That having regard to the evidence as summarised in the decision of 20th February 2002 and the absence to the contrary the Department is justified in refusing access to the report on the grounds that it could not be found."
It is against this decision that the present Appeal under Section 42(1) of the Act of 1997 comes before the Court.
The Act of 1997 provides for an appeal on a point of law only to the High Court and Statutory Instrument No.325 of 1998 provides for the procedure to be followed in bringing an appeal. In the instant case, the Appellant issued an original Notice of Motion dated 19th March 2002 grounded on an affidavit of his of the same date. Subsequently, by order of O'Sullivan J. dated 10th June 2002, Notice of Motion of the Appellant was substituted as the original Notice of Motion in lieu of that, dated 19th March 2002.
1. In Order that the decision of the Respondent of 20th February 2002 is ultra vires on the grounds that the Respondent misdirected himself in the interpretation of the Act.
2. An Order quashing the decision on the basis that the findings of the Respondent were based on evidence that is uncontroverted and unchallenged, incomplete and unsatisfactory in law.
3. A Declaration that the findings of the Respondent are restrictive, unsustainable, unwarranted and unreasonable, and bad in law.
4. An Order quashing the decision, or in the alternative an Order suspending the decision pending further directions from the Court.
In essence they are a plea that the Respondent in applying Section 10(1)(a) did so on the basis of unsatisfactory evidence, and that as a result his decision was bad.
The Appellant's case is exclusively concerned with the correct interpretation of Section 10(1)(a). It is put by him in his affidavit sworn on 19th March 2002, in paragraphs 8,9, 10 and 12, and I quote:
"8. Firstly, I dispute the assertion made by Kevin Murphy in the second paragraph of his decision that "it is not the role of my office to carry out a search for the report in question". I say that this is an unduly restrictive interpretation of the role of his office, especially in the lift of an enquiry such as mine which goes to the issue of personal liberty. I say it is incumbent on a person such as an Information Commissioner to give a wide and broad interpretation to the scope of his investigation when it concerns matters of personal liberty."
(I will return to this concept later).
"9. Secondly, in the same paragraph Kevin Murphy states that he must "have regard to the evidence available to the decision-maker, and this reasoning used by the decision made in arriving at his decision." and I say that I take serious issue to his findings which I say are so unreasonable as to be unsustainable in law. I say that in effect Kevin Murphy states that he put a number of questions to the Department of Justice who assured him that:-
(a) The Department did not have a copy of the report of Assistant Garda Commissioner Kevin Murphy.
(b) The reports of such enquiries would not normally be made available to the Department unless there were reasons for doing so.
(c) The Freedom of Information Act does not extend to the Garda...
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