McDonagh v Information Commissioner

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Conleth Bradley
• Judgment Date: 19 September 2024
• Neutral Citation: [2024] IEHC 576
• Docket Number: Record No. 2023/260MCA

Between:

Oisin Quinn McDonagh

Appellant

and

The Information Commissioner

Respondent

and

The Commissioner of An Garda Síochána

Notice Party

[2024] IEHC 576

Record No. 2023/260MCA

AN ARD-CHÚIRT

THE HIGH COURT

JUDGMENT of Mr. Justice Conleth Bradley delivered on the 19 ^th day of September 2024

INTRODUCTION

Background

1 This is a statutory appeal brought under section 24 of the Freedom of Information Act 2014 (“the FOI Act 2014”) seeking to set aside the decision of the Information Commissioner (“the Respondent”) dated 19 ^th July 2023 refusing a request made on behalf of Mr. McDonagh (“the Appellant”) by Mulholland Law, his solicitors, seeking access to records in relation to: (i) a breakdown of all An Garda Síochána stops and searches from 1 ^st January 2022 until 1 ^st January 2023 in the Dundalk/Louth district; (ii) the legal provisions (if any) that were utilised to ground the stops and searches; and (iii) a breakdown of the stops and searches concerned by age, gender, and ethnicity.

2 Conor Power SC and Glenn Lynch BL appeared for the Appellant. Louise Beirne BL appeared for the Respondent. Gerard Downey BL appeared for the Commissioner of An Garda Síochána (“the Notice Party”).

3 The central issue which arises for consideration in this appeal is the correct meaning of the following provisions in Part 1 of Schedule 1, paragraph (n) of the FOI Act 2014:

“ Section 6 does not include a reference to … (n) the Garda Síochána, other than insofar as it relates to administrative records relating to human resources, or finance or procurement matters”.

4 While the following matters are addressed further in this judgment, the essence of the Appellant's arguments, in this statutory appeal, can be summarised in the following three propositions, made on his behalf:

• (i) first, it is submitted that, depending on the context, the same records can be regarded as an administrative record dealing with human resources (and therefore can be released), and can also constitute a record comprising an operational matter (and therefore can be excluded);

• (ii) second, it is submitted that the three categories of records sought (described above) comprise records relating to the administration, i.e., the ‘running and management’ of human resources which typically includes records in relation to time management, productivity, and performance is not operational from the Appellant's perspective, whereas operational matters may include the same information or records but in a context which may include, for example, consideration of a referral to the Director of Public Prosecutions or a court application;

• (iii) third, because the Appellant is seeking the information from an ‘administrative record’ perspective and not in an ‘operational context’, these records should, it is argued, be released.

5 Accordingly, the Appellant argues that the Respondent erred in law in applying too narrow a definition or construction when refusing the records sought in the decision dated 19 ^th July 2023.

SUMMARY OF FACTS – CHRONOLOGY

21 ^st March 2023

6 On 21 ^st March 2023, the Appellant's solicitor made the initial request for access to the three sets of records just mentioned.

22 ^nd March 2023

7 On 22 ^nd March 2023, the Notice Party refused the request and relied on Schedule 1, Part 1(n) of the FOI Act 2014. This decision and the letter setting out the decision was from Assistant Principal Mr. Paul Bassett, Freedom of Information Officer, and stated as follows:

“ (1) Findings, particulars and reasons for decision:

Part 1(n) of Schedule 1 of the FOI Act states that An Garda Síochána is listed as a partially included agency “insofar as it relates to administrative records relating to human resources, finance or procurement matters”. Therefore, only administrative records that relate to human resources, finance or procurement shall be considered. Your request is in relation to an operational policing matter which does not come within the ambit of this partially included agency as set out in Part 1(n) of Schedule 1 of the FOI Act.

Part 1(n) of Schedule 1 of the FOI Act provides that An Garda Síochána is not a public body for the purpose of the FOI Act… in relation to administrative records relating to human resources, or finance, or procurement matters.

The term “administrative records” is understood to mean records relating to the process of running and managing a business or organisation. The FOI Act excludes operational policing business as opposed to the defined administrative processes of An Garda Síochána. As a result, the core business of An Garda Síochána is safeguarded from release under the provisions of the FOI Act.

The records that you seek pertain to the core functions of An Garda Síochána, that is, operational policing matters as opposed to matters relating to human resources, or finance or procurement.

I am therefore refusing your request as it falls outside the scope of the FOI Act insofar as the records do not meet the criteria of administrative records as defined in the Act.”

29 ^th March 2023

8 Accordingly, on 29 ^th March 2023 (the letter was date stamped as being received on 30 ^th March 2023), Mulholland Law, the Appellant's solicitors, in effect requested an internal review 1 of the decision and set out the grounds of appeal in this correspondence.

9 Under sub-heading “ 3 The Adjudicator's Refusal”, for example, this letter described the refusal decision by the Respondent (“ adjudicator”) as being a decision “ based on the notion that An Garda Síochána is only a partially included agency within the FOI Act that are required to release records only in respect of “administrative records relating to human resources”. The adjudicator reasons that this means that the core business of An Garda Síochána is safeguarded from release under the Act. Hence, the adjudicator states that the

FOI Act does not have the remit to apply to records relating to policing operational matters, which are the records that the Applicant seeks.”

10 Six points of appeal (as part of this internal review) relating to an interpretation of section 42(b) of the FOI Act 2014 are then proffered on behalf of the Appellant in paragraph 4 under the sub-heading “ The Issue with the Adjudicator's refusal – Section 42(b) of the Freedom of Information Act, 2014”, as follows:

“ (a) The adjudicator's interpretation of “administrative records relating to human resources” is unhelpfully isolationist and restrictive given that administrative records relating to human resources has not [no] [sic.] definition within the Act. When we look at the entirety of the Act it is clear that Section 42(b) of the FOI Act is a complete contradiction of the adjudicator's reasoning that the “core business” of An Garda Síochána is “safeguarded” from release due to the Act not extending to policing business.

(b) Part 5, Section 42(b) states that:

i. this Act does not apply to: a record held or created by An Garda Síochána that relates to any of the following:

(i) the Emergency Response Unit;

(ii) the Secret Service Fund maintained by it;

(iii) the Special Detective Unit (SDU);

(iv) the Witness Protection Programme sponsored by it;

(v) the Security and Intelligence Section

(vi) the Management and use of Covert Intelligence Operations;

(vii) the Intervention of Postal Packets and Telecommunications Messages (Regulation) Act 1993;

(viii) the Criminal Justice (Terrorist Offences) Act 2005;

(ix) the Criminal Justice (Surveillance) Act 2009;

(x) the Communications (Retention of Data) Act 2011.

(c) Therefore, the adjudicator's reasoning that the [2014] Act does not apply to policing operational matters is contradicted by the fact that the [2014] Act has specifically excluded from its application certain covert/security/intelligence elements of policing operations, meaning that the draftsman had intended for “administrative records relating to human resources” to apply to non-convert/security/intelligence related policing operation of An Garda Síochána.

(d) An important maxim of interpretation is ‘expressio unius exclusio alterius’ which translates as ‘to express one thing is to exclude another’ meaning that the expression of Section 42(b) of the Freedom of Information Act 2014 excluding records relating to covert/intelligence/security operations prevents the adjudicator's reasoning that records of An Garda Síochána relating to non-covert policing operations are excluded from the Act.

(e) Hence by excluding certain things, the inclusion of others is implied. For example in A(PP) v Refugee Appeals Tribunal & Ors, Section 19(4A) of the Refugee Act 1996 provided that ‘the Chairperson of the Tribunal may, at his or her discretion, decide not to publish (other than to the persons referred to in Section 16(17), a decision of the Tribunal which in his or her opinion is not of legal importance’.

(f) It was held that:

(i) Although phrased unusually at Section 19(4A)(a), it is clear that the discretion therein is not to publish unimportant decisions of the Tribunal. But this does not preclude publication of all. For in reading s.4A(a) and (b) together it is clear that there must be vested in the Chairman a positive discretion to publish decisions which are of legal importance. Otherwise s.19(4A)(b) has no meaning at all and is otiose. The court must lean against such interpretation. Only by adopting this approach can effect be given to the maxims of interpretation, first that it is common sense to assume that if a particular proposition is laid down by enactment the converse also applies.”

11 The next ground in the Appellant's appeal dated 29 ^th March 2023, at paragraph number 5, is under the sub-heading “ The Issue with the Adjudicator's Refusal – Part 1 (o) of Schedule 1 of the Freedom of Information Act 2014”. As referred to earlier in this judgment, at the hearing before me it was...