Mr L and the Department of Justice and Equality

• Judge: Stephen Rafferty Senior Investigator
• Judgment Date: 03 September 2015
• Case Outcome: The Senior Investigator varied the decision of the Department and directed the release of further information to the applicant, subject only to the redaction of personal information relating to other prisoners and the mobile phone number of a named official.
• Court: Information Commission
• Record Number: 150139
• Respondent: Department of Justice and Equality

Whether the Department was justified in refusing to release the applicant's Parole Board file in full to him on the basis that a number of records contain the personal information relating to other parties

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

I should state at the outset that the manner in which the Department processed the applicant's request in this case was most unsatisfactory. Among other things, it has caused confusion as to the precise scope of the review in this case and it has also resulted in the Department failing to adhere to the statutory time-frames set out in the Act for processing FOI requests. Furthermore, the applicant was not fully informed of his entitlements under the Act. It would appear that the issues arose as a result of the Department's decision to essentially split the request and as a result of the manner in which it processed those separate parts of the request. While it may well have been more convenient for the Department to split the request in the manner it did, it was nevertheless incumbent upon the Department to ensure that the statutory provisions of the FOI Act were complied with when processing the request.

The applicant submitted a request to the Department on 30 January 2015 for a copy of his file held by the Irish Prison Service from 1997 to 2015 and for all records held by the Parole Board relating to him. The Department's copy of that request indicates that it was received on 4 February 2015. The Department clearly had concerns about the large volume of records captured by the applicant's request. Accordingly, it wrote to him on 11 February 2015 asking him to narrow the scope of his request in view of the large volume of records involved and stated that the time-frame for responding to the request was suspended until he reverted to the Department. It would appear that the decision to suspend the processing of the request related only to that part of the request relating to the records held by the Prisons Operations Division, although this is not entirely clear.

In the ordinary course, a public body must issue its decision on a request within four weeks of receipt. However, in accordance with section 14 of the Act, it also has discretion to extend the period for considering the request by an additional period not exceeding four weeks if it considers that the request relates to such number of records that compliance with the four week time-frame is not reasonably possible. The Act does not, however, provide that the body may suspend a review on the ground that the request covers a large volume of records. If the Department had concerns about its ability to process the request within four weeks, it could have extended the period for responding by a further four weeks and informed the applicant of that fact.

Under section 12(2), a public body is required to acknowledge receipt of the request within two weeks of receipt and the notification must include details of the provisions of section 19 and particulars of the rights of review under the Act. Section 19 provides that where a decision is not made within the prescribed time-frame, the request is deemed to have been refused. I note that a sample acknowledgement form containing the requisite details is available on the website of the Central Policy Unit of the Department of Public Expenditure and Reform, although I would add that the Department has been subject to the provisions of the FOI Acts for the past 17 years and it should be fully aware of its obligations and requirements when processing FOI requests. Nevertheless, the Department does not appear to have complied with the provisions of section 12(2) in this case. Had it done so, the applicant would have been made aware of his right to apply for an internal review on the ground of a deemed refusal when the deadline for issuing a decision had passed.

In response to the Department's letter of 11 February 2015, the applicant confirmed by letter dated 12 February 2015 that he was not seeking copies of P19s (disciplinary forms) or warrants relating to him, although it is unclear whether the Department received this letter.

On 17 February 2015, the Department wrote to the applicant to indicate that it had extended the period for issuing a decision by four weeks, in accordance with section 14 of the Act and that he could expect a response by 3 April 2015. Again, the letter does not state whether the extension was applied to one or both parts of the request. On 4 March 2015 the Department issued a decision in respect of the records held relating to the Parole Board and it again sought further information as to the records he was seeking from the file held by Prison Operations Division. The decision taken in respect of the Parole Board records was to release 27 records in full and 20 in part with certain information relating to third parties redacted.

In his application for internal review dated 16 March 2015, the applicant indicated that he wished to appeal the decision relating to the Parole Board records and he indicated in response to the letter of 11 February 2015 that he wanted to see what information the Department had on file. In a letter dated 24 March 2015, the Department stated that a decision would issue in relation to the Parole Board records on or before 16 April 2015. It also essentially indicated that the applicant's letter of 16 March 2015 provided clarification in relation to the records held by Prison Operations Division, that the previously imposed suspension had therefore been lifted, and that the applicant could expect a response in relation to the records by 23 April 2015, unless an extension of time was sought.

On 17 April 2015, the Department issued a decision upholding its original decision to withhold the information from the Parole Board records. The applicant applied to this Office for a review of that decision on 7 May 2015. Subsequently, on 11 June 2015, the Department issued a decision in respect of records held by Prisons Operations Directorate, some four months after the original request was made. Even then, that decision did not address all of the records held by the Department as it indicated the file from Wheatfield Prison would be processed as soon as it was received. The applicant was informed of his right to apply for an internal review of that decision.

In summary, therefore, while the applicant submitted a request on 4 February 2015, the Department issued the first part of its decision on 4 March 2015 and the second part on 11 June 2015 but even then,...