Whether the OPW was justified in refusing to confirm or deny the existence of records concerning the refurbishment of a property in a particular location to be used as living quarters by the Garda Commissioner

17 October 2019

Background

In an FOI request dated 22 March 2019, the applicant sought access to various records “regarding the refurbishment of a property … to be used as living quarters by the Garda Commissioner”, including records relating to the costs of any such refurbishment. The OPW’s decision of 3 April 2019 refused to confirm or deny whether the requested records exist. In doing so, it relied on section 32(2) of the FOI Act, which provides for FOI bodies to refuse to confirm or deny whether requested records exist if such disclosure would have an effect specified in section 32(1) of the FOI Act (law enforcement and public safety). The applicant sought an internal review on 24 April 2019. The OPW’s internal review decision of 15 May 2019 affirmed its decision. On 15 August 2019, the applicant applied to this Office for a review of the OPW’s decision.

The OPW’s decisions did not say which provision of section 32(1) would apply if the requested records existed. During the review, it confirmed its position that sections 32(1)(a)(ix) (security of a building), 32(1)(b) (life or safety of any person) and 37(1) (personal information) of the FOI Act would be relevant.

I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In doing so, I have had regard to the above exchanges and contacts between this Office, the OPW and the applicant. I have also had regard to the provisions of the FOI Act.

Scope of the Review

This review is confined to whether the OPW’s decision on the request was justified under the FOI Act.

Findings

One of the exemptions that the OPW says would apply to any records covered by the request that may exist is section 32(1)(b). Section 32(1)(b) of the FOI Act provides that a head may refuse an FOI request if access to the record concerned could, in the opinion of the head, reasonably be expected to endanger the life or safety of any person.

Section 32(2) provides that where an FOI request relates to a record to which subsection (1) applies, or would, if the record existed, apply, and the head concerned is satisfied that the disclosure of the existence or non-existence of the record would have an effect specified in paragraph (a), (b) or (c) of that subsection, he or she shall refuse to grant the request and shall not disclose to the requester concerned whether or not the record exists.

Consideration of section 32(2) must be conducted on the basis of what would be the case were the OPW to hold records of the kind sought by the requester, rather than on whether or not such records are actually held. I should also say that the usefulness of section 32(2) depends upon it being invoked both in instances in which relevant records do not exist and instances where relevant records do exist. I must also be careful not to disclose whether the specific records sought by the requester do, or do not, exist. Thus, my description of and comments on the applicant’s arguments as to why her request should be granted should not be taken as any confirmation in this regard.

The applicant says that the Garda Commissioner has confirmed the location of where he lives. She says that this also been cited in media reports. She says that she is thus not revealing the general location of his house for the first time and that section 32(1)(b) cannot apply. She says that she does not intend to reveal the exact location of his house. However, her request and submission to this Office cite a specific location about which she says that “… the de facto creation of a State property for the Garda Commissioner is an issue of huge public interest. And we believe we have a right to have this confirmed by official record.”

The applicant goes on to say that she needs the requested details in order to describe the house, its condition and possible implications that these may have for the overall cost of refurbishment. She says that such information is to give proper context to any overall refurbishment figure and that this can be done without revealing which specific house on the estate it is. She also says that while she does not believe it necessary to refuse access to the Commissioner’s exact address, this could be redacted if necessary. She goes on to say that the public is entitled to know how much of its money is spent on refurbishing a property in order to accommodate a high-profile State employee and to allow them to do their job. She says that the address and the cost are not mutually dependent on one another and thus the precise details about how the money was spent can be revealed without disclosing the precise address. However, she reiterates that access should be granted to all of the requested details in the public interest and that responsible reporting of these issues, to which her media organisation is happy to commit, would assuage any potential issues.

The applicant’s own arguments suggest that it has not in fact been officially confirmed where the Garda Commissioner lives. She has not, in any event, provided evidence of this or of her assertion that the Garda Commissioner himself has said where he lives. I also note that her request seeks records concerning the supposed refurbishment of a property at a more specific location to where she says the Garda Commissioner has said he lives.

The applicant outlines various reasons as to why she “require[s]” the requested information, and also undertakes to responsibly report the content of any records that may exist. However, section 13(4) of the FOI Act provides that any reason that a requester gives for his or her request shall be disregarded. Furthermore, when a record is released under the FOI Act, it effectively amounts to disclosure to the world at large. This is because the Act places no restrictions on the type or extent of the subsequent use to which a record may be put. Accordingly, the applicant’s undertaking is not something I can have regard to in making my decision.

The OPW’s position is that, by either confirming or denying the existence of records relating to specific properties, it would be possible through a process of elimination to identify the building in which the Garda Commissioner resides. It says that revealing that location would endanger the Garda Commissioner and others.

The Garda Commissioner’s need for security is a matter of public record. It seems to me that to disclose that he lives at a certain location by confirming the existence of records covered by a particular FOI request could reasonably be expected to endanger his life or safety. It could also endanger the life or safety of any person who is also present in the house and any Gardaí providing protection for him. Describing only the house, its condition and any refurbishments that have been or which will be carried out could itself enable identification of the house concerned. It is reasonable to accept that such details could also facilitate an analysis of how the house and its environs may be targeted. I am also satisfied that confirming even the general location of the Garda Commissioner’s residence could enable those who wish to do him harm to carry out surveillance of the particular area with a view to determining his exact address. I accept, if records covered by this request existed, that they would be exempt in full under section 32(1)(b). I also accept that confirming the existence or non-existence of any records that may be covered by the request could reasonably be expected to endanger the life or safety of the Garda Commissioner or others. In particular, it could be argued that disclosing that the Garda Commissioner does not live at a particular location (i.e. by confirming that records covered by a particular FOI request do not exist) could not of itself have any implications for his life and safety. However, I agree with the OPW’s view that it would be possible by a process of elimination based on a series of similar such FOI requests to identify where he resides.

I have set out above the applicant’s arguments as to why the public interest should weigh in favour of releasing any records that may exist. Section 32(3) provides in certain circumstances that section 32(1) does not apply where the body considers that the public interest would, on balance, be better served by granting the request. The circumstances are as follows:

• if the record discloses that an investigation for the purpose of the enforcement of any law, or anything done in the course of such an investigation or for the purposes of the prevention or detection of offences or the apprehension or prosecution of offenders, is not authorised by law or contravenes any law, or
• if the record contains information concerning the performance of the functions of an FOI body whose functions include functions relating to the enforcement of law or the ensuring of the safety of the public (including the effectiveness and efficiency of such performance), or
• if the record contains information concerning the merits or otherwise or the success or otherwise of any programme, scheme or policy of an FOI body for preventing, detecting or investigating contraventions of the law or the effectiveness or efficiency of the implementation of any such programme, scheme or policy by an FOI body.

If the requested records existed, I am satisfied that none of the circumstances in section 32(3) would apply. It follows that consideration of the public interest would not be required in relation to them. For avoidance of doubt on that matter, I should say that the Information Commissioner generally attaches significant weight to the public interest in promoting openness and accountability for the expenditure of public monies. However, it is difficult to envisage a scenario in which this public interest would be served to such an extent that it would outweigh the public interest in preventing harm to a person’s life or safety, whether a high level State employee or not.

I find that in the circumstances that the OPW is justified in relying on section 32(2) to refuse to confirm or deny whether or not records covered by this particular request exist. Accordingly, there is no need for me to consider any of the other exemptions that the OPW says would be relevant in this case.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the OPW’s refusal under section 32(2) of the FOI Act to confirm or deny whether the requested records exist.

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.

 

 

 

Elizabeth Dolan

Senior Investigator