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Whether the Department's decision to refuse access to certain records relating to the applicant's firearms dealership application was justified under the FOI Act.

Review Application under the Freedom of Information Acts 1997 & 2003 (FOI Act) to the Information Commissioner

Background

In a request dated 1 June 2010, the applicant sought access to all files held by the Department under his name and, in particular, any records relating to his firearms dealership applications. The applicant's request was refused on various grounds, including sections 20(1), 23(1)(a)(iv), and 26(1)(a) of the FOI Act. On 16 August 2010, the applicant applied to this Office for a review of the Department's decision.

On 1 November 2010, Mr. Seán Garvey, Senior Investigator, wrote to the Department outlining his preliminary view on the matter. In pertinent part, Mr. Garvey did not accept that section 20(1), 23(1)(a)(iv), or 26(1)(a) applied, and he sought to reach a partial settlement of the review in the circumstances. A Department official responded to Mr. Garvey's letter by telephone on 8 November 2010 and indicated that a settlement of the review would be unlikely. Accordingly, the case was transferred for reassignment to an Investigator for further processing.

Subsequently, on 1 October 2012, Ms. Anne O'Reilly, Investigator, wrote to the Department to request a formal response to Mr. Garvey's preliminary view letter of 1 November 2010, with which she concurred. Ms. O'Reilly noted that, given developments since the time of the Department's decision, the Department would need in particular to reconsider its position in relation to its claims for exemption under sections 20 and 23(1)(a)(iv).

In a written response dated 22 October 2012, the Department indicated that it was particularly concerned about the release of the Garda records at issue and urged this Office to consult with An Garda Síochána in the circumstances. Accordingly, Ms. Melanie Campbell, Investigator, wrote to An Garda Síochána on 17 January 2013, enclosing a copy of Mr. Garvey's preliminary view letter dated 1 November 2010. Ms. Campbell gave An Garda Síochána a period of three weeks in which to make submissions in response to the view that the decision to refuse access to the Garda records at issue was not justified. On 6 February 2013, a Garda official applied for and was granted an extension of three weeks in which to make submissions. A belated submission was received from the Gardaí on 28 March 2013.

In the meantime, the applicant contacted this Office to explain that he wished to narrow the scope of his request to the record of his interview with Superintendent Y on 29 October 2008, the submission made by Crime 4 Division preceding the interview, and the Garda report to the Department following the interview. The applicant also agreed to exclude certain third party information contained in the interview record from the scope of his request (the name and address of the individual mentioned in question 20 as well as the name and occupation of the individual mentioned in question 22). On 6 March 2013, Ms. Campbell informed the Department of the new scope of the applicant's request and noted that she would delay the matter until 13 March 2013 in the event that the Department wished to settle the review on the basis of the administrative release of the records concerned.

With the authority delegated to me by the Commissioner, I have now decided to conclude the matter by way of a formal, binding decision. In carrying out my review, I have had regard to the Department's submissions, including the initial submission made by the Department on 17 September 2010. I have also examined the files relating to the applicant's firearms dealership applications that have been forwarded to this Office by the Department.

Scope of the Review

Adopting the numbering system used by the Department in its schedule of records, this review is concerned solely with the question of whether the Department's decision to refuse access to the records numbered 22, 23, and 24, apart from the third party information referred to above, was justified under the FOI Act. For the sake of clarity, I note that this review is not concerned with the question of the applicant's suitability to hold a firearms or firearms dealership licence. I also note that, while the Department has made general statements indicating some concern for the "safety of staff working in this area", the Department has not invoked any claim for exemption on this basis.

Analysis and Findings

Under section 34(12)(b) of the FOI Act, a decision to refuse to grant access to a record "shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified." Moreover, any review by this Office under section 34 of the FOI Act is based on the circumstances and the law as they pertain at the time of the decision.

Record 22
Record 22 is a submission by the Firearms and Explosive Unit of Crime 4 Division dated 15 September 2008 in which a recommendation is made in relation to an application that had been made by the applicant to become a registered firearms dealer. In its submission to this Office dated 22 October 2012, the Department includes a comment in support of its view that the record should not be released to the applicant, but it does not refer to any ground for exemption that is provided for under the FOI Act. However, in the schedule accompanying the records, the Department indicated that its decision to refuse access to this record was based on sections 20(1) and 23(1)(a)(iv) of the Act.

Section 20(1) of the FOI Act allows a public body to refuse to grant a request if the contents of the record concerned relate to the deliberative processes of the public body concerned. Deliberative processes involve the consideration of various matters with a view to making a decision on a particular matter. However, factual information is excluded from the exemption by virtue of section 20(2)(b) of the Act. The exemption also does not apply if the public interest would, on balance, be better served by granting rather than by refusing the request (section 20(3) refers).

I note that record 22 contains opinions and recommendations relating to the suitability of the applicant to become a registered firearms dealer. However, the record largely consists of factual information that is excluded from exemption under section 20. In any event, the particular deliberative process concerned is long over. Record 25 in the case file reflects that the applicant was informed on 11 November 2008 of the decision to reject his application. In the circumstances, I am aware of no public interest that would be served by withholding this record from the applicant. On the other hand, I find that there is a positive public interest in promoting openness and transparency in the decision-making process of government. Accordingly, I find that the public interest would, on balance, be better served by granting rather than by refusing access to the record.

Section 23(1)(a)(iv) of the FOI Act provides that a public body may refuse access to a record if it considers that access could reasonably be expected to prejudice or impair the fairness of criminal proceedings in a court or of civil proceedings in a court or other tribunal. Under section 23(1)(a)(iv), it is necessary for the Department first to identify the potential harm to the fairness of the criminal or civil proceedings concerned that could arise as a result of the disclosure of the record at issue. Having identified the potential harm, the Department is then required to show that its expectation of such harm arising is reasonable.

In this case, the case file indicates that appeal proceedings were initiated following the decision to refuse the applicant's firearms dealership application, but it has not been shown by the Department that the proceedings remain ongoing. In any event, the Department has not identified any harm to the fairness of such proceedings that could arise from the release of record 22, nor has it shown that its expectation of any harm arising from the release of the record is reasonable. In the circumstances, I find no basis for concluding that section 23(1)(a)(iv) applies.

Records 23 & 24
Records 23 and 24 are Garda records that have been refused by the Department on the basis of section 26(1)(a) of the FOI Act. Record 23 consists of notes of an interview conducted by Superintendent Y with the applicant on 29 October 2008. It simply records the questions that were put to the applicant and his answers. Record 24 is, in essence, a narrative account of the interview by Superintendent Y and his recommendation on the applicant's firearms dealership application. In its belated submission dated 28 March 2013, the Gardaí have agreed with the view that record 23 may be released to the applicant. However, the Gardaí have suggested that the release of record 24 may result in less candid local knowledge being provided to the Minister in relation to firearms dealership applications. The Gardaí submit that the record is also exempt under sections 20, 21(1)(a), 23(1)(a)(ii), and 23(1)(a)(iii) of the FOI Act.

Section 26(1)(a) provides that "Subject to the provisions of this section, a head shall refuse to grant a request under section 7 if-
(a) the record concerned contains information given to a public body in confidence and on the understanding that it would be treated by it as confidential (including such information as aforesaid that a person was required by law, or could have been required by the body pursuant to law, to give to the body) and, in the opinion of the head, its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and it is of importance to the body that such further similar information as aforesaid should continue to be given to the body".

For section 26(1)(a) to apply, the following requirements must be met:

that the information was given in confidence,
that the information was given on the understanding that it would be treated as confidential,
that the disclosure of the information would be likely to prejudice the giving to the body of further similar information from the same person or other persons in the future, and
that it is of importance to the body that such further similar information should continue to be given to the body.
In addition, section 26(1)(a) does not apply if the public interest would, on balance, be better served by granting rather than by refusing to grant the request (section 26(3) refers).

In this case, Mr. Garvey explained in his preliminary view letter to the Department, which was copied to An Garda Síochána by Ms. Campbell on 17 January 2013, that he did not accept as realistic any contention that the Gardaí would refuse to provide background information relating to firearms licence applications. I concur with Mr. Garvey's view. The Gardaí do not object to the release of record 23. While the Gardaí have suggested that the release of record 24 may result in less candid local knowledge being made available to the Minister, I find no basis for believing that disclosure of the contents of the report to the applicant would be likely to deter the Garda Síochána from providing the Minister with any information that is relevant to his consideration of whether to register an applicant to become a firearms dealer. Record 24 does not provide "local knowledge" per se; rather, it describes what occurred during the meeting between Superintendent Y and the applicant and the opinions that the Superintendent formed based on his exchanges with the applicant. The applicant is of course aware of what took place during his interview with Superintendent Y. Indeed, the contents of Superintendent Y's report indicate that the Superintendent was very candid with the applicant himself in relation to the opinions that he formed. The applicant is also aware that the Gardaí did not recommend his application to become registered as a firearms dealer (record 25 refers). Therefore, I do not see how the release of record 24 could have any deterrent effect on the supply of relevant information to the Minister.

Moreover, it would not serve the interests of local Gardaí to withhold relevant information from the Minister in relation to a firearms dealership application. Crime prevention is a core activity of An Garda Síochána, and effective gun control is of course critical to public safety and the preservation of the peace, factors which the Minister must have regard to in considering any application to be registered as a firearms dealer. If an unsuitable applicant were to be registered as a firearms dealer, it could lead to the proliferation of firearms into a community, which in turn would make the job of policing more difficult and dangerous. This is not to say that Garda reports relating to firearms and firearms dealership applications are not exempt under FOI Act as a rule. Different considerations may apply, for instance, in relation to a report written by a rank and file member of the local Gardaí or a report referring to local informants. However, the report at issue in this case was written by a Superintendent based on a meeting that took place with the applicant over four years ago and, in the circumstances, I do not accept that the third and fourth requirements of section 26(1)(a) have been met.

For the sake of completeness, I note that I am also not satisfied that sections 20(1), 21(1)(a), 23(1)(a)(ii), and 23(1)(a)(iii) apply to record 24. Like record 22, record 24 is largely factual in nature, and the deliberative process concerned is long over. In the circumstances, the public interest would be better served by granting rather than by refusing the request. The exemption provisions under sections 21(1)(a), 23(1)(a)(ii), and 23(1)(a)(iii), like section 23(1)(a)(iv), require a showing of a reasonable expectation of harm, which I find has not been made in this case. I conclude that record 24 should be released in full.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby annul the decision of the Department and direct the release of records 22, 23, and 24 insofar as they come within the scope of the review as outlined above.

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks after notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator
28 March 2013