Table of Contents

Text of Section 23

23.­(1) A head may refuse to grant a request under section 7 if
access to the record concerned could, in the opinion of the head, reasonably
be expected to­

(a) prejudice or impair­

(i) the prevention, detection or investigation of offences,
the apprehension or prosecution of offenders or the
effectiveness of lawful methods, systems, plans or
procedures employed for the purposes of the matters
aforesaid,

(ii) the enforcement of, compliance with or administration
of any law,

(iii) lawful methods, systems, plans or procedures for
ensuring the safety of the public and the safety or
security of persons and property,

(iv) the fairness of criminal proceedings in a court or of
civil proceedings in a court or other tribunal,

(v) the security of a penal institution,

(vi) the security of the Central Mental Hospital,

(vii) the security of a building or other structure or a
vehicle, ship, boat or aircraft,

(viii) the security of any system of communications, whether
internal or external, of the Garda Síochána, the Defence
Forces, the Revenue Commissioners or a penal
institution,

(aa) endanger the life or safety of any person,

(b) reveal or lead to the revelation of the identity of a person who
has given information to a public body in confidence in relation
to the enforcement or administration of the civil law or any other
source of such information given in confidence, or

(c) facilitate the commission of an offence.

(2) Where a request under section 7 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), (aa), (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.

(3) Subsection (1) does not apply to a record­
(a) if it­

(i) 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

(ii) contains information concerning­

(I) the performance of the functions of a public 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

(II) the merits or otherwise or the success or
otherwise of any programme, scheme or policy
of a public 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 a
public body,

and

(b) in the opinion of the head concerned, the public interest would,
on balance, be better served by granting than by refusing to
grant the request concerned.

(4) In subsection (1) ''penal institution" means­

(a) a place to which the Prisons Acts, 1826 to 1980, apply,

(b) a military prison or detention barrack within the meaning, in
each case, of the Defence Act, 1954,

(c) Saint Patrick's Institution, or

(d) an institution established under the Children Act, 1908, in which
young offenders are detained.

Introduction

This section is concerned with upholding the interests and safety of the community through the administration and enforcement of law. It serves to prevent the prejudicing of law enforcement measures to uphold the security of certain institutions, and to protect the life and safety of individuals and the public. Its provisions, where appropriate, have application to civil and criminal law.

When should you consider this section?

It is important to note at the outset that this section has potentially wide application to the operations of central and local government. It comprehends prevention of violation of any law, and the enforcement of law through civil and regulatory, as well as criminal proceedings. Following from this the section may apply to health and safety matters, environmental protection, broadcasting, trade practices, consumer protection, taxation, social welfare etc.. This is in addition to the more obvious area of matters concerning criminal prosecutions.

KEYWORDS AND PHRASES

"could reasonably be expected to" - this requires a judgment to be made by the decision maker as to whether it is reasonable to expect a particular outcome, as distinct from something which is possible or purely speculative. The expectation must be reasonably based, i.e. expectations for the occurrence of which real and substantial grounds exist.(1)

"prejudice or impair" - "prejudice" is described in the Oxford dictionary as including "detriment likely to befall", while "impair" is described as to "damage or weaken". To invoke this term, a public body must be able, with a reasonable degree of clarity to specify the damage likely to occur as a result of disclosure of the information sought. Clearly this provision can only be invoked in respect of particular information being actually sought, rather than for classes of information.(2)

"lawful" - this is described in the dictionary as "permitted, or appointed, or qualified, or recognised by law". This qualification therefore does not provide a blanket protection for every method and procedure adopted by public bodies, but only those that those that are lawful.

Elements of the Section

Section 23(1)(a)(i)

Subsection 1(a)(i) is designed to protect information the disclosure of which could reasonably be expected to prejudice or impair key functions and activities in relation to criminal law enforcement viz.:

(i) the prevention, detection or investigation of offences,
the apprehension or prosecution of offenders or the
effectiveness of lawful methods, systems, plans or
procedures employed for the purposes of the matters
aforesaid,

There are two underlying aspects to this provision:

· firstly it offers protection, where appropriate, for preventative measures and investigations and detections of actual offences;
· secondly, it offers protection, where appropriate, for lawful methods, practices etc. used for this purpose.

When invoking this provision public bodies are advised to set out whether the exemption is sought in anticipation of likely damage to the handling of a particular matter such as the investigation or detection of an offence, or damage to the processes used for prevention, detection or investigation of offences, or to both. Sometimes, disclosure of the nature of such procedures or methods may be likely to prejudice their effectiveness.

Section 23(1)(a)(ii)

(ii) the enforcement of, compliance with or administration
of any law,

It should be noted here that "any law" means not just any criminal or civil law of the State, but also the law of another jurisdiction, or international law. Also this provision comprehends a law which imposes a legal duty to do or refrain from doing something, even in circumstances where a breach does not attract a sanction of a penal nature.

The term "administration", which is considerably wider than "enforcement" warrants comment. It may also be taken to capture administrative and regulatory actions to uphold a law. Considerable areas of law can be enforced and administered within public bodies by means other than resort to the courts. For example a payment based on a statutory scheme can be withdrawn where the public body is satisfied that the entitlement no longer obtains. Administration would also embrace preventative actions, as well as the collection of information so as to monitor whether a person is complying with the law. In short, the term would appear to capture lawful arrangements within a public body which are part of a process of upholding or enforcing the law.

Section 23(1)(a)(iii)

(iii) lawful methods, systems, plans or procedures for
ensuring the safety of the public and the safety or
security of persons and property,

This provision has potential application across a wide range of areas. While it may apply to lawful measures to protect public safety generally, it may also apply to such measures to safeguard individuals, be they members of the public, or those discharging public business.

Section 23(1)(a)(iv)

(iv) the fairness of criminal proceedings in a court or of
civil proceedings in a court or other tribunal,

Precedent indicates that this provision can be interpreted by public bodies to serve the interests of the community, as well as the interests of an accused person. However, it should be borne in mind that the prejudice must be to the fairness of the proceedings, not the likelihood of a successful prosecution.

Section 23(1)(a)(v) - (viii)

(v) the security of a penal institution,

(vi) the security of the Central Mental Hospital,

(vii) the security of a building or other structure or a
vehicle, ship, boat or aircraft,

(viii) the security of any system of communications, whether
internal or external, of the Garda Síochána, the Defence
Forces, the Revenue Commissioners or a penal
institution,

These provisions offer protection against the release of information which if disclosed would be likely to prejudice the security of institutions such as prisons, and other places of detention. The provision may be invoked where appropriate to prevent likely damage to a buildings security system by virtue of provision of access to information on that system. In addition it offers protection for the security of communications systems of the Gardai, Revenue, the Defence Forces, a penal institution, and the Revenue Commissioners.

Protection is also offered, where appropriate, against access to information, the disclosure of which would be likely to prejudice the security of any building, or other structure, or vehicle etc.. It should be noted that this subsection has application regardless of whether the property is in public or private ownership.

Section 23(1)(aa)

(aa) endanger the life or safety of any person

This provision offers explicit protection for information which, if disclosed, would be likely to endanger the life or safety of any person, be they members of the public, or those discharging public business. It must be emphasised that a decision to refuse access to information on these grounds is a sensitive matter and must be approached with great caution. The inclusion in a notice of a decision of fears that the requester may inflict violence, or cause damage to property, may be as damaging as the release of the records in question. Where this is the case, reliance on the refusal to confirm or deny provision contained in subsection (2) may be more appropriate. Consideration may also be given in cases of personal information to releasing the record to an appropriate health professional pursuant to sections 28(3) and 28(7) of the Act and relevant regulations.

Section 23(1)(a)(b)

(b) reveal or lead to the revelation of the identity of a person who
has given information to a public body in confidence in relation
to the enforcement or administration of the civil law or any other
source of such information given in confidence, or

At the outset it should be noted that this provision does not extend to material concerning sources who provide information in confidence in relation to criminal law enforcement. Such material is outside the scope of the Act by virtue of section 46(1)(f).

The provision at (b) above may be invoked in relation to material provided to a person in confidence in relation to administration and enforcement of civil law e.g. consumer rights, public health, planning, etc. It should be noted that the purpose of this provision is to protect the identity of the supplier of information. In contrast, section 26 serves to protect information itself which is required to be kept confidential.

Two basic criteria would need to be met before this provision would come into play: firstly, confidentiality should have been agreed with the person who provided the information at the time it was so provided; secondly, the information must relate to the enforcement or administration of civil law.

"reveal or lead to the revelation of" This refers not only to information which might reasonably be expected to reveal the identity of the supplier, but also if it could reasonably be expected to lead to such revelation. For example, on occasions the release of some information which is not otherwise exempt may cumulatively lead to the possible disclosure of the identity of the supplier of information in confidence. This could happen where the "mosaic" of various pieces of information would identify the supplier.

Section 23(1)(a)(c)

(c) facilitate the commission of an offence.

This provision enables information to be withheld where its disclosure could reasonably be expected to facilitate an offence. It links with (1)(a)(i) which protects, inter alia, information designed to prevent offences.

Subsection (c) may be invoked by a public body where it can demonstrate that the information involved could reasonably be used to enable an offence to be committed.


Subsection 2: "Refusal to confirm or deny"

(2) Where a request under section 7 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), (aa), (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.

In seven exemptions, provisions exist that allow a public body to respond to requests or parts of requests on the basis of refusing to confirm or deny the existence of records - sections 19, 22, 23, 26, 27, 28, and subsection (2) above refer. These provisions are necessary because, in some instances, merely confirming the existence of information will directly or implicitly disclose sensitive information. The following points should be noted in relation to such provisions:

· Their use will be justified only in rare situations
· It is not appropriate where it is the contents of the record rather than its existence that warrants protection
· Persons should always be advised of their rights of appeal when notifying them of such a decision

This refusal to confirm or deny provision, which is subject to particular criteria, gives the public body the option of responding to a request in an equivocal fashion and thus not "giving the game away". By not confirming that a record exists or does not exist, a requester can be prevented from drawing inferences which might otherwise be available. Such a response is justifiable in this section on the grounds that disclosure of the existence or non-existence of the record would have the precise adverse effect which this exemption seeks to avoid.

A difficulty with these provisions is that their use can convey a signal that the body is alarmed about the request. There is also a danger that inferences may be drawn and the response could lose some or all of its value. However, experience suggests that this can be tackled through a number of approaches.

Scenario 1. A mix of records is sought
A requester seeks material which is a mix of records, some of which may be subject to the "confirm or deny" provision, and others which may not. For example a taxpayer seeks access to her tax files. Unknown to her these include records relating to an ongoing highly confidential investigation of serious tax fraud. In an instance such as this the public body may need to consider remaining entirely silent about the investigation. This is justified by section 8(5) of the Act which states that a statement of reasons need not include any information which is itself exempt. The approach should be employed only in cases of extreme sensitivity.

Scenario 2 The request is purely for the records subject to subsection (2)
A requester directly asks for extremely sensitive material the disclosure of which would have the effect of causing damage to matters which the exemption seeks to protect. The options here are either the direct use, or a refusal to confirm or deny response in relation to the request, or a response on the lines of "the department has no records which fall within the ambit of the Act". Depending on the circumstances, it may be equally beneficial to invoke upfront the neither confirm or deny provision e.g. a request for records which seeks to ascertain whether a meeting between certain parties has taken place.

Scenario 3 Circumstances carry danger of implicitly betraying material which is properly exempt
A significant criminal investigation is underway and at a particularly sensitive stage. The subject matter suspects that an investigation is underway. She asks for the records and other matters relating to herself. Here the request for the other material should be treated as per normal. The refusal to confirm provision or a variation thereof, as set out at scenarios (1) and (2) above, should be used to refuse a request for the investigation records.

General Comments

This provision lessens the duty to provide reasons for the decision to the requester. There is for example no obligation to provide details of the provision of the Act pursuant to which the request is refused. Also excluded is the obligation to provide findings on material issues of fact and particulars of the public interest in cases where a refusal to confirm or deny provision is invoked (s 8(2)(d)(ii)). However unless the material is such that it requires no acknowledgement whatever as to its existence, as may be the case under Section 23 (1)(aa), the relevant provision, in this case section 23(2), may be quoted in the statement of reasons required by the Act (section 8(2)(d), 13(3) and 14(5)(c)).

This means that while the statement of reasons can be relatively more cursory it should usually refer at least to the refuse to confirm or deny provision itself and to the criteria considered by the decision maker and the reason for the conclusion reached.

Otherwise, the decision making process described in Part 1 of this manual must be followed. Decisions to refuse to confirm or deny constitute a refusal to give access to a record under the Act. Such decisions can of course be reviewed through internal and external review. The reviewer will be able to look at the documents involved (if they exist) and form his or her own view about whether the invoking of the refusal to confirm or deny provision was appropriate.

Limitations on the Exemption

The Act provides that the protections of this exemption do not apply, even when records come within subsection (1) where a record

(a) (i) 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

(ii) contains information concerning­

(I) the performance of the functions of a public 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

(II) the merits or otherwise or the success or otherwise of any programme, scheme or policy of a public 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 a public body,

In essence this provision relates to records disclosing:

· where an investigation for the purposes of law enforcement or relating to prosecution of offenders etc., is not authorised or contravenes any law,
· how well a public body, whose functions include law enforcement or ensuring public safety, performs these,
· the success or otherwise of a law enforcement/ prevention/ detection programme.

It is however important to note that, even where a record fall within any of these areas above, it remains necessary for the public interest test to be also satisfied, before the protection of the exemption can be set aside.

Public Interest

Section 23(3)(b) refers to the public interest which must be satisfied before records coming within subsection (3)(a) may be released :

(b) in the opinion of the head concerned, the public interest would,
on balance, be better served by granting than by refusing to grant
the request concerned.

In such circumstances factors in favour of release in the public interest could be:

· Ensuring the resources of the taxpayer are used efficiently and effectively.
· Enabling the public to assess the merits and shortcomings of policies, practices etc.
· The importance of the disclosure of records on issues affecting the community,
· The need to disclose where Government bodies have failed to act in a lawful and accountable way,
· The need for effective mechanisms to maintain public confidence in Government bodies by access to information on their performance of functions

Factors against release in the public interest could be:

· Vital interests of the community are served by effective law enforcement and administration,
· Damage to investigations, or processes etc. which might result,
· Importance of not disadvantaging Government bodies in their discharge of key responsibilities,
· Importance of not releasing information which would facilitate committing offences.

Central Policy Unit advises:

· Section 23 should be read in conjunction with section 21 (Functions of public bodies) and section 26 (Information in Confidence)

· Departments should bear in mind that records, the disclosure of which could reasonably be expected to lead to the revelation of the identity of a person who has provided information in confidence in relation to the enforcement of criminal law, are entirely outside the scope of the Act (S 46(1)(f).

· The revelation in a decision of fears that the requester may inflict violence, or cause damage to property, may be as damaging as the release of the records in question. Reliance on the refusal to confirm or deny provision contained in subsection (2) may be more appropriate in such cases. Consideration may also be given in appropriate cases to releasing the record to a health professional pursuant to sections 28(3) and 28(7) of the Act.

Case Precedents:

1. Re: B and Brisbane North Regional Health Authority (IC Qld Decision 94001, 31 Jan 1994).

2. Re: Commissioner of Police V Ombudsman 1988, New Zealand LR 385, CA

3. Re: McEniery and Medical Board of Queensland, (Feb 1994)

4. Re: T and Queensland Health (11 March 1994)

5. Re: R v Greening {1991} New Zealand LR 110.112 per Tipping

6. Re: ALRC Discussion paper 59 and Report No 77 (recommendations 42 & 43)