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Case 000487. Request for records relating to the alleged monitoring and electronic surveillance of telecommunications messages - whether the non-disclosure of the records is authorised by any enactment - section 32(1)(b)

Case Summary

Facts

The requesters applied to the Department of Justice, Equality & Law Reform for records relating to the alleged monitoring and electronic surveillance carried out on their telephone. The Department refused access to the records pursuant to the provisions of section 32(1)(b) of the FOI Act on the ground that section 12 of the Interceptions of Postal Packets and Telecommunications Messages (Regulations) Act, 1993 restricts the disclosure of the existence of authorisations to intercept. The requesters applied for a review of the Department's decision.

Decision

The Commissioner noted that section 12 of the Interceptions of Postal Packets and Telecommunications Messages (Regulations) Act, 1993 requires the Minister to ensure that such arrangements as he considers necessary exist to ensure that the fact of the giving of any authorisations generally, or the contents of any communications which have been intercepted pursuant to such authorisations, is not disclosed, save to the extent necessary for the purpose of the prevention or detection of serious offences or in the interests of the security of the State. He considered that such arrangements would include provisions for refusing to confirm or deny the existence of records relating to authorised interceptions. He found that the records sought are records of a type whose non-disclosure is authorised by section 12 of the Interceptions of Postal Packets and Telecommunications Messages (Regulations) Act, 1993 and to which the Department would refuse access in accordance with that Act. He decided, therefore, that the Department was justified in deciding to refuse the request pursuant to the provisions of section 32(1)(b) of the FOI Act.

Date of Decision: 12.02.2003

Our Reference: 000487

12.02.2003

Mr & Mrs X

Dear Mr & Mrs X

I refer to your application under the Freedom of Information Act, 1997 ("the FOI Act") for a review of the decision of the Department of Justice, Equality & Law Reform to refuse your request for access to records relating to the alleged monitoring and electronic surveillance carried out on your telephone up to and including 1 September 2000. I apologise for the delay which has arisen in dealing with your application. Unfortunately due to staff shortages and pressure of work, it has not been possible to finalise your case until now.

Background

I have now completed my review of the Department's decision. In doing so I have had regard to your correspondence with the Department and to the provisions of both the Interceptions of Postal Packets and Telecommunications Messages (Regulations) Act, 1993 ("the 1993 Act") and the FOI Act.

Scope of Review

The Department advised you that section 12 of the 1993 Act restricts the disclosure of the existence of authorisations to intercept and that section 32(1) of the FOI Act provides that a request shall be refused if the disclosure is prohibited by any enactment. The Department decided to refuse your request pursuant to the provisions of section 32(1) of the FOI Act but explained that the refusal should not be seen as a confirmation or a denial that the records requested exist.

Accordingly, my review is concerned solely with the question of whether the Department is justified in deciding to refuse your request.

Findings

The main purpose of the 1993 Act is to regulate the interception of certain postal packets and telecommunications messages. The Act provides for the authorisation, by the Minister, of interceptions for the purpose of criminal investigation or in the interests of the security of the State. Section 12 of the Act provides as follows:-

12.- (1) The Minister shall ensure that such arrangements as he considers necessary exist -
(a) to limit to the minimum necessary the disclosure of -
(i) the fact that an authorisation has been given, and
(ii) the contents of any communication which has been intercepted
pursuant to an authorisation.
and
(b) to secure that copies of any such communication-
(i) are not made to any extent greater than is necessary, and
(ii) are destroyed as soon as their retention is no longer necessary.

(2) In paragraphs (a) and (b) of subsection (1) of this section "necessary" means
necessary for the purpose of the prevention or detection of serious offences or in the
interests of the security of the State.

In my view, section 12 requires the Minister to ensure that such arrangements as he considers necessary exist to ensure that the fact of the giving of any authorisations generally, or the contents of any communications which have been intercepted pursuant to such authorisations, is not disclosed, save to the extent necessary for the purpose of the prevention or detection of serious offences or in the interests of the security of the State. I am satisfied that such arrangements would include provisions for refusing to confirm or deny the existence of records relating to authorised interceptions. The absence of such provisions, would, of itself, result, in certain circumstances, in the disclosure of the existence of authorisations for a purpose other than as provided for in section 12.

Section 32(1)(b) of the FOI Act provides for the refusal of a request if the non-disclosure of the record is authorised by any enactment (other than a provision, specified in column (3) of the Third Schedule of the Act, of an enactment specified in that Schedule) in certain circumstances and the case is one in which the head would, pursuant to the enactment, refuse to disclose the record. In simple terms, section 32(1)(b) of the FOI Act provides that a public body should refuse to grant a request made under the FOI Act where the non-disclosure of the record is authorised by some other legislation and where the public body would refuse access in accordance with that legislation. In this case, I am satisfied that records sought by you are records of a type whose non-disclosure is authorised by section 12 of the Interceptions of Postal Packets and Telecommunications Messages (Regulations) Act, 1993 and to which the Department would refuse access in accordance with that Act. Accordingly, I find that the Department was justified in deciding to refuse your request.

I should add that my finding should not be interpreted as a confirmation or denial of the existence of relevant records. Furthermore, as advised by the Department in its decision letter of 11 September 2000, you may wish to note that section 9(3) of the 1993 Act provides that a person who believes that a communication sent to or by him has been intercepted in the course of its transmission may apply to an independent "Complaints Referee" for investigation. I understand that the current Complaints Referee is Judge Michael O'Shea and you may, if you wish, make application to him c/o the Circuit Court Office, Áras Uí Dhálaigh, Inns Quay, Dublin 7.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, I hereby affirm the decision of the Department of Justice, Equality & Law Reform in this case.

A party to a review, or any other person affected by a decision of the 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 4 weeks from the date of this letter.

Yours sincerely

Information Commissioner