Why would the State take such “convoluted steps” to conceal the operation of evidential breath testing systems?

Top secret

The Supreme Court decision in Oates v. District Judge Browne yesterday is primarily about the right of someone accused of drink driving to inspect the specific machine used to take their breath alcohol sample. But Mr Justice Hardiman’s judgment has many interesting things to say about the State and its attitude to freedom of information.

Hardiman J was concerned about the right of a defendant to a trial in due course of law.

[N]ot only is there no right to inspect or see relevant documentation [about the operation of evidential breath testing machines] provided in the Irish Statutes but the system of analysis, of approval of apparatus for analysis, and documents and records relating to such apparatus and analysis have been deliberately and, it seems, conclusively, excluded from the category of document and item to which a citizen is entitled to have access, even if he has been charged with a criminal offence using the breath specimen procedure.

He goes on to outline a remarkable episode in Irish freedom of information. In 2008 a Mr H was being prosecuted for drink driving and made a request under the then Freedom of Information Acts to the Medical Bureau of Road Safety for all documentation pertaining to the receipt, analysis and certification of urine samples provided by him to the Gardaí. The MBRS refused this request on the basis that the documentation “could be the subject of litigation in alleged criminal offences before the court”.

The Information Commissioner did not accept the MBRS’ reasons for refusing access and directed that the documentation sought be released to Mr H. The Commissioner was influenced by the fact that a court cannot make a disclosure order against the MBRS in criminal proceedings.

[W]ithout FOI, the MBRS would be generally unaccountable either to the courts or to the public with respect to its functions under the Road Traffic Acts and … there would be no legal recourse to records relating to its forensic investigative role even in the event of suspected irregularities.

Crucially, the Commissioner determined that the MBRS had not established what harm would result from releasing the documents.

I see nothing in the contents that could reasonably be expected to prejudice or impair any of the law enforcement and public safety measures variously protected under [the relevant exemptions in [the FOI Acts]. For instance, the records do not involve any risk of witness intimidation or reveal any sensitive information regarding investigative methods. On the contrary, the records merely show the manner in which the applicant’s urine specimen was handled and analysed. I do not think that I would be revealing exempt information in violation of the FOI Act by observing that page 7 of the records includes a note in the margin initialled by an analyst. However, the significance, if any, of the note has not been identified by the MBRS in any of its submissions.

In yesterday’s judgment, Hardiman J referred to the Commissioner’s decision in Mr H. It is notable that his comments about FOI are headed: Nothing available on FOI.

The effect of [the decision in Mr H] was negatived by statute with extraordinary and unusual speed. The Commissioner’s decision was given on the 15th July, 2010. The State then proceeded to promulgate the Road Traffic Act 2010, which came into operation on the 9th August 2010, twenty-five days later, during a Parliamentary vacation. The effect of this was partially to exclude the Bureau from the FOI Acts.

He describes the current position on FOI requests to the MBRS as one “governed in an opaque and convoluted way” – in particular by the manner in which the Freedom of Information Act 2014 is drafted to deal with the MBRS.

[T]he Bureau is in fact exempted from Freedom of Information by a process so contrary to transparency and to the ordinary use of language as almost to defeat non-professional enquiry.

His journey through the relevant provisions in the Act is interesting and is an entertaining discourse on bad legislative drafting.

The difficulty in establishing the liability or otherwise of the Bureau under the FOI Acts arises from the use of multiple exceptions and of double negatives on which the draftsman would have to be congratulated if it were his object to make the provision opaque and inaccessible. But the effect of it is that the Bureau is outside the scope of s.6 “insofar” as the matters specified are concerned. The matters specified include anything that might be of the remotest interest to a person charged with [a drink driving offence], who was concerned to “contest” the Bureau’s analysis, or analysis of apparatus approved by it …  It is not clear to me why, assuming the legislature to be confident in the operation of the [evidential breath testing] system, such convoluted steps have been taken to conceal its operation even from a person directly affected by it.

Hardiman J agreed with the Information Commissioner’s comments in Mr H, but to no avail given that the Commissioner’s decision was overruled by the Road Traffic Act 2010 (and repeated in the Freedom of Information Act 2014).

So, the MBRS remains outside of the scope of FOI in so far as access to evidential records is concerned. With yesterday’s Supreme Court decision in Oates someone accused of drink driving still has the right to seek inspection of the machine used to carry out a breath alcohol test but the Court could do nothing about the FOI legislation.

Why would the State take such “convoluted steps” to “conceal” the operation of the evidential breath testing system? Obviously, we cannot know. But Hardiman J does, elsewhere in the judgment, point to the fact that evidential testing is not always reliable. As he suggests: if the breath alcohol testing system is reliable, why refuse access to records generated by it?

If it is not reliable, the State is preventing defendants in criminal prosecutions, along with journalists and members of the public, from finding out.

Why would the State take such “convoluted steps” to conceal the operation of evidential breath testing systems?