Mr. W & The Medical Bureau of Road Safety (MBRS)

Factual and Procedural Background

The Medical Bureau of Road Safety (MBRS) is a public body established under the Road Traffic Act 1968, responsible for analysing blood, breath, and urine specimens for alcohol and drugs in the context of road safety legislation. It also issues certificates for prosecutions related to intoxicated driving, provides expert forensic evidence, approves and tests breath testing equipment used by the Garda Síochána, and provides training for Garda operators.

On 4 September 2008, the Applicant requested access to two categories of records held by the MBRS: (1) all documentation on the Lion Intoxilyzer 6000IRL machine, including details of manufacture, installation, programming, testing, maintenance, repair, and operation; and (2) identical details for the Intoxilyzer machine at a Garda Station in an anonymized location.

The MBRS identified relevant records including installation documents, testing procedures, maintenance and repair records, the source code of the Lion Intoxilyzer 6000IRL, the Lion Laboratories Handbook, and Garda Síochána Training Notes. The MBRS refused the request in full, citing exemptions under various sections of the Freedom of Information (FOI) Act. The Applicant sought a review by the Information Commissioner.

During the review, the Investigator engaged with the MBRS, the Applicant, and Lion Laboratories Ltd (the manufacturer) as an affected third party. Other third parties such as the Garda Síochána, the Office of the Director of Public Prosecutions (DPP), and the Attorney General (AG) were consulted. The AG confirmed no objection to the release of the records at issue. The Information Commissioner completed the review under section 34(2) of the FOI Act.

Legal Issues Presented

1. Whether the MBRS' refusal to grant access to records relating to the Lion Intoxilyzer 6000IRL machine and the Intoxilyzer at the Garda Station is justified under sections 22, 23, 26, 27, and 28 of the FOI Act, excluding personal information of breath specimen donors.

Arguments of the Parties

MBRS's Arguments

• The source code was provided confidentially by Lion Laboratories under a procurement process, intended only for use if the manufacturer ceased trading.
• The Lion Laboratories Handbook is copyrighted and commercially available; Garda Training Notes are publicly obtainable.
• MBRS’s functions are forensic and criminal in nature, involving analysis and certification for prosecutions under the Road Traffic Acts.
• Disclosure of forensic records could undermine the court's carefully balanced disclosure regime in criminal proceedings by creating a parallel FOI-based disclosure system.
• The primary mechanism for disclosure in criminal cases is through court-ordered processes, not FOI requests.
• Disclosure via FOI might disrupt criminal trials, including potential delays or misuse of information by defendants.
• MBRS contended that the Handbook and Training Notes are outside the FOI scope as they are publicly available.

Lion Laboratories' Arguments

• While certain approval-related documents can be public, the methodology and source code are trade secrets and intellectual property.
• Disclosure of source code would harm Lion Laboratories’ competitive position in the market.
• The source code is submitted under confidentiality agreements, including one executed in January 2000.
• The company supports MBRS's position on withholding manufacturing and service records.
• The Handbook is copyrighted and commercially available for purchase.

Applicant's Arguments

• The Applicant does not seek personal information or records related to ongoing cases.
• Relied on case law establishing a right to access certain records and inspection of the Intoxilyzer machine.
• Argued that contempt of court does not arise under section 22(1)(b) of the FOI Act.
• Asserted a strong public interest in disclosure to ensure transparency of the Intoxilyzer’s operation.
• Challenged the applicability of confidentiality exemptions without evidence of a confidentiality agreement.
• Noted the technology is outdated and questioned the applicability of trade secret exemptions.
• Did not object to the exemption of the source code after the Investigator’s preliminary view.

Table of Precedents Cited

Court's Reasoning and Analysis

The court commenced by affirming the fundamental purpose of the FOI Act to promote openness, transparency, and public confidence in government and public bodies, noting that exemptions must be narrowly construed and justified by evidence.

Regarding the source code of the Lion Intoxilyzer 6000IRL, the court accepted it as a trade secret under section 27(1)(a) and subject to a duty of confidence under section 26(1)(b), supported by confidentiality agreements and contractual prohibitions on disclosure. The public interest did not favour its release, especially since other related records would be disclosed.

The court found no substantive exemption claims justified for the Lion Laboratories Handbook and Garda Síochána Training Notes. Although copyrighted, these materials are commercially and publicly available, and their retention by MBRS makes them subject to FOI. The court directed access to be granted by inspection or provision of copies.

For the remaining records, the MBRS argued that disclosure would undermine the fairness of criminal proceedings by creating a parallel disclosure system outside court processes. The court rejected this, emphasizing that FOI and criminal proceedings operate independently. The court noted that MBRS had not demonstrated any specific harm or prejudice under sections 23(1)(a)(i)–(iv) or section 22(1)(b), and that the mere potential to affect prosecutions or defence was insufficient to justify exemption.

The court referenced domestic and international case law supporting that FOI exemptions require concrete evidence of harm and that relevance or admissibility in criminal proceedings is not a criterion under FOI. The court also acknowledged the statutory authority of the Minister for Finance to bring MBRS fully within FOI's remit, reflecting a policy decision to subject MBRS's forensic functions to public scrutiny, enhancing transparency and accountability.

Finally, the court recognized the current legislative gap in criminal law concerning third-party disclosure but clarified that FOI is not intended to replace or interfere with criminal disclosure mechanisms.

Holding and Implications

The court's final decision is as follows:

• Affirmed the MBRS's refusal to disclose the source code of the Lion Intoxilyzer 6000IRL, recognizing it as a trade secret and confidential information exempt under the FOI Act.
• Annulled the MBRS's refusal regarding the Lion Laboratories Handbook, directing that access be granted by inspection under section 12(1)(d) of the FOI Act.
• Annulled the MBRS's refusal regarding other relevant records (installation, testing, maintenance documents, Garda Training Notes), directing that copies be provided to the Applicant, subject to redaction of personal information.

The decision clarifies that the MBRS is fully subject to the FOI Act without the restrictions applicable to the Garda Síochána or the Offices of the Attorney General and Director of Public Prosecutions. It underscores the principle that FOI rights and criminal disclosure operate independently and that exemptions under FOI must be supported by specific evidence of harm, not by general assertions about criminal procedure or policy concerns.

No new precedent was set beyond the application and reaffirmation of existing principles concerning FOI exemptions, confidentiality, and the relationship between FOI and criminal law disclosure.