Case Number: 160054

Whether AGS was justified in its decision to refuse access to an investigation file and information relating to the loss of an evidence file by a member of AGS on the basis that the records concerned are excluded from release under Schedule 1 of the FOI Act

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator

Background

On 14 December 2015, the applicant submitted a request to AGS for access to a specified investigation file and to information relating to the loss of an evidence file by a member of AGS. On 16 December 2015, AGS refused the applicant's request on the ground that it is a public body only in respect of administrative records relating to human resources, finance or procurement matters and that the records sought were not considered to be such administrative records. The applicant sought an internal review of that decision on 23 December 2015 and on 29 January 2016, AGS upheld the original decision. The applicant sought a review by this Office of that decision on 4 February 2016.

In a submission dated 20 April 2016, AGS cited an additional ground for refusing the request. It contended that the records sought are excluded from the FOI Act as they concern an examination or investigation carried out by the Garda Síochána Ombudsman Commission (GSOC) under part 4 of the Garda Síochána Act 2005. Mr Christopher Flood of this Office informed the applicant of the revised position of AGS and offered him an opportunity to respond. The applicant forwarded his response on 11 May 2016.

I have decided to conclude this review by way of a formal binding decision. In conducting this review, I have had regard to correspondence between AGS and the applicant, to the applicant's correspondence with this Office, to the records provided by AGS to this Office, and to communications between this Office and AGS on the matter.

 

Scope of Review

This review is concerned solely with whether AGS was justified in refusing access to the records sought by the applicant on the ground that the FOI Act does not apply in respect of the records, in accordance with Schedule 1, Parts 1(n) and 1(y) of the Act.

 

Preliminary Matters

Given that the applicant was seeking information at the second part of his FOI request, I should explain that the FOI Act does not confer a general right of access to information; rather it confers a right of access to records. Therefore, the applicant's request for information has been treated as a request for access to records containing the information he seeks.

Secondly, I note that during the course of this review, the applicant indicated that he was dissatisfied with the manner in which AGS processed his FOI request, including the delivery of procedural information by a member of AGS. An assessment of AGS's practices and procedures in compliance with the FOI Act, if it were deemed necessary, would have to be carried out pursuant to section 44 of the Act. However, this review, conducted pursuant to section 22 of the Act, is confined to reviewing the decision of AGS to refuse access to the records sought. Furthermore, the remit of this Office does not extend to examining the manner in which a public body performs its functions generally, or to investigating complaints against a public body.

 

Analysis and Findings

Schedule 1, Part 1 of the FOI Act
Section 6(2)(a) of the FOI Act provides that an entity specified in Schedule 1, Part 1 of the Act shall, subject to the provisions of that Part, be a public body for the purposes of the Act. Schedule 1, Part 1 contains details of bodies that are partially included for the purposes of the Act and also details of the certain specified records that are excluded. If the records sought come within the description of the exclusions in Part 1, then the Act does not apply and no right of access exists.

In this case, the relevant provisions of Schedule 1 under consideration are Parts 1(n) and 1(y). Part 1(n) provides that AGS is not a public body for the purposes of the FOI Act other than in relation to administrative records relating to human resources, or finance or procurement matters. Part 1(y) provides that GSOC is not a public body for the purposes of the Act in relation to records concerning an examination or investigation carried out by it under Part 4 of the Garda Síochána Act 2005 (the 2005 Act).

Part 4 investigations
In its submissions to this Office, AGS made arguments relating to investigative processes under Part 4 of the 2005 Act whereby GSOC may refer certain investigations to AGS to be conducted by it on behalf of GSOC. I believe it would be useful, therefore, to provide a brief description of that process at the outset.

Section 94 investigations
Section 92 of the 2005 Act provides that in certain circumstances GSOC may, as it considers appropriate, refer a complaint to the Garda Commissioner to be dealt with in accordance with section 94 of the 2005 Act. AGS explained that the records comprising the first part of the applicant's request were the subject of an "unsupervised section 94 investigation", resulting from a complaint made by the applicant to GSOC about the conduct of members of AGS.

Section 94(1) provides that such investigations are conducted under the Garda Síochána (Discipline) Regulations 2007, as amended. It also provides that GSOC must be kept abreast in such cases so that it can exercise its civilian oversight functions. Section 94 further provides that, on concluding such an investigation, AGS must give a final report to GSOC, including an outline of the investigation, the result, and the rationale for the decision made. AGS must provide GSOC with a copy of all documents or evidence pertaining to the investigation and upon which the rationale of the Garda Síochána Investigating Officer was based, as well as any proposals for action to be taken by the Garda Commissioner.

Section 95 investigations
Section 95 of the 2005 Act relates to investigation by GSOC of complaints that do not appear to involve criminal offences. Section 96 of the 2005 Act provides that, for the purposes of a section 95 investigation, GSOC may require a person who, in its opinion, possesses information or has a document or thing in his or her power or control that is relevant to the investigation, to provide that information, document or thing to it. AGS stated that records comprising the second part of the applicant's request were the subject of a section 95 investigation.

Part 1(n)
Investigation file
The first part of the applicant's request was for access to an investigation file relating to the conduct of members of AGS in connection with their engagements with the applicant. AGS argued that the records sought are not administrative records relating to human resources, or finance or procurement matters for the purposes of Part 1(n). The applicant contended that such records do, indeed, relate to human resources.

The Act does not define the term "administrative records" as provided for in Part 1(n) apart from stating that they relate to human resources, or finance or procurement matters. The term "administrative records" is commonly understood to mean records relating to the processes of running/managing a business or organisation. It seems to me that the purpose of Part 1(n) is to restrict the right of access to those functions or processes of AGS that relate to the administration or management of the organisation, and only in relation to matters concerning human resources, or finance or procurement matters. Records relating to the core functions of AGS, such as the investigation of criminal activity, are excluded from the ambit of the Act.

The term "human resources" refers to the staff of an organisation, and would involve matters such as the administration of annual leave, sick leave, staff development, performance management etc. As such, it seems to me that, in the normal course, records relating to staff discipline would qualify as administrative records relating to human resources. The records at issue in this case, however, are distinguishable from the type that might generally exist in relation to a disciplinary matter. They do not arise from an internal disciplinary process as a result of the initiation of a human resources process such as tackling underperformance in a performance management context. Rather, they result from a complaint made by a member of the public to GSOC that was referred to AGS for investigation under section 94 of the 2005 Act. In my view, such an investigation cannot reasonably be described as an administrative function relating to human resources, nor can the records reasonably be described as administrative records relating to human resources. I find, therefore, that the records concerned are not "administrative records relating to human resources" within the meaning of Part 1(n).

In the circumstances, I find that AGS was justified in its decision to refuse access to the investigation file on the ground that the FOI Act does not apply in respect of the records sought, in accordance with Schedule 1, Part 1(n) of the Act.

Loss of an evidence file
The second part of the applicant's request was for information relating to the loss of an evidence file by a member of AGS. AGS originally contended that it considered such records to be outside the scope of the FOI Act as a result of Part 1(n) and therefore did not consider them for release. The applicant has contended that the records in question do not fall within the exclusion of Part 1(n) because they are administrative records relating to human resources.

Having had regard to the nature and content of the records at issue, I do not consider them to be administrative records relating to human resources within the meaning of Part 1(n). These records are connected to the core functions of AGS - in this case, the fulfilment of its statutory duty to supply GSOC with information pursuant to a section 95 investigation.

Accordingly, I find that AGS was justified in its decision to refuse the second part of the applicant's request on the ground that the records sought fall within the exclusion of Schedule 1, Part 1(n).

Part 1(y)
Given my finding that the AGS was justified in refusing access to all of the records at issue, it is not necessary for me to consider the argument that the records are excluded under Part 1(y). However, for the benefit of AGS, I would make the following comments. AGS argued that records relating to the applicant's request fall within the exclusion of Part 1(y) as they concern an examination or investigation carried out by the Garda Síochána Ombudsman Commission (GSOC) under part 4 of the 2005 Act. In response, the applicant argued that the records sought are AGS records, regardless of any connection they may have to GSOC investigations.

As I have stated above, Part 1(y) provides that GSOC is not a public body for the purposes of the Act in relation to records concerning an examination or investigation carried out by it under Part 4 of the 2005 Act. The sole purpose of the provision is to prescribe the extent to which, as a partially included agency, GSOC is deemed to be a public body for the purposes of the FOI Act. The provision is concerned with the body itself and does not provide a general exclusion for such records that may be held by other bodies. Had the Oireachtas wished to provide a blanket protection for such records regardless of what body might hold them, it could have done so by including a provision in section 42 of the Act, as it did in relation to a wide range of record types. Indeed, section 42(b) provides that the Act does not apply to specific categories of records held or created by AGS. Accordingly, I am satisfied that Part 1(y) is of no relevance in this case as the records sought are held by AGS.

Conclusion

While I am not satisfied with the arguments of AGS in relation to Part 1(y), I find that it was justified in refusing the applicant's request for access to the investigation file, and information relating to the loss of the evidence file, on the ground that the FOI Act does not apply in respect of the records sought, in accordance with Schedule 1, Part 1(n) of the Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of AGS in this case.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.

 

Stephen Rafferty
Senior Investigator