Case Number: 170416

Whether the ODCE was justified in refusing access to records containing details of how it handled a complaint of alleged forgery concerning a named entity on the ground that the relevant records are excluded from the scope of the FOI Act under the provisions of Schedule 1 of the Act

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

Background

On 6 June 2017 the applicant requested access to records detailing how the ODCE handled a complaint of alleged forgery concerning a named entity. The ODCE refused the request on 7 June 2017, citing Schedule 1, Part 1(g) of the FOI Act. Following a request for an internal review, the ODCE affirmed its original decision. On 30 August 2017 the applicant sought a review by this Office of that decision.

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 the ODCE and the applicant as outlined above, and to communications between this Office and both the applicant and the ODCE on the matter.

Scope of Review

This review is concerned solely with the question of whether the ODCE was justified in refusing access to the records sought on the ground that the FOI Act does not apply in respect of the records, in accordance with Schedule 1, Part 1(g) of the Act.

Analysis and Findings

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.

Schedule 1, Part 1(g) provides that the ODCE is not a public body for the purposes of the FOI Act in relation to records held or created under the Companies Acts (save as regards a record concerning the general administration of the ODCE). In other words, if the record sought is held or created by the ODCE under the Companies Acts, the FOI Act does not apply to the record and no right of access exists, unless the record concerns the general administration of the ODCE.

In its submissions to this Office, the ODCE stated that officers in its enforcement unit received, created and/or hold the records coming within the scope of the applicant's request pursuant to the investigation, under the Companies Acts, of certain allegations about the named entity. I accept that this is the case. The question I must consider, therefore, is whether the records can be said to concern the general administration of the ODCE.

While the term "general administration" is not defined in the Act, this Office considers that it clearly refers to matters concerning the management of the ODCE such as personnel, pay matters, recruitment, accounts, information technology, accommodation, internal organisation, office procedures and the like. It does not refer to matters concerning the core business of the ODCE such as the investigation of alleged breaches of the Companies Acts. As such, I am satisfied that the records at issue are held by the ODCE under the Companies Acts and do not concern the general administration of the ODCE.

I find, therefore, that the ODCE was justified in its decision to refuse access to the records sought on the ground that they are specifically excluded from the scope of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the ODCE 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