Whether the Department was justified in refusing access to further records relating to an agreement made in 1978 on the ground that any such records would have been created before the effective date of the FOI Act
27 August 2019
Background
In 1978, arrangements were introduced to the Garda superannuation scheme by way of an agreed report of the Garda Conciliation Council (Agreed Report No. 218) whereby a member of An Garda Síochána (AGS) who resigned or was dismissed on or after 1 October 1976 can have superannuation benefits, accrued to the date of dismissal or resignation, preserved until the member reaches 60 years of age. There was no provision for the preservation of superannuation benefits in the case of members who resigned or who were dismissed prior to that date.
On 9 October 2018 the applicant made a request to the Department for the following:
- Any and all documentation regarding the Agreement surrounding the cut-off point 1 October 1976 for eligibility for Pensions for AGS
- All documentation in relation to the decision to exclude those prior to the cut-off date of 1 October 1976
- All documentation to any exemptions to this cut-off date 1 October 1976 and specifically if a decision was made on the cut-off criteria that if a member of AGS had made full pension contribution that a cut-off date of 1 October 1976 would not apply
- All documentation with any necessary redactions regarding the decision to grant a pension to a member of AGS despite retiring prior to the cut-off date of 1st October 1976.
On 29 November 2018 the Department issued a decision in which it part granted the request. It stated that some of the records in question were created before the FOI Act came into force on 21 April 1998 and that requests cannot be made for non-personal records created before that date.
Of the 20 records it identified as coming within the scope of the request, it refused access to five records under section 15(1)(d) on the grounds that they are already in the public domain and it released the remainder, some with minor redactions of third party personal information under section 37(1).
On 3 December 2018 the applicant sought an internal review of the Department's decision. The Department issued its internal review decision on 5 February 2019. It relied on section 15(1)(a) to refuse access to any additional records on the ground that no further relevant records exist. It made some changes to the schedule of records to more accurately reflect the records at issue. The applicant sought a review by this Office of the Department’s decision on 1 April 2019.
During the course of the review, Ms Hannon of this Office engaged with the applicant’s representative as to the nature of the scope of the review, following which she wrote to the applicant and informed him of her view that under section 11 (4) of the FOI Act, there is generally no right of access to records that were created before the effective date of the Act (21 April 1998 in the case of the Department). She offered the applicant an opportunity to make a further submission on the matter which he has done.
I have decided to conclude this review by way of a formal, binding decision. In conducting my review, I have had regard to the correspondence between the Department and the applicant as outlined above and to correspondence between this Office and both the Department and the applicant on the matter.
Scope of the Review
On the matter of the redactions the Department made to the records under section 37, the applicant indicated that it was acceptable that he would receive only the redacted information that related solely to him in one of the records. The Department has confirmed that it will release the redacted text in question.
The Department also made available to the applicant two additional records during the course of the review, namely two agreed reports of the Garda Reconciliation Council (Agreed Reports nos. 530 and 543). While these reports relate to superannuation arrangements, I am satisfied that they are not captured by the scope of the applicant’s request. They do not relate to the cut-off date of 1 October 1976 that arose in Report No. 218.
The applicant’s representative also stated that the applicant was concerned solely with accessing records regarding the agreement made relating to the cut-off date of 1 October 1976. Accordingly, this review is concerned solely with whether Department was justified in refusing access to further relevant records regarding the Agreement surrounding the cut-off point 1 October 1976 for eligibility for Pensions for AGS.
Preliminary Matter
It is important to note that I am required under section 13 (4) to disregard any reasons the applicant has for seeking access to the records in question.
Analysis and Findings
Section 11(4) of the FOI Act provides for a right of access to records created on or after the effective date of the Act. As I have outlined above, the effective date in the case of the Department is 21 April 1998. This means that, generally speaking, there is no right of access to records created before this date (pre-commencement records) unless one of the exceptions set out at section 11(5) apply.
While the Department stated in its decision letter that it was unable to process the request for records created before the effective date, it stated in its submission to this Office that no pre-commencement records were identified during the searches it undertook for relevant records.
It stated that the request was processed in two areas of the Department- the Financial Shared Services (FSS) and the Policing Division. The FSS stated that it undertook searches for all relevant records regardless of date and it released all relevant records located. The Policing Division stated it only processed post 1998 documents but that searches did not return any results for pre-commencement records so no decision was required not to release these records. It also noted that it would not be unusual to maintain minimal records relating to industrial relations negotiations.
The agreement at issue in this case was signed in 1978. It is apparent from the applicant’s letter of 6 August 2019 to this Office that he is seeking access to relevant information relating to the decision that was taken in that agreement. For example, he stated that he would like access to minutes of meetings surrounding the agreed report.
Given the likely date of the meetings, I am satisfied that any such records, if they exist, would be pre-commencement records as would, in my view, any related records relating to the decision to apply the cut-off date of 1 October 1976.
On the matter of whether any of the exceptions to the restriction to the right of access to pre-commencement records might apply, section 11(5)(a) provides that access to such records may be granted if it is necessary or expedient to understand records created after the commencement of the FOI Act while section 11(5)(b) provides that such access may be granted if the records relate to personal information about the requester.
Section 11 (5)(a) is considered to be quite limited. In order to invoke it, it is generally necessary for an applicant to be in a position to identify specific records created after the effective date where the substance (or gist or subject matter) of such records cannot be understood without reference to the older records. The applicant has identified no such record.
On the matter of whether or not relevant records might relate to personal information about the applicant, I am satisfied that this would not be the case. The agreement at issue is a general agreement that was reached following negotiations between relevant public service management and the relevant staff interests. It was an agreement that had general application. The fact that the applicant may have been affected by the agreement does not mean that records relating to the agreement relate to personal information about him. I am satisfied that section 11 (5)(b) does not apply in this case.
While the Department also stated that no records existed generally, I am satisfied that even if they did, no right of access would exist by virtue of the fact that they would have been created before 21 April 1998 and that section 11 (5) would apply.
In conclusion, therefore, I find that the Department was justified in refusing the applicant’s request for further relevant records on the ground that no right of access exists to such records as they were, or would have been if they existed, created before the effective date.
Decision
Having carried out a review under section 22 (2) of the FOI Act, I affirm the decision of the Department to refuse access to records relating to an agreement made in 1978 on the ground that relevant records would have been created before the effective date of the FOI Act.
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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.
Stephen Rafferty
Senior Investigator