Whether GSOC was justified in refusing access to records of an investigation sought by the applicant on the ground that the records are not subject to the FOI Act, pursuant to Schedule 1 Part 1(y) of the Act

11 September 2020

Background

In a request dated 5 June 2020, the applicant sought access to all information relating to his GSOC case, including all information in relation to a report that GSOC allegedly forwarded to the Garda Commissioner in relation to the case. On 11 June 2020, GSOC refused the applicant’s request on the ground that the records sought are excluded from the FOI Act as they concern an investigation file. The applicant sought an internal review of that decision, following which GSOC affirmed its original decision. On 13 July 2020, the applicant sought a review by this Office of GSOC’s decision.

I have now completed my review in accordance with section 22(2) of the FOI Act.  In carrying out my review, I have had regard to the correspondence between GSOC and the applicant as outlined above and to the correspondence between this Office and both parties on the matter. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with whether GSOC was justified in refusing to grant access to the records sought by the applicant in his request dated 5 June 2020, on the ground that the FOI Act does not apply in respect of the records sought.

Analysis and Findings

Section 6(2)(a) of the FOI Act provides that an entity specified in Part 1 of Schedule 1 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 certain specified records that are excluded. If the records sought come within the descriptions of the exclusions in Part 1, then the Act does not apply and no right of access exists.

Schedule 1, 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). 

In its submissions to this Office, GSOC said that the applicant made a complaint to it, which was admitted for investigation under section 95 of the Garda Síochána Act, 2005 (which is provided for under Part 4 of that Act). GSOC explained that in these cases, the complaints are investigated directly by GSOC as a non-criminal investigation into possible breaches of the Garda Síochána Discipline Regulations. Once the investigation is complete, GSOC sends its final report and its recommendations, as to whether a breach of discipline has been committed or not, to the Garda Commissioner for his review and final decision. The report is sent in line with section 97 of the Garda Síochána Act, 2005. GSOC said that the applicant is seeking access to all of the material contained in the investigation file as well as access to the final investigation report sent by GSOC to the Garda Commissioner. As such, GSOC argues that the records sought are not subject to the FOI Act, 2014 and are excluded in line with Schedule 1, Part 1 (y).

Having regard to the nature and description of the records sought in this case, I am satisfied that they are captured by the exclusion in Part 1(y) of Schedule 1. Accordingly, I find that GSOC was justified in its decision to refuse access to those records on the ground that they are excluded from the scope of the FOI Act. 

Decision 

Having carried out a review under section 22(2) of the FOI Act 2014, I hereby affirm the decision of GSOC 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