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

14 September 2020

Background

In a request dated 17 January 2020, the applicant sought access to records relating to a GSOC investigation concerning an incident at his home. On 20 January 2020, GSOC refused the applicant’s request on the ground that the records sought concern an investigation file and are therefore excluded from the FOI Act. On 10 February 2020, the applicant sought an internal review of GSOC’s decision, following which GSOC affirmed its original decision. On 16 July 2020, the applicant sought a review by this Office of GSOC’s refusal of his request.

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 referred to 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 17 January 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 submission to this Office, GSOC said that the records in this case are contained on a GSOC investigation file. GSOC said that the applicant made a complaint to it which was admitted for investigation under section 94(1) of the Garda Síochána Act, 2005 (which is provided for under Part 4 of that Act). GSOC explained that in these cases, as the matter concerned was not of a criminal nature, the complaints are sent back to the Garda Síochána for investigation under the Garda Síochána Discipline Regulations, usually by a Garda Superintendent. The final report is then sent to GSOC. In this instance, GSOC said, the applicant is seeking the final report compiled by the Superintendent who was the investigating officer appointed to investigate his complaint. 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 Freedom of Information 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