Whether the DPC was justified in refusing access to any internal documents about the standard of evidence required in a SAR complaint, pursuant to Schedule 1, Part 1(f) of the FOI Act

13 August 2021

Background

On 28 March 2021, the applicant submitted a request to the DPC for access to any internal documents about the standard of evidence required in a SAR (Subject Access Request) complaint. As the DPC failed to issue its decision within the statutory time-frame, the applicant sought an internal review of the deemed refusal of her request on 27 April 2021. The DPC issued its internal review decision on 29 April 2021, wherein it refused the request pursuant to part 1(f), Schedule 1 of the Act on the ground that the records sought do not concern the general administration of the DPC. The applicant sought a review by this Office of the DPC’s decision on 16 June 2021.

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 communications between the DPC and the applicant as outlined above and to the communications between this Office and both the DPC and the applicant on the matter. I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

This review is concerned solely with the question of whether the DPC was justified in refusing the applicant’s request for any internal documents about the standard of evidence required in a SAR complaint, pursuant to Schedule 1, Part 1(f) of the FOI Act.

Analysis and Findings

Section 6(2)(a) of the Act provides that an entity specified in Part 1 of Schedule 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 details of 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. Part 1(f) of Schedule 1 provides that section 6 does not include a reference to the Data Protection Commissioner, or an officer of the Commissioner, in relation to a record (save as regards a record concerning the general administration of the Office of the Commissioner). In other words, the only records held by the DPC that are subject to the FOI Act are those that concern the general administration of that Office. In accordance with Part 1(f), all other records held by the DPC are excluded.

In its submission to this Office, the DPC argued that records relating to its assessment and handling of complaints relate to the core investigative role of the DPC and do not form part of the general administration of the Office. It argued that such records are not sufficiently similar to fall within the categories identified as constituting “general administration” in previous decisions made by this Office.

The DPC also said that, notwithstanding and without prejudice to its position that the records requested are not subject to the FOI Act, it holds no internal documents about the standard of evidence required in a SAR complaint. It said that to the extent that the DPC has procedures on the handling of complaints, those procedures do not contain information describing the standard of evidence that pertains to complaints to the DPC in relation to SARs.

The applicant made a submission as part of her application for review to this Office. While I have not included the full details of her submission in this decision, I can confirm that I have regard to it in the course of making my decision. The applicant submitted that the requested information is of such a generality that it should be considered to fall under the definition of general administration. She also argued that if the DPC considers the investigation of subject access requests for the public as part of its core business, then refusal to tell the public what the standard of evidence they must produce frustrates this "core business" and it cannot be considered as such.

While the Act is silent on the meaning of general administration, this Office considers that it clearly refers to records which have to do with the management of the Office of the DPC such as records relating to personnel, pay matters, recruitment, accounts, information technology, accommodation, internal organisation, office procedures and the like.

I accept the DPC’s argument that the records sought in this case, if they existed, would relate to one of its core functions of investigating SAR complaints. As such, and having regard to this Office’s understanding of the meaning of general administration as set out above, I also accept that they would not concern the general administration of the DPC. I would add that this Office has no role in considering the appropriateness, or otherwise, of the procedures adopted by the DPC for investigating such complaints.

Accordingly, I find that the DPC was justified in its decision to refuse access to the records sought pursuant to Schedule 1, Part(1)(f) of the Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the DPC’s refusal of the applicant’s request for any internal documents about the standard of evidence required in a SAR complaint, pursuant to Schedule 1, Part 1(f) 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 not later than four weeks after notice of the decision was given to the person bringing the appeal.

Stephen Rafferty

Senior Investigator