Whether the DPC was justified in refusing access to six categories of records relating to a complaint the applicant made to the DPC, pursuant to Schedule 1, Part 1(f) of the FOI Act.

10 August 2021

Background

On 30 April 2021, the applicant submitted a request to the DPC for access to six categories of records relating to a complaint he made and the examination by the DPC of that 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 his request on 16 June 2021. The DPC issued its internal review decision on 28 June 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 the same day.

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 records relating to a complaint he made to the DPC, 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 said the information sought by the applicant relates to the core investigative role of the DPC and not to general administrative matters. It said records concerning the outcome of an investigation conducted by a case officer of the DPC and records generated in the course of the conduct on an investigation by a case officer are held solely for the conduct of the statutory and regulatory functions of the DPC.

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 am satisfied that it does not refer to records relating to matters concerning the core business of the Office, such as the examination of complaints.

Having regard to the nature of the request and the description of the records sought, I am satisfied that the records sought concern the core function of the Office of the DPC, as opposed to the general administration of that Office. Accordingly, I find that the DPC 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, 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 relating to a complaint he made to the DPC, 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