Whether the Office of the Attorney General Office was justified in refusing the applicant’s request for records relating to amounts paid or to be paid in respect of litigation in which the Attorney General acted in a personal capacity while serving as Attorney General on the grounds that it does not hold the records sought for the purposes of the FOI Act

14 September 2021

Background

On 9 December 2020, the applicant submitted a request to the Office of the Attorney General (the AG’s Office) for information relating to litigation in which the Attorney General acted in a personal capacity while serving as Attorney General. Specifically, he sought records, from 27 June 2020 to the date of his request, containing information relating to amounts paid or to be paid in respect of any such litigation.

On 8 January 2021, the AG’s Office refused the request on the ground that the records sought are not records that would be deemed to be held by it for the purposes of the FOI Act. On the same day the applicant sought an internal review of that decision, following which the Office of the Attorney General affirmed its original decision.  On 27 July 2021, the applicant sought a review by this Office of that 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 submissions made by the applicant in his application for review and to the submissions made by the AG’s Office in support of its decision as well as the decisions it has taken in this 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 whether the AG’s Office was justified in refusing the applicant’s request for records relating to amounts paid or to be paid in respect of litigation in which the Attorney General acted in a personal capacity while serving as Attorney General on the grounds that it does not hold the records sought for the purposes of the FOI Act.  

Analysis and Findings

Section 11(1) of the FOI Act provides for a right of access to any record held by an FOI body. While the Act does not define “held”, the Commissioner accepts that mere physical possession of a record does not, of itself, mean that the record is held for the purposes of the Act. 

In the case of Minister for Health v Information Commissioner [2019] IESC 40, the Supreme Court found that for a record to be held within the meaning of section 6(1) of the Act of 1997 (the equivalent of section 11 of the FOI Act 2014), the public body must be in lawful possession of the record in connection with, or for the purpose of, its business or functions and must also be entitled to access the information in the record.

The applicant argued that the Attorney General is a ‘statutory public body and an emanation of the State’ and as such any work undertaken by him during his time as Attorney General cannot be said to independent of his statutory role and therefore any records relating to work undertaken in a private capacity should be deemed to be within the lawful possession of his Office. I do not accept that argument. Having considered the matter, I am satisfied if records exist relating to litigation in which the Attorney General acted in a personal capacity, they cannot be said to be held by the AG’s Office in connection with, or for the purpose of, its business or functions. Moreover, I do not accept that the AG’s Office could be said to be entitled to access the information in such records.

I therefore find that the AG’s Office was justified in refusing the applicant’s request for records relating to amounts paid or to be paid in respect of litigation in which the Attorney General acted in a personal capacity while serving as Attorney General on the grounds that it does not hold the records sought for the purposes of the FOI Act.  

Decision

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