Whether the AGO was justified in refusing, under section 42(f) of the Act, the applicant's request for records referring or relating to the management of a potential conflict of interest involving the Attorney General and his continuation of certain legal work after his appointment

22 March 2022

Background

In a request dated 1 November 2021, the applicant sought access to records referring or relating to the management of a potential conflict of interest involving the Attorney General and his continuation of certain legal work after his appointment. On 25 November 2021, the AGO refused the request pursuant to section 42(f) of the FOI Act. The applicant sought an internal review of that decision, following which the AGO affirmed its refusal of the request. On 7 January 2022, the applicant applied to this Office for a review of the AGO'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 the applicant's comments in his application for review and to the submissions made by the FOI body in support of its decision.  I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with whether the AGO was justified in refusing, under section 42(f) of the FOI Act, the applicant's request for records referring or relating to the management of a potential conflict of interest involving the Attorney General and his continuation of certain legal work after his appointment.                                                                                                       

Analysis and Findings

Section 42(f)

Section 42(f) of the Act provides that the Act does not apply to a record held or created by the Attorney General or the Director of Public Prosecutions or the Office of the Attorney General or the Office of Director of Public Prosecutions, other than a record relating to general administration.

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 Attorney General 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.

In his application for review, the applicant said the records sought concern the management of the AGO and refer to how the organisation organises its management of personnel, recruitment, and office procedures. He suggested that if a staff member of the AGO was to engage in an activity that presented a potential conflict of interest, that matter would be dealt with as a human resources and/or potentially a disciplinary issue. He argued that it is not tied to the legal case which might be causing the conflict of interest, but rather to the person's fulfilment of his/her functions as a member of staff. He argued that the specific legal case/legal file is of secondary importance in this context and that the management of the conflict of interest is what matters and is an administrative function. He suggested that there would be a human resources process in place to ensure no conflict of interest can arise in the first place.

In its submissions to this Office, the AGO outlined how a potential conflict of interest is dealt with. It said that where a conflict of interest arises for an Attorney General, it is noted in a lever arch file and the matter is dealt with by a person other than the Attorney, usually under the direction of the Director General. It said the Attorney's Private Office records any conflicts of interest in a lever arch file and where it is established that a conflict of interest arises on a legal matter or file that the Attorney General has been asked to consider, the Attorney General indicates this in writing and the legal advisor handling the file then reports to the Director General on the matter. It said the Attorney General does not act or advise in the matter.  The AGO confirmed that a record of any such conflicts of interest or potential conflicts of interest is kept in the Attorney General's private office and that the records relate to specific legal matters and not to the general administration of the AGO. It added that it has no relevant policy document on conflicts of interest and that the relevant information is provided to a newly appointed Attorney General and relevant staff as part of briefing meetings and handover to new staff.

Having regard to the AGO's description of the records concerned, I am satisfied that they cannot reasonably be described as relating to general administration. They are not policy or office procedure type documents that set out a process to be generally followed where a potential conflict of interest arises. Rather, they are prepared in the context of specific legal matters and files under consideration. As such, I find that the AGO was justified in refusing access to the records sought under section 42(f) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the AGO's decision to refuse, under section 42(f) of the FOI Act, the applicant's request for records referring or relating to the management of a potential conflict of interest involving the Attorney General and his continuation of certain legal work after his appointment.

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