Whether AGS was justified in refusing access to information relating to a named individual on the ground that the FOI Act does not apply to the records sought, pursuant to Schedule 1, Part 1(n) of the Act

20 April 2022

Background

In a request dated 2 November 2021, the applicant submitted a request to AGS asking if there had been any sexual/indecency allegations made against a named individual. In a decision dated 4 November 2021, AGS refused the request on the grounds that the FOI Act does not apply to the records sought, pursuant to Schedule 1, Part 1(n) of the Act. On 30 November 2021, the applicant sought an internal review of that decision. She argued that as the individual about whom information was sought is deceased, there could be no subject data breach. She also argued that her request was for administrative records. On 21 December 2021, AGS affirmed its original decision. The applicant applied to this Office on 21 March 2022 for a review of AGS'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 to correspondence between the applicant and AGS as outlined above, to the applicant's correspondence with this Office, and to communications between this Office and AGS 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 AGS was justified in refusing the applicant's request for certain information relating to a named individual on the ground that the FOI Act does not apply to the records sought, pursuant to Schedule 1, Part 1(n) of the Act.

Preliminary Matters

In her submissions to this Office, the applicant contended that as the individual about whom she seeks information is now deceased, his data is not subject to data protection legislation. The applicant's request was made under the FOI Act. The FOI Act is entirely independent of data protection legislation and requests for access to records under the FOI Act must be processed in accordance with the provisions of the FOI Act.

I also note that the applicant set out in her submissions to this Office details of why she was seeking access to the information. Section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that this Office cannot have regard to the applicant's motives for seeking access to the information in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest (not relevant in this case).

Analysis and Findings

For the benefit of the applicant, I should explain at the outset that the FOI Act applies only to a very limited category of records held by AGS. Regardless of a requester's views as to whether there may be compelling grounds for the release of certain records, if the Act does not apply to the records sought, then no right of access exists and this Office has no further role in the matter. I should also explain that AGS has not identified any specific records as falling within the scope of the applicant's request in this case. Rather, its position is that the Act would not apply to any such records if they did, in fact, exist.

Section 6(2) of the Act provides that an entity specified in Schedule 1, Part 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 also details of the 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 to such records held by the body.

Schedule 1, Part 1(n) provides that AGS is not a public body for the purposes of the FOI Act other than in relation to administrative records relating to human resources, or finance or procurement matters. In other words, the only records held by AGS that are subject to the FOI Act are those that relate to administrative matters concerning human resources, finance, or procurement. In accordance with Part 1(n), all other records held by AGS are excluded.

In its submission to this Office, AGS argued that the records requested by the applicant relate to allegations of criminal conduct which fall outside the parameters of administrative records relating to human resources, finance or procurement matters. I agree. Accordingly, I find that AGS was justified in its decision to refuse access to the records sought on the ground that they are of a type to which the right of access under the Act does not apply.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of AGS to refuse the applicant's request for certain information relating to a named individual pursuant to Schedule 1, Part 1(n) of the 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