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

29 September 2022

Background

In a request dated 31 May 2022, the applicant submitted a request to the AGS seeking records regarding tragic events that occurred concerning her late son-�s death. In a decision dated 31 May 2022, the 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 20 June 2022, the applicant sought an internal review of that decision. On 19 July 2022, AGS affirmed its original decision. The applicant applied to this Office on 8 August 2022 for a review of the refusal of her request. She said she was her son-�s next of kin and the owner of the property at which the incident occurred and that the information sought was of material importance to her. She argued that as the Garda investigation into the matter was closed, there could be no adverse consequences to the release of the information to her.

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 records relating to her son-�s death and the incidents surrounding it on the ground that the FOI Act does not apply to the records sought, pursuant to Schedule 1, Part 1(n) of the Act.

Analysis and Findings

I wish, in the first instance, to express my condolences to the applicant on the tragic loss of her son. While I can fully understand and appreciate the importance she places on obtaining the records, it is important to note that under section 13(4) of the Act, any reason that a requester gives for a request must generally 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 whether the Act requires a consideration of the public interest (not relevant in this case).

Moreover, it is important to note that the FOI Act applies only to a very limited category of records held by the 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.  We are not in a position to direct the release of records to which the FOI Act does not apply.

Section 6(2) of the FOI Act provides that any organisation specified in Schedule 1, Part 1 of the FOI 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) of the FOI Act 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. This means that the only records held by the 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.

The Act does not define the term -�administrative record-�. This Office considers the term to cover records relating to the administration of the body, as opposed to, say, records relating to its operational matters or core functions. In the case of a number of specified public bodies, the right of access afforded by the FOI Act is restricted to records relating to their general administration. We consider the term general administration to refer to records which have to do with the management of a public body such as records relating to personnel, pay matters, recruitment, accounts, information technology, accommodation, internal organisation, office procedures and the like. In the case of AGS, the category of administrative records to which a right of access applies is limited further; they must also concern human resources, finance, or procurement matters.

In its submission to this Office, AGS explained that the records requested by the applicant are operational records and records relating to investigations and therefore fall outside the parameters of administrative records relating to human resources, finance or procurement matters. Having regard to the nature of the records sought, 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 An Garda Síochána to refuse, pursuant to Schedule 1, Part 1(n) of the Act, the applicant-�s request for certain information relating to incidents surrounding and including the death of her son on the ground that the Act does not apply to the records sought.

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