Whether AGS was justified in refusing access to records relating to an alleged meeting held on 7 August 2016 between AGS and third parties on the ground that the Act does not apply to the records sought

30 November 2022

Background

In a request dated 29 June 2022, the applicant sought access to records relating to an alleged meeting held on 7 August 2016 between AGS and third parties. The request also contained additional requests for information and requests that a number of questions be answered regarding AGS decisions and correspondence relating to third parties. In a decision dated 6 September 2022 AGS refused the request on the ground that it falls outside the scope of the FOI Act pursuant to schedule 1, part 1(n) of the Act. On 16 September 2022 the applicant sought an internal review of AGS-™s decision. On 4 October 2022, AGS affirmed its refusal of the request. On 20 October 2022, the applicant applied to this Office for a review of the decision of AGS on her request.

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 correspondence between the applicant and AGS as outlined above and to the correspondence between this Office and both the applicant and AGS on the matter. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

While the purpose of the Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from a public body must make a request for records that contain the information sought. Requests for information or for answers to questions, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information or for an answer to a question can reasonably be inferred to be a request for a record containing the information sought. As such, I have treated the applicant-™s request as a request for records that might contain answers to the questions asked.

I would add that AGS has not identified any specific records as coming within the scope of the applicant-™s request. Instead, its position is that the Act does not apply to any such records that might exist. Accordingly, this review is concerned solely with whether AGS was justified in refusing the applicant-™s request for records relating to an alleged meeting held on 7 August 2016 between AGS and third parties 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

It is important to state at the outset that the FOI Act applies only to a very limited category of records held by AGS. Regardless of an applicant-™s view as to whether there may be compelling grounds for believing that the records sought should be released, 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.

Section 6(2) of the FOI Act of 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(n) contains details of bodies that are partially included for the purposes of the Act and also details of certain specified records that are excluded. If the records sought come within the description of the exclusions in schedule 1, part 1(n), 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 schedule 1, part 1(n), all other records held by AGS are excluded.

In submissions to this Office, AGS explained that the records requested by the applicant refer to matters which fall outside the parameters of administrative records relating to human resources, finance or procurement matters. Having regard to the nature of the request and to the types of records that might contain answers to the questions the applicant wants answered, I am satisfied that such records, if they exist, would concern the core functions of AGS, as opposed to administrative matters relating to human resources, or finance or procurement. Accordingly, I find that AGS 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(n) of the Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm AGS-™s decision to refuse the applicant-™s request 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