Whether AGS was justified in refusing access to records relating to the applicant’s engagements with a member of AGS on the ground that, pursuant to Schedule 1, Part 1(n) of the FOI Act, the Act does not apply to the records sought

17 February 2022

Background

The applicant in this case has strong concerns about the manner in which a member of An Garda Síochána (AGS) engaged with her in April 2021. On 2 December 2021, she submitted a request to AGS wherein she asked five questions concerning that engagement. On 8 December 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 12 December 2021, the applicant sought an internal review of that decision, following which AGS affirmed its original decision. On 18 December 2021, the applicant sought a review by this Office of the refusal of 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 correspondence between the applicant and AGS 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 or answer sought. As such, I have treated the applicant’s request as a request for record 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 relevant records in connection with her engagements with a member of AGS on the ground that the Act does not apply to such records, pursuant to Schedule 1, Part 1(n) of the Act.

Preliminary Matter

During the course of the review, the applicant made it clear that she is not happy with the manner in which a member of AGS engaged with her. As I have already explained to the applicant in previous correspondence, this Office has no role in examining the appropriateness, or otherwise, of the administrative actions of public bodies. It has already been explained to the applicant that it is the function of An Garda Síochána Ombudsman Commission to deal with matters involving possible misconduct by members of AGS.

Analysis and Findings

For the benefit of the applicant, 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 a requester’s views as to whether there may be compelling grounds for believing that the records 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 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 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 of the types of records that might contain answers to the questions the applicant wants answered, I am satisfied that such records 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.

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