Whether AGS was justified in refusing access to certain categories of records relating to Garda X, a relative of the applicant, on the basis that they are outside the scope of the FOI Act as set out in Part 1(n) of Schedule 1 of the FOI Act, and whether it was justified in refusing access to additional records under section 15(1)(a)

29 August 2023

Background

By way of background, the applicant in this case is the nephew of Garda X, who was murdered more than 50 years ago. I understand that there were a number of trials relating to his death. In a request dated 10 January 2023, the applicant sought access to records of all correspondence, reports, internal and external memos relating to Garda X from the period between 1943 to date. The applicant also requested Garda X-�s -�personal file-� and any related correspondence.

In a decision dated 3 March 2023, AGS part-granted the applicant-�s request. It cited Schedule 1 Part 1(n) of the FOI Act, which provides that the FOI Act solely applies to administrative records relating to human resources, or finance or procurement matters to refuse access to additional records and said that it was therefore only considering administrative records within the scope of the applicant-�s request. AGS released HR/administrative records relating to Garda X in part under section 37(1) of the FOI Act. On 8 March 2023, the applicant requested an internal review of AGS-�s decision, wherein he referred to the circumstances of his uncle-�s death and indicated that he would expect there to be a -�substantial file-� relating to Garda X and his untimely death. AGS affirmed its initial decision on 13 April 2023.

On 23 April 2023, the applicant applied to this Office for a review of AGS-�s decision. In subsequent correspondence with this Office, the applicant argued that records relating to the following matters should exist:

1. Correspondence internally and externally generated relating to Garda X-�s death.
2. The funeral arrangements for Garda X, who he stated had been given full Garda Honours at his funeral.
3. Correspondence with Garda X-�s widow, now deceased.
4. Correspondence with Garda X-�s brother and father in relation to his possible inclusion on the Roll of Honour to acknowledge his service and death.
5. The decision taken not to honour Garda X.
6. Correspondence and memos relating to three murder trials relating to Garda X-�s death.

The Investigating Officer provided details of the above to AGS during the review and invited it to comment. She subsequently provided the applicant with details of AGS-�s submissions in response, wherein it outlined the searches undertaken to locate the records sought and its reasons for concluding that no further records within the scope of the FOI Act existed. The applicant was invited to make further submissions on the matter, which he duly did.

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 submissions made by AGS in support of its decision as well as the applicant-�s comments in his correspondence with this Office. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

During the course of this review, AGS stated that the applicant appeared to have a particular interest in records relating to the circumstances of his uncle-�s death, as well as correspondence between Garda X-�s family and AGS after his death. It stated that in his original request, the applicant made no reference to the circumstances of Garda X-�s death, nor did he refer to the possible existence of correspondence between the family and AGS after his death. AGS further stated that it only became aware of the circumstances of Garda X-�s death in correspondence with the applicant after its original decision issued. AGS also indicated that it did not consider any of the categories listed at 1-6 above to come within the scope of the applicant-�s original request. However, it stated that it had carried out additional searches in an effort to locate such records.

I accept that the applicant did not refer to the circumstances of his uncle-�s death in his request and that a person making a request under the FOI Act must give sufficient particulars to enable the FOI body to identify the records sought, pursuant to section 12(1)(b) of the Act. However, I am satisfied that the wording of his request is broad enough to include the specific categories described above.

The applicant-�s position is that further relevant records should exist. AGS-�s position is that no further relevant records exist or can be found. This is, in effect, a refusal to grant access to additional relevant records under section 15(1)(a) of the FOI Act, which provides for the refusal of a request where the records sought do not exist or cannot be found. As set out above, AGS also relied on Schedule 1 Part 1(n) of the FOI Act to refuse access to records other than those relating to certain administrative matters.

Accordingly, this review is concerned with whether AGS was justified in refusing to grant access to records relating to the applicant-�s request on the basis that certain records are outside the scope of the FOI Act as set out in Schedule 1 Part 1(n) and to refuse access to additional records under section 15(1)(a) on the basis that they do not exist or cannot be located, after all reasonable steps to ascertain their whereabouts have been taken.

Analysis and Findings

Schedule 1 Part 1(n)

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 purpose of the Act. Schedule 1 Part 1 contains details of bodies that are partially included for the purposes of the FOI Act and also details certain specified records that are excluded. If the records sought by a requester come within the description of the exclusions in Part 1, the FOI Act does not apply and no right of access exists to such records held by the body. In such circumstances, this Office has no further role in the matter.

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-�. 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.

As set out above, in its original decision, AGS stated that only administrative records relating to human resources, finance or procurement would be considered when processing the applicant-�s request. The internal reviewer affirmed this position. In its submissions to this Office, AGS stated that any records relating to Garda-�s X-�s death, including records relating to criminal investigations into his death, legal proceedings or correspondence with the deceased-�s family after his death concerning such matters did not come within the FOI Act, having regard to Schedule 1 Part 1(n).

AGS stated that Garda X-�s personnel file, which it considered to be administrative record relating to human resource matters, did not contain any details on the circumstances of his death. It said that, accordingly, this file, subject to a number of redactions, was released to the applicant. AGS noted that Garda X-�s death resulted in a murder investigation and subsequent legal proceedings. It stated that any records relating to Garda X-�s death concern operational policing matters, and accordingly fall outside the scope of the FOI Act. Essentially, its position is that there is no right of access to records concerning categories 1 and 6 above.

In his internal review request, the applicant queried the lack of records released relating to the circumstances of and events following Garda X-�s death. As set out above, he is of the view that there should be an -�extensive file-� that exists relating to these matters. During the course of this review the applicant indicated to this Office that he does not accept AGS-�s reliance on Schedule 1 Part 1(n). When informed that records relating to operational AGS matters are outside the scope of the FOI Act, he argued that as its investigations -�ended at the conclusion of the murder trial-�, any -�Investigation exemption-� could not apply.

The FOI Act does not define the term -�administrative record-� as provided for in Part 1(n), apart from stating that they relate to human resources, or finance or procurement matters. 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.

I am satisfied in the circumstances that records relating to Garda X-�s death, AGS-�s criminal investigation into these matters and its involvement in subsequent legal proceedings are operational rather than administrative records. I have sympathy for the applicant, who is simply seeking records concerning the dearth of his uncle. However, Schedule 1 Part 1(n) does not make any distinction between whether AGS investigations or operational matters are ongoing. It simply states that any records other than administrative records relating to human resources, or finance or procurement are outside of the scope of the FOI Act.

I am satisfied that any correspondence or other records after Garda X-�s death relating to his murder, AGS-�s subsequent investigation and legal proceedings concern operational AGS matters. Accordingly, having regard to this Office-�s understanding of the term -�administrative record-� as outlined above, I am satisfied that such records cannot be said to relate to administrative matters relating to human resources, or finance, or procurement. I find, therefore, the AGS was justified in refusing access to records relating to Garda X-�s death, its investigation and resulting court cases, as the FOI Act does not apply to such records.

Section 15(1)(a)

Section 15(1)(a) of the FOI Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. Our role in a case such as this is to review the decision of the FOI body and to decide whether that decision was justified. In this case, this means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision that no relevant records exist.

As I have outlined above, AGS provided this Office with details of the searches it said it undertook in an effort to locate further relevant records, and its reasons for concluding that no further records exist or can be found. The Investigating Officer provided the applicant with an outline of AGS-�s submissions in this regard. In his response, the applicant indicated that he did not accept its submissions. While I do not propose to repeat those details in full here, I confirm that I have had regard to them for the purpose of this review.

As noted above, AGS considered some of the categories of records specified by the applicant in his internal review request and in his application to this Office as being outside the scope of his request, as they had not been specified in his original request. Nonetheless, AGS-�s position, essentially, is that any and all records relating to these matters, if they existed, would have been captured by the extensive searches carried out. It said that it conducted searches on foot of his original request, and again on foot of his internal review request, which provided more information. It said that personnel files of retired and deceased Garda members are kept in the Garda National Repository, and that records relating to the history of AGS are held in the Garda Museum. It stated that searches for relevant records were carried out at both locations using Garda X-�s name and registration number.

In relation to categories 1-5 set out above, AGS stated that searches of both electronic and hardcopy records at the Garda Museum showed that Garda X died while serving as a Garda member, but that no records were located in respect of his death or funeral. In response to a request for clarification, it essentially stated that the only records relating to Garda X-�s death were those that were outside the scope of the FOI Act. AGS also stated that it found no records relating to the arrangements for Garda X-�s funeral. The applicant had indicated that the Garda Band had attended the funeral, but AGS said that this was not possible. It stated that the Garda Band disbanded two years before Garda X-�s funeral, and that it was not re-established until five years later. AGS also stated that although Garda X was killed while serving as a Garda, it found no evidence that he had died while in the course of his official duties. It said that -�[t]he distinction between Garda [X] being killed while a member of [AGS] and being murdered it is in important one to make given [the applicant]-�s assertion that records should exist in respect of Garda [X]-�s funeral-�. In any event, AGS-�s position is that if Garda X had received an official State funeral, records would have been found as part of the searches undertaken at the Garda Museum, the Office of the Garda Commissioner, Internal Affairs and the relevant AGS Divisional Offices, but that none were located.

AGS stated that records relating to Garda X-�s widow were considered to be outside of the scope of the applicant-�s request, however it also said that records relating to her pension have already been released to the applicant. In relation to records concerning Garda X-�s possible inclusion on the Roll of Honour and/or a decision made in this regard, AGS-�s position is that Garda X was not killed in the course of his duties, and that accordingly, his name would not appear on the official Garda Roll of Honour. On that basis, it indicated that it would not expect to find any records relating to such matters other than that arising from correspondence from his family members, as referred to by the applicant. However, AGS stated that no such records have been located. While it is not disputing that such records were received, it stated that these matters are from over 50 years ago, and pre-date the FOI Act. Its position is that standards of record-keeping at the time differed significantly from those today.

During the course of the review, the applicant indicated that he did not accept AGS-�s submissions. Among other things, he was of the view that AGS had contradicted itself and queried how it knew details relating to Garda X-�s death if no further relevant records existed other than those on his personnel file. He also referred to correspondence he believed had been submitted to AGS more recently from a named TD, the Department of Justice, and other family members regarding these matters.

The Investigating Officer provided the applicant-�s comments to AGS and invited it to comment. In response, AGS stated that it was a matter of public record on Garda X-�s death certificate that he died while in a specific Garda station. It also stated that, despite further searches having been carried out in the Office of the Garda Commissioner, Internal Affair Divisions and a specific Divisional Office in relation to various matters mentioned by the applicant, including the proposal that a memorial plaque be erected for Garda X, that no further records were located. It said that these additional searches were carried out using Garda X-�s name, registration number and the names of family members who were believed to have corresponded with AGS. It stated that there were no other offices or locations within AGS likely to have records in respect of Garda X.

It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations can arise where records are lost or simply cannot be found. What the FOI Act requires is that the public body concerned takes all reasonable steps to locate relevant records. Public bodies are not required to search indefinitely for records in response to an FOI request. Furthermore, it is open to this Office to find that an FOI body has satisfied the requirements of section 15(1)(a), even where records that an applicant believes ought to exist have not been located.

The applicant is seeking records relating to his deceased uncle and has contended that AGS should have located further records and should release those it holds but has withheld under Schedule 1 Part (n), as addressed above. As also noted above, while I have sympathy for the applicant, many of the records sought are simply outside the scope of the FOI Act. Furthermore, as stated by AGS, the majority of the records sought in this case are more than 50 years old.

The question I must address in this case is whether AGS has carried out reasonable searches to locate additional records relating to the applicant-�s request. After reviewing its submissions and taking the applicant-�s comments into consideration, I am satisfied that it has. While the applicant does not accept AGS-�s position, there is no evidence before me to indicate that further searches are warranted. Accordingly, I find that AGS was justified in refusing access, under section 15(1)(a) of the FOI Act, to further relevant records on the ground that no additional records relating to the applicant-�s request, other than those which are outside the scope of the FOI Act, exist or can be found once all reasonable steps to ascertain their whereabouts have been taken.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm AGS-�s decision. I find that AGS was justified in refusing access, under section 15(1)(a) of the FOI Act, to additional records relating to the applicant-�s request on the basis that no further relevant records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken and in refusing to release records relating to operational matters under Schedule 1, Part 1(n) on the basis that such records are outside the scope of the FOI 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.
 

Sandra Murdiff
Investigator