Note: This decision was appealed to the High Court by the applicant on 11 August 2023.

Whether AGS was justified in refusing access to records relating to stops and searches carried out in certain region from 1 January 2022 to 1 January 2023

19 July 2023

Background

All references to the applicant in this case can be taken to be relating to the applicant or his representatives, as appropriate.

In a request dated 21 March 2023, the applicant made a request for access to records relating to the following:

1. A breakdown of all AGS stops and searches from 1 January 2022 until 1 January 2023 in the Dundalk/Louth district.

2. The legal provisions (if any) that were utilised to ground the stops and searches.

3. A breakdown of the stops and searches concerned by age, gender, and ethnicity.

On 22 March 2023, AGS issued an original decision refusing the applicant-�s request under Schedule 1, Part 1(n) of the FOI Act. On 29 March 2023, the applicant requested an internal review of the decision, citing various arguments against the AGS-�s reliance on Schedule 1, Part 1(n to refuse his request. On 16 May 2023, AGS issued an internal review decision affirming its original decision. On 16 May 2023, the applicant applied to this Office for a review of the AGS-�s decision. On 20 June 2023 the Investigating Officer provided the applicant with details of AGS-�s submissions in support of its refusal of his request and invited him to comment. The applicant made no further substantive comments.

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 set out above and to the submissions made by AGS during the course of this review. I have also had regard to the nature of the records concerned. 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 access to records relating to stops and searches during the relevant period on the ground that the FOI Act does not apply to the records sought, pursuant to Schedule 1, Part 1(n) of the FOI Act.

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 FOI Act does not apply to the records sought, then no right of access exists and this Office has no further role in the matter. The position of AGS is that the information requested falls outside the scope of the FOI Act.

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 records sought come within the description of the exclusions on Part 1, the FOI 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-�. 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.

The 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.

AGS-�s submissions

In its submissions to this Office, AGS stated that all information regarding stop and searches is outside the scope of the FOI Act as this information concerns operational matters. Its position is that the legal provisions relied upon to ground individual stops and searches, as well as information relating to the reasons for all stop and searches in the Dundalk/Louth area for the relevant period is operational information. It stated that each stop and search could have been made -�for a different reason-� based on -�different criteria-�. Additionally, AGS stated that details of the relevant legislation that is generally used for searches can be found in the Offences against the State and Criminal Justices Act.

The applicant-�s submissions

In his request for internal review, the applicant made a number of arguments in support of his view that the records sought should be released. He argued that the AGS-�s interpretation of -�administrative records relating to human resources-� is unduly restrictive. He suggested that the fact that section 42(b) of the FOI Act excludes certain covert/security/intelligence elements of policing operations means that -�administrative records relating to human resources-� must apply to non-covert/security/intelligence related policing matters.

The applicant also argued that as Schedule 1, Part(o) of the FOI Act provides that records concerning an inspection or enquiry carried out by the Garda Síochána Inspectorate are within the remit of the Act, it would make no sense to find that AGS is safeguarded from providing reports relating to the operation of police business.

Finally, the applicant argued that section 32(3) of the FOI Act allows for the disclosure of certain law enforcement records in certain circumstances and that this provision would serve no purpose if the Act did not apply to the policing business of AGS.

Analysis

I do not accept the applicant-�s arguments. First, as I have outlined above, pursuant to Schedule 1, Part 1(n), 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. Only where such records are at issue is it necessary to go on to consider whether any of the other exemptions or restrictions might also apply. Essentially, section 42(b) serves as a further restriction on those records held by AGS to which the Act applies. For example, even if a record relates to administrative matters concerning human resources, the FOI Act will not apply to that record if it also relates to the Emergency Response Unit (section 42(b)(i) refers).

Similarly, section 32(3) does not fall to be considered if the record held by AGS does not relate to administrative matters concerning human resources, finance, or procurement. Instead, it falls to be considered only where the record relates to administrative matters concerning human resources, finance, or procurement and where section 32(1) applies. It is worth noting that section 32, which provides for the exemption of records relating to law enforcement and public safety, may be relied upon by any public body that is subject to the Act. It is simply not the case that the provision would serve no purpose if the Act did not apply to the policing business of AGS.

On the matter of the applicant-�s arguments concerning Schedule 1, Part 1 (o) of the FOI Act, the provision does not, as the applicant suggests, provide that records concerning an inspection or enquiry carried out by the Garda Síochána Inspectorate are within the remit of the Act. Instead, it provides that the Garda Síochána Inspectorate is not an FOI body in relation to such records. In any event, the restrictions in Schedule 1 are specific to the bodies identified. The fact that certain types of records held by an FOI body may be subject to the Act does not mean that all such records must be subject to the Act regardless of what body holds them.

Having regard to this Office-�s understanding of the term -�administrative record-� as outlined above, I am satisfied that records relating to stops and searches 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, pursuant to Schedule 1, Part 1(n), the applicant-�s request.

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 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