Decision
Mr Y and Office of the State Pathologist
From Office of the Information Commissioner (OIC)
Case number: OIC-151272-D6D3P4
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URL: http://www.bailii.org/ie/cases/IEIC/2024/151272.html
Cite as: [2024] IEIC 151272
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Whether the Office of the State Pathologist was justified in refusing access to records concerning its work on a murder investigation case involving the applicant on the basis that the FOI Act does not apply to the records sought, pursuant to Schedule 1, Part 1(ag) of the Act
5 December 2024
The applicant in this case was convicted of murder. In a request dated 27 February 2024, solicitors representing the applicant sought access to all records relating in any way to the then deputy state pathologist's [Dr A's] investigation into the murder scene and to records relating to any review of Dr A's investigations and reporting generally and/or specifically in relation to the applicant's case.
The Office of the State Pathologist (OSP) is a non-statutory agency established on an administrative basis under the aegis of the Department of Justice. The Department processes FOI requests made to the OSP. However, the OSP make the decisions on requests made to it. References to the OSP in this review include references to correspondence issued by the Department on behalf of the OSP.
In a decision dated 28 March 2024, the OSP refused the request under sections 32, 37 and 42(f) of the FOI Act. On 4 April 2024, the applicant sought an internal review of that decision and disputed the basis for refusing his request. On 30 April 2024, the OSP varied the reason for refusing the request. It said that, in addition to the exemptions already relied upon, it was now refusing the request pursuant to Schedule 1, Part 1(ag) of the Act as the Office of the State Pathologist is only a partially included agency under the FOI Act. On 14 August 2024, the applicant applied to this Office for a review of the OSP's decision.
The applicant's legal representative said the reports produced by Dr A attribute liability to his client and claimed the adequacy of the Dr A's work has since come into question. He also said his client had received formulaic refusals to his request and argued that these do not constitute a basis upon which to deny access to information which he considered critical to the vindication of the applicant's fundamental rights.
This Office invited both parties to make submissions in support of their positions. The OSP provided submissions to this Office with respect to its reliance on Schedule 1, Part 1(ag), details of which were provided to the applicant. To date, this Office has not received any further submissions from the applicant.
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 outlined above, including the application made to this Office and the submissions made by the OSP in support of its decision. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether the OSP was justified in refusing access to records relating to the murder investigation case in question, pursuant to Schedule 1, Part 1(ag) of the FOI Act and under sections 32(1), 37(1) and 42(f) of the Act.
Schedule 1, Part 1 -“ partially included agencies
It is important to state at the outset that the FOI Act applies only to a very limited category of records held by the Office of the State Pathologist. Therefore, I must first consider if Schedule 1, Part 1 of the FOI Act applies, which will determine if the other exemptions require further review. 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)(a) 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 details certain specified records that are excluded. If records sought 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.
Schedule 1, Part 1(ag) provides that section 6 of the Act does not include a reference to the Office of the State Pathologist insofar as it relates to records in connection with an investigation being undertaken by the Garda SÃochána, or other records (not relating to the general administration of the Office) concerning, or arising from, functions performed by the Office under the Coroner's Act 1962.
Essentially, what this means is that the Office of the State Pathologist is not a public body for the purposes of the FOI Act with respect to records concerning the performance of certain of its functions, other than in relation to records concerning the general administration of those functions. In other words, the only records held by the State Pathologist that are subject to the FOI Act are those that relate to the general administration of that Office. In accordance with Schedule 1, Part 1(ag), all other records held by the Office of the State Pathologist relating to the core functions of that Office when performing those functions connected to a Garda investigation or under the Coroner's Act 1962 are excluded and no right of access to those records exists.
The FOI Act does not define the term "general administration" as provided for in Schedule 1, Part 1(ag). 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, etc.
In its submissions to this Office, the OSP said it identified eight records related to the applicant's FOI request and provided descriptions of the contents of those records. The records include the State Pathologist Case Work Sheet, the Post Mortem Report relating to the deceased and correspondence concerning the case between the OSP and the DPP, and with An Garda SÃochána. The OSP said each of the records coming within the scope of the request relate to an investigation undertaken by An Garda SÃochána, or other records concerning, or arising from, functions performed by the OSP under the Coroner's Act 1962 which are not records relating to the general administration of the Office. Having had regard to the description of the records at issue, I am satisfied that they do not relate to the general administration of the OSP.
Furthermore, while I have noted the applicant's comments about what might be regarded as public interest arguments in favour of release of the records he is seeking, there is no public interest provision concerning access to records that are excluded from the FOI Act under Schedule 1, Part 1(ag). If the records do not relate to the general administration of the OSP, then no right of access exists under the FOI Act. Having considered the matter carefully, I find that the OSP 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(ag) of the Act.
As I have found that no right of access exists under the FOI Act to the records sought in this case, there is no need for me to consider the exemptions relied upon by the OSP in its original decision on the applicant's request.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the OSP's decision to refuse the applicant's request pursuant to Schedule 1, Part 1(ag) of the FOI Act.
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.
Richard Crowley
Investigator