Case number: OIC-57689-H1R6W3

Whether GSOC was justified in refusing the applicant’s request for the dates of the original reports into complaints that he had made against GSOC staff members

 

17 June 2020

 

Background

 
This case has its background in a number of complaints the applicant made to GSOC concerning the conduct of members of An Garda Síochána (AGS) under the Garda Síochána Act 2005 and seven subsequent complaints he made against GSOC staff members. Six of those complaints related to the GSOC staff members who dealt with the AGS case files and one related to the GSOC staff member who processed a data subject access request he had made under the Data Protection legislation.  
 
On 19 July 2019, the applicant submitted a two-part FOI request to GSOC. He sought access to information relating to data protection requests received by GSOC in 2018, namely the request number, date of request and the date of determination of each request. He also sought details of the dates of the original reports into the seven complaints that he had made against GSOC staff members. 
 
On 16 August 2019, GSOC part-granted his request.  In respect of the first part, it released a log of data access requests received for 2018, containing details of the date each request was received and the date a response issued, where available. It withheld the request reference numbers under section 37(1) of the FOI Act on the ground that the release of the redacted information would involve the disclosure of personal information relating to third parties. It refused the second part of the request under section 15(1)(g) on the ground that it was vexatious. 
 
On 7 September 2019, the applicant sought an internal review of GSOC’s decision to refuse the second part of his request, following which GSOC affirmed its decision to refuse that part under section 15(1)(g). On 9 October 2019, the applicant sought a review by this Office of GSOC’s decision. 
 
During the course of the review, Ms Swanwick of this Office noted that the “original reports”, as understood by the applicant, in relation to his complaints might not exist. As such, she notified both parties of her view that section 15(1)(a) of the FOI Act was of more relevance.
 
Ms Swanwick provided the applicant with the details of GSOC’s explanation as to why it considers that no relevant reports exist. She noted that GSOC had already previously provided the applicant with a letter it had issued to the Minister for Justice and Equality in respect of one of his complaints that was referred to the Minister, that GSOC accepted might be regarded as a report. She informed the applicant of her view that GSOC was justified in refusing access to any other relevant records under section 15(1)(a) of the FOI Act and invited him to make a submission on the matter.
 
Having regard to the applicant’s response, I consider it appropriate to conclude this review by way of a formal, binding decision. In conducting my review, I have had regard to the correspondence between GSOC and the applicant as outlined above and to correspondence between this Office and both GSOC and the applicant on the matter.
 
 
 
 
 

Scope of the Review

 
This review is concerned solely with whether GSOC was justified in refusing the applicant’s request for access to the dates of the original reports into seven complaints that he had made against GSOC staff members on the ground that no further records containing the information sought exist.
 
 

Preliminary Matters

 
Before I address the substantive issue arising, I would like to make a number of preliminary comments.  Firstly, 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.  Therefore, the applicant’s request for dates has been interpreted as a request for records containing the information sought.
 
Secondly, a review by this Office is considered to be de novo which means that it is based on the circumstances and the law as they pertain at the time of the decision.  As such, while GSOC originally refused the request under section 15(1)(g), I am satisfied that it is appropriate to consider the applicability of section 15(1)(a) given GSOC’s position that no further records containing the information sought exist.  As stated above, the applicant was given an opportunity to make a submission on the applicability of section 15(1)(a).
 
Thirdly, in his correspondence with this Office, the applicant expressed concerns about the manner in which GSOC had dealt with his complaints against its staff members.  It is important to note that this Office has no role in examining the appropriateness, or otherwise, of the administrative actions of public bodies, nor is it the role of this Office to comment on how an FOI body performs its functions generally. 
 
Finally, the applicant also raised a number concerns about the manner in which GSOC processed his previous FOI requests.  It is important to note that this review has been conducted under section 22(2) of the Act and therefore cannot be extended into a wider investigation into how previous FOI requests were handled by GSOC.  Such an investigation, were it to take place, could only be initiated by the Commissioner under section 44 of the FOI Act.
 
 
 
 
 
 

Analysis and Findings

 
Section 15(1)(a) of the FOI Act provides that a request for access to records may be refused if the records sought either do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner’s role in such cases is to review the decision of the FOI body and to decide whether the decision was justified. This Office must have regard to the evidence available to the decision maker in arriving at his/her decision. The evidence in “search” cases generally consists of the steps actually taken to search for the records along with miscellaneous other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.
 
The general thrust of the applicant’s position is that, separate to the outcome letters he had received, “original reports” into each of his complaints should have been created and it is the dates of those reports which he is seeking.  In support of his argument that such reports should have been created, he referred to the Civil Service Disciplinary Code.
 
In its submissions to this Office, GSOC argued, in essence, that no “original reports” into the applicant’s complaints exist, apart from a letter previously released to him as described above.  As Ms Swanwick of this Office has already provided the applicant with the details of GSOC’s submission, I do not propose to repeat them in full here.  However, I can confirm that I have had regard to them for the purposes of this decision.   
 
GSOC explained that, as three of the applicant’s seven complaints related to the same staff member, it amalgamated them into five HR complaint files.  It noted that in respect of one staff member, the applicant had submitted a request to the Minister for Justice and Equality (the Minister) to initiate a judicial inquiry under section 109 of the Garda Síochána Act 2005. 
 
GSOC outlined its procedures for the examination of general complaints received against its staff members.  It noted that these complaints are managed by the HR Unit, in particular, by the Personnel Officer. It stated that upon receipt of a complaint, a complaint file is created and all relevant material is associated with that file. It also explained that the approach taken turns on the nature of the complaint.  It stated that depending on the seriousness of the complaint and the Personnel Officer’s assessment, the matter may be handled by the staff member’s line manager in accordance with the Civil Service Disciplinary Code.  
 
GSOC stated that the Personnel Officer who dealt with the applicant’s complaints was consulted and that an examination of records held by the HR Unit was undertaken.  It acknowledged that according to section 3 of the Civil Service Disciplinary Code, where matters under investigation are serious and/or complex the investigation will be governed by a clear terms of reference and there is a requirement on the investigator to submit a written report on the findings to the person identified in the terms of reference for that purpose.  GSOC stated that the HR Unit had advised that the matters subject of the applicant’s complaints were not deemed to be of a serious and/or complex nature. 
Section 109 of the Garda Síochána Act 2005, provides that the Minister, after consulting with the Ombudsman Commission, may request the Chief Justice to invite a judge to inquire into the conduct of a designated officer in the context of a criminal investigation.  GSOC explained that it has no statutory role in conducting an investigation into a designated officer under section 109 and that the decision as to whether such an investigation should take place is a matter entirely at the discretion of the Minister.  GSOC stated that that in order to help facilitate the consideration of the matter by the Minister, an officer may be asked to compile supporting information relating to the circumstances of the incident(s) at issue and to provide a report regarding the allegations made.  It noted that, if requested, this report and any supporting material may be forwarded to the Minister.  It also stated that these types of complaints are not dealt with under the Civil Service Disciplinary Code.
 
In respect of the applicant’s complaint that was also referred to the Minister, GSOC outlined that the Director of Operations had produced a document for the Ombudsman Commission, which contained an overview of the steps taken in the investigations into the applicant’s complaints concerning allegations of Garda misconduct. GSOC noted that it does not consider this document to be an “original report” in the context of the applicant’s request, explaining that it is not a report regarding the investigator’s conduct, it was not submitted to the HR Unit, and it does not form part of the HR complaint file.  GSOC stated that the document was prepared for the Ombudsman Commission so that it could provide further information to the Minister to inform his assessment.  It stated that the letter which issued to the Minister could be considered to be an “original report” and that this was the letter which had been released to the applicant in response to a data subject access request.  
 
The general thrust of GSOC’s position is that no further relevant records containing the information sought exist.  It is important to note that the FOI Act is concerned with access to records held by public bodies. If the record sought is not held by the body then that is the end of the matter, regardless of whether or not the requester believes that the record ought to exist based on his or her views as to what constitutes good administrative practice. 
 
Having considered GSOC’s description of its processes and procedures regarding the types of complaints submitted by the applicant and its explanation as to why no further relevant records exist, I am satisfied that GSOC was justified in refusing applicant’s request for the dates of the original reports into his complaints on the ground that no further records containing the information sought exist.
 
 

Decision

 
Having carried out a review under section 22(2), I hereby affirm GSOC’s refusal of the applicant’s request for the dates of the original reports into seven complaints that he had made against GSOC staff members under section 15(1)(a) of the FOI Act on the ground that no further relevant records containing the information sought exist.
 
 
 
 
 

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