Whether AGS was justified in refusing access to records relating to a certain investigation on the ground that, pursuant to Schedule 1, Part 1(n) of the FOI Act, the Act does not apply to the records sought
02 November 2021
On 21 July 2021, the applicant submitted a request to AGS for a range of information, records, and answers to questions, in connection with an investigation regarding his late son’s death. On 23 August 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 26 August 2021, the applicant sought an internal review of that decision, following which AGS affirmed its original decision. On 21 September 2021, the applicant sought a review by this Office of the refusal of his 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
As I have indicated above, the applicant’s request was for a range of information, records, and answers to questions. For the benefit of the applicant, I wish to explain that 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.
Furthermore, the Act does not require public bodies to create records if none exist, apart from a specific requirement, under section 17(4), to extract records or existing information held on electronic devices. If the body does not hold a record containing the information sought and cannot search for and extract the electronically held records by taking reasonable steps, then that is the end of the matter.
Accordingly, this review is concerned solely with whether AGS was justified in refusing the applicant’s request for relevant records in connection with an investigation regarding his late son’s death on the ground that the Act does not apply to such records, pursuant to Schedule 1, Part 1(n) of the Act.
Analysis and Findings
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 operational policing matters. AGS said that the records, such as witness statements, and correspondence with the DPP and the Chief State Solicitor clearly fall outside the provisions of Schedule 1, Part 1 of the Act.
Having regard to the nature of the request and the description of the records sought, I am satisfied that the records concern the core function 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.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of AGS 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.