Case number: 180215
All references to “the applicant” in this decision can be taken to refer to the applicant and/or his solicitor, as appropriate. On 30 March 2018 the applicant submitted a request to the DPP for all records relating to a complaint he made and to the DPP’s decision, in 2007, not to prosecute that complaint.
The DPP refused the request on 16 April 2018 under section 42(f) of the FOI Act on the ground that records sought are excluded from the scope of the FOI Act. On 23 April 2018 the applicant sought an internal review of that decision, following which the DPP affirmed its original decision. On 31 May 2018 the applicant sought a review by this Office of the DPP’s decision.
I have decided to bring this review to a close by way of a formal, binding decision. In conducting my review, I have regard to the correspondence between the DPP and the applicant outlined above and to correspondence between this Office and both the DPP and the applicant on the matter.
This review is solely concerned with whether the DPP was justified in refusing access to all records relating to the applicant's complaint and to the DPP’s decision not to prosecute that complaint under section 42(f) of the FOI Act.
Before I address the substantive issue arising, I would like to make a number of preliminary comments. Firstly, I note that the applicant is of the view that he is entitled to know why the DPP decided not to prosecute his complaint. In correspondence with the applicant, the DPP explained that the relevant legislative provisions that entitle victims to ask for the reasons for decisions not to prosecute do not apply as the decision in his case was made before the legislative provisions were introduced. It is important to note that the outset that this Office has no role in examining the administrative actions of the DPP in the performance of its functions. Our role is confined to considering whether the decision taken by the DPP is in accordance with the provisions of the FOI Act.
Secondly, in response to correspondence from this Office wherein the attention of the DPP was directed to the provisions of section 22(12)(b) of the Act which places the onus of justifying a decision to refuse to grant a request on the public body, the DPP stated that it does not accept the interpretation this Office places on section 22(12)(b) of the Act in relation to the burden of proof. However, it has not explained why it holds this view. It may be that its position is that the provisions of section 22(12)(b) do not apply as the Act does not apply to the records sought. If this is the case, I disagree.
Under section 22(1)(a), the Commissioner may review "a decision to refuse to grant an FOI request on the ground that, by virtue of section 42, the Act does not apply to the record concerned" [my emphasis]. Section 22(12)(b) provides that "a decision to refuse to grant a request shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified" [my emphasis].
A decision that section 42 applies to exclude records from the scope of the Act is still, as section 22(1)(a) suggests, a decision to refuse to grant a request. Section 22(12)(b) is concerned with decisions to refuse to grant requests. As such, I am satisfied that our interpretation of the section is correct.
Section 42(f) of the FOI Act provides that the Act does not apply to a record held or created by the DPP, other than a record relating to general administration. In its submission to this Office, the DPP stated that the records sought are contained in an individual file held for the purposes of making a prosecutorial decision. It argued that an individual prosecution file cannot be considered to be a record relating to the general administration of the Office of the DPP. On the other hand the applicant argued, in his application for internal review, that a decision not to prosecute his case is a matter relating to the general administration of his case.
While the Act is silent on the meaning of general administration, this Office considers that it clearly refers to records which have to do with the management of the DPP, such as records relating to personnel, pay matters, recruitment, accounts, information technology, accommodation, internal organisation, office procedures and the like. It does not refer to records relating to matters concerning the core business of the DPP. In this case I am satisfied that the records sought do not relate to general administration. I find, therefore, that the DPP was justified in refusing the applicant’s request under section 42(f) of the FOI Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the DPP in this case.
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.