Case number: 190147

Whether AGS was justified in its decision to refuse access to records relating to a prosecution and a complaint concerning third parties on the ground that the records sought are excluded from the scope of the FOI Act under the provisions of Schedule 1 of the Act.






On 25 January 2019, the applicant submitted a request to AGS for access to records relating to the prosecution of a named individual and to a complaint she made against a second named individual. On 14 February 2019, AGS refused the applicant's request on the ground that it is a public body only in respect of administrative records relating to human resources, finance or procurement matters and that the records sought were not considered to be such administrative records. The applicant sought an internal review of that decision on 21 February 2019, following which AGS affirmed its original decision. On 22 March 2019 the applicant sought a review by this Office of that decision.

I have decided to conclude this review by way of a formal, binding decision. In conducting the review, I have had regard to correspondence between AGS and the applicant as outlined above, to the applicant's correspondence with this Office, and to communications between this Office and AGS on the matter. 

Scope of Review


This review is concerned solely with whether AGS was justified in refusing access to the records sought by the applicant on the ground that the FOI Act does not apply in respect of the records, in accordance with Schedule 1, Part 1(n) of the Act.

Preliminary Matter


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. In this case, those parts of the applicant's request that seek information have been treated as a request for access to records containing the information sought. 

Analysis and Findings


Section 6(2)(a) 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. 

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 its submission to this Office, AGS stated that the records sought specifically relate to operational matters seeking information regarding prosecutions and statements. It stated that this type of information does not constitute administrative records insofar as the FOI legislation relates to AGS. 

Having regard to the nature of the request and the description of the records sought, I accept that they are of a type that are captured by the exclusion of Part 1(n). The records at issue concern the core functions 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 in this case.

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