Whether AGS was justified in its decision to refuse access to correspondence between the Communications Clinic and AGS, on the ground that it is excluded from the scope of the FOI Act under Part 1(n) of Schedule 1 to the FOI Act
2 May 2019
On 31 July 2018, the applicant made an FOI request to AGS for "copies of any correspondence between Terry Prone and/or the Communications Clinic and Nóirín O'Sullivan in the period during which the FOI Act has applied to An Garda Siochána". Following correspondence between the applicant and AGS, the applicant refined his FOI request to email correspondence between four email accounts between 1 January 2016 - 10 September 2017. On 10 October 2018, AGS refused access to the records on the ground that they were excluded from the FOI Act under Part 1(n) of Schedule 1. On 12 October 2018, the applicant applied for an internal review of the decision. AGS issued a decision on 6 December 2018, in which it affirmed its original decision. On 11 December 2018, the applicant applied to this Office for a review of the decision of AGS.
In conducting my review, I have had regard to the correspondence between the applicant and AGS and to the correspondence between this Office and both parties, as well as the content of the records that were provided to this Office by AGS for the purposes of this review.
Scope of this Review
During the review, AGS provided copies of two records to the applicant, which now fall outside the scope of this review. The question for me is whether the withheld records are excluded from the scope of the FOI Act, under Part 1(n) of Schedule 1.
I should note that in submissions to this Office, the applicant asked the Commissioner to examine a matter related to a fee estimate which AGS provided to him. However, in this case, the decision under review is the internal review decision by AGS on access to records. I can see that AGS issued a letter to the applicant on 13 September 2018, under section 27 of the FOI Act (fees). It advised the applicant that based on his FOI request as it then stood, the fee estimate would exceed €700. It invited the applicant to reduce the time-frame for his FOI request. It notified the applicant that it was open to him to appeal that decision within four weeks. By email of 13 September 2018, the applicant agreed to refine his FOI request in accordance with AGS's letter of the same date and the FOI request took its course.
First, while I am required to give reasons for my decision under section 22(10) of the FOI Act, I am also required to take reasonable precautions to prevent disclosure of information in an exempt record, under section 25. This means that the extent to which I can describe the records and the level of detail I can discuss in my analysis are limited. I can say that while there are several hundred pages, print-outs from four email accounts inevitably include much repetition in email "strings".
Secondly, the applicant asked the Commissioner to take into account the refusal by AGS to provide a schedule of documents. I agree that a schedule of records is best practice as a reference point in FOI requests and reviews and I note the guidance of the Central Policy Unit (CPU) of the Department of Public Expenditure and Reform (DPER) on this.
Analysis and Findings
It is important to bear in mind the limited extent to which AGS is subject to the FOI Act. The vast majority of bodies are deemed to be public bodies under the FOI Act by virtue of their inclusion in the categories set out in section 6 of the FOI Act. 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. This Office takes the view that the purpose of Part 1(n) is to restrict the right of access to records concerning those functions or processes of AGS that relate to the administration or management of the organisation and only in relation to matters concerning human resources, or finance or procurement matters. I must decide whether the records under review are "administrative records relating to human resources, or finance or procurement matters".
AGS says that the emails are not at organisational level or administrative in nature, as they do not relate to the processes of running/managing a business or organisation. The applicant says that evidence from the Charleton Tribunal leads him to believe that at least some of the communications could be considered as relating to human resources. The applicant also asks the Commissioner to take into consideration the "significant public interest in accessing these records". As noted above, the right of access to records held by AGS is restricted under the FOI Act and the relevant provision (Part 1, Schedule 1(n)) does not contain a public interest test. As the applicant will be aware, the Commissioner would be acting outside of his powers if he were to import a public interest override into a provision where the Oireachtas did not include it in the legislation.
The Commissioner has previously stated that "the term 'administrative records' is commonly understood to mean records relating to the processes of running/managing a business or organisation". The records under review comprise email correspondence between AGS and the Communications Clinic, in which the Communications Clinic advises AGS on communications related to various matters including operations and strategy, attaching documents for this purpose such as press releases and speeches. As noted above, I am limited as to what I can say, but having carefully reviewed the records, I do not consider that any of them fall into the category of "administrative records relating to human resources, or finance or procurement matters". I find that AGS was justified in its decision to refuse access to the records sought on the ground that they are excluded from the scope of the FOI Act.
Finally, I note that during the review process, AGS raised section 15(1)(a) of the FOI Act. Given my finding above, I do not need to consider whether section 15(1)(a) applies. In his submissions, the applicant asked the Commissioner to consider the fact that AGS had refused two previous FOI requests for a broadly similar set of records under section 15(1)(a), on the basis that no records existed. I can only make a finding on the particular FOI request before me. It is clear that records do exist and are held by AGS. In such circumstances, I do not understand why AGS would maintain that section 15(1)(a) applied. I have reviewed the content of the records and made my finding above.
Having carried out a review under section 22(2) of the FOI Act, I affirm the decision of AGS.
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.