Decision
Mr.X and An Garda Síochána
From Office of the Information Commissioner (OIC)
Case number: OIC-151279-J3X3Z8
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-151279-J3X3Z8
Published on
Whether AGS was justified in refusing access to records relating to the provision of human resources information to the Department of Justice on the ground that the FOI Act does not apply to the records sought, pursuant to Schedule 1, Part 1(n) of the Act
19 May 2025
The background to this case concerns a Parliamentary Question (PQ) put to the then Minister for Justice on 23 April 2024. This PQ sought a breakdown of the number of Gardaí attached to all Meath East Garda stations in 2020, 2021, 2022, 2023 and to date in 2024; the number of Garda officers who retired from Meath East Garda stations in the same period; and if this is commensurate with population increases in Meath from 2020 to 2024 to date. The PQ sought this information in tabular form. The Minister provided a reply to this PQ which included tables setting out the number of Garda members assigned to the Meath Division for the years requested and the number of Garda members who retired. It transpired that there was an error with this data provided and it has been publicly reported that the Department of Justice withdrew the information and apologised to the TD who asked the PQ. It has also been publicly reported that AGS issued an apology to the Department over the error with the figures.
In a request dated 25 June 2024, the applicant sought access to any records held by AGS referring or relating to the provision of incorrect human resources data to the Department of Justice in respect of PQ 17701/24, the subsequent retraction of that information, the apology that issued to the Department from AGS, and any other records related to the matter. In a decision dated 12 July 2024, 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 22 July 2024, the applicant requested an internal review of that decision, following which AGS affirmed its original decision. On 15 August 2024, the applicant applied to this Office for a review of the decision of AGS.
During the course of the review, this Office wrote to the applicant and AGS and provided both parties with an opportunity to make submissions. In its submissions, AGS stated that one of the records located contains the information which was provided by the Minister in reply to the PQ. It stated that these statistics are on the record of the Dáil and as such are a public record. It stated that as this information is in the public domain, it wished to rely on section 15(1)(d) of the FOI Act in refusing access to this information. AGS continued to refuse access to the remaining records on the grounds that the FOI Act does not apply to them, pursuant to Schedule 1, Part 1(n) of the Act. This Office informed the applicant of AGS decision to rely on section 15(1)(d) of the Act in relation to the Minister’s reply to the PQ. In reply, the applicant stated that he was agreeable to omitting this information from the scope of this review. This Office also notified the Department of Justice of the review and provided it with an opportunity to make submissions. In its reply, the Department stated that it is of the view that the FOI Act does not apply to the records in accordance with Schedule 1, Part 1(n) of the Act. The Department said it is of the view that the records relate to the processing of a PQ and are not in themselves administrative records relating to HR matters.
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 the correspondence referred to above and to the submissions made to date. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether AGS was justified in refusing the applicant’s request for records relating to the provision of incorrect human resources data to the Department of Justice in respect of PQ 17701/24, the subsequent retraction of that information, the apology that issued to the Department from AGS, and any other records related to the matter on the ground that the FOI Act does not apply to such records, pursuant to Schedule 1, Part 1(n) of the Act.
Although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. Accordingly, the extent to which I can describe the records and AGS's submission in my analysis and reasoning is limited.
It is important to state at the outset that the FOI Act applies only to a very limited category of records held by AGS.
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.
The FOI Act does not define the term “administrative record” as provided for in Part 1(n) apart from stating that they relate to human resources, or finance or procurement matters. This Office considers the term to cover records relating to the administration of the body, as opposed to say, records relating to its operational matters or core functions. In the case of a number of specified public bodies, the right of access afforded by the FOI Act is restricted to records relating to their general administration. We consider the term general administration to refer to records which have to do with the management of a public body such as records relating to personnel, pay matters, recruitment, accounts, information technology, accommodation, internal organisation, office procedures and the like. In the case of AGS, the category of administrative records to which a right of access applies is limited further; they must also concern human resources, finance, or procurement matters.
AGS say it is not in dispute that the subject matter of PQ 17701/24 itself concerned human resources matters. However, it says the request is seeking records in respect of the processing of the PQ and matters arising from the processing of the request. It says the provision of information to the Department for the purposes of replying to PQ’s is not an administrative matter relating to human resources, finance, or procurement, rather it is a statutory obligation under section 40 of the Garda Síochána Act. It says records concerning the exercise of the statutory functions of An Garda Síochána under the Garda Síochána Act fall outside the scope of the FOI Act pursuant to Part 1(n) of Schedule 1 of the Act. AGS’s position is that the only records in respect of this matter which relate to Human Resources is the information on the number of Garda members attached to the Meath Division and the number of Gardaí who retired from the Meath Division and this information is in the public domain and is exempt under section 15(1)(d) of the FOI Act. AGS says the remaining records relate to the processing of a PQ and are not in themselves administrative records relating to HR matters. It says these remaining records are administrative records relating to replying to a PQ as opposed to records relating to HR matters.
The applicant says he does not believe that the Garda Síochána Act can be used to exempt these records as they clearly relate to the human resources functions of AGS. He states that even if some of the records were exempt for that reason, this would not be the case for all records, especially those that were created for internal use and were not sent to or from the Department of Justice. The applicant says given the circumstances, he thinks the decision maker should have provided a schedule of records and assessed each of the records individually to determine whether section 40 of the Garda Síochána Act could reasonably be applied or not. The applicant says it's extremely difficult to make a submission without access to a schedule of records. He says provision of a schedule is considered best practice by the OIC and CPU. He says it makes it borderline impossible for a requester to make any well-grounded arguments when they have no knowledge of what records might exist, how many there might be, or any sense of what they contain. He says in these circumstances, AGS should have examined the records that exist individually and considered whether they are exempt or whether they clearly relate to their human resources function.
While noting section 25(3) of the Act, I believe I can provide a high-level overview of the records at issue. AGS located 3 records within the scope of the request. It refused records 1 and 3 under Schedule 1, Part 1(n) of the Act and record 2 which is the reply to the PQ under 15(1)(d) on the basis that it is already in the public domain. The first record is an email from the Department of Justice to AGS forwarding the PQ, this record includes emails between AGS and the Department clarifying the PQ. The second record is the reply to the PQ. The third record contains an email from a member of staff in the Department of Justice to a member of staff in AGS and a reply from that staff member and these records concern the error in the data provided by AGS.
As outlined above, AGS says the provision of information to the Department for the purposes or replying to PQ’s is not an administrative matter relating to human resources, finance, or procurement, rather it is a statutory obligation under section 40 of the Garda Síochána Act.
Section 40 of the Garda Síochána Act 2005 provides:
“40. - (1) The Garda Commissioner shall account fully to the Government and the Minister through the Secretary General of the Department of Justice, Equality and Law Reform for any aspect of his or her functions.
(2) The Garda Commissioner’s duty under subsection (1) includes the duty to provide, on request by the Secretary General, any document in the power or control of the Garda Síochána, including material in the form of Garda records, statements made by members of the Garda Síochána and by other persons and reports.
(3) The Garda Commissioner shall provide the Attorney General with all of the material specified in subsection (2) that is required by the Attorney General in connection with the conduct of legal proceedings on behalf of the State.”
The reply to the PQ falls outside the scope of this review and so the issue to be decided on is whether records one and three are administrative records relating to human resources matters. I accept that these records relate to the processing of the PQ and matters arising from the processing of the PQ, however in my view they relate to the human resources functions of AGS. The subject matter of these records concerns the number of Gardaí attached to Meath East Garda Stations, number of Gardaí who retired from Meath East Garda Stations and errors in gathering data in relation to staff numbers and retirements. AGS says the provision of information to the Department for the purposes of replying to PQ’s is not an administrative matter relating to human resources, finance, or procurement, rather it is a statutory obligation under section 40 of the Garda Síochána Act, however it seems to me that information can be both supplied pursuant to a statutory function and still relate to administrative matters concerning human resources. I do not accept the proposition that if records which relate to administrative matters concerning human resources are provided pursuant to a statutory duty they cease to be human resources records for the purposes of FOI. I find therefore that the FOI Act does apply to the records at issue and they do not fall outside the FOI Act pursuant to Schedule 1, Part 1(n) of the Act and I direct release of records 1 and 3 to the applicant.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of AGS to refuse the applicant’s request pursuant to Schedule 1, Part 1(n) of the Act and I direct release of the records 1 and 3 to the applicant.
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.
Jim Stokes
Investigator