Decision
Mr X and Garda Síochána Ombudsman Commission
From Office of the Information Commissioner (OIC)
Case number: OIC-147788-P3K6H6
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-147788-P3K6H6
Published on
Whether GSOC was justified in refusing access to records relating to an investigation of an incident involving the applicant on the ground that the records are not subject to the FOI Act, pursuant to Schedule 1, Part 1(y)
In a request dated 28 February 2024, the applicant sought access, through his legal representatives, to all records relating to a GSOC investigation of an incident involving the applicant in prison. References to communications with the applicant in this decision may be taken as including references to communications with his legal representatives as appropriate.
On 5 March 2024, GSOC refused the request on the ground that records concerning the investigation of complaints are excluded from the scope of FOI Act, pursuant to Schedule 1, Part 1(y). On 13 March 2024, the applicant sought an internal review of GSOC’s decision, following which GSOC affirmed its refusal of the request. It said the records withheld directly relate to specifics of an investigation under Part 4 of the Garda Síochána Act 2005 and are outside the scope of the FOI Act. On 22 March 2024, the applicant sought a review by this Office of GSOC’s 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 the correspondence between GSOC and the applicant referred to above and to the correspondence between this Office and both parties on the matter. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether GSOC was justified in refusing the applicant’s request on the ground that the FOI Act does not apply in respect of the records sought pursuant to Schedule 1, Part 1(y).
In his correspondence both with GSOC and with this Office, the applicant said his request was also a request under the Data Protection Act 2018 and under the EU Data Protection Regulations. He also referenced section 41(1)(a) of the FOI Act, which provides for the refusal of a request if the disclosure of the record concerned is prohibited by law of the European Union or any enactment, and he said that no such prohibition arises in this case. Moreover, he argued that the release of the records was in the public interest.
The role of this Office is confined to reviewing decisions taken on request made under the FOI Act. We have no role in examining decisions taken on foot of requests made under data protection legislation. If the applicant has made a subject access request under data protection legislation and is dissatisfied with the response to that request, it is open to him to contact the Office of the Data Protection Commission for assistance.
Secondly, it seems to me that the applicant’s arguments in respect of the applicability, or not, of section 41(1)(a) of the Act may be based on a misinterpretation of the provision. Section 41(1) provides for the mandatory refusal of a request for records that are captured by the provisions of the section. It does not provide for an automatic right of access to any records that are not captured by the section. GSOC has not claimed that section 41(1)(a) applies to the records at issue. As such, it has no relevance to this review.
On the matter of the applicant’s argument that the release of the records is in the public interest, the Act does not provide for a consideration of the public interest in the case of records that do not fall within the scope of the FOI Act. If the FOI Act does not apply in respect of the records sought pursuant to Schedule 1, Part 1(y), then that is the end of the matter, regardless of whether or not the release of the records might serve the public interest.
Section 6(2)(a) of the FOI Act provides that an entity specified in Part 1 of Schedule 1 shall, subject to the provisions of that Part, be a public body for the purposes of the Act. Part 1 of Schedule 1 contains details of bodies that are partially included for the purposes of the FOI Act and also details of certain specified records that are excluded.
Part 1(y) of Schedule 1 provides that GSOC is not a public body for the purposes of the FOI Act in relation to records concerning an examination or investigation carried out by it under Part 4 of the Garda Síochána Act 2005 (‘the 2005 Act’).
In its submissions to this Office, GSOC said that following a search of its case management system, it was established that the requested records were associated with a specified GSOC investigation file. It said the records sought are held only on that file. It said the investigation file was opened following a complaint made by the applicant in September 2020. It said that following an examination of the complaint under section 87 of the 2005 Act, the complaint was deemed inadmissible. It said the applicant was advised of that decision in accordance with section 88 of the 2005 Act and no further action was taken. It said sections 87 and 88 are contained in Part 4 of the 2005 Act and as such, it believes that the records sought are not subject to the FOI Act pursuant to Part 1(y) of Schedule 1.
The effect of Part 1(y) of Schedule 1 of the FOI Act is that records held by GSOC that concern an examination or investigation carried out by GSOC under Part 4 of the 2005 Act are excluded from the scope of the FOI Act and no right of access applies to such records under the Act. Part 4 of the 2005 Act, comprising sections 82 to 112, is concerned with GSOC complaints, investigations and other procedures. Section 84 provides that a complaint must generally be made within the period of six months beginning on the date of the conduct giving rise to the complaint. Section 87 provides that GSOC shall determine whether a complaint is admissible or inadmissible and that a complaint is admissible if it meets certain specified requirements, including that the complaint must be made within the time allowed under section 84. Section 88 provides that on determining under section 87 that a complaint is inadmissible, GSOC must notify the complainant of its determination.
Part 1(y) of Schedule 1 of the FOI Act excludes records concerning an examination or investigation carried out by GSOC under Part 4 of the 2005 Act. I am satisfied that the determination of the validity of a complaint under section 87 of the 2005 Act comprises an examination carried out by GSOC under Part 4 of that Act. I also accept GSOC’s submission that all of the records at issue are held on the specified investigation file. I find, therefore, that GSOC was justified in refusing the request on the ground that the FOI Act does not apply to the records sought, pursuant to Part 1(y) of Schedule 1 of the Act.
Having carried out a review under section 22(2) of the FOI Act 2014, I hereby affirm the decision of GSOC to refuse the applicant’s request pursuant to Schedule 1, Part 1(y) of the FOI Act.
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