Decision
Mr X and An Garda Síochána
From Office of the Information Commissioner (OIC)
Case number: OIC-145613-N4Z3X9
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-145613-N4Z3X9
Published on
Whether AGS was justified in applying a fee to carry out an internal review of its original decision on the applicant’s FOI request
23 May 2024
On 9 November 2023 the applicant sought access to the following:
1. a copy of all data and information including numbers and percentages published or gathered which pertained to his identity from AGS Annual Reports which include annual Crime statistical reports for the years 2002, 2003, 2004 and 2005, and
2. all data from such annual reports pertaining to all District Court Criminal cases summarily dealt with by An Garda Siochana without communication to the DPP, Solicitors Division of the DPP or state Solicitor for the DPP.
After seeking clarification from the applicant on his request, AGS issued its original decision to him on 14 November 2023, refusing the request under Part 1(n) of Schedule 1 of the FOI Act. AGS explained that it is only a partially included agency for the purposes of the FOI Act. It said that Schedule 1, Part 1(n) of the FOI Act 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”. AGS said that only records that relate to human resources, or finance, or procurement matters can be considered for release and that all other records held by AGS are excluded from release and no right of access to such records exists under the FOI Act.
In its decision letter, AGS informed the applicant of his rights of appeal under the FOI Act and explained that a fee of €30 (€10 for a Medical card holder) applies for an internal review of its decision. The applicant was advised to submit his request for an Internal Review within four weeks of the date of AGS’s decision. AGS also suggested to the applicant that he may be able to access his personal data by making a subject access request under the General Data Protection Regulation (GDPR).
On 14 November 2024, the applicant sought an internal review of AGS’s decision. He said that fees only pertain to non-personal FOI requests and that no such fee applies in this case as his request is for personal information from AGS Annual Reports. On the same day, AGS informed the applicant that there is no personal information held in or published in its Annual Reports and therefore his request for an internal review could not be processed without the relevant fee. After further exchanges of correspondence, the applicant paid the fee to AGS. However, as the fee was not paid within 4 weeks of its original decision, AGS refused to accept the applicant’s request for internal review and refunded the fee it received from the applicant.
Following exchanges of correspondence with this Office, the applicant was informed that this Office could review the application fee sought by AGS for an internal review, on the basis that the applicant claims his request is for personal information. The applicant was informed that we could not review the substantive decision of AGS as an internal review had not been carried out. On 22 January 2024, the applicant applied to this Office for a review of the decision by AGS that a fee applied to his internal review request.
I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out this review, I have had regard to the correspondence between AGS and the applicant and to the communications between this Office and both the applicant and AGS on the matter. 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 applying the application fee provided for under section 27(13) of the FOI Act to carry out an internal review of its original decision on the applicant’s FOI request on the basis that his request concerns access to non-personal information.
In his correspondence with this Office, the applicant asked about the legislative timeline around the payment of the fee for an internal review. Section 27(13)(a)(i) of the FOI Act provides that a fee as may be prescribed shall be charged by the FOI body and paid by the applicant to the body in respect of an application for an internal review of the body’s original decision. Section 27(13)(b) of the Act provides that the fee for internal review shall be paid at the time of making the application for review, and, if it not so paid, the body shall refuse to accept the application, and it shall be deemed for the purposes of the Act not to have been made. Furthermore, section 21(7) of the Act provides that an application for internal review shall be made not later than 4 weeks after the applicant is notified of the body’s original decision.
The FOI Act requires applicants to pay a fee to the FOI body when requesting an internal review of its original decision where their FOI request concerns access to non-personal information. No application fee applies where the request for internal review relates solely to records containing the personal information of the applicant. In this case, the applicant claims that his request is for personal information and that he was not required to pay a fee when he requested AGS to conduct an internal review of its original decision. The question I must consider therefore, is whether the information sought by the applicant is his personal information under the FOI Act.
For the purposes of the FOI Act, personal information is defined as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or (b) is held by an FOI body on the understanding that it would be treated by that body as confidential. The Act details fourteen specific categories of information that is personal, without prejudice to the generality of the foregoing definition, including (vi) information relating to any criminal history of or the commission or alleged commission of any offence by, the individual,
(vii) information relating to any proceedings for an offence committed, or alleged to have been committed, by the individual, the disposal of such proceedings or the sentence imposed by any court in such proceedings, and (xii) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to, establish that any personal information held by the FOI body concerned relates to the individual.
In its submissions to this Office, AGS said the key consideration in this instance is if the information in question is information about an identifiable individual . AGS stated that there is no information in the Garda Annual Report which pertains to the applicant directly. AGS said that the Garda annual report is available on its website and only contains general statistical information on crime as opposed to information relating to specific individuals. It said that while general statistical information on crime, does ultimately relate to individual instances of crime committed by particular perpetrators, this cannot be considered as personal information. Referencing the definition of personal information contained in section 2 of the Act, AGS said there is no information within the Garda Annual Reports which relates directly to the applicant as an identifiable individual.
In regard to the second part of the applicant’s FOI request, AGS said that the data sought pertaining to all District Court criminal cases summarily dealt with by Gardaí without communication to the DPP, clearly cannot be regarded as personal information in respect of an identifiable individual. AGS said, as with the first part of the request, general statistical data, which is in itself an aggregate of individual cases, does not when presented as overall total data relate to an identifiable individual.
While not the subject of this review, AGS also said that statistical information on crime and records relating to matters before the District Courts and any interactions by Garda member with the Court falls outside the scope of the FOI Act, as the Act relates to An Garda Síochána, and as such the applicant’s request was refused.
In his submissions to this Office, the applicant also referred to definition of personal information in section 2 of the Act and specifically highlighted that personal information includes, information relating to any criminal history of or the commission or alleged commission of any offence by, the individual or information relating to any proceedings for an offence committed, or alleged to have been committed, by the individual, the disposal of such proceedings or the sentence imposed by any court in such proceedings. The applicant also contends that he could be linked indirectly to the data/information by way of Published Newspaper articles which recorded and published such District Court proceedings/offences and outcomes which AGS have published in their Annual Reports.
It is not disputed that records containing details of the criminal history of an individual or information relating to court proceedings of an offence committed, or alleged to have been committed, by the individual contain personal information. However, as noted above, personal information is defined in the Act as information about an identifiable individual. I accept that where information may not, on the face of it, be about an identifiable individual, it may still be personal information if it allows the individual to be identified. However, this is not the case here. While I have noted the applicant’s comments, he has not identified any specific information in the annual reports that would identify him, or allow him to be identified. Having considered the matter carefully, I accept the AGS’ position that there is no information within the relevant AGS Annual Reports which relates directly to the applicant as an identifiable individual.
In conclusion, I am satisfied that the applicant’s FOI request does not relate solely to personal information about him. As noted above, section 27(13)(a)(i) of the Act provides that an FOI body shall charge the prescribed fee for an application for an internal review that concerns access to non-personal information. In the circumstances, I am satisfied that AGS was justified in its decision to apply a fee in this case.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm AGS’s decision that the applicant was required to pay the prescribed fee for an internal review.
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.
Richard Crowley, Investigator