Decision
Mr Y and Chief State Solicitor's Office
From Office of the Information Commissioner (OIC)
Case number: OIC-123294-F0M6S7, OIC-123295-D6K7C2, OIC-123302-P6J9D4
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-123294-F0M6S7, OIC-123295-D6K7C2, OIC-123302-P6J9D4
Published on
Whether the CSSO was justified in refusing, under section 42(f) of the Act, the applicant’s request for certain information relating to an action he took under the Garda Síochána Compensation Act, on the ground that the Act does not apply to the records sought.
05 July 2022
This decision is a composite decision relating to three requests the applicant made to the CSSO. The applicant is a former Garda who took an action under the Garda Síochána Compensation Act and it is against that backdrop that the requests were made. The CSSO represented the State as respondent in the claim taken by the applicant. The first two requests were dated 22 September 2021 and the third request was dated 11 October 2021.
The first two requests were for records and information relating directly to the action taken. The third request was for information and records concerning related prosecution cases brought before the courts. The CSSO refused all three requests under section 42(f) of the Act. The applicant sought an internal review of those decisions, following which the CSSO affirmed its refusal of the requests. In affirming its decisions on the first two requests, the CSSO further relied on section 15(1)(a) of the Act. On 10 May 2022, the applicant sought a review by this Office of the three decisions of the CSSO.
I have now completed my review in accordance with section 22(2) of the FOI Act. Having regard to the overlapping nature of the three requests, I have decided to conclude the reviews by way of a formal, binding composite decision. In carrying out my reviews, I have had regard to the correspondence between the applicant and the CSSO as outlined above and to the correspondence between this Office and both parties, including the submissions made by the CSSO and the applicant.
This review is concerned solely with whether the CSSO was justified, under section 42(f) of the Act, in refusing the applicant’s requests for certain records on the ground that the Act does not apply to the records concerned, and/or under section 15(1)(a) of the Act on the ground that the records do not exist or cannot be found.
Before I address the substantive issues, I would like to make a number of preliminary comments. First, for the benefit of the applicant, I wish to explain that 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, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information can reasonably be inferred to be a request for a record containing the information sought. In the circumstances, I will consider whether the CSSO was justified in refusing access to any relevant records it holds containing the information sought in this case.
Secondly, while I can appreciate how important it is to the applicant and his family to obtain access to the records at issue, section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that this Office cannot have regard to the applicant's motives for seeking access to the information in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest (not relevant in this case).
Finally, the applicant should note that this Office has no role in examining the appropriateness, or otherwise, of the administrative actions of public bodies. Accordingly, I cannot take account of the applicant’s views about the actions of various individuals or bodies and my review does not extend to examining or making findings on such matters.
Section 42 is contained in Part 5 of the Act, which is entitled “Restriction of Act”. The effect of section 42 is to exclude records held by the relevant bodies from the ambit of the Act subject to certain exceptions. If the records sought are excluded pursuant to section 42(f), then the question of whether section 15(1)(a) also applies does not arise as there is simply no right of access to records to which the Act does not apply. Accordingly, I will first examine whether the CSSO was justified in refusing the requests pursuant to section 42(f).
Section 42(f)
Section 42(f) of the Act provides that the Act does not apply to a record held or created by the Attorney General or the Director of Public Prosecutions or the Office of the Attorney General or the Office of Director of Public Prosecutions, other than a record relating to general administration. It should be noted that the Chief State Solicitor’s Office (CSSO) is a constituent office of the Office of the Attorney General.
The effect of section 42(f) is that the only records held by the CSSO to which a potential right of access applies are those that relate to general administration. While the Act is silent on the meaning of general administration, this Office considers that it clearly refers to records which have to do with the management of the Office of the Attorney General such as records relating to personnel, pay matters, recruitment, accounts, information technology, accommodation, internal organisation, office procedures and the like. I am satisfied that it does not refer to records relating to matters concerning the core business of the Office, which includes, but is not limited to, advising on legislation and litigation.
I noted above that this review is concerned solely with whether the CSSO was justified, under section 42(f) of the Act, in refusing the applicant’s requests for information. I also noted that the applicant set out in his submissions to this Office details of why he was seeking access to the information. While the applicant made general arguments in favour of the release of the requested information he did not make submissions on the applicability of section 42(f) to the records sought.
In its submissions to this Office, the CSSO noted that the applicant had referred in his first two requests to a letter from the CSSO to a solicitor’s office and enclosed a copy of same. It explained that this letter originated from a legal file during the course of litigation in respect of an action taken by the applicant under the Garda Síochána Compensation Act. It said Garda compensation claims are brought under the relevant provisions of the Garda Síochána (Compensations) Acts of 1941 and 1945. It said the CSSO, on the instructions of the client department, represented the State as respondent in the claim taken by the applicant. It described the third request as referring to prosecution cases brought before the Courts.
The CSSO said that any relevant records created or held by it would have been for the purpose of representing the State in legal proceedings. It argued that this would be considered part of the core legal business of the CSSO and could not be considered as forming any part of the general administration of the Office.
Having regard to the nature of the information sought by the applicant and the CSSO’s description of the information concerned, I am satisfied that any relevant records that might be held by the CSSO containing the information sought cannot reasonably be described as relating to general administration. As such, I find that the CSSO was justified in refusing access to the information sought under section 42(f) of the FOI Act.
Section 15(1)(a)
Given my decision on section 42(f), there is no need for me to make a finding in relation to section 15(1)(a) of the Act.
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the CSSO’s decision to refuse, under section 42(f) of the FOI Act, the applicant’s three requests.
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