Whether AGS was justified in its decision to refuse the applicant-�s request for access to records pertaining to the loss of mobile phones and other technology by members of AGS, on the ground that the records sought are excluded from the scope of the FOI Act, pursuant to Schedule 1, Part 1(n) of the FOI Act

14/09/2018

Background

On 24 March 2018, the applicant submitted a four part request to AGS for access to:
-�records of all mobile phones and/or other technology operated by members of An Garda Síochána and reported lost between 2013 to present
the number of phones and other technology (please identify) lost in each year, and dates they were reported lost
Garda district to which member was attached when the phones or identified technology were lost
corresponding records on mobile phones and/or other technology that was procured to replace the items reported missing.-�

On 28 March 2018, AGS refused the applicant-�s request on the ground that it is a public body for FOI purposes only in relation to administrative records relating to human resources, or finance or procurement matters and that the records sought are not such administrative records. On 16 April 2018, the applicant sought an internal review of that decision. AGS issued its internal review decision on 3 May 2018 in which it affirmed its original decision. On 25 May 2018, the applicant sought a review by this Office of AGS-�s decision.

In conducting my review, I have had regard to the correspondence between AGS and the applicant as outlined above and to correspondence between this Office and both AGS and the applicant on the matter.

Scope of Review

This review is concerned solely with whether AGS was justified in refusing access to the records sought by the applicant on the ground that the FOI Act does not apply in respect of such records, in accordance with Schedule 1, Part 1(n) of the Act.

Preliminary Matters 

Before I address the substantive issues arising, I should explain for the benefit of the applicant 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 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. 

Furthermore, the Act does not require public bodies to create records if none exist, apart from a specific requirement, under section 17(4), to extract records or existing information held on electronic devices. If the body does not hold a record containing the information sought and cannot search for and extract the electronically held records by taking reasonable steps, then that is the end of the matter.

In this case, therefore, I have considered parts 2 and 3 of the applicant's request as a request for any records that contain the information sought.

Analysis and Findings

6(2)(a) 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 descriptions 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.  The term "administrative records" is commonly understood to mean records relating to the processes of running/managing a business or organisation. It seems to me that the purpose of Part 1(n) is to restrict the right of access to 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. 

In its submission to this Office, AGS stated that the records sought are not administrative records relating to human resources, or finance or procurement matters. It argued that as the records sought pertain to all AGS official technology, records concerning the loss of such official technology and related records do not meet the criteria of administrative records as defined in the Act.

Parts 1 to 3 
Having regard to the nature and description of the records sought under parts 1 to 3 of the applicant's request and the limited extent to which AGS is subject to the FOI Act, I accept that the records at issue do not concern administrative records relating to human resources, or finance or procurement matters and are, therefore, captured by the exclusion in Part 1(n).  In the circumstances, I find that AGS was justified in its decision to refuse access to the records sought under parts 1 to 3 of the applicant-�s request on the ground that they are excluded from the scope of the FOI Act.

Part 4
I note that AGS did not conduct searches for any relevant records when processing the applicant's request as it considered that the request captured only records relating to operational matters and that it did not capture administrative records relating to human resources, or finance or procurement matters. The applicant sought, at part 4 of his request, "corresponding records on mobile phones and/or other technology that was procured to replace the items reported missing". It seems to me that records relating to the procurement of items to replace those reported missing, if such records exist, are captured by that part of the request. It further seems to me that such records, if they exist, could reasonably be described as administrative records relating to procurement matters.

In the circumstances, I find that AGS was not justified in its decision to refuse access to the records sought under part 4 of the applicant's request on the ground that they are excluded from the scope of the FOI Act in accordance with Schedule 1, Part 1(n). However, as I am not aware of what records, if any, AGS holds that are captured by part 4, I am satisfied that the most appropriate course of action is to annul the decision of AGS with regard to part 4 of the applicant-�s request and direct it to undertake a fresh decision making process in respect of that part. The applicant will have a right to an internal review and a review by this Office if he is not satisfied with the decision of AGS. 

I should add that during the course of the review, AGS argued that should this Office decide that the records sought fall within the scope of the Act, consideration should be given to the application of section 15(1)(c) of the Act due to the workload associated with the retrieval and review of the requested records. Section 15(1)(c) allows a public body to refuse to grant a request if it considers that granting the request would cause a substantial and unreasonable interference with, or disruption of, its work due to the number or nature of records that would have to be retrieved and examined. 

I do not consider it appropriate to make a finding on the applicability of section 15(1)(c) before AGS has had an opportunity to consider part 4 of the request afresh. In any event, it is important to note that, under section 15(4), a public body cannot refuse a request under section 15(1)(c) unless it has first assisted, or offered to assist, the requester in amending the request so that it would no longer fall to be refused under section 15(1)(c).

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the decision of AGS in this case. While I affirm its decision to refuse parts 1 to 3 of the applicant-�s request, I annul the decision to refuse part 4 and direct that a fresh decision making process be undertaken in respect of that part of the request.

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.

Stephen Rafferty, 
Senior Investigator