Whether AGS was justified in its decision to refuse the applicant’s request for access to his late father’s personnel records 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

5 November 2020

Background

On 9 December 2019, the applicant submitted a request to AGS for access to all personnel and related records relating to his late father who joined the service in 1923 and retired in 1961. On 16 December 2019, AGS refused the applicant’s request on the ground that the records sought fall outside the scope of the FOI Act.  It suggested, nevertheless, that that he may wish to email his request to a specified email address for the Resource Management section of its Human Resources Directorate. According to the AGS website, the email address in question is one that  AGS personnel can use to seek their personnel files through the Human Resources and People Development section without having to invoke the provisions of the FOI Act.

On 10 January 2020, the applicant sought an internal review of the refusal of his request.  On 3 February 2020, the AGS affirmed its original decision to refuse the request. However, it indicated that it could grant administrative access to the records held on production of the necessary identification in respect of the next of kin of the deceased.  Subsequently, on 26 June 2020 the AGS wrote to the applicant and informed him that it had found a one page record relating to his late father’s service and it provided him with a copy of the record.

On 9 July 2020, the applicant sought a review by this Office of AGS’s decision. He argued that further relevant records should exist.  During the course of the review, AGS confirmed that it does, indeed, hold further relevant records but it maintained its position that the records in question fall  outside the scope of the Act.

I have now completed my review of the decision of AGS in this case. I have decided to bring the review to a close by way of a formal, binding decision. In conducting my review, I have had regard to the correspondence between AGS and the applicant 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 the applicant’s request for access to his late father’s personnel records on the ground that the FOI Act does not apply in respect of the records sought, pursuant to Schedule 1, Part 1(n) of the Act.

Analysis and Findings

Section 6(2)(a) 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 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.  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.

In its submissions to this Office, AGS stated that human resource records refer to personal records of staff working within AGS. It argued that that the personal files of retired and/or deceased members of AGS are not administrative records and therefore fall outside the scope of the Act.

It appears that AGS accepts that HR records of current serving staff are subject to the provisions of the Act, i.e. they are administrative records relating to human resources. If this is the case, I fail to understand the basis on which AGS can reasonably argue that such HR records cease to be regarded as administrative records relating to human resources upon retirement or death of the member, nor has AGS explained why it holds this view. A HR record relating to an individual remains a HR record relating to the individual, even where the individual is no longer in the employment of the body.

I am satisfied that the records sought in this case are administrative records relating to human resources. Accordingly, I find that AGS was not justified in its decision to refuse the applicant’s request on the ground that they are specifically excluded from the scope of the FOI Act in accordance with Schedule 1, Part 1(n). 

However, I do not consider it appropriate to simply direct the release of all records coming within the applicant’s request, without AGS having been afforded an opportunity to consider their contents. The records will undoubtedly contain personal information relating to the applicant’s late father. Section 37(1) of the Act provides for the refusal of a request where the body considers that access to the record concerned would involve the disclosure of personal information relating to an individual other than the requester, including personal information relating to a deceased individual.  However, section 37(8) provides that, notwithstanding subsection (1), the Minister may provide by regulations for the grant of a request where the individual to whom the record concerned relates is deceased.  The relevant regulations are the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 (S.I. 218 of 2016), which provide for access by next of kin in certain circumstances. It should be noted that the right of access afforded by the Regulations arises only where certain circumstances as set out in the Regulations have been met.

Consequently, it seems to me that the most appropriate cause of action is to annul the decision of AGS and direct it to undertake a fresh decision-making process in respect of the request.  The applicant will have a right to an internal review and a review by this Office if he is not satisfied with AGS’s decision.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul AGS’s decision to refuse the applicant’s request for his late father’s personnel records 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. I direct it to undertake a fresh decision-making process in respect of the applicant’s 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