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Whether the Archives was justified in its decision to refuse to amend records, pursuant to section 17 of the FOI Act

Conducted in accordance with section 34(2) of the FOI Act, by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 4 October 2014, the applicant submitted a request to the Archives seeking the amendment of certain records under section 17 of the FOI Act. On 18 December 2014, having on three occasions sought clarification from the applicant in relation to his request, the Archives issued its decision, refusing the applicant's request.

The applicant sought an internal review of this decision by way of email dated 18 December 2014. The Archives' internal reviewer issued his decision on 12 January 2014, upholding the initial decision. On 16 January 2014, the applicant sought a review by this Office of the Archives' decision.

I note that, in correspondence with the applicant, Mr Niall Mulligan of this Office set out his view in relation to the case and offered the applicant a further opportunity to make submissions. The applicant indicated that he did not accept Mr Mulligan's analysis and offered further submissions. I therefore consider that the review should now be brought to a close by the issue of a formal, binding decision.

In conducting my review, I have had regard to the Archives decision on the matter and its communications with this Office, as well as the applicant's communications with this Office and the Archives. I have also had regard to the provisions of the FOI Act.

In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997-2003, notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Preliminary Matter

The Archives refused the applicant's request on the basis that he had not provided sufficient information to support his request for amendment, as is required under section 17(2) of the FOI Act. Having considered the applicant's request and his correspondence with the Archives on foot of his request, it appears to me that this request was not set out with sufficient specificity so as to allow the Archives to be certain as to what amendments he sought. Furthermore, the applicant did not provide supporting evidence in relation to his request.

However, more fundamentally, in the course of this review, Mr Mulligan identified section 46(2) of the FOI Act as potentially being relevant, and sought submissions on this point from the parties. Having carefully considered the matter, I am satisfied that Mr Mulligan was correct in his approach, and that it is necessary to consider the applicability of section 46(2) of the FOI Act in this review.

Scope of the Review

This review is concerned solely with the question of whether section 17 of the FOI Act applies to the records at issue, having regard to the provisions of section 46(2) of the FOI Act.

Analysis and Findings

Section 46(2) of the FOI Act provides, insofar as relevant, that:-

... this Act does not apply to --

(a) a record that is available for inspection by members of the public whether upon payment or free of charge, or

(b) a record a copy of which is available for purchase or removal free of charge by members of the public.

whether by virtue of an enactment (other than this Act) or otherwise.

In the course of this review, the Archives confirmed that the records at issue, "have been available for public inspection in the Reading Room of the National Archives since c. October 2007". Having carefully considered the matter, I am satisfied that there is no reason to doubt this submission. Accordingly, I am satisfied that the records are records to which section 46(2)(a) of the FOI Act applies.

Section 46(2) is clear in its terms. Where records fall within subsections (a) or (b), "the [FOI] Act does not apply". I therefore find that the applicant is not entitled to seek the amendment of records under section 17 of the FOI Act, by reason of the operation of section 46(2) of the Act.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby vary the decision of Archives, finding that the FOI Act does not apply to the records at issue by reason of the operation of section 46(2) of the Act.

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator