Whether GSOC was justified in refusing access to investigation reports on the basis that they are excluded under Schedule 1, Part 1(y) of the FOI Act

15 July 2022

Background

This review has its background in tragic circumstances, which I will not set out here. In a request dated 26 March 2021, the applicant outlined a number of "key words" or search terms in relation to which she requested all correspondence, communications, minutes of meetings, emails, files, to and from GSOC and within GSOC, and all work-related messages or emails referencing the name of her late brother and the name of the applicant's mother and the applicant herself.  She also requested any records relating to her brother and to herself personally, whenever created and all other records created in the original file. Finally, she requested any communications in written or electronic format, regarding representations from politicians, lobby groups and members of the public.

In a letter dated 12 April 2021, GSOC informed the applicant that the estimated cost of her request was in excess of the ceiling limit allowed under the FOI Act.  Following communications between the parties, the applicant agreed to refine her FOI request. On 26 May 2021, the applicant refined her request to certain records using keyword combinations including her brother's name and the name of a third party individual,  the section 97, 101 and 103 reports and all underlying drafts of these report, emails involving an insurance fraud investigation, a copy of the pulse record relating to a named individual, an interim report on the conviction of a named individual, records relating to her late brother and a scoping inquiry or exercise and records relating to her late brother and a named judge.

On 22 July 2021, GSOC issued its decision on the request.  In a schedule accompanying the decision, it identified 294 pages of records and, separately, a legal services file, as coming within the scope of the request. Of the 294 pages identified, it released 28 pages in full and it refused access to the remaining pages in full or in part pursuant to Schedule 1, Part 1(y) of the FOI Act or under sections 29(1)(a) (deliberations of FOI Bodies) 30(1)(b) (functions of FOI Bodies) 31(1)(a) (Legal Professional Privilege) or 37(1) (Personal Information relating to third parties) of the FOI Act. It refused access to the legal services file under section 31(1)(a) the FOI Act.

On 28 July 2021, the applicant sought an internal review of that decision. On 19 August 2021, GSOC affirmed its decision. GSOC also listed its investigation file in relation to the complaint on an updated schedule of records and it refused access to this file pursuant to Schedule 1, Part 1(y) of Act. On 19 August 2021, the applicant sought a review by this Office of GSOC's decision.

I have now completed my review in accordance with section 22(2) of the FOI Act.  In carrying out my review, I have had regard to the correspondence between the applicant and GSOC as outlined above and to the correspondence between this Office and both the applicant and GSOC on the matter. I have also had regard to the nature and contents of the records concerned.  I acknowledge the great importance that the applicant and her family place on accessing the records at issue. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

Following communications with this Office, the applicant confirmed that she is agreeable to limiting the scope of this review to GSOC's decision to refuse access to the section 97 and 101 reports.  In its internal review decision, GSOC stated that it was refusing the section 97 and 101 reports, which are contained in the investigation file or legal services file, pursuant to Schedule 1, Part 1(y) of the FOI Act. Accordingly, the scope of this review is confined whether GSOC was justified in refusing access to the section 97 and 101 reports pursuant to Schedule 1, Part 1(y) of the Act.                                                                                                         

Analysis and Findings

Schedule 1, Part 1(y)

Section 6(2)(a) of the FOI Act provides that an entity specified in Part 1 of Schedule 1 shall, subject to the provisions of that Part, be a public body for the purposes of the FOI Act. Schedule 1, Part 1 contains details of bodies that are partially included for the purposes of the FOI Act and details of certain specified records that are excluded. If the records sought come within the descriptions of the exclusions in Part 1, then the FOI Act does not apply and, therefore, no right of access exists under FOI.

Schedule 1, Part 1(y) of the FOI Act provides that GSOC is not a public body for the purposes of the Act in relation to records concerning an examination or investigation carried out by it under Part 4 of the Garda Síochána Act 2005 (the 2005 Act).

Applicant's Submissions

In her submissions to this Office, the applicant states that there is no legislative basis for GSOC's decision to refuse to provide the reports at issue. She contends that GSOC's submission is based on a fundamental misunderstanding of the FOI Act. She states that according to GSOC, the withheld records relate to the specifics of an investigation under Part 4 of the Garda Síochána Act 2005. She states that section 6(2)(a) of the FOI Act provides that an entity specified in Part 1 of Schedule 1 shall, subject to the provisions of that Part, be a public body for the purposes of the Act. She states that Schedule 1 lists the bodies subject to FOI and includes GSOC which is listed as an agency. The applicant states that this section does not deal with exemptions and it is concerning that this is the interpretation that GSOC is applying to the FOI Act.

Likewise, the applicant states that there is nothing contained in the Garda Síochána Act 2005 Act precluding GSOC from providing the reports. According to the applicant, it is clear that the reports do not constitute "records concerning an examination or investigation". She states that the statements, pulse records etc. which GSOC may hold when they conducted the investigation are "records concerning an examination or investigation", she contends that the reports cannot be considered as such as they are the conclusion of any such examination or investigation. The applicant contends that if the legislature intended to exclude reports it would have used this language in the FOI Act and it does not use this language. 

The applicant states that the former Minister for Justice ordered GSOC to carry out a public interest inquiry under section 102(5) of the Garda Síochána Act, 2005. She states that the section 101 report arose out of the section 102(5) inquiry and it should be released in the public interest. She contends that the reports should be released in the interests of fairness and natural justice. She states that the section 101 report was provided to named recipients, but not to the family who made the complaint and she understands that in other cases GSOC has provided the section 101 and 97 reports to other families.

The applicant also contends that the reports should be provided in view of the State's obligations under Article 2 of the European Convention on Human Rights Act 2003. She states that in interpreting Article 2(1) of the Convention, which provides that everyone's right to life shall be protected by law, the ECHR has been clear that the obligation to protect life entails a procedural obligation to investigate deaths and the essential purpose of such an investigation is to secure the effective implementation of the domestic laws which protect the right to life and to ensure the accountability of those responsible. The applicant states that the ECHR has been clear in its judgments that there must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory and to maintain public confidence.

GSOC's Submissions

In its submission to this Office, GSOC says the investigation file was opened following the submission of a number of complaints to GSOC by the applicant and her family and the receipt of a referral from the Minister for Justice. It says following the admittance of the complaint, it was directed to be investigated in accordance with section 98 of the Garda Síochána Act, 2005 ("the 2005 Act"), in other words a criminal investigation. According to GSOC, at the conclusion of this criminal investigation, a section 101 report was submitted to the GSOC Commission for their consideration. It says following examination of this report, the GSOC Commission then subsequently directed that a disciplinary investigation under section 95 of the 2005 Act should commence. It says at the conclusion of the section 95 investigation, a report in accordance with section 97 of the 2005 Act was produced. GSOC says the section 97 and 101 reports are directly related to investigations which were carried out under Part 4 of the 2005 Act.

Findings

The applicant is correct in stating that Schedule 1 Part 1 of the FOI Act does not deal with exemptions. GSOC is not contending that the records at issue are subject to an exemption provision.  GSOC contends that it is a partially included agency for the purposes of the FOI Act and in accordance with Schedule 1, Part 1(y) it is not a public body for the purposes of the FOI Act in relation to records concerning an examination or investigation carried out by it under Part 4 of the Garda Síochána Act 2005 (the 2005 Act). 

Part 4 of the 2005 Act is headed "Complaints, Investigations and other Procedures" and it covers sections 82 to 112 of the Act.  This part of the Act deals with complaints made to the Garda Síochána and complaints made directly to the Ombudsman Commission. Section 95 of the Act deals with investigation of complaints that do not appear to involve offences and section 97 of the Act deals with reports following an investigation of complaints that do not appear to involve offences. Section 98 of the Act deals with powers of designated officers of the Ombudsman Commission for purpose of investigating complaints that appear to involve offences and section 101 deals with reports following an investigation under section 98.

GSOC has provided this Office with copies of the section 97 and 101 reports. From my examination of these reports, it seems to me that the section 97 report is a report compiled by GSOC at the conclusion of a disciplinary investigation conducted under section 95 of the 2005 Act. It seems to me that the section 101 report is a report compiled by GSOC at the conclusion of a criminal investigation conducted under section 98 of the 2005 Act.

I do not accept the applicant's contention that reports which are completed at the conclusion of an investigation are not "records concerning an examination or investigation". Section 2(1) of the FOI Act defines a "record" very broadly, including "a book or other written or printed material in any form (including in any electronic device or in machine readable form)", or any part thereof. It seems to me that the section 97 report contains details about a disciplinary investigation and outlines the results of that investigation. Similarly, the section 101 report contains details about a criminal investigation and contains the findings of that investigation. In my view, both of these records concern investigations which were carried out by GSOC under Part 4 of the Garda Síochána Act 2005.

The jurisdiction of this Office is derived from the FOI Act and the Commissioner's remit, in this instance, is to carry out a review in accordance with the FOI Act. Schedule 1 Part 1(y) of the FOI Act does not contain a public interest test. This means that I do not have jurisdiction to examine the public interest when considering whether the records sought come within the description of the exclusions in Schedule 1 Part 1(y) of the Act.

Furthermore, I do not believe that the Commissioner has jurisdiction to make a determination in relation to the applicant's rights under the European Convention on Human Rights or any potential breach of those rights.  I am obliged to carry out a review on a decision made under FOI legislation. To do that, I am bound to interpret and apply the provisions of the FOI Act. If the applicant is of the view that the GSOC has breached her rights under the European Convention on Human Rights, then I believe that the appropriate remedy for that is the courts, rather than through this Office.

In light of the above, I find that GSOC was justified in its decision to refuse access to the section 97 and 101 reports pursuant to Schedule 1, Part 1(y) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act 2014, I hereby affirm GSOC'S decision to refuse the applicant's request for the section 97 and 101 reports on the ground that the FOI Act does not apply in respect of the records sought, pursuant to Schedule 1, Part 1(y) of the FOI Act.

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.
 

Deirdre McGoldrick
Senior Investigator