Whether AGS was justified in refusing access, pursuant to Schedule 1, Part 1(n) of the FOI Act, to details of the number of Fixed Charge Notices (FCNs) issued for speeding offences at a specified location for each of a number of specified years on the ground that the Act does not apply to the records sought

25 January 2023  

Background

In a request dated 8 July 2022, the applicant sought details of Fixed Charge Notices (FCNs) issued for alleged speeding offences at the designated Risk Zone on Coolock Lane, immediately east of the Coolock Lane interchange, from 2013 to 2022 inclusive, namely;

1. Number of FCNs issued,

2. Number of FCNs paid,

3. Amount paid,

4. Number of persons prosecuted

5. Number of persons convicted

In a decision dated 29 July 2022, AGS said it decided to part grant the request. In relation to parts 2 and 3 of the request, it provided details of the total number of FCNs paid and the total amount paid for the period January 2013 to July 2022. It said the FCP system was unable to provide a breakdown of the years requested. It refused parts 1, 4 and 5 on the ground that the FOI Act does not apply to the records sought, pursuant to Schedule 1, Part 1(n) of the Act.

According to AGS, upon receipt of the original Decision Letter the applicant disputed the validity of the figures provided in a telephone conversation of 2 August 2022 and also indicated that he was seeking records in respect of -�Road Safety Zone 480-� as opposed to his original request for records in respect of -�Coolock Lane-�. AGS said it agreed to have a fresh search conducted for records relating to -�Safety Zone 480-�. It said that while the request for additional records in respect of -�Safety Zone 480-� as opposed to the original request for records relating to -�Coolock Lane-� could have been interpreted as a new request, it endeavoured to assist the applicant as far as possible by incorporating the additional request into the original request. It said that while awaiting the results of this fresh search, the applicant sought an internal review of the original decision on 5 August 2022.

On the same date, AGS informed the applicant that, as discussed in their telephone conversation of 2 August 2022, it had requested Roads Policing to conduct a fresh search in respect of the applicant-�s request to include search parameters -�Zone 480-� and -�R104-� in addition to the original search parameters of -�Coolock Lane-�. It said it had also requested a yearly breakdown of the fines paid, which would be provided to the applicant as soon as the information was received.

On Monday 8 August 2022 the applicant filed a complaint about the manner in which his initial request and his application for internal review were handled.

On 23 August 2022, AGS informed the applicant that according to the Garda National Roads Policing Bureau, Safety Zone 480 contains part of Oscar Traynor Road as well as Coolock Lane. It said the Garda National Roads Policing Bureau therefore conducted a search for Speed Fixed Charge Notices where the address contained -�Coolock Lane-� or -�Oscar Traynor Road-�. It provided a table comprising a yearly breakdown of the number of FCN-�s paid and the amounts paid, for the years 2015 to 2022, where the address contained -�Coolock Lane-� or -�Oscar Traynor Road-�.

On 29 August 2022, the applicant sought a review by this Office on the ground that AGS had not issued its internal review decision.

On 28 September 2022 the Chief Information Officer of AGS wrote to the applicant regarding his complaint. He said he was satisfied that the appropriate steps had been taken by the FOI Office to provide the information sought and that he was satisfied that the conducting of a second search for records relating to Road Safety Zone 480 was a genuine attempt by the FOI Office to provide the greatest level of assistance possible. He said an internal review decision would issue in due course.

On 4 October 2022, AGS issued its internal review decision. It said it had regard to, among other things, the additional information released to the applicant on 23 August 2022. It affirmed the decision to grant parts 2 and 3 of the request and to refuse parts 1, 4, and 5 pursuant to Schedule 1, Part 1(n) of the Act. On the same date, the applicant said he wanted our review to proceed.

During the course of the review, by email dated 2 November 2022, the applicant said he did not require the review to consider parts 4 and 5 of his request. He said his request for information at part 1 of his request stands as each FCN issued is inextricably linked with a fiscal element and parts 2 and 3 are consequential to the number of FCNs issued in the first place. He was also dissatisfied with the information provided in respect of parts 2 and 3. He also raised further concerns in respect of the internal review process followed in this case.

Subsequently, the Investigating Officer sought further submissions from AGS. Amongst other things, she queried the absence of information relating to the years 2013 and 2014 as sought at parts 2 and 3 of the applicant-�s request. In response, AGC said it asked Garda National Roads Policing Bureau to provide records, if any, exist in respect of 2013 and 2014. However, despite several reminders sent by this Office, the information was not provided, with the result that I issued a formal demand to the Garda Commissioner for the information pursuant to section 45 of the Act.

In response, AGS apologised for the delay in responding. It said the Garda National Roads Policing Bureau informed it that no speed detections where recorded on Coolock Lane and Oscar Traynor Road for the period 2013 and 2014. It also provided that information to the applicant on 3 January 2023. Subsequently, the Investigating Officer sought to clarify if the applicant was happy with the additional information released in relation to parts 2 and 3 of his request. The applicant expressed concerns about the accuracy of the figures provided. He indicated that he required a formal decision on the matter.

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 correspondence between the applicant and AGS as outlined above, and to the communications between this Office and both parties on the matter. I have also had regard to the information provided to the applicant in response to his request.

Scope of Review

As I have indicated above, the applicant expressed concerns about the accuracy of the figures provided in response to parts 2 and 3 of his request. He said the information for 2015 to 2020 -�appears false and misleading and relating to one year-� and that the information for 2021 and 2022 -�is not credible as it is almost exactly the same as the [original decision] for 2013-2022-�.

In essence, the applicant-�s only ground for challenging the accuracy of the figures is that they do not look right to him. He has provided no other evidence to suggest that the information released is not the information actually held by AGS. It is important to note that the FOI Act provides for a right of access to records held by FOI bodies. The accuracy, or otherwise of the information in the records is not a matter for this Office to determine. I have no reason to doubt that the information provided by AGS is, indeed, the information it holds on the matter. Accordingly, I do not propose to further consider parts 2 and 3 of the request in this review.

Moreover, as I have explained above, the applicant said he did not require the review to consider parts 4 and 5 of his request. Accordingly, this review is concerned solely with whether AGS was justified in refusing to grant access to records relating to part 1 of the applicant-�s request (the number of FCNs issued each year from 2013 to 2022 at the location in question) on the ground that the FOI Act does not apply to the records sought, pursuant to Schedule 1, Part 1(n) of the Act.           

Preliminary Matters

The applicant has expressed a number of concerns about the manner in which AGS processed his request. His primary concern appears to relate to whether the internal review was carried out by a more senior member of AGS than the member who made the original decision on the request. He believes it was not. AGS has assured me that it was. It said the internal review decision was made by a Principal Officer, while the original decision was made by an Assistant Principal. The applicant has apparently taken issue with the fact that the identity of the internal reviewer was not provided to him.

Section 13(2)(b) of the Act requires that a notification of a first instance decision on a request must contain the name and designation of the person in the FOI body concerned who is dealing with the request, unless the head of the body reasonably believes that their disclosure could prejudice the safety or well-being of the person concerned. However, the Act contains no such requirement in respect of the person who makes the internal review decision. Instead, it simply requires that the internal reviewer shall be of a rank that is higher than that of the staff member who made the original decision (section 22(3) refers).

Nevertheless, it seems to me that in the normal course, one might expect an internal review decision notification to contain the name of the signatory, and his or her title which would also serve to show compliance with section 22(3). Indeed, I note that the sample letters appended to the FOI Manual published by the Central Policy Unit of the Department of Expenditure, NDP Delivery and Reform suggest that the internal reviewer, as the signatory of the internal review decision, would ordinarily provide his or her name and title.

In this case, AGS has not expressed any specific concerns about the disclosure of the identity of the internal reviewer. Accordingly, I see no reason why it could not have disclosed the internal reviewer-�s identity to the applicant. Indeed, it seems to me that as a matter of best practice, AGS should give consideration to including the name of the internal reviewer and his or her title in all future internal review decisions.

Nevertheless, while AGS has not disclosed the identity of the staff member who carried out the internal review in this case, I accept its assertion that it was carried out by a Principal Officer and that AGS was therefore in compliance with section 22(3) of the Act.

Analysis and Findings

It is important to note that the FOI Act applies only to a very limited category of records held by AGS. Regardless of a requester-�s views as to whether there may be compelling grounds for the release of certain records, if the Act does not apply to the records sought, then no right of access exists and this Office has no further role in the matter. We are not in a position to direct the release of records to which the FOI Act does not apply.

Section 6(2) of the FOI Act provides that any organisation specified in Schedule 1, Part 1 of the FOI 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 description of the exclusions in Part 1, then the Act does not apply and no right of access exists to such records held by the body.

Schedule 1, Part 1(n) of the FOI Act 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. This means that 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.

The Act does not define the term -�administrative record-�. This Office considers the term to cover records relating to the administration of the body, as opposed to, say, records relating to its operational matters or core functions. In the case of a number of specified public bodies, the right of access afforded by the FOI Act is restricted to records relating to their general administration. We consider the term general administration to refer to records which have to do with the management of a public body such as records relating to personnel, pay matters, recruitment, accounts, information technology, accommodation, internal organisation, office procedures and the like. In the case of AGS, the category of administrative records to which a right of access applies is limited further; they must also concern human resources, finance, or procurement matters.

In its submissions to this Office, AGS said it provided details of the number of FCNs paid and the amounts paid as such information on the ground that such records constitute financial records. It argued, however, that records relating to the number of FCNs issued are records that relate to the operational activities of AGS and therefore fall outside the parameters of administrative records relating to human resources, finance or procurement matters. The applicant argued that each FCN issued is inextricably linked with a fiscal element and that details of the number of FCNs paid and the amounts paid are consequential to the number of FCNs issued in the first place.

While I have some sympathy with the applicant-�s argument, it seems to me that the disclosure of the number of FCNs issued cannot be said to be simply a record that relates to administrative matters concerning finance. While the disclosure of the information would allow for inferences to be drawn about potential income that might arise from such notices, it discloses nothing about the actual finances of AGS. It would, however, disclose information about the core activities of AGS, namely the frequency of the issuing of FCN-�s for speeding offences at the location in question. I find, on balance, that the record sought is not an administrative record relating to finance. Accordingly, I find that AGS was justified in its decision to refuse access to the records sought pursuant to Schedule 1, Part 1(n) of the FOI Act

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm An Garda Síochána-�s decision to refuse, pursuant to Schedule 1, Part 1(n) of the Act, the applicant-�s request details of the number of Fixed Charge Notices issued for various years at a specified location on the ground that the Act does not apply to the records sought.

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