Mr X and Office of the Director of Public Prosecutions [2024] IEIC 148891 (27 August 2024)

Background
Scope of Review
Analysis and Findings
Decision
Right of Appeal

Whether the DPP's decision on the applicant's request for records relating to a prosecutorial decision taken was in accordance with the provisions of the FOI Act

27 August 2024

Background

On 5 March 2024 the applicant submitted a request to the DPP for access to his legal file and all correspondences between the DPP and him, in particular a specified 'no prosecution letter' that was sent to him at his former address, and to all data held about him, all correspondence, internal files and reasonings/decisions made by the DPP in relation to a prosecution. On 6 March 2024 the DPP issued its original decision, in which it refused the applicant's request under section 42(f) of the FOI Act, on the basis that the Act does not apply in relation to any record held or created by the DPP, other than a record concerning the general administration of the Office.

On 10 March 2024 the applicant sought an internal review of that decision. He said he was not looking for his legal files but for access to an "administrative letter" that was sent to his former address. He said the letter in question stated that he was "not to know the reason for no prosecution". He said he wanted access to that letter only, a letter he said was sent to him several years ago. He described the letter as a general administrative letter of the DPP.

On 5 April 2024 the DPP issued its internal review decision. It noted that the applicant had narrowed the scope of his request solely to a letter which the DPP had previously sent to him. It said it had identified a letter dated 7 April 2017 that was issued in response to his letter dated 4 April 2017. It said it had decided to grant access to the letter even though it is not a record concerning the general administration of the Office.

On 25 April 2024, the applicant applied to this Office for a review of the DPP's decision. In his application to this Office, he referred to his original request and said he had asked for his file/the reasoning why and how a decision "no prosecution" was reached. Among other things, he said the DPP originally decided there would be no prosecution and subsequently reversed its decision. He said he ought to be told how and why the DPP came to such important decisions. He also raised concerns about how the DPP dealt with his case.

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 referred to above and to submissions made to this Office by both parties. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

The scope of this review is concerned solely with whether the DPP's decision on the applicant's request was in accordance with the provisions of the FOI Act.

Analysis and Findings

I should say at the outset that when reviewing a decision of an FOI body, the scope of the review to be undertaken by this Office is bound by the details of the request made. If the scope of a request is narrowed during the decision making process, as happened in this case, it is not open to any party to subsequently expand the scope of a review back to the request originally made. In this case, it is apparent that the applicant narrowed the scope of his FOI request, in his letter of 10 March 2024, to the "no prosecution" letter that had been sent to him previously, a copy of which the DPP subsequently provided. As such, it is not open to him to seek a review by this Office of any parts of the original request that he did not request to be reviewed at internal review stage. Accordingly, as the DPP released the record to which the applicant's narrowed request sought access, it seems to me that there is nothing left for me to review as the narrowed request has essentially been granted in full.

However, it would appear that the applicant did not truly understand the effect of his narrowing of the scope of the request at internal review stage. It is clear from his application for review to this Office that he is, in essence, seeking access to information that might allow him to understand the prosecution decisions taken by the DPP on his case. Accordingly, noting the submissions of the DPP in this case, and in light of my analysis as set out below, I believe it would be to the benefit of both parties for me to set out my analysis of the DPP's position concerning the applicability of section 42(f) to the applicant's original request.

Section 42(f)

Section 42(f) of the Act provides that the Act does not apply to a record held or created by the Attorney General or the Director of Public Prosecutions or the Office of the Attorney General or the Office of Director of Public Prosecutions, other than a record relating to general administration. This means that the FOI Act applies only to a very limited category of records held by the DPP. Regardless of the applicant's views as to whether there may be compelling grounds for the release of certain records, if the FOI Act does not apply to the records sought, then no right of access exists and this Office has no further role in the matter.

The position of the DPP is that the original request was for information that relates to an individual file held for the purposes of making a prosecutorial decision. It said the file in question contains records either created or held by the Office. It said the records which are not created by the DPP include correspondence from the State Solicitor and the original Garda file. It said the records are quintessentially exempt from the ambit of the Freedom of Information Act 2014, which is dis-applied by section 42(f) where the record is held or created by the DPP and is not a record relating to the general administration of the Office.

The FOI Act does not define the term "general administration" as provided for in section 42(f). 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. 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 etc. The effect of section 42(f) is that the only records held by the DPP to which a potential right of access applies are those that relate to general administration.

The records sought in this case concern the DPP's decision making on an individual file. Such records do not relate to the general administration of the Office, having regard to our understanding of that term as set out above. I am satisfied, therefore, that the Act does not apply to such records, pursuant to section 42(f) of the Act.

Finally, I would note, for the information of the applicant, that this Office has no role in examining the administrative actions of the DPP. Moreover, under section 13(4) of the Act, any reasons a requester has for seeking access to records must be disregarded when processing an FOI request. Accordingly, regardless of the applicant's views on the matter, the appropriateness, or otherwise, of the DPP's refusal to give reasons for its prosecutorial decisions, is not a matter that can be considered by this Office.

In conclusion, therefore, I find that the DPP's decision on the applicant's request was in accordance with the provisions of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the DPP in this case. I find that the DPP's decision on the applicant's request was in accordance with the provisions 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.

Stephen Rafferty

Senior Investigator

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You are here: BAILII >> Databases >> Irish Information Commissioner's Decisions >> Mr X and Office of the Director of Public Prosecutions [2024] IEIC 148891 (27 August 2024) URL: http://www.bailii.org/ie/cases/IEIC/2024/148891.html Cite as: [2024] IEIC 148891

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