Mr Y and Data Protection Commission

• Jurisdiction: Ireland
• Judge: Senior Investigator
• Judgment Date: 05 April 2022
• Case Outcome: The Senior Investigator affirmed the decision of the DPC.
• Court: Information Commission
• Respondent: Data Protection Commission
• Record Number: OIC-118029-N1X3P8

Whether the DPC was justified in refusing access to records relating to its case-handling processes pursuant to Schedule 1, Part 1(f) of the FOI Act, and in refusing access to records relating to the qualifications or training of its staff regarding investigations on the basis that the records did not exist or could not be found

5 April 2022

Background

In a request dated 25 October 2020, the applicant sought access to the following:

(a) The most recent staff document for each of the years 2017 to 2020 that sets out what the DPC’s process for handling complaints is, including any rules that specify how a case progresses from one stage to another;

(b) The number of full time equivalent staff (FTE) with qualifications or training in how to conduct investigations for the previous four years, with details of the certifying body, as at the date of the request and on four previous specified dates.

After a very considerable delay, the DPC issued a decision on the request on 15 December 2021. It refused access to records falling within the scope of the first part of the applicant’s request on the basis that they are excluded from the scope of the FOI Act by virtue of Part 1(f) of Schedule 1. With regard to the second part, it indicated that it had initially understood that this part of his request was being dealt with outside of the framework of FOI. However, on further clarification it realised that it was mistaken in this understanding and indicated that it did not hold any records falling within this part of the request.

The applicant sought an internal review of that decision, following which the DPC affirmed the original decision. With regard to the second part of the applicant’s request the internal reviewer specifically relied on section 15(1)(a) to refuse access. On 12 January 2022, the applicant applied to this Office for a review of the DPC’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 applicant’s comments in his application for review and to the submissions made by the DPC in support of its decision. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with whether the DPC was justified in refusing the applicant’s request for records relating to its case-handling processes, pursuant to Schedule 1, Part 1(f) of the FOI Act, and for refusing access to records relating to the number of DPC staff with investigative training qualifications under section 15(1)(a) of the Act on the basis that the records sought do not exist or cannot be found.

Preliminary Issue

At the outset I wish to address the lengthy delay in the DPC issuing its original decision in this matter. Firstly, the processing of the applicant’s request in this case fell well below the required standards. The original decision issued well after the statutory timeframes, being almost 14 months after the applicant’s initial request. As this Office has stated on many occasions, the administration of the FOI Act is a statutory function which should be afforded as much weight as any other statutory function. While I note that the DPC has indicated that the delay was due to the prolonged absence of a member of its FOI Unit which was exacerbated by the COVID-19 restrictions, the delay encountered in this case was simply unacceptable. Nevertheless, I wish to acknowledge that the DPC indicated that it has taken steps to address the issue and in particular has, at the end of 2021, implemented a restructuring of its FOI function to prevent the reoccurrence of such an outcome.

Analysis and Findings

Part 1(f) of Schedule 1

Section 6(2)(a) of the Act provides that an entity specified in Part 1 of Schedule 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 details of certain specified records that are excluded. If the...