Mr M and Office of the Attorney General

CourtInformation Commission
JudgeStephen Rafferty Senior Investigator
Judgment Date14 Sep 2021
Case OutcomeThe Senior Investigator affirmed the decision of the Office of the Attorney General.
RespondentOffice of the Attorney General
Record NumberOIC-110908-J0Z6S1
Whether the Office of the Attorney General Office was justified in refusing the applicant’s request for records relating to amounts paid or to be paid in respect of litigation in which the Attorney General acted in a personal capacity while serving as Attorney General on the grounds that it does not hold the records sought for the purposes of the FOI Act

14 September 2021

Background

On 9 December 2020, the applicant submitted a request to the Office of the Attorney General (the AG’s Office) for information relating to litigation in which the Attorney General acted in a personal capacity while serving as Attorney General. Specifically, he sought records, from 27 June 2020 to the date of his request, containing information relating to amounts paid or to be paid in respect of any such litigation.

On 8 January 2021, the AG’s Office refused the request on the ground that the records sought are not records that would be deemed to be held by it for the purposes of the FOI Act. On the same day the applicant sought an internal review of that decision, following which the Office of the Attorney General affirmed its original decision. On 27 July 2021, the applicant sought a review by this Office of that 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 submissions made by the applicant in his application for review and to the submissions made by the AG’s Office in support of its decision as well as the decisions it has taken in this matter. I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

This review is concerned solely with whether the AG’s Office was justified in refusing the applicant’s request for records relating to amounts paid or to be paid in respect of litigation in which the Attorney General acted in a personal capacity while serving as Attorney General on the grounds that it does not hold the records sought for the purposes of the FOI Act.

Analysis and Findings

Section 11(1) of the FOI Act provides for a right of access to any record held by an FOI body. While the Act does not define “held”, the Commissioner accepts that mere physical possession of a record does not, of itself, mean that the record is held for the purposes of the Act.

In the case of Minister for Health v Information Commissioner [2019] IESC 40, the Supreme Court found that for a record to be held within the meaning of section 6(1) of the Act of...

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