Whether AGS was justified in refusing access to records relating to the policing of certain events on the basis of sections 15(1)(c), 15(1)(d), 36(1)(c) of the FOI Act and on the basis that the information is outside the scope of the FOI Act insofar as it relates to AGS as set out in Part 1(n) of Schedule 1

18 October 2022

Background

This decision is a composite decision relating to two requests the applicant made to AGS. Both requests were for records relating to the policing by AGS of what is described by the applicant and his solicitors as -�non-public duty events-� and which are events covered by Section 30 of the Garda Síochána Act 2005 (the Act of 2005). Given the overlap between the two FOI requests and the decisions of AGS, as well as the fact that the applications for internal review and to this Office relate to both cases, I have decided to issue a composite decision in respect of both reviews.

The first request

In the first request, dated 13 October 2021, the applicant sought records in respect of the payment by any organisation for the management of any non-public duty event, including concerts, festivals, sporting, racing and any other miscellaneous events, between 2 July 2018 and 29 February 2020. In particular, the applicant sought the exact sum paid by the organisations to AGS where the sum was in excess of €1000 and the following:

-�A breakdown of how the sum paid by the Relevant Organisation to An Garda Síochána was calculated including but not limited to:

• the number of members in attendance at the non-public duty event and a breakdown of their respective ranks;
• the rate charged per member in attendance at the non-public duty event;
• the basis for calculating the number of members required to attend the non-public duty event;
• and the communications with the relevant organisation setting out the basis for calculating the sums to be paid.-�

In its decision dated 10 November 2021, AGS part-granted the request. It refused to provide records relating to exact sums paid by organisations for 2018 and 2019 on the basis of section 15(1)(d), as the information was the subject of previous FOI requests and published on the website of AGS. It provided the relevant information in respect of 2020. It refused access to records containing the above additional information on the basis of sections 29(1), 30(1)(c), 36(1)(b), 36(1)(c) and on the basis that some of the information sought is outside the scope of the FOI Act insofar as it relates to AGS (Part 1(n) of Schedule 1 refers).

The applicant sought an internal review of the above decision on 26 November 2021. In a decision dated 15 December 2021, AGS varied its original decision. It did not release any further information but based its refusal on sections 15(1)(c), 15(1)(d), 36(1)(c) and Part 1(n) of Schedule 1.

The second request

In the second request, dated 27 October 2021, the applicant sought the same breakdown information as quoted above in respect of specific events dating between 1 January 2018 and 1 July 2018. In a decision dated 10 November 2021, AGS refused the applicant-�s request, again on the basis of sections 29(1), 30(1)(c), 36(1)(b), 36(1)(c) and Part 1(n) of Schedule 1.

The applicant sought an internal review of that decision on 26 November 2021. In a decision dated 15 December 2021, AGS varied its original decision. It did not release any further information but based its refusal on sections 15(1)(c), 36(1)(c) and Part 1(n) of Schedule 1. On 25 May 2022, the applicant applied to this Office for a review of the decisions of AGS in respect of both requests.

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 AGS in support of its decision. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

In respect of the first request and the refusal under section 15(1)(d) of the FOI Act, the applicant has not raised any concerns with the decision not to provide organisational payment details for 2018 and 2019. Having reviewed the information published on the AGS website and the information provided alongside the original decision, I am satisfied that the matter has been adequately addressed and will not form part of this review.

In respect of the remaining parts of the requests, AGS has not identified or provided records to this Office. Its position is that estimated records could amount to tens of thousands of records. It says that the provision of same would be -�manifestly unreasonable-�. It further says that the majority of the records requested fall outside the scope of the FOI Act. I will consider this position further below.

Accordingly, the review is concerned solely with whether AGS was justified in refusing access to the information sought on the basis of sections 15(1)(c), 36(1)(c) and on the basis that the information sought is outside the scope of the FOI Act insofar as it relates to AGS, pursuant to Part 1(n) of Schedule 1.

Preliminary Matters                                                                                                         

It is important to note that section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request under section 12 shall be presumed not to have been justified unless the head of the relevant FOI body shows to the Commissioner's satisfaction that its decision was justified. This means that the onus is on AGS to satisfy this Office that its decision to refuse access to the records sought, either in whole or in part, was justified.

Analysis and Findings

For the benefit of the applicant, I should explain at the outset 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. The position of AGS is that the majority of the information requested falls outside the scope of the FOI Act.

While AGS is also seeking to rely on two additional exemption grounds, 15(1)(c) and 36(1)(c), I propose considering the question of whether the information falls outside the scope of the FOI Act at the outset.

Part 1(n) of Schedule 1

Section 6(2) of the Act provides that an entity specified in Schedule 1, Part 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 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) 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. In other words, 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.

Section 30 of the Act of 205 provides that the Garda Commissioner may provide and charge for police services for events on private property or in areas open to the public or in certain other circumstances. Examples of the types of events provided in the Act are sports fixtures, concerts and festivals. The applicant sought -�a breakdown of how the sum paid by the Relevant Organisation to An Garda Síochána was calculated-�-� and included specific information in the subsequent bullet points.

In its submissions to this Office, AGS says that three sub-parts of the applicant-�s request are outside the scope of the FOI Act, namely the number of members in attendance, the basis for calculating the numbers in attendance, and communications with relevant organisations.

AGS says that the basis for calculating the sums to be paid by event organisers is an operational decision made with regard to the number of members to be deployed. It says that this is determined by the District or Divisional Officer based on the policing requirements of the event and an operational policing assessment. It says the number of Gardaí and the hours required form the basis for calculating the sum to be paid. Its position is that: -�[a]s the basis for calculating the sum to be paid by the event organiser is in effect the basis for deciding the level of policing required at an event, records relating to same are essentially operational policing records-�.

The applicant-�s position, as outlined in his application to this Office, is that the sub-parts referenced above relate to a -�larger omnibus class of records-�; those disclosing the method of calculating the sum to be paid by the organisations to AGS. He says that -�the basis on which fees owing to An Garda Síochána were calculated is a matter relating to finance and procurement-� and are therefore administrative records such that they fall within the scope of the FOI Act.

The Act does not define the term "administrative records" as provided for in Part 1(n) apart from stating that they relate to human resources, or finance or procurement matters. The term "administrative records" is commonly understood to mean records relating to the processes of running/managing a business or organisation. It seems to me that the purpose of Part 1(n) is to restrict the right of access to those functions or processes of AGS that relate to the administration or management of the organisation, and only in relation to matters concerning human resources, or finance or procurement matters.

While I accept that the records sought by the applicant involve finances to the extent that they relate to charges levied by AGS, it seems to me that such records would also contain operational policing information. If AGS was to provide the applicant with the number of staff policing a particular event and the basis for calculating the number of members and the relevant communications, I accept that operational policing information would be disclosed. Section 30 of the Act of 2005 refers to the -�provision of police services-�. Policing services constitute a core function of AGS and the fact that they are being provided at a cost in such circumstances does not, to my mind, take away from the operational nature of the matter. Having regard to the nature of the request and the description of the records sought, I am satisfied that the records at issue concern policing functions of AGS.

I note the applicant-�s position that the sub-parts referenced relate to a larger request. However, having considered the explanation provided by AGS in respect of how the sum to be paid is calculated, I am satisfied that it understands the scope of the request and has considered same appropriately.  

Accordingly, I find that AGS was justified in its decision to refuse access to records concerning the number of members in attendance, the basis for calculating the numbers in attendance, and communications with relevant organisations, on the ground that they are specifically excluded from the scope of the FOI Act, pursuant to Schedule 1, Part 1(n) of the Act.

All that remains to be considered, therefore, is that part of the requests relating to the rate charged per member in attendance at the non-public duty event. AGS refused to release this information on the basis of section 36(1)(c) of the FOI Act.

Section 36(1)(c)

Section 36(1)(c) provides that access to a record must be refused where the disclosure of information contained in the record could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates. While the standard of proof required to meet this exemption is relatively low, I would expect that a person seeking to rely on it would be able to show that contractual or other negotiations were in train or reasonably foreseen and explain how exactly disclosure could prejudice the conduct or outcome of such negotiations.

As per the decision-making records, the position of AGS is that section 30(4) of the Act of 2005 grants the Garda Commissioner discretion as to the rates charged and that to disclose the rates would prejudice the conduct or outcome of contractual or other negotiations of AGS and could result in a material financial loss and infringe on the discretion granted by the legislation.

In submissions to this Office, AGS says that the -�headline rate per member in attendance is based on the average hourly rate of pay-�, including PRSI contributions, for each rank in attendance. Following further communications with AGS, I understand that the rate charged, based on the average hourly rate of pay, has been the same across the period of time covered by the relevant FOI requests. As such, I consider the effective rate charged for the purposes of this review to be the current rate.

In its submissions, AGS says that a total cost is calculated based on the numbers in attendance and the hours of attendance. It says that -�the total fee charged to the event organiser can be subject to negotiations-�. It provides a list of circumstances considered in such negotiations including the nature and location of the event, the particular policing requirements of the event and its size. AGS says that -�the release of the effective rate charged per member could be expected to prejudice the conduct or outcome of contractual negotiations-�. It says that release would infringe on the discretion granted to AGS under section 30(4) of the Garda Síochána Act.

In his application to this Office, the applicant argued that the provision at section 30(4) of the Garda Síochána Act allows for charges -�sufficient to cover the costs-� of services and he says that cost recovery is the statutory criteria identified. He said that -�if cost recovery is the sole basis on which the fees charged by An Garda Síochána for security services provided at non-public events may be calculated, it follows that the precise basis on which such charges are calculated cannot be commercially sensitive matter-�.

While I accept that future negotiations in respect of the policing of non-public duty events are likely to occur, AGS must also demonstrate that such negotiations would be prejudiced by the release of the information in question. As noted above, AGS has outlined a number of factors which are taken into account in respect of the policing of such events and the resultant charge levied on event organisers. Insufficient information has been provided to satisfy me that the release of information specifically related to the rate charged per member would prejudice negotiations. As AGS has noted, the rate charged is based on the average hourly rate of pay, which is a fixed amount. While I accept that the total fee charged to the event organiser can be subject to negotiations, it seems unlikely to me that the disclosure of the rate charged per member, of itself, could prejudice negotiations. It seems to me that the variable factors taken into account as mentioned above are significantly more likely to influence the negotiating position of AGS as these factors are far more likely to differ from event to event.

I would add that if the only charge AGS generally seeks to recover in respect of such events is the headline rate per member, then I accept that disclosure of the headline rate would disclose the overall rate AGS wishes to charge, based on the numbers attending. Nevertheless, it seems to me that if any negotiation is to take place in such circumstances, it must surely be around the numbers in attendance and not the rate charged per member. In its submissions, AGS says that -�[e]vent organisers will frequently seek to question or challenge the designation of certain duties as non-public in nature as opposed to regular policing. For example, at many large scale events the event organiser will challenge the amount of traffic management costs which should be charged to the event-�. Accordingly, I fail to see how the disclosure of the rate charged per member could possibly prejudice the conduct or outcome of such negotiations.

In the circumstances, I find that AGS was not justified in refusing to release information in respect of the rate charged per member at non-public duty events on the basis of section 36(1)(c). I direct the release of the information sought.

Section 15(1)(c)

While it can have no bearing on my decision given my findings above, I consider it appropriate to comment upon the reliance by AGS on section 15(1)(c) as a ground for refusing three sub-parts of the applicant-�s request, namely the number of members in attendance, the basis for calculating the numbers in attendance, and communications with relevant organisations.

Section 15(1)(c) provides that an FOI body may refuse to grant a request if it considers that granting the request would, by reason of the number or nature of the records concerned or the nature of the information concerned, require the retrieval and examination of such number of records or an examination of such kind of records concerned as to cause a substantial and unreasonable interference with, or disruption of, work (including disruption of work in a particular functional area) of the body. However, section 15(4) of the Act provides that a request cannot be refused under section 15(1)(c) unless the body has assisted, or offered to assist, the requester in amending the request so that it no longer falls to be refused under that section.

In its submissions to this Office, AGS says that it did not assist, or offer to assist the requester in amending either request for re-submission so that it no longer fell within Section 15(1)(c). Its position is that any refinement of the request would not -�change the fact-� that such records are operational policing records, which I have addressed above. While AGS is relying on other exemption grounds and may believe that any narrowing of the request would be without merit, section 15(4) of the FOI Act is clear. Before a body can refuse a request under section 15(1)(c), the body must first have provided reasonable assistance to the requester in amending the request, or have offered to provide assistance in cases where the requester is not willing to amend the original request, in order to comply with the requirements of section 15(4). AGS has confirmed that it did not do so and has therefore not complied with section 15(4). While the matter is moot given my finding in respect of the scope of the FOI Act, I would remind AGS to pay heed to the specific wording of relevant exemptions in future. As AGS is aware, a comprehensive guidance note in respect of section 15(1)(c) is available on our websitewww.oic.ie. I expect AGS to encourage its decision makers to consult the guidance when consideration is being given to applying the provision in the future.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of AGS. While I affirm its decision to refuse access to details of the number of members in attendance at the non-public duty event, a breakdown of their respective ranks, and  the basis for calculating the number of members required to attend the non-public duty event, on the ground that the Act does not apply to the information sought pursuant to Schedule 1, Part 1(n) of the Act, I annul its decision to refuse access, under section 36(1)(c), to details of the rate charged per member in attendance at the non-public duty event and I direct the release of that information.

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 by the requester not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

Stephen Rafferty
Senior Investigator