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Whether FSI was justified in its decision to refuse access to forensic test results requested by the applicant on the basis that records concerning its forensic criminal investigation functions are excluded from the scope of the FOI Act under the provisions of Schedule 1 of the Act

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 13 July 2015 the applicant submitted a request to FSI for all results in relation to his wife's death and for all forensic test results relating to himself. In its decision letter dated 25 August 2015, FSI refused the applicant's request in accordance with Schedule 1, Part 1(m), of the FOI Act 2014. The applicant requested an internal review of FSI's decision by letter dated 4 September 2015. In its internal review decision letter dated 23 September 2015, FSI upheld its original decision to refuse the applicant's request. The applicant requested a review by this Office of that decision by letter dated 29 September 2015.

In conducting this review, I have had regard to correspondence between FSI and the applicant, to the applicant's correspondence with this Office and to communications between this Office and FSI on the matter.

Scope of Review

This review is concerned solely with whether FSI was justified in refusing access to the records sought by the applicant in accordance with Schedule 1, Part 1(m), of the Act.

Preliminary Matters
While the applicant has outlined his reasons for seeking access to the forensic records, it is important to note that section 13(4) of the Act requires the FOI body to disregard any reason that the applicant gives for a request in deciding whether to grant or refuse the request.

Analysis and Findings

Section 6(2)(a) of the FOI Act provides that an entity specified in Part 1 of Schedule 1 shall, subject to the provisions of that Part, be a public body for the purposes of the Act. Part 1 of Schedule 1 contains details of bodies that are partially included for the purposes of the Act, and includes details of those elements of the bodies that are excluded. If the records sought come within the description of the exclusions in Part 1, then the Act does not apply to such records and no right of access exists.

Part 1(m) of Schedule 1 provides that the Forensic Science Laboratory of the Department of Justice and Equality is not a public body for the purposes of the Act in relation to "records concerning, or arising from, the forensic criminal investigation functions performed by that Laboratory, including the analysis of specimens or in connection with an investigation being undertaken by the Garda Síochána or the Garda Síochána Ombudsman Commission and the approval, supply, testing and maintenance of apparatus and of equipment;"

FSI stated that the records sought arose from a criminal investigation conducted by An Garda Síochána. Having regard to the nature and description of the records sought, it is clear to me that they are captured by the exclusion in Part 1(m). Accordingly, I find that FSI was justified in its decision to refuse access to the records sought on the ground that they are specifically excluded from the scope of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of FSI in this case.

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal 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