My Office reviewed a total of 323 cases during the year. A formal decision was issued in 206 of those cases, representing 64% of all reviews completed in 2015. Decisions on reviews can be made by affirming, annulling, or varying the decision of the public body. The table below shows the outcomes of those reviews on which a formal decision was made from 2012 to 2015.
The remaining cases reviewed in 2015 were closed by way of discontinuance, settlement or withdrawal. See Table 16, Chapter 4 for a comparison of all reviews closed in the year.
Section 38 is a statutory notification requirement which public bodies are required to observe in relation to the exemptions contained in section 35 (information obtained in confidence), section 36 (commercially sensitive information) and section 37 (personal information about a third party). In the case of each of these exemptions, the FOI body may grant a request if it is considered that the public interest is better served by granting than by refusing the request. However, any proposal to release such otherwise exempt material is subject to the provisions of section 38. That section requires the FOI body to notify certain third parties that it proposes to grant the request in the public interest and that the FOI body will consider any submissions from the third parties before deciding whether to grant or refuse the request. It also provides for the processing of such requests within a specified timeframe.
I consider that in a case where the section 38 requirements were not applied correctly, my jurisdiction to conduct a review is undermined. As such, my Office may annul decisions where timelines associated with the provisions of section 38 have not been adhered to by the body concerned.
In 2015, my Office annulled ten decisions where public bodies had failed to adhere to those time requirements.
In reviewing the decisions, my Office noted the public bodies had failed to take account of one or more of the requirements of section 38. For example, section 38(2) provides for a third party to be notified by a public body within two weeks of receiving the original request, while section 38(2)(ii) provides that a person notified under that subsection has three weeks to make a submission.
In one case, a third party was notified more than three months after the request was received. In a number of other cases, third parties were not provided with any deadlines, or submissions were accepted outside the stated three-week period.
In another case, the public body extended a deadline on the basis of staff resource issues. However, section 38 does not provide for such an extension.
Section 38 provides for a decision making process to be concluded in no more than seven weeks in normal circumstances. In addition, an internal review is not available to the requester or third party, where the request involves a consultation under section 38. As such, a timely decision by a public body will ensure that the requester and/or affected third parties can avail of a right of appeal to the Information Commissioner within a reasonable timeframe. However, in some cases, parties were either not notified of the decision of the body concerned, or were not advised of their right of appeal to my Office.
I would refer FOI decision makers to CPU Guidance Note 8 which provides FOI bodies with helpful information on ensuring compliance with the requirements of section 38.
The following cases represent a small sample of the cases my Office reviewed during the year that were concluded by way of a formal decision. The full text of all formal decisions issued during 2015 is available at www.oic.ie
In some cases, the review was carried out under the provisions of the FOI Acts 1997 & 2003 notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.
In this case, the applicant sought access to records of communications to and from the Ceann Comhairle in respect of Dáil Éireann’s Standing Order 40A (SO 40A). This SO requires government Ministers to provide further details where the Ceann Comhairle determines that an answer to a parliamentary question given to a Dáil deputy was insufficient.
The Service argued that the majority of the records were exempt pursuant to section 42(k), section 42(l) and section 41(1) of the FOI Act 2014. It submitted that the records were ‘private papers’ of Dáil members and/or ‘official documents’ of the Dáil, and/or ‘confidential communications’ of Dáil members, and were therefore exempt from release.
I found that section 42(k), which is read in the context of Article 15.10 of the Constitution, protects those private papers of members and official documents of the House that are required “by the rules or standing orders of either or both of such Houses to be treated as confidential”. However, I was satisfied that the Dáil had not created a standing order which provided that private papers and/or official documents should be treated as confidential, and therefore I found that section 42(k) did not apply.
I also found that the records were not ‘private papers’ within the meaning of the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013, as they were not in the possession or control of Dáil deputies, but rather were held by the Ceann Comhairle’s Office. Furthermore, I was of the opinion that the Service had not demonstrated that communications to the Ceann Comhairle from Dáil members pursuant to the SO 40A procedure were made on an understanding of confidentiality, and that, as a result, they were not ‘confidential communications’ within the meaning of the 2013 Act. Therefore, I concluded that section 42(l) did not apply to the records.
Finally, as section 105(1) of the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013 concerns ‘private papers’, and as I was satisfied that the records did not come within the definition of private papers under the 2013 Act, it followed that disclosure was not prohibited under section 105(1), and section 41(1) of the FOI Act did not apply. Therefore, I directed the release of the records.
It is noteworthy that Dáil Éireann has since created Standing Orders 114A-E which affords further protection for official documents, private papers and confidential communications.
Unlike case 150142, in this case I found that certain records were private papers within the meaning of Part 10 of the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013. The applicant, a journalist, sought access to all receipts and invoices held by the Houses of the Oireachtas Service in relation to a 2013 audit of expenses of the members of the Houses of the Oireachtas and copies of all receipts/invoices submitted for review by the 22 members chosen for the 2013 audit.
The Service refused the request under section 42(l) of the FOI Act 2014 on the basis that the records sought were the private papers of the members, as per Part 10 of the 2013 Act. During the course of the review, it emerged that the auditor, Mazars, held copies of certain records for professional compliance purposes. The Service deemed these records to be held by it in accordance with section 11(9) of the FOI Act.
While the term “private papers” appears in the FOI Act several times, it is not defined in the Act. Section 42(k) provides that the Act does not apply to a record relating to any of the private papers (within the meaning of Article 15.10 of the Constitution) of a member of either House of the Oireachtas or an official document of either or both of such Houses that is required by the rules or standing orders of either or both of such Houses to be treated as confidential. The equivalent provision in the FOI Act 1997 was section 46(1)(e).
The question of whether records of the expenses of members could be considered private papers in the context of article 15.10 and section 46(1)(e) of the FOI Act arose in one of the earliest decisions of my Office (Case 99168 - Mr. Richard Oakley of The Sunday Tribune Newspaper & the Office of the Houses of the Oireachtas). In that case, the then Commissioner, Kevin Murphy, considered whether the identities of members should be disclosed in association with a published list of expenses paid.
During the course of that review, it was argued that Article 15.10 provided protection for private papers of the members. In his decision, Mr Murphy found that the records did not concern the private business of the members or their dealings with constituents or other third parties but rather related to the discharge of their public duties as Oireachtas members and he found that the records did not come within the term “private papers of its members”.
I noted that against this background, it would seem reasonable for me to conclude that receipts and invoices for expenses incurred by members in the course of the performance of their functions would not ordinarily be considered to be private papers of the members.
However, for the purposes of considering the applicability of section 42(l), the question I was obliged to consider was whether such records were private papers within the meaning of Part 10 of the 2013 Act. For the receipts and invoices held by the members to be deemed private papers within the meaning of the 2013 Act, they had to be in the possession or control of the members in relation to their political role or in their capacity as members. Having regard to the nature of the procedures that apply to expense payments, as described by the Service, I accepted that receipts and invoices were held by the members. I also accepted that the members held such records in their capacity as members. Accordingly, I found that such records were private papers within the meaning of Part 10 of the 2013 Act and that the FOI Act did not apply to the records, under section 42(l).
As for the records held by Mazars, that the Service accepted were under its control, I noted that such records were clearly not held by the members. However, for section 42(l) of the FOI Act to apply, it is sufficient that the records sought relate to private papers within the meaning of Part 10 of the 2013 Act. The records held by Mazars, being copies of records which I accepted to be private papers, clearly related to such private papers. Accordingly, I found that the Act did not apply to those records.
On the matter of the apparent inconsistency between the conclusions I came to in this case, and the conclusions of Kevin Murphy in case 99168, I noted that section 42(l) is an entirely new provision in the FOI Act 2014 and that there was no equivalent provision contained in the FOI Act 1997. I further noted that it is quite broad in nature and affords a more significant protection for private papers of members of the Houses than previously existed.
As I stated in my decision, it could be argued that such a broad protection for records of the type at issue in this case is inconsistent with the requirements imposed on FOI bodies under section 11(3) and that it might be expected that information relating to expenses of members of the Oireachtas should be fully transparent and subject to public scrutiny under FOI. Reluctantly, however, I had to have regard to the prevailing legislation at the time of my decision, and I accepted that the records sought by the applicant in this case were records falling within the scope of section 42(l) of the FOI Act 2014.
In yet another case involving the Houses of the Oireachtas Service, my review was concerned with whether the Service was justified in refusing access to certain records relating to access arrangements for the Houses of the Oireachtas. Specifically, the applicant sought details of all Oireachtas access pass holders, not including Oireachtas staff but including those who have passes from political parties and a list of everyone signed in as a visitor by a TD or Senator for the first three months of 2014.
The Service made wide ranging submissions on the case. It argued that section 127 of the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013 (the 2013 Act) operates so as to exclude the records at issue from the scope of the FOI Act. That section of the 2013 Act provides that the FOI Act does not apply to certain records relating to the business of Oireachtas committees. The Service argued that the records sought related to the business of the Joint sub-Committee on Administration.
The Service also argued that the records at issue were official documents of the Joint sub- Committee and that section 46(1)(e) of the FOI Act applied. Section 46(1)(e) provides that the Act does not apply to “a record relating to any of the private papers (within the meaning of Article 15.10 of the Constitution) of a member of either House of the Oireachtas or an official document of either or both of such Houses that is required by the rules or standing orders of either or both of such Houses to be treated as confidential”.
While I accepted that the sub-Committee in question has a function in representing the views of members and making recommendations in relation to security and access arrangements for the Houses, I considered that records relating to business conducted by the sub-Committee would include records such as minutes of sub-Committee meetings where security and access matters were discussed and records containing details of any recommendations made by the sub-Committee on the matter of security and access. I found that the records at issue did not relate to business conducted or to be conducted by the sub- Committee and that they were not captured by the exclusion from the scope of the FOI Act as set out in section 127 of the 2013 Act. I also found that section 46(1)(e) did not apply as the records were not official documents of the sub-Committee.
I did accept, however, that the Service operates a policy of not disclosing the list of persons with access passes to the complex as one of its measures for ensuring the safety or security of the Oireachtas complex and persons working within the complex. I was satisfied that the disclosure of the list of such persons could reasonably be expected to prejudice or impair that policy or method and that section 23(1)(a)(iii) applied in respect of that list.
On the matter of access to a list of everyone signed in as a visitor by a TD or Senator for the first three months of 2014, the applicant agreed to limit the scope of his request to a single week and the issues of principle remained to be considered.
The records at issue comprised extracts from the Visitors Register for the Houses. The register contained details of the visiting individual and his/her address, the date and time of the visit, a pass number which is valid for the day, and, in most cases, the name of the member of the House or the political party who signed in the individual.
I found that the vast majority of the individuals who attended at the Houses did so in a personal capacity, as they signed in using a residential address. I found those entries to be exempt from release under section 28 (personal information) of the FOI Act 1997 (section 37 of the 2014 Act).
On the other hand I found that certain individuals who signed in to the Houses attended in their capacity as officers of public bodies and that the information contained in the records relating to those individuals was not personal information for the purposes of the Act, and should be released.
There remained certain other individuals who signed in to the Houses citing as their addresses entities including trade unions, representative bodies, non-governmental organisations, or private companies. I considered that such individuals should not be regarded as having attended in a personal capacity and that it was reasonable to assume that such individuals attended as representatives of the particular entities identified in the Register. I directed the release of those details.
[Note: This decision was subsequently appealed to the High Court by the Service. My Office accepted that a procedural error arose during the course of the review and successfully applied to have the case remitted back. At the time of writing, a fresh review was ongoing.]
In October 2013, the Minister for Public Expenditure and Reform announced that Premier Lotteries Ireland Ltd (PLI) had been selected as the preferred applicant for the 20-year licence to run the National Lottery. Following that decision, the applicant in this case sought a copy of the successful tender for the licence, and a copy of the draft and final licences.
The Department had refused the request on the grounds that the information requested was confidential (section 35 of the FOI Act 2014) and commercially sensitive (section 36). It also contended that the Regulator of the National Lottery had sole statutory jurisdiction to decide whether the licence should be published.
In respect of the draft and final licences, I was satisfied that the National Lottery Act 2013 did not prohibit me from directing release pursuant to FOI. I also found that the majority of the licences did not contain commercially sensitive or confidential information. PLI identified certain specific clauses of the licences that it believed should be exempt from release.
While I accepted that these clauses were commercially sensitive, I was satisfied that there was a strong public interest in favour of their release. I directed the release of the entirety of licences, save for two clauses which I found to be exempt under section 36, and one schedule which I found to be exempt under section 35. Subsequently, the Regulator published the licence (with the same redactions) on his website.
Regarding the tender documentation, it came to my Office’s attention during the investigation of the review that PLI had also submitted a redacted version to the Department during the tender process, with a view to protecting its commercially sensitive information. Despite this, PLI contended that none of the documentation, whether redacted or otherwise, should be released, as they were protected by section 35 and 36. I was satisfied that the majority of the redacted tender should be released. However, I determined that significant portions of the full tender should be protected under section 36, as I accepted that they contained commercially sensitive information, and that the public interest did not favour their release.
A key change brought about by the FOI Act 2014 was a reduction from ten to five years in respect of the period during which certain cabinet records are exempt from disclosure. In this case, one of the first in which the new five year rule was considered, a request was made to the Department for copies of Ministerial briefing papers for Cabinet meetings in 2007, 2008 and 2009.
The Department refused to release a number of records under section 28. While section 28(1) provides an exemption for certain Government records, it is subject to section 28(3)(b) which provides that records which would otherwise be exempt under section 28(1) will not be exempt if the record relates to a decision of the Government that was made more than five years before the receipt of the FOI request.
The Department argued that there is no five year time limit in the constitutional obligation to respect the confidentiality of discussions at meetings of the Government as set out in Article 28(4)(3) of the Constitution. It argued that the well established rule of statutory interpretation which requires that a constitutional interpretation be applied to a provision should be applied in this case. It argued that when Section 28 as a whole is interpreted in this light it is clear that the documents which would reveal the contents of discussion at cabinet need not be released pursuant to the Act, irrespective of whether the meeting concerned was more than five years prior to receipt of the FOI request.
I noted that section 28 of the 2014 Act is broadly similar to the equivalent provision of section 19 of the FOI Act 1997, before the period of protection was amended under the 2003 Act from five years to ten years. I also noted that in a previous case in relation to section 19(3)(b), the then Commissioner found that “Memoranda for Government and briefing notes are exactly the type of records that were intended by the Oireachtas to fall for release under section 19(3)(b), at the expiration of the ten year period of protection, for records relating to meetings of Government.” I found that the four records at issue were the type of document intended to fall for release under section 28(3)(b) of the Act and I directed the release of the records.
The special liquidation of Irish Bank Resolution Corporation Limited (IBRC) is of course the subject of significant interest to the Irish public, but it raises novel issues in relation to the consideration of the public interest under the FOI Act. In this case, the applicant, a journalist, sought access to the monthly and any other reports of the Special Liquidators of IBRC to the Minister related to the liquidation process, the minutes of any meetings held between the Minister or any officials in the Department and the Special Liquidators, and any briefing documents prepared for such meetings.
Section 31 of the FOI Act 1997 is the exemption that is intended to protect the financial and economic interests of the State and public bodies but it is subject to a public interest balancing test. Having regard to the IBRC Act 2013, I found that sections 31(1)(a) and (b) applied to records containing the confidential communications between the Special Liquidators and the Minister regarding the IBRC liquidation process.
I accepted that the role of the Special Liquidators is similar to that of a Court appointed liquidator and that the Special Liquidators thus owe a duty of care not only to the Minister but to all stakeholders involved. The letter of engagement setting out the terms and conditions of appointment of the Special Liquidator in accordance with section 7 of the IBRC Act specifies that all communications supplied by the Special Liquidators to the Minister shall be supplied on a confidential or restricted basis and shall not be disclosed without the Special Liquidators’ prior written consent. In any event, I noted that a liquidator operates in a fiduciary capacity in relation to the company concerned and that a fiduciary relationship requires trust, good faith and confidentiality in relation to third parties.
In the circumstances, I was satisfied that confidentiality is regarded by both the Special Liquidators and the Minister as necessary to facilitate the liquidation process and to allow for the free exchange of information relevant to IBRC’s interests and the Minister’s role in overseeing the liquidation process. I therefore considered it reasonable to expect that disclosure of the records concerned, in full or in part, would undermine the liquidation process, which would be contrary to the public interest as recognised by the IBRC Act.
In reaching my conclusion, I noted that the costs of the liquidation process will be paid at least indirectly out of public funds. However, I also noted that the amount of taxpayer money involved has yet to be determined, with the success of the liquidation process being a significant factor in the equation. The IBRC Act recognises a public interest in the State’s financial support to IBRC being recovered as fully and efficiently as possible. I therefore did not accept it could, on balance, serve the public interest to risk undermining the liquidation process while it remains ongoing by disclosing information that could inhibit the exchange of information between the Special Liquidators and the Minister. I noted, however, that I would expect the Department to consider making further information available once the liquidation process is completed.
The issue before me in this case was whether the Department was justified in refusing access to certain records relating to Anglo Irish Bank (Anglo) and other Irish banking institutions dating from the period of November 2008 to December 2009. Section 33AK of the Central Bank Act 1942, as amended, is a secrecy provision that prohibits the disclosure of certain confidential information by personnel from the Central Bank and the Financial Regulator, which is now part of the Central Bank. The majority of the records had been prepared in reference to section 33AK of the Central Bank Act and made available to the Minister under section 30 of the Credit Institutions (Financial Support) Scheme 2008, which provides for the confidential treatment of any information made available to the Minister under the Scheme.
Accordingly, I accepted that the records concerned fell within the ambit of section 32(1)(a) of the FOI Act 1997, which is a mandatory exemption provision that applies where the disclosure of a record is prohibited by an enactment not specified in the Third Schedule to the 1997 Act. Certain other records were found to be exempt under section 22(1)(a) (legal professional privilege) and section 26(1)(b) (duty of confidence) of the FOI Act. Notably, it was not disputed by the applicant, a member of the Oireachtas Banking Inquiry, that a common law duty of confidence generally exists in relation to the banking information of individual borrowers (see, e.g., Walsh v. National Irish Bank Limited  2 ILRM 56).
However, despite the objections of the IBRC Special Liquidators, I directed the release of certain information relating to Anglo, including a report dating from 2009 insofar as it related to the restructuring plan submitted at the time by Anglo to the European Commission. In reaching my decision, I had regard to the nature of the options under consideration at the time (including the assumptions upon which the options were based) and the fact that Anglo was subsequently merged with another banking institution to become what is now known as IBRC and then placed in special liquidation. I also noted that, according to the IBRC Progress Update Report published on 13 March 2015, “significant progress” had been made “in deleveraging the loan books of IBRC and managing other aspects of the liquidation”.
As the information in the 2009 report relating to Anglo’s restructuring plan thus appeared to be truly historic and obsolete, I did not accept, in light of the general nature of the IBRC’s objections, that the release of the information under FOI would constitute an unauthorised use of the information to the detriment of Anglo or its successor, IBRC, or would otherwise be wrongful. Accordingly, I was not satisfied that the Department owed a duty of confidence to Anglo or the IBRC or any other third party with respect to the restructuring plan relating to Anglo. I also found no basis for concluding that any other objections applied with respect to the information concerned.
The applicant sought copies of records showing the amount of damages paid by RTÉ arising out of legal complaints from January 2010 to February 2014, to include details of the programme involved, if any, and the recipient of the money. RTÉ released details of payments made in respect of various individual personal injury and third party/employer’s liability claims but withheld the name of the claimants. It also released details of the total amount paid each year in respect of individual legal claims under the headings TV, Radio or News Programme and Corporate Cases. The total amount reflected all of the payments made in respect of legal claims with the exception of one particular payment. It refused to release any details of the specific amounts paid, the names of the payees and the programme involved.
My Office found that the release of the details of the recipients of the payments and the amounts they received would disclose personal information relating to the individuals concerned. It also found that releasing details of the amount paid, associated with the particular programme would involve the disclosure of personal information relating to identifiable individuals, and that the disclosure of the amount of the payment that was withheld from the total amount paid each year in connection with the second category of payments described above would involve the disclosure of personal information relating to an identifiable individual.
On the matter of where the balance of the public interest lay, the applicant cited a number of previous cases where public bodies have released records relating to the expenditure of public funds. However, the specific cases mentioned related to payments made to members of the Oireachtas or companies providing goods or services to a public body under a contract for service. My Office considered that the individuals in those cases voluntarily entered into arrangements with public bodies for the provision of services, property, etc, for which State monies were payable. In this case, the payments were made to private individuals who had taken a legal action of some sort against RTÉ that resulted in a payment. My Office took the view that the circumstances of the payments are very different and the same arguments for release did not apply.
My Office found that the release of the details at issue would result in a significant breach of the rights to privacy of the individuals concerned. My Office further found that the public interest in the promotion of openness and accountability had been served to some extent by the limited information released by RTÉ to the applicant and while the release of the records in full would serve to further enhance the level of openness and accountability, it found that the public interest in so doing was not sufficiently strong to outweigh the public interest in ensuring that the privacy rights of the individuals in question were protected.
This review concerned the refusal of Irish Water to release records relating to the salary expectations of candidates for positions within Irish Water as expressed at interview, on the ground that no such records existed. During the course of the review, Irish Water stated that it held certain records containing salary expectations of candidates but that such records related to a “pre-screening” stage, which, it argued, was not the same as the interview stage.
My Office sought details of this pre-screening stage from Irish Water. Irish Water indicated that the pre-screening stage varied depending on whether it was conducted by a recruitment agency or by Irish Water itself. In relation to its own in-house recruitment process, Irish Water explained that all CVs were screened using a scoring sheet and the top eight to ten CVs were selected for phone screening. During the phone screening, the majority of candidates were advised of the salary on offer and asked if that salary was in line with their expectations. Responses given by the candidates were noted by Irish Water.
My Office took the view that the pre-screening process amounted to an interview process. On foot of the pre-screening contacts, certain candidates were eliminated and the top candidates were invited to interview. Thus, my Office found that the records held by Irish Water containing salary expectations expressed by candidates at pre-screening stage were within the scope of the review, as the pre-screening stage amounted to an interview stage.
My Office found that Irish Water had not fully considered whether the pre-screening records fell for release under the FOI Act and accordingly, found that Irish Water had not justified its decision to refuse the request on the ground that no relevant records existed. My Office annulled Irish Water’s decision and directed it to make a fresh, first instance decision in respect of the original request.
My review in this case had its background in a request for records relating to an internal Council investigation into its agreement to buy lands at Deerpark, Charleville in April 2006. It was already public knowledge that such an investigation had been carried out.
In making his FOI request for records relating to that investigation, the applicant contended that the investigation had concerned the conduct of a named Council official. The Council refused to confirm or deny whether the requested records existed on the basis that to do so would disclose personal information (section 28(5A) of the FOI Act 1997 refers).
I affirmed the decision of the Council. I found that the disclosure of the fact that the Council held records concerning the investigation carried out would not, in itself, disclose personal information. However, the applicant’s FOI request was predicated on a contention that the investigation focused on “the conduct of” the named official. I thus considered the request to seek access to records related to any investigation carried out by the Council into the conduct of the named official, in relation to the agreement to purchase the land in question.
Section 28(5A) prohibits the public body from disclosing whether or not records exist where it considers that disclosure of their existence or non-existence would have the effect of disclosing personal information. To disclose the existence or non-existence of records in this case would have confirmed whether or not the Council had conducted an investigation into alleged wrongdoing by the official.
I also decided that if such records existed, in the circumstances of this case, the public interest in protecting the employee’s right to privacy would outweigh the public interest in favour of release.
JobBridge is an internship scheme that provides work experience placements for jobseekers for a specified period. The costs of the internships are borne by the State, in the form of social welfare payments plus a top-up payment. The applicant in this case requested various details about the scheme, including reports on the host organisations that had been excluded from further participation.
In relevant part, the Department refused access to the names of the employers that had been excluded from participation in the scheme. I accepted that release of the names would disclose that the employers had somehow breached scheme requirements and that release could prejudice the competitive positions of the employers in the conduct of their business (section 27(1)(b) of the FOI Act 1997 refers).
However, as section 27(1)(b) does not apply where the public interest would, on balance, be better served by granting the request, my Office consulted with the various excluded employers regarding the possible release of their names in the public interest. Roughly half replied, and many alleged that the Department had not treated them fairly in deciding to exclude them from further participation in the scheme.
Following further enquiries by my Office, the Department stated that it had not notified all employers in writing of their exclusion from the scheme, that a formal complaints procedure had only been adopted in August 2014, and that, in contrast to the current provisions, employers had been given indefinite bans regardless of the type of breach of scheme requirements that had occurred.
While I have no role in determining if fair procedure was complied with, I took this as an acknowledgment by the Department that the continued exclusion of the employers on the list as at the date of the request did not necessarily comply with the requirements of fair procedure.
Employers taking part in the scheme indirectly benefit from State monies. In the normal course, I would consider the public interest in openness and accountability to weigh heavily in favour of the release of the names of employers who have been excluded from further participation. However, to have directed release in this case would have risked identifying employers as having breached or abused the scheme in circumstances where the Department’s decision to exclude them from the scheme may have been flawed. I decided, on balance, that the public interest weighed in favour of withholding the names concerned.
Although the Department had not identified or considered the requested reports for release, I decided that these should be withheld. I could not see any basis on which I would direct the release of reports concerning excluded employers when I had found their names to be exempt in the particular circumstances above.
In this case, the applicant had made a request to the Department for records concerning project contracts relating to the School Transport Scheme. The School Transport Scheme is operated by Bus Éireann on behalf of the Department. Part of the review considered if any of the requested records were physically held by the Department in its own right. I accepted that this was not the case.
The remainder of the review considered whether records held by Bus Éireann in relation to the scheme and its operation were under the control of the Department. Under the FOI Act 1997, records held by a third party but under the control of a public body are deemed to be held by the body and a potential right of access to such records exists.
As the FOI Act does not define the term “control”, my decision took account of High Court judgments involving my Office that dealt with the concept, namely The Minister for Enterprise, Trade and Employment v the Information Commissioner  IEHC 39, and Westwood Club v Information Commissioner and Anor [2013 No. 176 MCA]. These judgments set out various non-exhaustive matters to consider when considering if an entity is controlled by a public body, such as which party has day to day operation of the relevant functions; which party has real strategic control; and the extent of the financial nexus between the parties.
I also had regard to Student Transport Scheme Ltd v Minister for Education and Skills & Anor  IEHC 425 (the Student Transport Scheme Ltd case), which concerned the nature of the relationship between the Department and Bus Éireann. Although this did not deal with control in an FOI context, and is under appeal, I considered it appropriate to have regard to matters described as “established fact” and obiter comments.
I found the Department to control Bus Éireann’s operation of the scheme. While I accepted that the Department was not involved, at a hands-on level, in the day to day operation of school transport, this does not determine the matter. Amongst the issues I considered were the fact that the relationship of principal and agent is relevant when considering control. Bus Éireann was described as the Minister for Education’s agent, and having to operate the scheme in accordance with his general directions and policy, in various documents considered in the Student Transport Scheme Ltd case. In that case, Mc Govern J. described the relationship as non-contractual (“entirely administrative”) and noted that Bus Éireann’s functions in respect of the scheme can be varied at will by the Department. He also said, essentially, that the Department exercised a control over Bus Éireann’s operation of the scheme which is similar to that it exercises over its own sections. The Department also financed the projects the subject of the request.
I also accepted that the Department’s control of Bus Éireann’s operation of the scheme meant records held by Bus Éireann concerning the scheme were under its control. In arriving at this view, I had regard to the general entitlements of principals, under laws of agency, to records created in the scope of the agency. I considered the records requested to be of a sort that can reasonably be said to have come into existence for the purpose of Bus Éireann’s operation of the scheme and in turn its agency relationship with the Department. I was not made aware of any material that the Department had agreed not to seek of Bus Éireann in relation to its operation of the scheme. I also noted that the Department has broad rights of inspection of, and access to, Bus Éireann’s records relating to the scheme.
Having found the records to be under the control of the Department, I annulled the Department’s effective refusal of relevant records as held by Bus Éireann and directed it to make a fresh decision in relation to the records.
This case followed on from a review I conducted in 2014 (Case 120210), on which I commented in my 2014 Annual Report.
The initial request stemmed from actions taken by Meath County Council on a planning enforcement matter. In 2004 and again in 2009, it issued Enforcement Notices to the applicant concerning alleged breaches of planning permission. The Notices were found by the Courts to be, respectively, invalid and procedurally flawed.
In May 2012, the applicant made an FOI request for records relating to these Notices. Although his request specifically included records held by the Council’s legal advisor, the Council did not obtain or consider any of these records for release. In my decision in Case 120210, I annulled the Council’s effective refusal of the legal advisor records and directed it to consider these records afresh. The Council released some of the records in full and in part and fully withheld the rest, which the applicant ultimately appealed to my Office.
I do not intend to go into detail about the actual decision that my Senior Investigator arrived at in this case. What I want to draw attention to is the Council’s lack of engagement with this review. It is even more disappointing that I have to do so given that my 2014 Annual Report made similar observations in relation to Case 120210.
The Council was invited to make submissions to my Office for the purposes of the review but did not do so. According to its original decision, it considered “legal advice privilege” to apply to the records (one of the two limbs of legal professional privilege, covered by section 22(1)(a) of the 1997 Act). However, it had cited section 22(1)(b), which is concerned with records that, if released, would result in a contempt of court.
The Council failed to indicate if it considered litigation privilege (the second limb of legal professional privilege) to apply to any of the records, or to explain why this might be the case. Neither did it explain why it considered the withheld records to attract legal advice privilege.
My staff spent considerable time examining the records at issue. A number of the withheld records contained the same content as records I had directed be released in Case 120210, or as records that the Council itself had released on initial receipt of the request in 2012. This is an exercise that should have been carried out by the Council.
Finally, but importantly, in Case 120210 the Council had confirmed that there had been discovery of records to the applicant during the Court cases concerning the issued Notices. Due to undertakings given by the applicant to the Court, it would be a contempt of court to release discovered records to him under FOI. Such records are required to be withheld under section 22(1)(b) of the FOI Act.
The Council was asked to identify any records at issue in this case that, if released, would result in a contempt of court. It did not do so. My Senior Investigator directed the Council to identify any records to which legal advice privilege had been found not to apply but which had been discovered to the applicant, and to withhold them under section 22(1)(b). Otherwise, this Office’s decision could inadvertently have directed the release of records that would be in contempt of court. I am very disappointed with the Council’s approach to this review. I expect it to engage properly with any further cases that come before me.
In this case, I considered the provisions of article 4(1)(b)(iii) of the Freedom of Information Act 1997 (Section 28(6)) Regulations 2009 (SI no. 387 of 2009), which designates two classes of applicant, the spouse or the next of kin of a deceased person, as potentially being entitled to seek access to records under section 28(6) of the FOI Act.
The HSE had refused access on the basis that the applicant was not entitled to seek access to records, as the spouse of the deceased took priority over him. I held that the Statutory Instrument provides for a potential right of access to both types of requester. I therefore found that the surviving spouse does not displace the right of access potentially accruing to the next of kin.
I annulled the decision of the HSE and directed it to undertake a fresh decision making process on the basis that the applicant belongs to a class of individual outlined in article 4(1)(b)(iii) of SI no. 387 of 2009.
A significant issue in this review was an argument of the NSCDA that an implied undertaking existed on records which were the subject of an Order for Discovery in proceedings involving both the applicant and the NSCDA at the time of the review by my Office in 2015. An implied undertaking is given by a party to whom documents are produced that he or she will not use them for other purposes, and that any such use of the documents is a contempt of court.
The NSCDA stated that as the records were the subject of an Order for Discovery, they were exempt under section 22(1)(b) of the FOI Act 1997, even though neither the swearing of the affidavit of discovery, nor the handing over of the subject records had taken place at the time the NSCDA had made its decision on the records requested.
I did not accept the NSCDA’s argument. It seems to me that, if for any reason, the swearing of the affidavit of discovery or the handing over of the subject records did not take place, it could not have been envisaged by the legislature that any implied undertaking would exist indefinitely over a category of records and that release of the records to an applicant under FOI would be prohibited.
Consequently, as an affidavit of discovery was not sworn and discovery had not been made, at the time of my decision, I directed the release of a number of records. An outstanding matter was whether other relevant records existed. I was not satisfied with the response of the NSCDA to this query by my Office. Consequently, I also directed the NSCDA (now Sport Ireland) to undertake a third new decision, with reference the applicant’s original request, first made in 2012.
Both of these cases related to the Legal Services Regulation Bill. The applicants requested copies of correspondence with the Department about the Bill from interested parties such as the legal profession’s representative bodies. The Department refused the requests. It argued that releasing the records would harm their deliberations about the legislation, which were ongoing.
When my Office examined the records, it became clear that not all of them related to the deliberative process. Some were already in the public domain. Others related to the process of consultation with interested parties, rather than the substance of the Department’s deliberations. The Department did not appear to have examined each of the records individually. It instead applied a blanket exemption to all records. Furthermore, the Department did not appear to have considered a previous decision by my Office which was directly relevant to lobbying about legal services legislation.
Public bodies must examine each record individually and should avoid applying blanket exemptions when processing FOI requests. I also encourage public bodies to consider my Office’s previous decisions. As I have stated earlier, my Office is developing guidance notes on the various exemptions under the FOI Act, which highlight particularly relevant decisions. I would encourage public bodies to make use of these guidance notes, which can be found at www.oic.ie. In these cases, I directed the release of the records sought, which included submissions on the Bill made by representative bodies and members of the legal profession.
Medical Independent - 23/07/2015
The Herald - 20/07/2015
Irish Examiner - 24/06/2015