Case 98038

Pre-commencement record - section 6 - whether right of access arises.

Case Summary

Facts

The requester sought from the Department a copy of a contract between the Garda Siochána and Esat Digifone which authorised the installation of mobile telephone masts on Garda property. The record was created prior to 21 April 1998, and the Department, in refusing access, invoked sections 6 and 27 of the Act.

Decision

The Commissioner decided that under section 6(5) a right of access to records created prior to the commencement of the Act arises where such access is necessary or expedient in order to understand records created after such commencement or where the records sought relate to personal information about the requester. He found that no record created after 21 April 1998 existed at the time of the decision which could not be understood without access to the record sought. He found that the record sought did not contain personal information relating to the requester. He decided that there was no right of access to the record in question under section 6 of the Act. He found it unnecessary to consider the provisions of section 27 given his finding that the record was not required to be released under section 6.

Date of Decision: 20.11.1998

Moville Radiation Protection Group and the Department of Justice, Equality and Law Reform

Background:

By letter dated 23 April 1998, the Secretary of Moville Radiation Protection Group (MRPG), applied under the Freedom of Information Act, 1997 to the Department of Justice, Equality and Law Reform for "a copy of the contract between the Garda Siochana and Esat Digifone which authorises the use of public property (Garda Stations) for the erection of mobile telephone masts".

The Department engaged in informal consultation with the various third parties connected with the record in question seeking views in regard to the release of the record. Agreement was not forthcoming from all of the third parties to the release of the record.

A decision was made under section 8 of the Act on 22 May 1998 not to release the record. The grounds of the decision were that under section 6 of the Freedom of Information Act records of a non-personal nature created prior to 21 April 1998 can be accessed only if they are needed to understand a record created after 21 April 1998. As the record sought was created before 21 April 1998 the request was held not to come within the scope of the Act.

The Secretary of MRPG subsequently sought an internal review of the decision. On internal review, it was found, firstly, that the record in question predated the commencement of the Act and was not personal or necessary in order to understand records created after 21 April 1998 and the decision made at the initial stage was upheld. Secondly, it was stated that "even if the document in question were to come within the ambit of the Act access should be refused on the grounds that it contains information of the type referred to in subsections 27(1)(b) and 27(1)(c) of the Act and that none of the conditions referred to in section 27(2) applies to the information contained in it nor would, on balance, the public interest be better served by the disclosure of the information." By letter dated 21 August 1998, the Secretary of MRPG was informed of the decision on internal review and of her right of appeal to the Information Commissioner.

The Secretary of MRPG applied for a review of the decision under the Freedom of Information Act to the Commissioner on 1 September 1998.

A copy of the record in question was furnished by the Department on 22 September. This record has been reviewed by the Office of the Information Commissioner. It was created before the 21 April 1998.

Under section 6(4) of the Act, access is granted to records created after the commencement of the Act, i.e. after 21 April 1998. Under section 6(5) the right of access is also conferred in respect of records created before the date of commencement where

(a) access to records created before the commencement of this Act is necessary or expedient in order to understand records created after such commencement, or

(b) records created before such commencement relate to personal information about the person seeking access to them."

In this case, therefore, unless (a) or (b) applies there is no right of access to the record in question. Paragraph (a) requires that there be another record - created after 21 April 1998 - which cannot be understood without access to the earlier record. There does not appear to be any such record, nor has it been suggested to me that any such other record exists in this case at this time. Paragraph (a) does not, therefore, apply. If a record is found to exist or comes into existence which renders it necessary or expedient to have access to the record in question in this case, a fresh request under the Freedom of Information Act may be made.

Paragraph (b) covers records that relate to personal information. Personal information is defined in section 2 of the Act and means information about an identifiable individual. The record in question has been reviewed and it does not contain personal information relating to the requester. Paragraph (b) does not apply.

In light of the above considerations, I have decided that there is no right of access to the record in question under Section 6 of the Act and that the decision of the Department not to release the record on the grounds that its disclosure is not required under section 6 should be affirmed.

The Department in its decision in this matter on internal review found that the record in question contained information of the type referred to in section 27(b) and (c) and that none of the conditions referred to in section 27(2) of the Act applied nor would the public interest be better served by the disclosure of the information. The Department did not explain in detail why it thought that section 27 should apply in this case. However, I find it unnecessary to consider the provisions of section 27 given my finding that the record is not required to be released under section 6.

Submissions

Findings

Decision

Having carried out a full review of the original and subsequent decision of the Department of Justice, Equality and Law Reform in this case, I have decided to affirm the decision of the Department not to release the record on the grounds that it does not fall within the ambit of section 6.

Information Commissioner

20 November 1998