Case 98041

Independent body established by order - staff of public body providing secretariat to the independent body - whether records created by secretariat are under control of public body - consideration of section 23(1)(a)(ii).

Case Summary

Facts

The requester sought access to records of the Dublin Electoral Area Boundary Committee, an independent body, established by Ministerial order, which was to dissolve upon presentation of its report to the Minister for the Environment and Local Government. The secretariat to the Committee was provided by the Department and was located in the Department's premises. The request for access was made at a point when the Committee was still in existence. The requester claimed that the Committee's papers were, by virtue of the employment status of the members of its secretariat, under the control of the Department. By the time the request for a review of the Department's decision was made to the Commissioner, the Committee had ceased to exist. The Department denied that the records of the Committee had been under its control but, in any event, it claimed exemption under section 23(1)(a)(ii) of the Act.

Decision

The Commissioner found that the Committee was not a public body for the purposes of the Act and that the records created by the secretariat were not under the control of the Department during the Committee's lifetime. The Commissioner considered whether the release of the records would impair or prejudice the electoral process and decided that the exemption in section 23(1)(a)(ii) did not apply. The Commissioner found that as the Committee had since ceased to exist, the records created by the secretariat were now held by the Department and directed that the requester be granted access to the records which he had sought.

Date of Decision: 20.11.1998

DECISION

Background:

On 5 May 1998 Mr Henry made an application, under the Freedom of Information (FOI) Act, to the Department of the Environment and Local Government (DOELG) seeking a copy of the mailing list for the acknowledgement of submissions made to the Dublin Electoral Area Boundary Committee (DEABC) together with a copy of the minutes of the most recent meeting of the Committee. The Secretary to the DEABC replied to Mr Henry on 19 May indicating that as the DEABC did not come within the terms of the FOI Act, the question of making available the papers requested under the Act did not arise. On 27 May the DOELG wrote to Mr Henry indicating that a copy of the requested minutes had been passed by the Secretary to the Committee to an Assistant Secretary of the DOELG, in his capacity as a member of the DEABC. The DOELG refused however to release the copy of the minutes in the possession of the Assistant Secretary and claimed exemption under "Sections 20, 21 and 26(1)(a)" of the FOI Act. No mention was made of any other record in the possession of the DOELG.

Mr Henry made an application for an internal review of this decision on 2 June and the DOELG replied on 24 June stating "....it has been determined that the records requested by you are not held by the Department of the Environment and Local Government; the reason being that the Committee is independent of the Department. This independence is required by law - see Section 28(3) of the Local Government Act, 1991....". The decision on internal review did not rely on any exemptions contained in the FOI Act.

Mr Henry wrote to this Office on 16 July seeking a review of that decision stating "I believe the issue at stake here is quite a fundamental one with wide implications for the applicability of the Act itself. If allowed to stand it will allow a Minister to establish a Committee (which may even consist of departmental staff) and to render FOI ineffective." Mr Henry also claims that as the secretarial services provided to the DEABC were provided by members of staff of the DOELG, any records created by the secretariat are, in accordance with Section 2(5) of the Freedom of Information (FOI) Act, "records under the control" of the DOELG. Having considered the matter, I decided to grant his application for a review.

In reviewing this case I have considered the manner in which the DEABC was established together with the arguments put to me both by Mr Henry and the DOELG. My examination of the records to which Mr Henry has requested access reveals that they consist of a list of the names and addresses of persons who made submissions to the DEABC and a single sheet containing the minutes of a meeting of the DEABC held on the 27 of April 1998.

The establishment of the Dublin Electoral Area Boundary Committee

Part V of the Local Government Act 1991 relates to "Local Authority Boundary Alteration". Section 28 of that Act gives the Minister for the Environment the power to establish a "boundary committee". Section 28(2) states that a committee shall "stand dissolved on the expiration of such period as may be specified by the Minister at the time he establishes it."

Notwithstanding the fact that the members of a boundary committee are appointed by the Minister, Section 28(3) states "A boundary committee shall be independent in the performance of its functions".

Section 28(6) of the Local Government Act 1991 provides as follows :

"(6) (a) The Minister may supply to a boundary committee, on such terms or conditions as he may specify, any services, including services of staff, required by the committee for the performance of any of its functions.

(b) A local authority or a public authority may supply to a boundary committee, on such terms and conditions as may be agreed upon by the authority and the committee, any services, including services of staff, required by the committee for the performance of any of its functions."

The Minister for the Environment and Local Government made an order establishing the DEABC on 11 February 1998. The committee was required "To review and make recommendations" on electoral boundaries in the Dublin City and County area and was required to submit its report "on or before the 1st day of July 1998." The order, in compliance with the appropriate provisions of the Local Government Act 1991, stated that "....the Dublin Electoral Area Boundary Committee shall stand dissolved on the completion of the performance of its functions...". The DEABC presented its report on time and, in accordance with its establishment order, was dissolved.

Submissions

In a letter to the Secretary of the DEABC dated 25 May, Mr Henry argued that as the secretariat of the DEABC was provided wholly and solely by Departmental staff, any records created by the secretariat, including the minutes in question, are in effect "records under the control of" the DOELG. In response to the initial decision of the DOELG to refuse access to the minutes, Mr Henry, in repeating this argument, stated "It is therefore physically impossible for any records created not to be under the Department's control (other than Committee members' own personal papers.)" He further states that he does not believe the secretariat can be distinguished from the DOELG and that the transmission of minutes to the Assistant Secretary "takes the form of internal communication".

In his letter to this Office seeking a review of the decision of the DOELG on internal review Mr Henry states: "I believe the issue at stake here is quite a fundamental one with wide implications for the applicability of the Act itself. If allowed to stand it will allow a Minister to establish a Committee (which may even consist of departmental staff) and to render FOI ineffective."

In a submission to this Office dated 6 August the DOELG states "This Department had to refuse Mr Henry's request under the FOI Act for access to the minutes and mailing lists held by the Dublin Electoral Area Boundary Committee because the records sought were not held by the Department." The submission goes on to state that although the Committee is a public body established by Ministerial Order, it does not stand prescribed for the purposes of the FOI Act in accordance with paragraph 1(5)(e) of the First Schedule to that Act.

In addressing the issue of the Secretariat, the DOELG quotes Section 28(6) of the Local Government Act 1991 which indicates that the Minister, a local authority or public authority may supply any services including staff to a boundary committee and that in this case the staff were supplied by the DOELG. It is further contended that "The records which were created by the secretariat on behalf of the Committee are the Committee's records and were not provided to the Department."

Dealing with the reasons for its decision, the DOELG claims that as the DEABC was an independent committee, it would be in contravention of the 1991 Act for the Assistant Secretary who served on the DEABC to circulate any records of the Committee within the Department, or file the records on Departmental files. It is claimed that such records are private to the Assistant Secretary in the performance of his functions as a member of the DEABC and are not therefore records held by the Department for the purposes of the FOI Act.

The Department seeks to distinguish records relating to bodies on which the members of its staff have acted as Departmental representatives. It is argued that in the case of representative service, the minutes of such bodies, having been passed to the Departmental representative and placed on Departmental files, the head of the Department "can legitimately seek access" to such records and they are accessible under FOI in accordance with the provisions of the Act. The Department's argument is in effect that its Assistant Secretary served on the DEABC in a non representative capacity, that the minutes which it has admitted are held by him are held in his independent capacity as a member of the Committee, do not form part of the normal control structures of the Department, and were not therefore "under the control" of the DOELG.

It is argued that whilst the DOELG is committed to the operation of both the spirit and letter of the FOI Act ".....we cannot set aside the provisions of the Local Government Act 1991." It is argued that by seeking access to the records of the DEABC, "the Department would be interfering in the operation of the Committee, contravening the governing Act, and even if the motives were considered worthy on this occasion, the precedent set would seriously undermine the future operation of such committees and jeopardise the integrity of the electoral system".

Findings

The central point at issue in this case is whether or not the records of the DEABC were "under the control" of the DOELG. Mr Henry's view is that as the secretarial services were provided by DOELG staff members and the records were physically located in buildings occupied by the DOELG, the records must therefore logically have been "under the control" of that Department and that the transmission of the minutes to the Assistant Secretary of the Department, albeit in his capacity as a member of the Committee, "takes the form of internal communication". Such an interpretation fails to recognise the legal requirements imposed by the Local Government Act, 1991 and also the practical working arrangements of the Committee and its secretariat.

The DEABC consisted of four members, one of whom was an Assistant Secretary in the DOELG acting in a non-representative basis. The other three members were in the employ of local authorities. Since the DEABC was required by law to be completely independent in the performance of its functions and since it was established in accordance with the 1991 Act, I must therefore conclude that it was an entity separate in existence from the DOELG. This in turn leads me to the further conclusion that the DEABC did not fall within the scope of the FOI Act as it was not a body prescribed by the Minister for Finance in accordance with paragraph 1(5) of the First Schedule to the FOI Act.

For the purposes of conducting its business, the DEABC was allocated a particular room in the Customs House, all of the Committee's business was conducted from that room and access was restricted to members of the Committee and its secretariat. In an attempt to underpin independence of operation, the secretary to the Committee was drawn from a section of the Department other than the Franchise Section which normally deals with electoral matters. For the duration of the Committee's activities, that Departmental employee was removed from day to day operations in his own section, his time being devoted entirely to the work of the Committee.

The DOELG claims that the separate existence of the Committee and its secretariat from the Department meant that the records of the Committee were never held by the Department and were always under the control of the Committee and never under the control of the Department. It is contended that those records were never accessible or intended to be accessible to the Minister or any of his staff, were outside the normal control structures of the Department and therefore not "under the control" of the DOELG.

Notwithstanding the nature of its administrative arrangements, I am satisfied that this argument reflects the reality of the status of the Committee and its secretariat and is therefore more compelling than the interpretation advanced by Mr Henry which revolves primarily around the physical location of the records and the employment status of the members of the secretariat. I find it both reasonable and logical to conclude that having regard to the provisions of the 1991 Act, the secretariat constituted an integral and indispensable part of the operations of the Committee and that those operations cannot be divorced from the operations of the Committee itself. This again leads to the conclusion that the secretariat was also outside the scope of the FOI Act.

As a consequence of the passage of time since Mr Henry made his original application, the DEABC has presented its report and has therefore ceased to exist. It has been confirmed to me that the secretariat also no longer exists and the records of the Committee are located in the Department's premises. Given this fact, the question of release of the minutes and mailing list, at this stage, must arise.

In considering this question, the DOELG has argued in a supplemental submission that the Department's Franchise Section, which deals with matters of an electoral nature, would not consider seeking access to the records as it appreciates the independent nature of boundary committees as provided for in the Local Government Act of 1991. It is therefore argued that the records of the Committee remain outside the normal control structures of the Department. Notwithstanding the fact that the DEABC stood dissolved upon the presentation of its report to the Minister, the DOELG argues that because of the independent environment in which boundary committees are required to operate, the records of the Committee remain under the control of the Committee and not of the Department.

The Department cites the example of the Dáil Constituency Commission which is also independent in the performance of its functions. It argues that if Dáil deputies could ascertain the Commission's views as they consider each constituency, there would be endless public debate and representations. It is further argued that the Electoral Act of 1997 reflects the concerns of the Oireachtas in relation to the damage that disclosure of that Commission's deliberations might cause by the inclusion of a provision which specifically prohibits disclosure without the consent of a Commission.

Addressing the potential release of the records which it holds, the DOELG has argued that release, even after the Committee has finished its deliberations, could reasonably be expected to prejudice the administration of the Local Government Act of 1991 and has cited Section 23(1)(a)(ii) of the FOI Act. It has also argued that as the Department's Assistant Secretary who served on the DEABC was not under the direction of the Minister in that capacity, the records of the Committee were supplied to him in confidence and that any breach of the duty of confidence which exists would seriously impinge on the Committee's ability to be independent in its functions as required by law. It is argued that a direction to that person to release records provided to him in confidence would raise serious difficulties about the future operation of boundary committees and the provision of confidential information to their members.

The Department has also argued that the release of the records should be refused due to their inherent confidentiality and the need to ensure that the administration of the relevant electoral law is not prejudiced. It referred to the public interest in protecting the integrity of the electoral system and argued that an undermining of the confidence which the public have in the electoral system could arise if the independence of elements of the system, such as the revision of boundaries were interfered with. In this case, the Department argues that the public's right to information has been met by the publication of the Committee's report and by the consultative process in which the Committee engaged, which provided an opportunity for the public to make their views known in advance of the decisions being made.

I have already found that, for the duration of its existence, the DEABC and its secretariat was not subject to the provisions of the FOI Act and that the records, during that time, were held by the DEABC and were not held by, or under the control of, the Department . However, I accept that records created by the DEABC are now held by the Department. The right of access to records conferred by Section 6 of the Act includes a right of access "to any record held by a public body,...". As the DEABC no longer exists and the records are held by the DOELG, I find that I must therefore reject any argument that the records are still under the control of the DEABC.

It is clear that the release of records in this case cannot impact on the DEABC, since that body no longer exists. In relation to future such bodies, I would not accept that the knowledge that their deliberations might come into the public domain under the provisions of the FOI Act after their work was completed would affect the independent functioning of such bodies. In the circumstances, I have decided that the exemption in Section 23(1)(a)(ii) does not therefore apply.

I have been advised that the DEABC's recommendations have been accepted and its proposals are to be implemented. The provisions in the Electoral Act of 1997 in relation to disclosure of records created by the Constituency Commission are not reflected in the Local Government Act of 1991 in relation to boundary committees. I must reject the Department's arguments that the existence of provisions relating to the Constituency Commission should influence the position in relation to boundary committees where no such provision exists. I note in this regard that, under the provisions of Section 10 of the Electoral Act of 1997, submissions received by the Constituency Commission may be inspected by the general public and copies may be taken.

I have already made it clear that I accept that the records of the DEABC are currently held by the DOELG. I equally accept the argument that the records supplied to the Assistant Secretary were supplied to him in his capacity as a member of the Committee. However, the issue under consideration relates to the records held by the Department as a whole rather than records in the possession of that particular individual. Under these circumstances, I do not consider the argument made in relation to records provided in confidence to be relevant in this case.

The argument was also made that access should be refused due to the inherent confidentiality of the records. I do not accept that the records have a special quality of confidentiality attaching to them. Even if I did, I could not accept that they are exempt unless they are covered by a specific exemption in the FOI Act. Accordingly, I must reject this argument.

The Department has accepted that there is a very significant public interest factor in favour of release of records which reveal the workings of public bodies and particularly how their decisions are reached but it has argued that the public interest in protecting the integrity of the electoral system is greater. It is not clear to me from the arguments put forward by the Department as to what specific provision of the FOI Act might prohibit release on public interest grounds. However, in any event I am not convinced that release of the records at this stage would cause the harm which the Department contends.

For reasons which I have already outlined, I am satisfied that the decision of the DOELG to refuse access to the records held by the DEABC during its lifetime was correct. I have equally made it clear that I consider that its records are now held by the DOELG and are covered by the FOI Act. I face the dilemma, therefore that if I were to confirm the decision of the DOELG not to release the records sought, I would put Mr Henry in the position of having to submit a new request to the DOELG and to go through the various processes required. This would seem to me to offend against good administrative practice.

I consider it appropriate, following review, to annul the decision of the DOELG and having regard to all the circumstances of this case, and in particular the passage of time which has elapsed since Mr Henry's original application and the fact that the records of the DEABC are now held by the DOELG, to make a new decision which takes cognisance of the current status of the records of the DEABC which are held by the DOELG. I therefore propose to direct the DOELG to release to Mr Henry the records which were the subject of his original application.

Decision

Having considered the matter, I accept the contention of the DOELG that, having regard to the manner of its establishment, the DEABC was at the time of Mr Henry's original request, a body which did not fall within the scope of the FOI Act. I also find that the records created by the secretariat to the DEABC were, during the period of the DEABC's existence, under the control of the DEABC and not under the control of the DOELG.

However, I find that the records of the DEABC have come into the possession of, and are now held by, the DOELG. Under these circumstances I annul the decision of the DOELG as notified to Mr Henry on 24 June 1998 and direct that the DOELG grant Mr Henry access to the records which were the subject of his original application.

Information Commissioner

20 November 1998