Case 98050. Pre-commencement records - whether access necessary or expedient to understand post-commencement records - application of section 6(5).

Case Summary

Facts

The requester sought access to a file held by the Department of Enterprise, Trade and Employment in relation to the sale of International Development Ireland, a company established to promote Irish consultancies abroad. The Department claimed exemption from release on the grounds that the records had all been created prior to 21 April 1998 and that none of them contained personal information relating to the requester. The Department also claimed exemption under sections 19(1) and 19(2) in relation to some of the documents. The requester suggested that the Department should seek the consent of the leaders of the parties in Government at the time of the sale, in accordance with section 19(4) of the Act.

Decision

The Commissioner affirmed the decision of the Department on the basis that all of the records, to which access had been refused, were created prior to 21 April 1998 and that they did not relate to personal information about the requester. The Commissioner also found that, as all of the records relating to the matter were created prior to commencement, the question as to whether access was necessary or expedient to understand records created after commencement did not arise. As it was unnecessary for the Department to rely on section 19, the question of seeking consent under section 19(4) did not arise.

Date of Decision: 18.11.1998

DECISION

Background:

On 14 May 1998, Mr Grange of Acorn Associates made an application under the Freedom of Information (FOI) Act to the Department of Enterprise, Trade and Employment in which he requested "My file in relation to IDI held in the relevant section and your own Office". IDI refers to International Development Ireland, a company established to promote Irish consultancies abroad. Following consultation, Mr Grange confirmed that what he wanted to see was his file so that he could get information regarding the grounds/reasons for the sale of IDI.

The Department replied to Mr Grange on 12 June enclosing a schedule, describing in some detail the records relevant to his request which it held. The Department claimed exemption from release of the records on the basis that all of the records which came within the scope of the request were created prior to 21 April 1998, the date of coming into operation of the FOI Act, and that most of them contained non personal information. Notwithstanding this, it granted Mr Grange access to a number of records and granted partial access to those records which it considered contained some personal information relating to Mr Grange. The Department also claimed exemption under sections 19(1) and 19(2) of the FOI Act in relation to some of the documents.

Mr Grange appealed this decision on 16 June and on 8 July the Department replied, affirming the original decision. Mr Grange wrote to this Office on 27 July seeking a review of that decision. With regard to the Department's claim for exemption under section 19 of the Act he stated "...no effort was made to obtain the consent of the party leaders in question to facilitate their release." Having considered the matter, I decided to grant Mr Grange's application for a review.

In reviewing this case I have examined copies of those records to which Mr Grange has been granted access, those to which he has been refused access and those to which he has been granted partial access. I have also considered arguments put to me by the Department of Enterprise, Trade and Employment and Mr Grange.

Mr Grange was refused access to the following records :

1. Memo for Government dated 31 July 1996 seeking approval of sale in principle of IDI. (Refused on grounds of pre-21 April 1998 and section 19(1)(a).)
2. Government decision dated 1 August 1996 granting approval of sale in principle of IDI. (Refused on grounds of pre-21 April 1998 and section 19(2)(b).)
3. Memo for Government dated 27 February 1997 seeking approval of sale of shares by all shareholders of IDI. (Refused on grounds of pre-21 April 1998 and section 19(1)(a).)
4. Government decision dated 4 March 1997 granting approval to sale of shares by all shareholders of IDI. (Refused on grounds of pre-21 April 1998 and section 19(2)(b).)
5. Note dated 18 September 1996 seeking observations on Acorn Associates' views on sale of IDI. (Refused on grounds of pre-21 April 1998.)
6. Letter dated 20 September 1996 seeking observations of Forfás on Acorn Associates' views on sale of IDI. (Refused on grounds of pre-21 April 1998.)
7. Letter from Forfás dated 30 September 1996 outlining observations on Acorn Associates' views on sale of IDI. (Refused on grounds of pre-21 April 1998.)
8. Letter from Forfás dated 10 February 1997 outlining observations on Acorn Associates' views on sale of IDI. (Refused on grounds of pre-21 April 1998.)
9. Suggested draft letter of reply (undated) in relation to the sale of IDI. (Refused on grounds of pre-21 April 1998.)
10. Internal note for the Minister's information in relation to the sale of IDI which contains a reference to Acorn Associates. (Refused on grounds of pre-21 April 1998.)
11. Note dated 10 October 1996 in relation to representations made to the Minister for Tourism and Trade by Acorn Associates in relation to the sale of IDI. (Refused on grounds of pre-21 April 1998.)

The following documents were partially released to Mr Grange with deletions.

1. Note and attachments to Assistant Secretary of the Department concerning representations made by Acorn Associates in relation to the sale of shares in IDI.
2. Note to the Minister which contains a reference to Mr Grange.
3. Note dated 29 January 1997 containing a hand-written note dated 31 November 1997 which refers to Mr Grange.
4. Hand-written note dated 4 February 1997 and reply dated 6 February 1997. Note of 4 February 1997 contains a reference to Mr Grange.

Submissions

In a submission dated 2 September, Mr Grange made the following statement : "I was concerned that the privatisation of IDI and the manner in which it was being implemented was not in the public interest. I felt it was my public duty to communicate my views to people in power." Mr Grange also expressed himself shocked at how the Department behaved arguing that it had copied letters he had sent to the Department to third parties without considering the consequences this could have for him. He argued that in his view the Department's attitude to him was offensive in that it "spent more time questioning my motives than ensuring that the public interest was protected."

In a submission dated 23 September the Department stated that no third parties had been contacted in the course of the processing of Mr Grange's FOI request. The Department repeated its contention that all of the records which fell within the scope of the request were pre-21 April 1998 records and those which had not been released were non personal in nature. On the matter of obtaining the consent of the party leaders, the Department argued that as the documents in respect of which Mr Grange made this argument were, in any event pre-21 April records, the seeking of consent of party leaders did not arise.

Findings

Having examined the eleven records to which Mr Grange has been refused access, I am satisfied that all were created prior to 21 April 1998 and do not contain personal information about Mr Grange. As the Department contends that all of the records which came within the scope of Mr Grange's request were created prior to 21 April 1998 the question as to whether access to these records is necessary or expedient in order to understand records created after the commencement of the Act does not arise. An examination of the four records to which Mr Grange has been granted partial access again confirms that all were created prior to 21 April 1998. That examination also reveals that in every instance where the author of a record or a note expressed an opinion in relation to Mr Grange or Acorn Associates, that portion of the record was released by the Department . I am satisfied that those portions of the records which were withheld do not contain personal information about Mr Grange and the Department was justified in its claim for exemption in accordance with the provisions of section 6(4) of the Act. Therefore, I find that I must uphold the decision of the Department, not only in respect of the eleven records which it refused to release, but also in respect of the refused portions of the four records which it partially released.

The fact that all full and partial documents to which Mr Grange has been refused access were created prior to 21 April 1998 and are non personal in nature is of itself sufficient reason for me to affirm the decision of the Department. Notwithstanding this, I have considered Mr Grange's contention that the Department needed to obtain the consent of the leaders of Government parties to facilitate release. Section 19 of the Act refers to records created for meetings of Government. Section 19 (4) states that where a public body proposes to release a record of this nature, such a decision shall not be made unless, in so far as it is practicable to do so, the head has, prior to the making of the decision, consulted with the leader of each political party to which belonged a member of the Government that made any decision to which the record relates. Such a consultation arises only in the case of a proposal to release. As there was no proposal to release in this case I find that I must uphold the Department's contention that the seeking of consent of party leaders did not arise.

Mr Grange also raised the matter of the public interest in relation to the sale of IDI but did not cite any specific provision of the FOI Act that would support his argument in favour of the release of the records. As I have already found that the Department was justified in its refusal to release on the grounds that the records concerned were created prior to 21 April 1998 and do not contain personal information about the requester, I do not propose to make any comment in relation to the public interest in this case.

Decision

Having regard to my findings that the complete and partial records to which Mr Grange has been refused access were created prior to 21 April 1998 and do not contain personal information about the requester, and that none of the records to which access has been refused is necessary to understand records created after the date of commencement of the FOI Act, I affirm the decision taken by the Department on internal review in relation to Mr Grange's application.

Information Commissioner

18 November 1998