Case 98098. Records held by official of Department as a member of an independent board - whether records held by the Department - whether records under the control of the Department - section 2(5)(a) - whether a contract for services existed - section 6(9).

Case Summary

Facts

The Department refused access to records held by a member of staff in his capacity as a member of an independent management board established under the Operational Programme for Tourism. The official was appointed by the Minister to the board. The records were not circulated within the Department and an alternate board member was nominated in the event of possible unavailability of the principal representative. The official did not keep the records on the Department's premises and the Department did not have physical possession of the records. The Department argued that the records were not held by it or under its control.

Decision

The Commissioner decided that the records in question were held by the independent body rather than by the Department. The Commissioner accepted in this case that membership of the board by one of the Department's officials did not give the Department control over the records. The official who held the records did so as a member of the independent body. He was appointed for his expertise in the area, not to maintain a watching brief on the board. No contract for services existed between the independent body and the Department so there was no right of access under section 6(9). The Department's decision was affirmed.

Date of Decision: 27.01.1999

DECISION

Background:

On 21 June 1998, Mr Henry of Policywatch made a request under the Freedom of Information (FOI) Act 1997 to the Department of Tourism, Sport and Recreation seeking to view all documentation concerning the tendering for the National Conference Centre. The request was subsequently clarified and narrowed down to records relating to the tendering process itself including tender documentation, appraisals and summaries of the tenders.

The tender procedure was organised, not by the Department, but by Bord Fáilte under the direction of an independent management board, the secretariat of which was supplied by Bord Fáilte. Bord Fáilte, unlike the Department, is not yet within the scope of the FOI Act. An official of the Department is a member of the independent management board which examined the tenders and Mr Henry argued that records held by the official were under the control of the Department.

The Department refused to grant access, deciding that the records relating to the tender competition were not held by the Department.

On 20 August 1998, Mr Henry sought an internal review of this decision. He submitted that the staff member was "only a member of the relevant board by virtue of his being an employee of the Department." He argued that possession of these documents was only granted to the official because he was a staff member.

On 10 September 1998, the Department affirmed the initial decision on internal review. It explained that the Department exercises no control over the records and that the chairman of the board had confirmed that requests to the board for access would be refused. It pointed out that the records were held by the official concerned in his home rather than in the Department.

In a letter received on 29 September 1998, Mr Henry applied to my Office for a review of the decision of the Department. He stated that the "principle of the request is whether documents held by a departmental employee at home, in his role as a member of a body to which he was appointed by virtue of being a state employee, are subject to the [FOI] Act or not". Having considered the matter, I decided to review the decision of the Department.

In reviewing this decision, I have considered the status of the independent management board together with the arguments put to me both by Mr Henry and the Department. I did not consider that I needed to examine the records at issue in the review unless I decided that they came within the scope of the FOI Act.

Submissions

Mr Henry

Mr Henry argued that the official was only appointed to the board by virtue of his being a member of the staff of the Department and that his role was to represent the Department and to act as a means of communication between the board and the Department. He considered that documents in the possession of an official of the Department are held by the Department and that the location of the documents is not important. He also argued that there was a public interest in the public having a right to know the basis for such an important national decision as that relating to the National Conference Centre.

The Department

The Department stated that any documents in the hands of the Departmental official are still under the control of the management board, not the control of the Department. It expects that files of the management board will be retained by Bord Fáilte when the management board has completed its task.

The Department also highlighted the fact that the official was not a representative of the Department but rather was appointed to bring his experience to the mix of expertise on the management board. He held records at his home because meetings were held outside office hours. Members return their papers to the management board's secretariat on resignation/retirement; a newly appointed member then has to seek papers from the secretariat. The Department has been informed that the chairman will refuse any requests for access to records by the Department.

Findings

Before dealing with the relevant provisions of the FOI Act, it is necessary to explain the background to the establishment of the independent management board. The Operational Programme for Tourism for the period 1 January 1994 to 31 December 1999 in the Community Support Framework for Ireland was approved by the Commission of the European Communities in Decision C(94)1972 of 29 July 1994. The purpose of sub-programme 2 of the Operational Programme is to provide European Regional Development Fund assistance to both the public and private sectors to help expand, diversify and improve the range of tourism products and facilities available to overseas tourists. One of the projects on the indicative list of large scale tourism projects which were to be considered for assistance was a National Conference Centre.

The implementation of the product development sub-programme was allocated on a geographical and functional basis to a number of different agencies. Implementation in respect of the National Conference Centre project was allocated to Bord Fáilte. A major aspect of the implementation is assessing and deciding on applications for grant assistance under the sub-programme.

Under paragraph 10.6 of the Operational Programme, decision making authority in relation to grant assistance under sub-programme 2 is assigned to the management board which comprises up to two Bord Fáilte executives, one official from the Department and three independent business/professional members. However, where expenditure is at or above 25 MECU for infrastructure projects, the agreement of the Government and the EU Commission on foot of a cost benefit analysis is required. In the case of the National Conference Centre project this ceiling was breached and, in due course, a cost benefit analysis was commissioned by Bord Fáilte. Any of the documentation in this case required by the consultants for the purpose of carrying out the cost benefit analysis would have been made available to them by the management board or by Bord Fáilte. The Department did not commission the cost benefit analysis, so it did not need to procure the documentation from the board for the consultants.

Section 6 of the terms of reference for management boards states that "each management board may take whatever decision it deems appropriate" in determining applications for grant assistance. There were also numerous references to the independence of the management board in the Dáil debates.

Board members are bound by their code of conduct "to treat all information received as a member of the board as confidential unless it is obviously public knowledge or trivial."

As I have indicated above, the Department is entitled, as of right, in accordance with the terms of the Operational Programme for Tourism approved by the EU Commission, to nominate one of its officials to the management board. It duly nominated Mr Oliver Power to that position in November 1995, to replace an earlier nominee. It also nominated another official to serve as an alternate member, should Mr Power be unavailable for any meeting.

This review is concerned with the papers held by Mr Power, outside the Department's premises, which relate to the tender procedure conducted by the management board.

The first point with which I wish to deal is the question of whether the records are held by the board or by the Department or both.

Based on the facts as outlined above, I am satisfied that the management board is a body which is independent of the Department. It is a body of the kind mentioned in paragraph 1(5) of the First Schedule of the FOI Act. It is capable of being brought within the ambit of the FOI Act but this requires the Minister for Finance to prescribe it for this purpose, something which has not yet occurred. In coming to this view, I have taken into account the fact that the management board is established by virtue of a programme agreed with the EU Commission and that it has specific decision-making powers set out in that programme which are exercised independently of the Department. I find, therefore, that the records are held by it rather than by the Department.

Mr Henry has made the point that the records in this case are also held by Mr Power and since he is an official of the Department, it follows that the records are held by the Department. Put another way, Mr Henry is arguing that the records are under the control of the Department and, therefore, in accordance with section 2(5)(a), they are held by the Department.

In my view, the relevant provisions of the FOI Act are contained in sections 6(1), 6(9) and 2(5)(a) of the Act.

Section 6(1) of the Act provides that

"Subject to the provisions of this Act, every person has a right to and shall, on request therefor, be offered access to any record held by a public body and the right so conferred is referred to in this Act as the right of access."

Section 6(9) of the Act provides that

"A record in the possession of a person who is or was providing a service for a public body under a contract for services shall, if and in so far as it relates to the service, be deemed for the purposes of this Act to be held by the body, and there shall be deemed to be included in the contract a provision that the person shall, if so requested by the body for the purposes of this Act, give the record to the body for retention by it for such period as is reasonable in the particular circumstances."

Section 2(5) (a) provides that a "reference to records held by a public body includes a reference to records under the control of the body."

The word "hold" means "The action or fact of having in charge, keeping, guarding, possessing, etc.; keeping, occupation, possession; defence, protection, rule." (Oxford English Dictionary)

The word "control" means "to hold sway over, exercise power or authority over" (Oxford English Dictionary)

In my view, it is Mr Power who holds the records, and he does so as a member of the board rather than as an official of the Department. In coming to this view, I have taken into account the following matters.

Mr Power was formally appointed to the board by the Minister and an alternate board member was also nominated. This strengthens the Department's case that the records were not held by the Department. Were it possible for any member of the Department's staff to replace Mr Power as needed, the case for release might be stronger since the records would potentially have received broad circulation within the Department. However, the appointment of an alternate board member restricted circulation to just two officials, each nominated by the Minister.

I accept that Mr Power was not maintaining a "watching brief" on the board but rather was appointed to add his expertise to that of other members of the board. He did not report to the Department regarding the activities of the board.

I have also considered whether the fact that the Department is entitled to nominate one of its officials to the board is relevant. A right of a public body to determine, wholly or partly, the membership of a board could, in some instances, indicate a degree of control over that board which might extend to control over its records. In the present case, I am satisfied that the board is sufficiently independent of the Department in terms of its establishment and its functions to enable it to be said that its records are not under the control of the Department.

I have also considered the fact that Mr Power does not hold the records on the Department's premises. In my view, this is consistent with the evidence that he does not report to the Department on the deliberations of the board. If the records had been stored on the Department's premises then the records might be said to be "held" by the Department. I should make it clear that the converse is not true. Storage of records off-site by a public body will not automatically take them outside the ambit of the FOI Act, if the public body still has control of the records.

Therefore, I find that the Department does not hold the records in the simple sense of the word because it does not have physical possession of the records in question. I find also that it does not have the records under its control by virtue of Mr Power's membership of the board.

I also considered whether the management board is providing a service for the Department under a contract for services, in which case the provisions of section 6(9) would bring the records within the scope of the Act. The management board's function is to assess and decide on grant applications under the Operational Programme. I find that, as a body independent of the Department, it discharges this function in its own right in accordance with its terms of reference as provided for in the Operational Programme for Tourism. I find that it is not providing a service for the Department under a contract for services and that section 6(9) does not apply.

Since the records are not held by or under the control of a public body as defined in the First Schedule of the FOI Act, the Act does not create a right of access to them. I appreciate that the requester may find this result unsatisfactory since the records in question are held by an employee of the Department. However, for the reasons outlined above, I have decided that a right of access does not exist in this case.

Decision

I have decided to affirm the decision of the Department to refuse access to the records of the management board which are held by Mr Power.

Information Commissioner

27 January 1999