Case 98117. Access to pre-commencement record - whether necessary or expedient to understand a post-commencement record - section 6(5)(a).

Case Summary

Facts

Mr ABE sought access to the complete file of the Department relating to the sale of Glen Ding Woods. All records created after 21 April 1998 were released by the Department and also some earlier records which were considered necessary to understand particular records created after 21 April 1998. The Department withheld the remainder of those records which were created prior to 21 April 1998.

Decision

The Commissioner decided that section 6(5)(a) is directed not at the question of whether a record can be understood in a literal sense without reference to earlier records but at whether its substance (or gist or subject matter) can be understood. The fact that an earlier record may throw fresh light on the subject discussed in a later record or that it may enable a requester to extend or analyse information contained in a later record does not of itself mean that access to it is necessary or expedient in order to understand the later record. He decided that granting access to a pre-commencement record in accordance with section 6(5)(a) can be justified as expedient only to the extent that such access is a suitable means to achieving the end of understanding the substance of the post commencement record. The decision of the Department was affirmed.

Date of Decision: 18.02.1999

DECISION

Background:

Mr ABE wrote to the Department of the Marine and Natural Resources on 23 June 1998 seeking access under the Freedom of Information Act, 1997, to the complete file relating to the sale of Glen Ding Wood, Blessington. The Department decided to provide Mr ABE with access to all records relating to this matter which were created since 21 April 1998. Some records were released which pre-dated the Act as the Department decided that they were associated with those created after 21 April 1998.

The Department released the following records to Mr ABE as they were created since the 21 April 1998:

1. Copy of a fax from a journalist (press queries in relation to sale of Glen Ding Wood)
2. Copy of a reply which the Department issued in relation to the questions raised by the journalist
3. Copy of letter from Ms Katherine Licken, Private Secretary to the Minister for the Marine and Natural Resources, to a company which had made representations (setting out the reasons for the decision to sell Glen Ding Wood privately)
4. Copy of PQ (parliamentary question) from Mr Enda Kenny TD along with the reply given by Minister Michael Woods and supporting information.

The Department released the following pre-commencement records to Mr ABE as it felt they might be necessary in order to understand the post-commencement records which were being released:

5. Copy of letter dated 13 February 1998 from Ms Barbara Burke, Private Secretary to the Minister of Defence, acknowledging receipt of a letter from a company which had made representations. 6. Copy of letter dated 13 February 1998 from Ms Burke to Ms Licken (Private Secretary to the Minister of the Marine and Natural Resources (letter detailed at no. 5 forwarded for reply) 7. Copy of letter dated 5 November 1987 from Mr Michael Smith TD, Minister for Forestry in response to representation by a public representative. 8. Copy of letter dated 6 February 1998 from a company making representations to the Minister of Defence (attached to previous letter mentioned at 7. above). 9. Copy of cover note from the Department to Ms Licken (Private Secretary to the Minister of the Marine and Natural Resources) regarding the reply at 3. above

Mr ABE appealed the Department's decision on 3 August 1998, requesting access to the complete file (including pre-21 April 1998 records). The Department upheld its original decision on review.

Mr ABE made an application to me on 19 October, 1998 for a review of the Department's decision and seeking access to the pre-commencement records on the sale of Glen Ding Wood as he considers that there is public concern about the transaction and he believes that these files should be made available.

For the purposes of this decision the records detailed at 1 to 4 above are the only records with which I have concerned myself.

I wrote to Mr ABE on 26 November 1998 advising him that the access rights under the Freedom of Information Act, 1997 allow access to records created before the 21 April 1998, only where

• access to pre-commencement records is necessary or expedient in order to understand records created after that date, or
• the records relate to personal information about the person seeking access to them.

Mr ABE was invited to make a submission indicating which of the above two matters he relied on in support of his claim for access to pre- 21 April records. In particular I invited Mr ABE to identify which particular records already released to him were causing him difficulty and why he thought access to earlier records might be necessary or expedient in order to understand the later records.

A submission on this case was received from Mr ABE in this Office on 6 January 1999. In his submission Mr ABE says that he is 'still appealing to have full access to all the records including pre April 1998...". Mr ABE writes that "the information which I received under the Freedom of Information Act (post 21 April 1998) has created a lot of questions. Therefore I feel it is necessary to have full access to the complete records in order to clarify the situation".

In his submission Mr ABE raised the following matters in particular:-

(1) "There appears to be conflicting evidence arising out of the sale of State Asset known as (Glen Ding Wood) in relation to the number of parties interested in purchasing this property. (2) Why was Mr. Molloy told to deal exclusively with [the successful party], when it was known that there were other parties interested in the site? (3) On what date did [the successful party] first contact the Department of Energy with a view to purchasing this site. (Mr. M. Smith, Minister for Forestry having sent a letter to [a named] T.D. stating that the land was not for sale or lease dated 5 November, 1987). (4) Why was the Glen Ding site sold privately when Mr. Michael Smith then Minister of State in the Forestry Department informed [a named] T.D. that any future sale of Glen Ding Wood would have to be by public tender?"

Submissions

Findings

Section 6(5) of the Act provides for access to records created before the commencement of the Act in two circumstances. The first is where access is necessary or expedient in order to understand records created after such commencement. The second is where the records relate to personal information about the person seeking access to them. Mr ABE has not argued that the records to which he is seeking access relate to personal information about him. Therefore, the only matter to be considered in this case is whether access to pre-commencement records is necessary or expedient to understand records created after commencement.

The central question which I have to address is the meaning of "understand" in the context of section 6(5). In one sense "to understand" a document means simply to comprehend what is written in the document, or, in other words, to have a literal understanding of what it says. On this interpretation, a record is likely to be capable of being understood unless it is ambiguous or incomplete in some way or contains symbols or codes which are not explained in the record.

However, it seems to me that the word "understand" in section 6(5)(a) is not used in this narrow sense. In my view, the section is directed not at the question of whether a record can be understood in a literal sense without reference to earlier records but at whether its substance (or gist or subject matter) can be understood. Having said that I must make it clear that, in my view, the fact that a document does not contain all the information which a reader might wish to have does not mean that the substance of a document cannot be understood. The fact that an earlier record may throw fresh light on the subject discussed in a later record or that it may enable a requester to extend or analyse information contained in a later record, does not of itself mean that access to the earlier records is necessary or expedient in order to understand the later record.

I have also considered the significance of the use of the word "expedient" in section 6(5)(a). "Expedient" I take to mean "fit, proper or suitable to the circumstances of the case". [OED]. It is clear that the word "expedient" is less restrictive than the word "necessary". It might be argued that the use of the word "expedient" is designed to enable a requester to gain access to pre-commencement records where that access enhances his/her understanding of a post-commencement record. I do not accept that argument. It seems to me that the release of a pre-commencement record is justified only to the extent that such access is a suitable means to achieving the end of understanding the substance of the post-commencement record. I consider that I would not be justified in holding that any pre-commencement record which deals with the subject matter of a post-commencement record or which might shed new light on that subject matter, is per se within the ambit of section 6(5)(a).

In the light of my interpretation of section 6(5)(a), as outlined above, I have examined the four post-commencement records described above to which Mr ABE has been granted access. The first record consists of a series of eight questions from a journalist about the sale of Glen Ding Wood. In my view a reader of this record does not need access to any other record in order to understand the questions asked. A person who was not familiar with the controversy surrounding the sale of Glen Ding Wood might not understand the relevance or implications of some of the questions, but there is no doubt that the questions themselves are clear. I find that access to pre-commencement records is not necessary or expedient to understand this record.

I can take the other three records together. Each of them sets out, in varying degrees of detail, the circumstances surrounding the sale of Glen Ding Wood. Each record contains unambiguous statements which in my view are capable of being understood in their own right.

It is true that the records could prompt a reader to ask other questions about the circumstances surrounding the sale or about the factual basis for some of the statements made in these records. But as I have already said, I do not see the purpose of section 6(5)(a) as being designed to enable a requester to extend or to analyse the information contained in the post-commencement record. Therefore, I find that access to pre-commencement records is not necessary or expedient in order to understand these three records.

In his submission, Mr ABE has stated that there appears to be conflicting evidence arising out of the sale of Glen Ding Wood in relation to the number of parties interested in purchasing the property. This question does not address itself to any particular aspect of the records released to Mr ABE and does not identify any particular statement in any record which, as it stands, is not capable of being understood.

Mr ABE asks why the Minister of the time was told to deal exclusively with one party when it was known that there were other parties interested. I am of the view that the reasons for this position are outlined in record number 3 above, although Mr ABE may find the reasons advanced unsatisfactory in some way.

Mr ABE asks on what date the successful party first contacted the Department with a view to purchasing this site. This specific question is answered at paragraph 6 of record number 2.

Mr ABE also asks why the site was sold privately when assurances were given that any future sale would have to be by public tender. The Department's position in this matter is detailed at paragraphs 2 - 4 of record number 2, although, again, Mr ABE may find the reasons advanced unsatisfactory in some way.

Decision

Having reviewed the decisions of the Department both initially and on internal review, I affirm the decision of the Department.

Information Commissioner

18 February 1999