Case 98007

Request for access to pre-commencement records relating to the estate of a deceased third party - whether access arises to records held by the Department under section 6(5)(a) or (b) of the FOI Act - whether access arises to records held by the Department which were created by the Office of the Attorney General - section 46(1)(b) - whether access arises to records held by the Department which relate to an examination by the Ombudsman under the Ombudsman Act, 1980 - section 46(1)(c)(iii) - whether records held by the Examiner in the Land Commission are now records held by the High Court and relating to a court and thus does the FOI Act apply to such records - section 46(1)(a)

Case Summary

Facts

The requester sought access to records held by the Department relating to the estate of a deceased third party. The Department did not make a decision on either the original request or the request for internal review.

Decision

A number of records were held by the Department and a number were held by the Examiner of Titles of the Land Commission. In the course of the review, the Examiner of Titles indicated that such records as she may hold in relation to this matter were held in her capacity as delegate of the (then) Judicial Commissioner of the Land Commissioner. The Judicial Commissioner advised that the Examiner was not required to make such records available to the Information Commissioner for inspection.

The Commissioner found that as the records held by the Department were created before the commencement date of the FOI Act, the requester was only entitled to access to such records if access is necessary or expedient in order to understand records created after commencement (section 6(5)(a)) or if the records relate to personal information about the person seeking access to them (section 6(5)(b)). He found that no right of access to the records arose under either section 6(5)(a) or (b) of the FOI Act.

In relation those records created by the Office of the Attorney General, the Commissioner found that such records did not relate to the general administration of that Office and so the FOI Act did not apply to those records. He also found that a number of records, relating to an investigation by the Ombudsman under the Ombudsman Act, 1980 were created after the commencement by the Ombudsman of that investigation, and also that they did not relate to the general administration of the Ombudsman's Office. As section 46(1)(c) of the FOI Act provides that the FOI Act does not apply to such records, the Commissioner found that they were exempt from release to the requester.

The Commissioner was satisfied that a number of records were held by the Examiner of Titles and that same were not held by the Department or under its control. He noted that the Land Commission was dissolved on 31 March 1999. The Commissioner was satisfied that the High Court now exercised the power and authority formerly exercised by the Judicial Commissioner over documents arising from proceedings before her and that such records are now held by the High Court.

The Commissioner had also been advised that such records are records relating to a court i.e. the High Court. Section 46(1)(a) of the FOI Act provides that the FOI Act, with two exceptions, does not apply to record held by a court and relating to a court. The first exception concerns certain records relating to proceedings in a court held in public and the second concerns records relating to the general administration of the courts. He found it was clear that the first exception does not apply because the only proceedings to which the records in question appear to relate are proceedings before the Land Commission which is not a court, much less a court whose proceedings were held in public. He was also satisfied that the records do not relate to the general administration of the courts, since they relate to a specific matter which was dealt with by the Land Commission. In the circumstances, the Commissioner found that the two exceptions provided for in section 46 do not apply and that the FOI Act does not apply to the records held by the High Court.

Date of Decision: 17.10.2000

Our Reference: 98007

17.10.2000

Mr X

Dear Mr X

I refer to previous correspondence regarding the review of the decision of the Department of Agriculture and Food ("the Department") in response to your request under the Freedom of Information Act 1997 ("the FOI Act") for access to records relating to the estate of Mr Y dec'd.

Background

I have now completed my review of the Department's decision. In carrying out that review, I have had regard to the various submissions which you have made to my Office and the submissions of the Department. Much of your correspondence to me consists essentially of complaints about the Land Commission and, more particularly, the Examiner and detailed information about the background to your interest in the records requested. I do not repeat these points below because they are clearly irrelevant to the matter which I have to decide as described in the scope of the review. However, you did make some specific arguments to me in relation to this review and I have dealt with these below in my detailed findings.

On 22 March 1999 I served a notice on the Secretary-General of the Department requiring him to furnish me with all records relevant to your request. I served a similar notice on the Examiner of Titles of the Land Commission. The Secretary-General duly forwarded to me all records in relation to the Estate of Mr Y dec'd, [record number deleted], which were held in the Land Services Division of the Department. The Examiner indicated in reply that such records as she may hold in relation to this matter were held in her capacity as delegate of the (then) Judicial Commissioner of the Land Commissioner. The Judicial Commissioner advised that the Examiner was not required to make such records available to me for inspection. I will deal separately with the two sets of records - those held by the Department and those held by the Examiner - in my findings.

Scope of Review

It is clear from my examination of the file sent to me by the Department that some of the records encompassed by your request consist of correspondence between you and the Department. The Department has indicated that it is willing to release copies of this correspondence to you, if you so wish.

The Department has also indicated to me that it is willing to grant access to most other records which refer to you in any way, without accepting that these relate to personal information about you. I note that the Department has already released a number of records on this file to you on foot of other requests made by you under the FOI Act. Since access to these records is not at issue, I have excluded them from the scope of the review.

The records which the Department is not willing to release can be described as follows:

• a number of records relating to the acquisition and subsequent disposal of the lands formerly owned by Mr Y dec'd,
• a number of records consisting of correspondence from the Attorney-General,
• a number of records generated as a result of a complaint by you to the Ombudsman,
• part of a memorandum dated 26 May 1997, and
• part of a memorandum dated 4 June 1997.

It follows that my review is concerned solely with whether the Department is entitled to refuse to grant you access to these records and such records as may be held by the Examiner and/or the former Judicial Commissioner.

Findings

Preliminary matters As mentioned above, you made a number of arguments to me in relation to the proper application of the FOI Act during the course of the review and I will deal with these before explaining my main findings. In a letter to me dated 20 July 1998, you stated that your request should have been examined under Part III of the Act which deals with exempt records and that one of the sections which provides for release in the public interest (section 26(3), section 27(3) or section 28(5)) should have been invoked to grant access. I wish to point out that these sections are only relevant when a public body is of the view that the records at issue would be exempt by virtue of section 26(1), section 27(1) or section 28(1) but that, notwithstanding this, it may be in the public interest to grant access to them. I find that none of these sections is relevant to the matters at issue in this review.

You also argued that the head of the public body could have considered section 18(5) because of a material interest that you claim you have in the matter. I have already decided in the case no. 98095 - Mr AAV and the Department of Social, Community and Family Affairs, that section 18 of the Act, which provides the right to a statement of reasons for an act of a public body in certain instances, does not operate retrospectively and that, as a consequence, a public body cannot normally be required to give reasons for an act which took place prior to the commencement of the FOI Act. In any event, your original request was concerned solely with access to records and the scope of this review is accordingly restricted.

I will now deal with in turn the records held by the Department and to which it still refuses access and the records which may be held by the Examiner and/or the former Judicial Commissioner.

Records held by the Department

The records held by the Department were created prior to the commencement of the FOI Act. I note that Mr Smyth, Senior Investigator in my Office, wrote to you on 24 August 1998 informing you that the FOI Act normally only applies to records created after 21 April 1998 and explaining the application of section 6(5) of the Act. In brief, public bodies are only required to grant access to records created prior to the commencement of the Act if access is necessary or expedient in order to understand records created after commencement (section 6(5)(a)) or if the records relate to personal information about the person seeking access to them (section 6(5)(b)).

I am not aware of any records created after the commencement of the Act in respect of which it could be said that access to the present records is necessary or expedient in order to understand them and I note that you have not identified any such record created after 21 April 1998.

I have examined the records relating to the acquisition and subsequent disposal of the lands formerly owned by Mr Y dec'd to which the Department still refuses access. There is no need for me to describe these records in detail. Essentially, they relate to the affairs of the late Mr Y and to the parties who acquired the land from the Land Commission. I am satisfied that they do not relate to information about you, much less to personal information about you. In the circumstances, I find that you are not entitled to access to these records.

In relation to the records created by the Office of the Attorney General, I note that these arose out of representations of various kinds which you made to a number of public representatives. The FOI Act does not apply to records created by the Office of the Attorney General, other than records concerning the general administration of that Office. I am satisfied that the records in question do not concern the general administration of that Office and that you are not entitled to access to them.

The Department holds a number of records which relate to the examination by the Ombudsman under the Ombudsman Act, 1980, of a complaint which you made to him. Section 46(1)(c) of the FOI Act provides that the Act does not apply to such records unless they were created before the commencement of the examination or unless they relate to the general administration of the Office of the Ombudsman. Having examined the records, I am satisfied that all of them were created after the commencement of the examination and that they do not relate to the general administration of the Office of the Ombudsman. Accordingly, I find that you are not entitled to access to them.

The memorandum dated 26 May 1997 is from Ms Keenan of the Land Commission to Mr O'Brien of the Land Services Division and was apparently prepared with a view to answering representations made by you to the Land Commission. It seems to me that a case could be made that much of this memorandum does not relate to personal information about you and that you are not entitled to access to it. However, the Department is willing to release all of this memorandum with the exception of that part of the second last paragraph beginning after the word "it". The Department is willing to do this because most of the material in the memorandum has already been given to you in other documents. I have examined the part of the memorandum which the Department is not willing to release. It makes reference to a number of named individuals but not to yourself. I am satisfied that it does not relate to personal information about you and that the Department is entitled to refuse access to it.

The memorandum dated 4 June 1997 is from Mr O'Brien of the Land Services Division to Mr D Carroll and was also apparently prepared with a view to answering representations made by you to the Land Commission. The Department is willing to release paragraphs 2, 9 and 10 of this memorandum. I have examined the remainder of this record. It relates to the affairs of the late Mr Y and Mr Z. It does not relate to personal information about you. I find that the Department is entitled to refuse access to it.

Records held by the Examiner in the Land Commission

I should first of all note that in dealing with your request the Department was only concerned with records which it holds or which are under its control. I note that the Examiner appears to hold some records but I am satisfied that these are not records held by the Department or under its control.

I note that the Land Commission was dissolved on 31 March 1999 and, by virtue of section 3 of the Irish Land Commission (Dissolution) Act 1992, the jurisdictions vested in the office of Judicial Commissioner are now vested in the High Court and are to be exercised by the President of the High Court or another judge of the High Court assigned to this function by the President. I am advised that this means that the High Court now exercises the power and authority formerly exercised by the Judicial Commissioner over documents arising from proceedings before her. I am satisfied that these records are now held by the High Court.

I am further advised that such records are records relating to a court viz. the High Court. Section 46 of the FOI Act provides that, with two exceptions, the Act does not apply to records held by a court and relating to a court. The first exception concerns certain records relating to proceedings in a court held in public and the second concerns records relating to the general administration of the courts. It is clear that the first exception does not apply because the only proceedings to which the records in question appear to relate are proceedings before the Land Commission which is not a court, much less a court whose proceedings were held in public. I am also satisfied that the records do not relate to the general administration of the courts, since they relate to a specific matter which was dealt with by the Land Commission. In the circumstances, I find that the two exceptions provided for in section 46 do not apply and that the FOI Act does not apply to the records held by the High Court.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act, 1997 I have decided that the Department is entitled to refuse access to the records which are the subject of this review.

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than four weeks from the date of this letter.

Yours sincerely

Information Commissioner