Request to the Department of Public Enterprise for records relating to Aer Rianta's decision to support the development of a business park - whether records actually in the possession of Aer Rianta could be regarded as being under the control of the Department and could thus be deemed to be held by the Department - section 2(5)(a)

Case Summary

Facts

The requester sought, from the Department of Public Enterprise, records relating to Aer Rianta's decision to support the development of a business park and records of Aer Rianta's discussions and negotiations concerning the park. The Department's position was that it did not hold the records being sought, which were held by Aer Rianta. However, the requester questioned whether the Department was obliged to procure the records from Aer Rianta and make them available to him under the FOI Act.

Decision

The Commissioner held that records, which are not physically held by a public body, can only be said to be under its control if, at the very least, the public body has a legal entitlement of some kind to those records. He noted that the Department is able to influence the actions of the company because the Minister for Public Enterprise, with the consent of the Minister for Finance, appoints the directors of Aer Rianta (which is a public limited company); and because section 38 of the Air Navigation and Transport (Amendment) Act, 1998 imposes an obligation on the company to comply with general policy decisions made by the Minister and to follow the Minister's directions in relation to certain matters, where it is in the national interest to do so. However, the Commissioner found that, while it could be said that the Minster exercised an element of control over the company through the exercise of these powers, such control was not sufficient for it to be said that the records of the company are under the control of the Minister. He was unaware of any agreement, or other legal obligation, which would compel the company to make the records available to the Minister.

The Commissioner also commented on the former agency arrangement whereby, until 11 September 1998, Aer Rianta managed Dublin Airport as an agent of the Minister. He found that, during the currency of that agency arrangement, the company's records pertaining to the management of Dublin Airport were "under the control" of the Minister for the purposes of the FOI Act. However, since the termination of that arrangement, he found that the records are no longer "under the control" of the Minister, as the company is no longer acting as an agent of the Department and the relevant records are now vested in the company by virtue of the Air Navigation and Transport (Amendment) Act, 1998. He found that the fact that the Minister may have, at one time, had control over some or all of the records in question can have no bearing on his decision that the records are not now under the control of the Minister, or of the Department.

Date of Decision: 22.09.2000

Our Reference: 99379

22.09.2000

Mr X

Dear Mr X

I refer to your application to me for a review of the decision of the Department of Public Enterprise (the Department) to refuse to grant you access to records created by Aer Rianta in relation to its decision to support the development, by Dunloe Ewart, of a business park on lands at Harristown and to records of Aer Rianta's discussions and negotiations, with that company or its subsidiaries, concerning the Harristown lands, which took place prior to 8 January 1999.

Background

In carrying out my review, I have had regard to the various submissions which you have made to my Office and to the submissions of the Department.

As you are aware, the Department originally claimed exemption in this case under section 10(1)(a) of the FOI Act. Section 10(1)(a) allows a public body to refuse access to a record where the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. I am satisfied, as I believe you are, that the Department itself does not hold the records which you seek. However, in the course of the review, you raised the question of whether or not the Department was obliged to procure the records from Aer Rianta and make them available to you under the FOI Act. The only basis on which the Department could be so obliged is if the records in question are under its control for the purposes of the FOI Act.

Scope of Review

The sole matter which I have to decide in this review is whether the Department was justified in deciding to refuse you access on the grounds that the records concerned are not, for the purposes of section 2(5)(a) the FOI Act, "under the control" of the Department.

Findings

Relevance of "control"

Section 6 of the FOI Act provides for a right of access to records "held" by public bodies. Section 2(5)(a) provides that that this reference to "held" includes a reference to records "under the control" of public bodies. The records which are at issue in this case are held by Aer Rianta. It follows that the Department is obliged to provide access to them under the FOI Act only if the records are under its control.

For the purposes of the present decision it is not necessary for me to give a detailed explanation of what is meant by control in the context of the FOI Act. However, in my view, records which are not physically held by a public body can only be said to be under its control if, at the very least, the public body has a legal entitlement of some kind to procure those records. In deciding whether such control exists, I believe that it is necessary to have regard to the relationship between the parties, to any agreement between them concerning the records and to any legal rights which a party seeking to assert control over the records might have. I would also have regard to the National Archives Act, 1986 which defines "Departmental records" as records "made or received, and held in the course of its business, by a Department of State...". The Act imposes obligations on the public bodies to which it applies to retain and preserve Departmental records. In my view the records at issue in this case are not Departmental records and the Department is under no obligation to retain them.

Relationship between Aer Rianta and the Department

Aer Rianta is a public limited company. It is not part of the Department. However, the Department is able to influence the actions of the company because the Minister for Public Enterprise appoints the directors of the company with the consent of the Minister for Finance and because section 38 of the Air Navigation and Transport (Amendment) Act, 1998 obliges the company to comply with policy decisions of a general kind made by the Minister for Public Enterprise in relation to functions assigned to the company and to follow the Minister's directions in relation to certain matters where it is in the national interest to do so.

While the Minister for Public Enterprise could be said to exercise an element of control over the company through the exercise of the powers referred to above, I find that such control is not sufficient to enable it to be said that the records of the company are under the control of the Minister. I am not aware of any agreement between the Minister and the company or any other legal obligation which would compel the company to make the records available to the Minister. In the circumstances, I find that the records are not under the control of the Minister or under the control of the Department.

Former agency arrangement

In the course of the review you pointed to the agency arrangement which once existed between the Minister for Public Enterprise and the company and you argued that this arrangement meant that the records which you seek were, and are, under the control of the Minister. I find that, under the terms of section 23 of the Air Navigation and Transport Act, 1950, the company did, indeed, act as agent of the Minister in the management of Dublin Airport. I find that Aer Rianta also carried out other activities besides the management of Dublin Airport but it is not clear to me that all or any of the records which you seek do pertain to the management of Dublin Airport. In the event, and having regard to my other findings set out below, it is not necessary for me to make any finding on this point.

The agency arrangement described above ceased in on 11 September 1998 following the passage of the Air Navigation and Transport (Amendment) Act, 1998. This legislation vested in the company airport property previously vested in the Minister and provided that the company was to manage and develop those airports. I find that, during the currency of the agency arrangement, the company's records pertaining to the management of Dublin Airport were "under the control" of the Minister for the purposes of the FOI Act.

I find that the position following the termination of the agency arrangement in 1998 is governed by section 14(3) of the Air Navigation and Transport (Amendment) Act, 1998. One of the effects of this section is to vest in the company all property (other than land, which is vested separately) previously vested in the Minister or held in trust by the company for the Minister and which was used in connection with the management or development of Dublin Airport. I find that the property vested in the company by virtue of section 14 includes the records pertaining to the management and development of Dublin Airport. As I mentioned earlier, I do not consider these records to be Departmental records for the purposes of the National Archives Act and this is a factor which I have taken into account in concluding that the records are property which was capable of vesting in the company by virtue of section 14. I find that whatever control the Minister may have had over such records is removed by this section. I attach for your information a copy of sections 14 to 16 inclusive of the Air Navigation and Transport (Amendment) Act, 1998

For the purposes of this decision, I have not sought to distinguish between records created before and after the termination of the agency arrangement. The fact that the Minister may at one time have had control over some or all of the records can have no bearing on my decision. I find that the records are not now under the control of the Minister and not under the control of the Department.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act, 1997, I affirm the decision of the Department of Public Enterprise as notified to you in Mr Liam Daly's letter of 26 July 1999.

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 that decision. Such an appeal must be initiated not later than four weeks from the date of this letter.

Yours sincerely

Information Commissioner