Case 010355. Request for access to records created by the Garda Síochána in relation to a tender competition where the Department was the contracting authority - whether the records created by the Garda Síochána are under the control of the Department - section 2(5)(a)

Case Summary

Facts

The requester sought access to records relating to the analysis by the Garda Síochána of the successful tenderer's bid for the supply of interview and surveillance equipment to the Garda Síochána. The Department argued that the records were held by the Garda Síochána (which is not subject to the FOI Act) and not held, or under the control of, the Department. The requester argued that the records were under the control of the Department for a number of reasons including the fact that the Department was the contracting authority for the tender and, under the Garda Síochána Act 2005, there was a duty on the Garda Commissioner to provide documents to the Secretary General of the Department.

Findings

The Commissioner found that the records were not under the control of the Department. In considering whether a public body can be said to have control over records, not in its physical possession, the Commissioner had regard to the decision of the Ontario Assistant Information and Privacy Commissioner, in Order PO-2306 - Ministry of Education, 11 August 2004, and the High Court judgment in the Minister for Enterprise, Trade and Employment and the Information Commissioner, 2004 No. 56 MCA, 25 January 2006. The Commissioner concluded that a range of factors need to be considered including, but not only, whether the public body had a legal entitlement to access the records.

In this case, while the Information Commissioner accepted that there was a duty on the Garda Commissioner to supply records to the Secretary General of the Department if so requested by the Secretary General, the Information Commissioner did not accept that access was the same as control. The Commissioner noted that the Secretary General had not requested the records from the Garda Commissioner and that the Garda Commissioner was now the accounting officer for the Garda Síochána (rather than the Secretary General of the Department). Having regard to the other factors, including ownership, physical possession and the Department's reliance on the records, the Commissioner concluded that the records were not under the control of the Department.

Date of Decision: 22.11.2006

Our Reference: 010355

22.11.2006

AV Niche (Recording Systems) Ltd

Dear Sirs

I refer to your application for review of the decision of the Department of Justice, Equality and Law Reform ("the Department") to refuse access to certain records following your request under the Freedom of Information Act, 1997 and Freedom of Information (Amendment) Act 2003, ("the FOI Acts"). Your request was for access to records relating to the award of a tender for the supply and installation of interview recording equipment in Garda stations. At the outset I wish to apologise for the long delay in dealing with your application. Due to initial staff shortages in the early years of the Office a backlog of cases on hands built up. This has meant that the time taken to complete reviews such as yours has been considerably longer than I would have wished. This staffing issue has now largely been addressed and the backlog has been reduced from a peak of almost 800 cases to its present level of 331 reviews awaiting completion.

I have now concluded my review which was carried out in accordance with the provisions of the FOI Acts. In carrying out my review I have had regard to your submissions to my Office and the submissions of the Department. I have also had regard to the relevant provisions of the Garda Síochána Act, 2005 and the judgment of Justice Murphy in the case of the Minister for Enterprise, Trade and Employment and the Information Commissioner, 25 January 2006, [2004 No. 56 MCA]. Finally, I have examined a number of the records relating to the tender competition which are held by the Department.

Background

In your request to the Department you posed a number of questions concerning the decision to award SKS Communications the tender for the supply and installation of interview recording equipment in Garda stations. As you are now aware, the FOI Acts do not oblige a public body to respond to questions, but rather provide a right of access to records held by a public body which may answer such questions. The Department provided a response to some of your questions but indicated that it was not in a position to respond to some of the remaining questions. During the course of this review you made it clear that you are no longer seeking records which would provide a response to your questions at (i), (iv), (xi), (xiv) and (xviii) of your request. The remaining questions are concerned with the enquiries from the Garda Síochána, during the tender evaluation process, relating to modifications to products to be supplied by each tenderer. The Department's position is that the records which would provide a response to the remaining questions are not held by the Department but may be held by the Garda Síochána, as they relate to the technical evaluation carried out by the Garda Síochána. However, as the Garda Síochána is not a body prescribed as a "public body" for the purposes of the FOI Acts it is not open to you to make a request to it under the Acts.

Scope of Review

My review is concerned solely with the question of whether the records held by the Garda Síochána, which would provide a response to your questions, are records held by, or under the control of the Department.

Summary of Decision

In summary, I have found that the records are not held by, or under the control of the Department.

Findings

In your submissions you made it clear that you are disappointed with the lack of feedback received from the Department and the Garda Síochána following the tender process. While I appreciate the strength of your feelings on the way the Department has dealt with your complaints, I must make it clear that it is not my role to comment on the Department's behaviour as regards the tender process, or whether the process was carried out in accordance with the appropriate procedures. My role, as Information Commissioner, in this particular review is to decide whether the records sought by you are subject to the provisions of the FOI Acts by virtue of the fact that the Department holds or controls the records.

I must also make it clear that my review decisions are de novo, which means that they are based on the circumstances and the law as they pertain at the time of my decision. This view of my role was endorsed by the High Court judgment in the case of Minister for Education and Science v Information Commissioner, where Mr. Justice O'Caoimh, commenting on the nature of a review by my predecessor under section 34 of the FOI Act, said that, "the decision that was to be made by Information Commissioner in light of the appeals taken to him were to be made in light of the facts and circumstances applying at the date of the review by him and not those facts and circumstances pertaining on the date of the original decision".

Background to the award of the contract

I believe it would be useful to set out the relevant factual background to the holding of the tender competition and subsequent award to the winning tenderer, SKS Communications. In doing so I have drawn on the contents of a December 2002 special report by the Comptroller and Auditor General and the submissions of the Department. I note that you dispute some of the facts in the Comptroller and Auditor General's report. However, I am satisfied that any inaccuracies that may exist in the report would not affect my findings.

On 10 August 2000, the Department issued an Invitation to Tender to be published in the Official Journal of the European Communities. The Notice was published on 18 August 2000. In the notice, the Department is specified as the "contracting authority" while any requests for tender documentation, enquiries and the finalised tender were to be directed to Garda Síochána Headquarters in the Phoenix Park, Dublin 8. Three tenders (including those from SKS and AV Niche) were received and opened on 3 October in the presence of three Garda members and two Department officials. Following the normal tender opening procedures all tenders were forwarded to the Garda Superintendent of the Telecommunications Section for evaluation. The persons chosen for the evaluation of the tenders comprised four members attached to the Telecommunications section who had extensive experience in telecommunications and video recording of interview equipment. In February 2001, the Assistant Garda Commissioner with responsibility for the Telecommunications Section forwarded the Tender Evaluation Report to the Department for information and requested approval to purchase 252 systems from SKS on the basis of its being the most economically advantageous tender.

The Department noted that as the tender which was deemed most economically advantageous was not the lowest cost tender, the approval of the Government Contracts Committee ("GCC") would be required before placing the contract. On 20 March 2001, the Department submitted details of the proposed contract to the GCC for its approval. The GCC then approved the contract. In April 2001, the Department wrote to the Garda Síochána advising that the GCC approval had been received and that a contract could be placed with SKS Communications.

On 26 April 2001, Garda Síochána Headquarters (Finance and Logistics Section) notified you that your tender had not been successful. On 1 May 2001, you wrote to the Garda Síochána (copied to the Department) asking whether it could be confirmed that AV Niche's tender was not the lowest wholly compliant tender and if not, the reasons which made the AV Niche offer not the most economically advantageous tender. You also sought confirmation that its offer was treated, for a number of specified points, in the same way as that of the successful tenderer. The Department acknowledged this letter on 9 May 2001 and informed you that material was awaited from the Garda Síochána authorities before it could respond.

In response to queries from this Office, the Department stated that its role in relation to the process was broadly limited to two areas. At the project initiation stage, the Department says it was involved in approving the project from a policy and budgetary perspective including relevant communications with the Department of Finance. Following the decision to proceed with a nationwide system, tender documents were furnished by the Garda Síochána to the Department and published in the EU journal. On completion of the evaluation of tenders by Garda personnel, the Tender Evaluation Report was submitted to the Department for sanction. On receipt of sanction, the Garda Síochána communicated the result to bidders. The Department states that it did not receive the tenders to pass to the Garda Síochána for evaluation.

In response to queries regarding the position of the Department as the "contracting authority", the Department replied (in September 2004) that:

"...in relation to the procurement of goods and services, specific delegated sanction limits were set where procurement was under the direct control of the Garda Director of Finance. For higher value procurements (such as the one in question here) approval of the Department is required at the outset. However, the actual tender process is carried out by the Garda Síochána (who have the technical expertise to carry out such evaluations) and the result of the evaluations are submitted to the Department for approval."

The Department also stated that:

"the Minister for Justice was the contracting authority and the contract was directed to the Department accordingly for necessary approval. At no stage however were the records the subject of this FOI request (if they do exist) under the control of the Department. It does not require these records in order to carry out its role as outlined above."

Section 2(5)(a) - records under the control of a public body

While section 6(1) of the FOI Acts confers a right of access to records held by a public body, section 2(5)(a) also provides that a reference to records held by a public body includes a reference to records under the control of the body. The Department argues that the records which would provide a response to your request are not held by the Department but are held by the Garda Síochána. The Garda Síochána is not a public body prescribed for the purposes of the FOI Acts. While the Minister for Justice, Equality and Law Reform is accountable to the Oireachtas for the Garda Síochána the two bodies are operationally independent. The FOI Act itself recognises the separateness of Garda records in that the Garda Síochána is listed as a public body in its own right in paragraph 1(5) of the First Schedule to the Act. That paragraph lists a number of public bodies which may be brought within the scope of the Act in the future. To date, however, the Act has not been extended to include the Garda Síochána.

Therefore, the question I must consider is whether records held by the Garda Síochána are under the control of the Department. The FOI Acts do not define the concept of "control". The Oxford English Dictionary defines "control" as the "power to direct; command". Black's Law Dictionary defines "control" as meaning "the power or authority to manage direct superintend, restrict, regulate, administer or oversee." Although these definitions provide some guidance, they are broad in scope and in themselves are insufficient to determine whether a particular record is under the control of a public body for the purposes of the FOI Acts.

The Long Title of the 1997 FOI Act states that it is an Act to:

"enable members of the public to obtain access to the greatest extent possible consistent with the public interest and the right to privacy to information in the possession of public bodies...". Therefore, I consider that the meaning of control should be given a wide connotation in light of the overall aims of the Acts.

In earlier cases, the former Information Commissioner, Mr Kevin Murphy, explained what is meant by control in the context of the FOI Acts as follows:

"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 consider 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 note that the Ontario equivalent to the FOI Acts, the Freedom of Information and Protection of Privacy Act, contains a similar provision which provides access to records "in the custody or under the control" of a Ministry (section 10(1)). In Order PO-2306 - Ministry of Education, 11 August 2004, and drawing on two earlier decisions of that Office, the Ontario Assistant Information and Privacy Commissioner, Mr Tom Mitchinison, made the following comments when considering the concept of "control":

"The following non-exhaustive list of factors may assist in determining whether the Ministry has "control" of particular records:

• Was the record created by an officer or employee of the Ministry? [P-120]
• What use did the creator intend to make of the record? [P-120, P-239]
• Does the Ministry have a statutory power or duty to carry out the activity which resulted in the creation of the record? [Order P-912, upheld in Ontario (Criminal Code Review Board) v. Ontario (Information and Privacy Commissioner) (March 7, 1997), Toronto Doc. 283/95 (Ont. Div. Ct.), leave to appeal granted [1997] O.J. No. 4899 (C.A.)]
• Is the activity in question a "core", "central" or "basic" function of the Ministry? [Order P-912]
• Does the content of the record relate to the Ministry’s mandate and functions? [P-120, P-239]
• Does the Ministry have physical possession of the record, either because it has been voluntarily provided by the creator or pursuant to a mandatory statutory or employment requirement? [P-120, P-239]
• If the Ministry does not have possession of the record, is it being held by an officer or employee of the Ministry for the purposes of his or her duties as an officer or employee? [P-120, P-239]
• Does the Ministry have a right to possession of the record? [P-120, P-239]
• Does the Ministry have the authority to regulate the record’s use and disposal? [P-120, P-239]
• To what extent has the record been relied upon by the Ministry? [P-120, P-239]
• How closely is the record integrated with other records held by the Ministry? [P-120, P-239]
• What is the customary practice of the Ministry and institutions similar to the Ministry in relation to possession or control of records of this nature, in similar circumstances? [MO-1251]

Factors to consider with records created by an affected party

The Act can apply to information under the control of an institution notwithstanding that it was created by a third party [Orders P-239, P-1001 and MO-1225]. The following additional factors may be relevant considerations in this context:

• If the record is not in the physical possession of the Ministry, who has possession of the record, and why?
• Who owns the record? [Order M-315]
• Who paid for the creation of the record? [Order M-506]
• What are the circumstances surrounding the creation, use and retention of the record?
• Are there any provisions in any contracts between the Ministry and the individual who created the record in relation to the activity which resulted in the creation of the record, which expressly or by implication give the Ministry the right to possess or otherwise control the record? [Greater Vancouver Mental Health Service Society v. British Columbia (Information and Privacy Commissioner), [1999] B.C.J. No. 198 (S.C.)]
• Was there an understanding or agreement between the Ministry, the individual who created the record or any other party that the record was not to be disclosed to the Ministry? [Order M-165] If so, what were the precise undertakings of confidentiality given by the individual who created the record, to whom were they given, when, why and in what form?
• Is there any other contract, practice, procedure or circumstance that affects the control, retention or disposal of the record by the Ministry?
• Was the individual who created the record an agent of the Ministry for the purposes of the activity in question? If so, what was the scope of that agency, and did it carry with it a right of the Ministry to possess or otherwise control the records? [Walmsley v. Ontario (Attorney General) (1997), 34 O.R. (3d) 611 (C.A.)]
• What is the customary practice of the individual who created the record and others in a profession in relation to possession or control of records of this nature, in similar circumstances? [MO-1251]
• To what extent, if any, should the fact that the individual who created the record has refused to provide the Ministry with a copy of the record determine the control issue?

All of these questions reflect a purposive approach to the "control" question under section 10(1). This approach has also been adopted in other access to information regimes."

Moreover, I have noted the judgement of the High Court in the case of the Minister for Enterprise, Trade and Employment and the Information Commissioner, 2004 No. 56 MCA, 25 January 2006. In this case the High Court overturned my finding that the Department of Enterprise, Trade and Employment had control over records relating to the requester's application for grant assistance from his local County Enterprise Board (which was not, at that time, a public body for the purposes of the FOI Acts). In reaching its judgment, the court relied on the test of control as delivered by Blayney J in Ó Coindealbhain (Inspector of Taxes) v Mooney [1990] 1 I.R.422.

In this latter case, Blayney J dealt with contracts for services. The case referred to the tests to be applied as to the degree and extent of control to be exercised by the Minister (where the taxpayer was the manager of an employment office) and whether the taxpayer was in business on his own account. Blayney J stated at 431,2:

"Firstly, the test as to the degree and extent of the control exercised by the Minister. While the Minister clearly lays down in the contract what is to be done, he does not direct how it is to be done except in certain instances when things are to be done in accordance with instructions, nor does he direct when the work is to be done except that the office is to be open during specified hours from Monday to Friday inclusive.

...

It was submitted on behalf of the appellant that the Minister exercised the necessary control by reason of the fact that the deputy employed by the respondent and any clerical assistance have to be approved by the Department. But the control given by the requirement to have the Department's approval is minimal. Once a deputy or a clerk has been approved, he is then in the employment of the respondent and under his control. It is he who decides what hours are to be worked in addition to the hours during which the office has to be kept open, and how any work is to be done in respect of which there are no express instructions from the Department. So the fact that the Department has to approve of their appointment is of little significance in regard to how or when they do their work."

The High Court also considered Readymix Concrete v Minister for Pensions [1968] 1 All E.R. 433 at 440 where control, in the context of the employment relationship, was defined as follows:

"Control includes the power of deciding the thing to be done, the way in which it is done, the means to be employed in doing it, the time when, and the place where it shall be done. All these aspects of control must be considered in deciding whether the right exists in a sufficient degree to make one party the master and the other his servant."

In coming to its decision the High Court concentrated on the nature of the relationship between the public body and the record holder as set out in the relevant legislation. It found that the issue of control of records was determined by the issue of functional control and whether the relevant agreements/protocols give the public body functional control over the activities under which the requested records were created.

The criteria set out by the Ontario Assistant Information and Privacy Commissioner, my predecessor's comments and the judgement of the High Court provide extremely useful guidance when considering the meaning of control in an FOI context. I consider that the appropriate way of deciding the control, issue is to examine the criteria listed in the 'Ontario' case as they pertain to this case and the findings in the High Court judgment.

Analysis of control factors

It is important to recall that the records being sought by you are the records relating to the technical evaluation carried out by the Garda Síochána.

Creation/Physical possession/ownership

I accept that the records, if they exist, would be physically held by the Garda Síochána and not the Department or any of its officials. I also accept that the records would have been created by members of the Garda Síochána, most likely those employed in the Telecommunications Section. I further accept that the two bodies are operationally independent and, as a result, the Department does not have the authority to regulate the use or disposal of the records. As regards the criteria relating to ownership it seems to me that ownership of these particular records would lie with the Garda Síochána I also accept that, other than the final Tender Evaluation Report (TER) produced by the Garda Síochána, the records held by the Garda Síochána would not be integrated with those records relating to the tender process held by the Department.

Statutory Entitlement

As mentioned above, in order for it to be said that a public body has control over records, the public body must, at the very least, have a legal entitlement of some kind to procure those records. Complex issues arise when considering the statutory framework relating to the relationship between the Garda Síochána and the Department, and whether the Department has some form of legal entitlement to the records.

The Department was the "contracting authority" for the tender. Council Directive 93/36/EEC, as amended, imposes on "contracting authorities" the obligation to procure supplies with a value which exceeds certain thresholds in accordance with the rules set out in the Directive. The rules apply to a number of areas including the role of a contracting authority when placing advertising, the issuing of notices to the Official Journal of the EU, notice of technical specifications, the award of contracts and the provision of certain information to unsuccessful tenderers. However, the Directive does not make any specific reference to control of the process, or control of, or access to, records generated during the process. While the Department clearly had a key role in deciding whether the recommendation from the Garda Síochána contained in the TER should be accepted, its role as a "contracting authority" does not automatically imply that the Department has a legal entitlement to the records created by the Garda Síochána during its technical evaluation. The Department argues that the information in the TER was sufficient for the Department to accept or reject the recommendation of the Garda Síochána. I accept the argument of the Department that in order to fulfil its functions as a "contracting authority" it is not necessary for it to have access to the records created by the Garda Síochána.

However, as the Secretary General of the Department was the "accounting officer" for the Garda Síochána at the time of the tender it could be argued that, in order to fulfil his role, he would have had a legal entitlement to the relevant Garda records. The duties of an accounting officer include reporting to the Oireachtas Committee of Public Accounts and to the Comptroller and Auditor General on certain financial matters. However, since the coming into force of the Garda Síochána Act, 2005 ("the Garda Act") the Secretary General is no longer the accounting officer for the Garda Síochána. Section 43(1) of the Garda Act (which commenced in July 2006) provides that "the Garda Commissioner is the accounting officer in relation to the appropriation accounts of the Garda Síochána...". This means that the Garda Commissioner is now answerable for such matters. In addition, the Department has stated that tasks in relation to the procurement of goods and services, as well as negotiations of contracts arising from these procurements are now mainly dealt with by the Garda Síochána. While the Department will continue to have a role in dealing with requests for sanction from the Department of Finance this is because the Department of Finance requires that such requests must be routed through the parent Department for administrative purposes. In line with my 'de novo' review I must consider the circumstances at the time of my decision. If an entitlement to the records exists by virtue of the accounting officer's role then that entitlement now lies only with the Garda Commissioner.

It seems the situation is unclear regarding who would be answerable for events which occurred several years before the Garda Commissioner was made accounting officer (such as the tender in question here). In response to queries from my Office, the Department has stated that it is unaware of any retrospective element to the legislation (and indeed I note that the Statutory Instrument commencing section 43 of the Garda Act makes no such provision). However, the Department has drawn my attention to the Department of Finance's "Public Financial Procedures" book. The book addresses the situation where responsibility for a service has been transferred from one Department to another. It provides that where the Committee of Public Accounts is examining a matter, which occurred in a year before the transfer took place, it is usual for the accounting officer who currently has responsibility for the service to appear before the Committee, although the person who signed the accounts remains answerable and may be called before the Committee. I note that the Committee of Public Accounts examined the Comptroller and Auditor General's report into this matter in June 2003. I have examined the transcripts from those proceedings which seem to me to highlight the Department's lack of involvement in the process. It also seems that the records now being sought by you were not required, at that time, by the Secretary General to carry out his role in responding to the Committee. In the circumstances, I am not satisfied that due to his former role as accounting officer, the Secretary General of the Department would currently have a legal entitlement to the records in question which are held by the Garda Síochána and which relate to the tender.

However, as you pointed out in your submissions, section 40(2) of the Garda Act is also relevant. Section 40 provides that:

"(1) The Garda Commissioner shall account fully to the Government and the Minister through the Secretary General of the Department of Justice, Equality and Law Reform for any aspect of his or her functions.

(2) The Garda Commissioner's duty under subsection (1) includes the duty to provide, on request by the Secretary General, any document in the power or control of the Garda Síochána including material in the form of Garda records, statements made by members of the Garda Síochána and by other persons and reports.

(3) The Garda Commissioner shall provide the Attorney General with all of the material specified in subsection (2) that is required by the Attorney General in connection with the conduct of legal proceedings on behalf of the State."

Section 40(2) would seem to be conclusive in deciding that the Secretary General is entitled to access any record held by the Garda Síochána. Notwithstanding the fact that access is only one factor is considering whether the Department has control of the records, this view must be tempered by the fact that Secretary General has not exercised his power in this case. Other than in a situation where I find that the records are under the control of the Department, I do not believe it is appropriate to compel the Secretary General to request the records for the purposes of responding to an FOI request. The purpose of the Secretary General being provided with records "in the power or control of the Garda Síochána", is for the reason set out in section 40(1), i.e. in order for the Garda Commissioner to account to the Government and the Minister. In your submission of 2 July 2005 you referred to comments made by Senator Cummins in the Seanad when the Minister was presenting amendments to the Garda Síochána Bill. Senator Cummins raised the specific question of whether section 40 of the Bill would allow the Department be provided with records relating to the contract for the supply of "video interview systems". While the Minister did not provide a specific response he did envisage the possibility that there would be situations in which it would not be appropriate for the Secretary General to exercise his powers under section 40:

"I am conscious that the powers in the Bill seem very strong, and that in malign hands they could be abused. However, there is the equal possibility that wrongdoing could be concealed if these powers did not exist. Every request by the Secretary General of the Department of Justice, Equality and Law Reform to see any scrap of paper from the Garda Síochána is potentially the subject matter of a parliamentary question, and the Minister is obliged to answer as to whether he has in fact invoked these powers. I do not know whether in every particular case the Minister might say it is not in the public interest that the exact nature of his inquiry was made, if it was a security related issue. However, at least he is accountable to Dáil Éireannin the form of a parliamentary question if he does invoke these powers. If his Secretary General were to use these powers, the Secretary General would be accountable in the form of a question put to his Minister.

...

I agree with Senator Maurice Hayes and other speakers that the inquiry process provided for in the Bill is very useful. There are occasions when, for example, in regard to the management of informers, it would be better to have a buffer between the Minister and the issues dealt with. For example, if it was alleged that an informer was extremely badly handled with grave public prejudice arising, it might be desirable that, as happened in the case of Shane Murphy, senior counsel, an independent lawyer would be brought in to examine the issue and report on it, rather than having the Minister of the day say "Let me at those files. I will look at this and make my decision on it". In those circumstances, I presume the Secretary General would tell the Minister he was not willing to exercise his power in this regard and that he would suggest to the Ministerto appoint an intermediary to protect himself or the State by putting an independent person between the Minister and the investigation.

I take the point made by Senator Jim Walsh about informers generally. Informers are a classic case of an area where a Minister should not inquire. I would never dream of asking the Commissioner, as matters stand, to tell me who his informers were in this or that organisation. I presume he would laugh at me if I was to casually ask him for a list of his informers. However, in the last analysis, there could come a point where it would be relevant whether an informer did or did not exist. "

Nonetheless, having considered the matter I am satisfied that section 40 of the Garda Act places a duty on the Garda Commissioner to supply the records relating the technical evaluation to the Secretary General if so requested by the Secretary General.

Core, central or basic function of the Department

When considering whether the records were created under a core, central or basic function of the Department it is again important to recall that the records to which you are seeking access are those created by the Garda Síochána during its technical evaluation. As the Department was the contracting authority I accept that the records concerning its role in the process are clearly under its control and are physically held by the Department. In response to enquiries from my Office the Department indicated that this includes records relating to the activities of the steering committee which was put in place to advise the Minister on the overall approach to be adopted in procuring the equipment, communications with the Department of Finance concerning sanctions, etc. for information technology and telecommunications projects, and correspondence between the GCC and the Department. However, I believe that the process can be divided into a number of separate functions. I consider that the technical evaluation is one of these separate functions. This function was carried out by the Garda Síochána and could only be carried out by it as it had the technical expertise in the area. Similarly, in the High Court judgment in Minister for Enterprise, Trade and Employment and the Information Commissioner, the Department was found to have an overseeing function over County Enterprise Boards and no direct role in evaluating individual grant applications. In this case, the Department had no control over the evaluation process. Therefore, I do not consider that the records relating to the technical evaluation of the tenders can be said to have been created under a core, central or basic function of the Department.

Intended use or reliance on the records by the Department

As mentioned earlier, the Department claims that it does not require the records created by the Garda Síochána to carry out its role as a "contracting authority". It argues that the TER produced by the Garda Síochána provides sufficient information for it to accept or reject the recommendation. I have examined the twelve page TER. It summarises the tender process, the method of evaluating the tenders, the costs, backgrounds of the suppliers, and the scores received by each tenderer. Having considered the matter carefully I accept the Department's argument that it does not require access to the records concerned. Furthermore, from the evidence before me it appears that the Department did not, in fact, rely on the technical evaluation records of the Garda Síochána.

Payment for creation of records

It is clear to me that any costs incurred in creating the records in question would be borne by the Garda Síochána.

Conclusion

Having regard to my analysis as described, and the judgment of the High Court in the Minister for Enterprise, Trade and Employment and the Information Commissioner, 2004 No. 56 MCA, 25 January 2006, I find that the records sought by you, being the records created by members of the Garda Síochána concerning their technical evaluation of the tenders, are not held, or under the control of the Department. While under section 40 of the Garda Act there is a duty on the Garda Commissioner to supply the records to the Secretary General, if so requested by the Secretary General, I do not believe that "access" is the same as "control". I am satisfied that control, goes beyond access. For example, the FOI Acts provide that members of the public have a right of access to records held by public bodies. However, it cannot be said that the public control records of public bodies. Moreover, as I have already mentioned, in Readymix Concrete v Minister for Pensions [1968] 1 All E.R. 433 at 440, control, in the context of the employment relationship, was defined as follows:

"Control includes the power of deciding the thing to be done, the way in which it is done, the means to be employed in doing it, the time when, and the place where it shall be done. All these aspects of control must be considered in deciding whether the right exists in a sufficient degree to make one party the master and the other his servant",

while as Blayney J put it in Ó Coindealbhain (Inspector of Taxes) v Mooney [1990] 1 I.R.422:

"While the Minister clearly lays down in the contract what is to be done, he does not direct how it is to be done...".

In this case it seems to me that the Department's role was to safeguard expenditure and ensure the tender was carried out having regard to the appropriate procurement procedures. The Department did not have functional control over how the Garda Síochána evaluated the tenders. The Department did not dictate to the Garda Síochána how the evaluation of the tenders should be carried out. Furthermore, the Department was not in a position to dictate how the records created by the Garda Síochána would be stored or destroyed, or dictate other records management decisions. If the records did come into the possession of the Department then the records would clearly be held by it and would be subject to the provisions of the FOI Acts. However, the Department has stated that the records have not come into its possession and that the Secretary General has not requested access to them. I accept its evidence in this regard. In summary, therefore, I find that there is no right of access to the records as the records are not held or under the control of the Department.

Decision

Having carried out a review under section 34(2) of the FOI Acts I have decided to affirm the decision of the Department to refuse to grant your request.

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 eight weeks from the date of this letter.

Yours sincerely

Emily O'Reilly
Information Commissioner