The Information Commissioner found that the decision of DCU to refuse access to the records at issue is justified under section 2(5)(a) and/or under section 10(1)(a) of the FOI Act and affirmed the decision accordingly.

Case Summary

Whether the decision of DCU to refuse access under the FOI Acts to records concerning the acquisition of the papers of Mr Charles J Haughey is justified.

Date of Decision: 17.05.2010

Review Application under the Freedom of Information Acts 1997 & 2003 (FOI Act) to the Information Commissioner.

Background:

The Applicant made an FOI request on 11 March 2009. He sought access to all records in DCU's possession concerning ''the recent acquisition by Dublin City University of the papers of Charles J Haughey.''.

In its decision dated 12 March 2009, DCU stated that the records were held by DCU Educational Trust (the Trust) which is a separate legal entity to DCU and is not within the remit of the FOI Act. It thus refused to release the records. Following the Applicant's application for internal review, DCU varied its original refusal and on 28 May 2009, it released three letters to the applicant. It said that a reference to a further letter of May 2004 had been checked and that record could not be found so that section 10(1)(a) of the FOI Act applied to it. The Applicant applied to my Office for review.

In his application, the Applicant said that he was told in November 2007, in response to a previous request to DCU for the same records, that it would be happy to accede to his request as soon as negotiations between the Haughey family and DCU had been completed.

My Office has been in correspondence with the parties regarding this review for some time. Elizabeth Dolan, Senior Investigator, issued her preliminary views on the matter in August 2009 following which the Applicant made a detailed submission and further queries were addressed to DCU.

I have now decided to bring this review to a conclusion under section 34(2) of the FOI Act. In conducting my review, I have had regard to the submissions of DCU and those of the applicant, the content of the records released, details of the Trust and the provisions of the FOI Acts.

Conducted in accordance with section 34(2) of the FOI Act by the Information Commissioner.

Scope of Review

This review is concerned solely with the question of whether the decision of DCU to refuse access to any records relevant to the Applicant's request is justified under the FOI Act. I have no jurisdiction to enquire into the circumstances surrounding the handling of any negotiations and the records thus generated. Whilst some of DCU's submissions make reference to one record - the agreement between the Trust and the Haughey family - the request and the application for review cover all records concerning the acquisition of the Haughey papers.

Submissions

.

Findings

Relevance of "control"

DCU's position is that the records concerned are not, for the purposes of section 2(5)(a) of the FOI Act, "under the control" of the public body.

Section 6 of the FOI Act provides for a right of access to records "held" by public bodies. Section 2(5)(a) provides that this reference to "held" includes a reference to records "under the control" of public bodies. It is claimed that the records in this case are held by and are under the control of the Trust. I have examined the Trust Deed (made on 18 October 1988 and since amended by several Deeds of Variation). The objects of the Trust listed include, inter alia, promotion of better education of students, provision of financial support for library facilities at the University and provision for the general financial support of the University by way of gift, loan , guarantee or other form of financial assistance as the Trustees shall consider appropriate for the expansion, development or benefit of the University. The Trust may do ''such other things as may appear to the Trustees to be incidental or conducive" to attainment of its objects. The Trust has, inter alia ,powers to employ officers as required.

I am satisfied that the Trust is a separate legal entity and has not been prescribed as a public body for FOI purposes. It follows that DCU is obliged to provide access to records held by the Trust under the FOI Act only if the records are under its control.

It is argued by DCU that the records are physically held by the Trust at its offices and that DCU employees do not have access to the records. While the President, Deputy President and Secretary of DCU are among the 22 Trust members by virtue of the positions they hold, they have, according to DCU, no access to the records sought. The Trust's administrative staff are directly employed by it. DCU says that it has no legal entitlement to the records held by the Trust. It informed my Office that it asked the Chief Executive Officer of the Trust if he was willing ''in confidence'' to forward a copy of the agreement with the Haughey family to my Office. The Trust's response was that it was unable to accede to that request .

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. 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 considered my predecessor's decisions in cases involving control of records, including Case number 99379 - X and the Department of Public Enterprise (on www.oic.ie) in which he found that where records are not physically held by a public body, at the very least the public body concerned must have some legal entitlement to procure the records if they are to be under its control.

I have also had regard to the decision of the High Court in Minister for Enterprise, Trade and Employment v The Information Commissioner [2006] IE HC 39, Unreported, in which the finding was that records of a grant application held by a County Enterprise Board were not under the control of the relevant Department having regard to factors such as the nature of the Board, the level of control over the Board exercised by the Department and whether the Minister had a right of access to certain information held by the Board.

The Applicant raised the question of why there was no mention of the Trust when he first requested access to the records in a previous FOI request in 2007. At that time, the decision maker relied on section 21(1)(c) of the FOI Act in claiming that access to the records could reasonably be expected to disclose positions taken or to be taken for the purposes of negotiations carried on by DCU. DCU stated in a submission to my Office that, at the time of the 2007 request, negotiations with the Haughey family were ongoing and that the response to the Applicant ''was written in good faith''. Subsequently in 2008, according to DCU, the negotiations were handled entirely by the Trust. My Office put it to DCU that the 2007 decision and the citing of the section 21 exemption implied that the decision maker had examined the relevant records. In response, DCU said that the decision maker would have had a general awareness of the ongoing business and interactions with external bodies and would have known that the negotiations were ongoing and not concluded. It confirmed to the Senior Investigator that the records were not examined by the decision maker for the purposes of that decision. Although I can understand the Applicant's frustration with how the matter was handled, I am not reviewing that previous decision and I must take account of the circumstances pertaining at the time of this review.

On balance, I consider that the records the subject of this review held by the Trust are not under the control of DCU and I find, accordingly, that the FOI Act does not apply to them. For the purposes of this decision, I have not sought to distinguish between records created before and after the signing of the agreement. The fact that DCU may at one time have had control over some of the records can have no bearing on my decision in relation to records now held by the Trust. However, I will go on to consider the question of whether, apart from the records in the possession of the Trust, additional records or copies of records within the scope of the request are held by DCU.

Section 10(1)(a)

Section 10(1)(a) of the FOI Act provides that access to a record may be refused if "the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken". My role in section 10(1)(a) cases, which are usually referred to as "search" cases, is to decide whether the decision maker has had regard to all of the relevant evidence and to assess the adequacy of the searches conducted by the public body in the circumstances of the particular case. This approach was upheld in a judgment of the High Court in the case of Matthew Ryan & Kathleen Ryan and the Information Commissioner [2003] Unreported.

My Office asked DCU whether copies of records or enclosures referred to in letters from 2004 and 2005 released to the applicant at internal review in May 2009 were held by the President, by the library or in any DCU files. The Senior Investigator suggested that, given the existence of the three records already released, copies or duplicates of other records could possibly be held separately from those under the control of the Trust. DCU said that the President, the Head of Administration in the President's Office, Mr Gordon McConnell and the Director of Library Services, Mr Paul Sheehan, had all been contacted again by the FOI Officer and had confirmed that they do not hold any records relating to the Haughey papers other than the three letters already released and more recent correspondence (provided to my Office for inspection) from members of the public which is not within the scope of the FOI request. In relation to the search for records held by DCU (as opposed to those held by the Trust), DCU provided a list of all offices searched in May - June 2009 and personnel consulted. The applicant also queried why a copy of draft agreement referred to in the records released and drawn up by DCU's Library Service was not held. Again, DCU said that the Director of the Library Service stated that he holds no further records.

The Applicant expressed concern that DCU might have transferred the records to the Trust when negotiations ceased being handled by DCU itself and that this might amount to ''circumventing the FOI Act''. My Office asked DCU to clarify whether records it had held were transferred to the Trust. It said that the Trust's Chief Executive Officer confirmed that the Trust took possession of all records relating to the Haughey papers when it became involved in negotiations with the Haughey family. I must assume that the Trust was legally entitled to so do.

In relation to whether or not any further records or copies of records are held by DCU itself at this time, I am satisfied that DCU is justified in refusing the applicant's request insofar as it relates to records additional to those held by the Trust on the basis that its searches have failed to locate the records sought and the likelihood is that they are no longer held. Accordingly, I find that section 10(1)(a) of the FOI Act applies.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of DCU in this case.

Right of Appeal

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 on which notice of the decision was given to the person bringing the appeal.

Emily O'Reilly

Information Commissioner

17 May 2010