The Senior Investigator found that the Department was justified in its decision to refuse the access requested. He affirmed the decision of the Department in the case.

Case Summary

Whether the Department was justified in its decision to refuse access, under the FOI Act, to certain records [interim reports of the Commission of Investigation (Leas Cross Nursing Home) and related material] on the basis that the FOI Act does not apply to these records because of the application of section 40(1) of the Commissions of Investigation Act 2004.

Date of Decision: 15.06.2011

Review Application to the Information Commissioner Freedom of Information Acts 1997 and 2003 (the FOI Act)

Background:

On 20 May 2009 the Applicant made an FOI request to the Department seeking access to:

 "All records relating to the Commission of Investigation under the Commission of Investigation Act 2004 into matters relating to the operation and supervision of Leas Cross Nursing Home."  

Following consultation between the Applicant and the Department on the scope of the FOI request, the records to which access was being sought were settled as extending to the interim reports of the Commission of Investigation ("the COI") as provided to the Minister for Health and Children ("the Minister") in March 2008, August 2008, December 2008, March 2009 and May 2009 together with all correspondence relating to time frames for completion of the investigation, correspondence relating to the terms of reference and format of the report, copies of submissions made by "Dr A" (as referred to in the report), transcripts of evidence from three named persons provided to the COI, copies of records relating to complaints regarding the Applicant's late parent and records containing background information relating to a page of the COI final report as published in June 2009.

Having dealt with issues to do with search and retrieval charges, the Department gave its decision on the FOI request on 21 October 2009.  The Department decided to release some records in full or in part but refused to grant access to other records including the interim reports of the Commission of Investigation. The primary basis for the decision was the Department's view that the FOI Act did not apply to many of the records because of the application of section 40 of the Commissions of Investigation Act 2004 ("the COI Act"); other records were refused variously under the exemptions provided at sections 19 and 22 of the FOI Act. The Department provided the Applicant with a detailed schedule of records covered by the request and showing which had been released, which refused and the basis for the refusal for each refused record.

On 28 October 2009 the Applicant sought an internal review of the Department's decision.  In requesting the review, the Applicant said that she accepted that section 11(3) of the COI Act provided that the COI could not release evidence given to it and accepted that this provision overruled her request in so far as it related to the testimony of Dr A and of three other persons, named in her request, who had given evidence. 

On 8 December 2009, by which time the statutory period for giving an internal review decision had expired and the Department was deemed to have refused the request, the Department informed the Applicant that it was open to her, as provided for in section 41(2) of the FOI Act, to apply to the Information Commissioner for a review of the deemed refusal decision.

Conducted in accordance with section 34(2) of the FOI Act by Fintan Butler, Senior Investigator, authorised by the Information Commissioner ("the Commissioner") to conduct this review.

Scope of the Review

The application for review of the deemed refusal was received by the Information Commissioner on 17 December 2009. In her review application the Applicant specified that she was appealing the refusal of the following records:

1. "All interim reports of the Leas Cross Commission of Investigation, provided to the Minister."
2. "All correspondence by whatever form between the Commission and the Minister relating to interim reports."
3. "All correspondence by whatever form relating to requests to extend the timeframe for completion of the investigation."
4. "In respect of (a page number) of the report, notes recording details of the deaths which occurred in a Hospital in (month and year) following admission from Leas Cross nursing home."
5. "In respect of (a page number) of the report, notes recording any decision taken not to include details of such deaths in the report."

In the course of the review, I have taken full account of the following:

•  all correspondence between the Applicant and this Office, including the preliminary views letter dated 21 December 2010 and the responding submission dated 23 January 2011 (see below),
• all correspondence between the Department and this Office,
• the FOI Act itself,
• the content of those records captured under items 1 - 3 above and the description of those records captured under items 4 - 5 above.

In the interests of clarity, I am proceeding on the basis that records captured under items 4. and 5.  - which appear to amount to evidence provided to, or the working papers of, the Commission - are held by the Department. Section 43(2) of the COI Act 2004 provides:

"Before the dissolution of a commission, the chairperson or, if the commission consists of only one member, the sole member shall deposit with the specified Minister all evidence received by and all documents created by or for the commission."

Submissions

.

Findings

Does the FOI Act apply to the records sought?

The position of the Department is that the records at issue in this present review - as captured at items 1 - 5 above - are not records to which the FOI Act applies. If this is the case, there is no basis on which to consider either the right of access created by the FOI Act nor the various exemptions in that Act which restrict the right of access. The Department's position is based on section 40(1) of the COI Act which provides that the FOI Acts "do not apply to a record relating to an investigation by a commission unless -

"(a) the record was created before the making of the order establishing the

commission, or 

(b) the record relates to the expenses of the commission or the appointment of persons under section 7 or 8 or other matters concerning the general administration of the commission."

It is clear that none of the records sought was created before the making of the order establishing the Commission nor does any of the records sought relate to expenses or to the appointment of members or assistants (as dealt with under sections 7 and 8 of the COI Act). It is clear, and this appears to be accepted by all of the parties, that the records sought are records "relating to an investigation by a commission"; accordingly, the FOI Act will apply to these records only if it is the case that these records (or some of them) relate to "other matters concerning the general administration of the commission."

On 21 December 2010, Marie O'Brien, Investigator, issued her preliminary views to the Applicant which concluded that the Department's position on the FOI request was justified. While Ms. O'Brien dealt also with some FOI Act exemptions which she believed were applicable, she concluded that the records were in any event outside of the FOI Act by virtue of section 40(1) of the COI Act.

In her response dated 23 January 2011, the Applicant said that she did not agree with the preliminary views in question and in particular took issue with Ms. O'Brien's understanding of the term "general administration". The Applicant commented:

"Your findings would seem to hinge on the position you have adopted in relation to the undefined term "general administration". You have accepted that such term is not defined in either the FOI or COI Acts. Under the well established rules of Common Law the term must then revert to the ordinary use of the term.

I would submit that, in line with well tested legal challenges, had the intention been to give it the narrow meaning which you have drawn, such a specific definition would have been included in primary statutory legislation. In the absence of same I further submit that in this case you act ultra vires in assuming such a narrow definition without the guidance of any court. The fact that, as you assert, similar decisions have been given by your office in cases where the same term was used is not binding and sets no precedent. Such a precedent may only be set in the courts. The ethos of the  FOI Act is where a decision to refuse is not unequivocal, then, on balance, the decision must be to release. Therefore I now request that you instruct the Department of Health to release all interim reports." (emphasis in original)

The Applicant is correct in saying that the "ethos" of the FOI Act is one of providing access to information "to the greatest extent possible"  - as set out in the Long Title to the FOI Act. Furthermore, section 34(12) of the FOI Act, which deals with reviews by the Commissioner, provides that a decision to refuse to grant a request for access to records is presumed not to have been justified unless the head (of the Department in this case) shows to the satisfaction of the Commissioner that the decision was justified. However neither the "ethos" of FOI, nor the provision of section 34(12) of the FOI Act, are particularly relevant where the first decision to be made is whether, in fact, the records sought are of a kind to which the FOI Act applies. The first decision to be made in this review is whether or not the FOI Act applies to the records sought. This involves deciding how the provisions at section 40(1) of the COI Act apply to the records in question.

The term "general administration" is a non-specific term. The adjective "general", taken by itself, does not present a problem and is understood to mean, as in one definition, "not specialised or limited in range of subject, application, activity, etc.". The term "administration", on the other hand, has a number of possible meanings including "the process or activity of running a business, organization, etc.". In this sense, "administration" is understand as the set of processes which enable an organisation to function and achieve its core objectives. However, it also has specific meanings in the contexts of law (administration of an estate), business (a company in administration) and government (the administration as opposed to the legislature). "Administration" is not a term where, for purposes of legal construction, the ordinary meaning of the words provide a clear understanding of what the legislature intended.

Hogan and Morgan's Administrative Law in Ireland (Fourth Edition) comments (at P. 4) as follows:

"Administration is one of those awkward words which takes its meaning from the word to which it is opposed, i.e. in this Part, to "policy". Unfortunately for clarity, it can also be used in other senses as when it is opposed to legislation or when an administrative decision is contrasted with a quasi-judicial decision...."

In order to construe the meaning of "general administration" in the context of the COI Act 2004, it is necessary to identify the other term or process to which it is intended to be in opposition. Taking this approach, it seems clear to me that the term "general administration" is intended to be understood as in opposition to the substantive investigative work of the particular commission. Taking the COI Act in its entirety, it is clear that the legislature intended that a high level of confidentiality would apply to the collection and assessment of evidence and to the thought processes of a commission generally. On this approach, the term "general administration" excludes anything which serves to disclose details of the collection and assessment of evidence or the thought processes of the commission more generally. On this approach also, any disclosure of how a commission does its work (in terms of evidence gathering, assessment and thought processes more generally) will occur in the commission's final report which (subject to some limited grounds) must be published by the "specified Minister".

I am satisfied that the approach set out immediately above is the correct approach in the context of this review. Thus, in the context of this review, the term "general administration" includes matters of accommodation, provision of facilities, staffing, expenses, accounting and other practical aspects of how a commission undertakes its business. On the other hand, again in the context of this review, the term "general administration" excludes anything which discloses details of the collection and assessment of evidence or the thought processes of the Commission more generally.

I am satisfied that the records captured at items 1 - 3 above, which I have examined, disclose information about the substantive work of the Leas Cross Commission of Investigation. Some of the material contained in the records captured at items 1 - 3 above could be regarded as "concerning the general administration" of the Commission but it is not realistic to consider preparing redacted versions of these documents which excludes information on the substantive work of the Commission. Accordingly, I find that the FOI Act does not apply to the records captured at items 1 - 3 above on the grounds that section 40(1) of the COI Act 2004 applies to them.

In the case of the records captured at items 4 - 5 above it is clear, to the extent that they may exist, that these are working papers of the Commission itself or documentary evidence provided to the Commission.. These papers have presumably been transferred to the Minister for Health under section 43(2) of the COI Act 2004. I have not found it necessary to examine these papers. By definition, these are papers which disclose information about the substantive work of the Leas Cross Commission of Investigation. It follows from my finding in relation to items 1 - 3 above that the records captured at items 4 - 5 are also records to which the FOI Act does not apply on the grounds that section 40(1) of the COI Act 2004 applies to them.

Having found that the FOI Act does not apply to the records captured at items 1 - 5 above, there is no basis for considering the relevance of any of the specific FOI Act provisions.

Decision

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

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

Fintan Butler

Senior Investigator

15 June 2011