Case 100120

The Senior Investigator found that the decision to refuse access to any further relevant records is justified under sections 10(1)(a) and 28(1) of the FOI Act and affirmed the decision accordingly.

Case Summary

Whether the Department is justified in refusing to grant access to any further records relating to the decision of the Special Group on Public Service Numbers and Expenditure Programmes to include the Western Rail Corridor in its report.

Date of Decision: 11.04.2011

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

Background:

On 16 July 2009, the Minister for Finance released the Report of the Special Group on Public Service Numbers and Expenditure Programmes, which is better known after the Chair of the Special Group, Mr. Colm McCarthy, as the "McCarthy Report".  The Report included the following recommendations in its section on Transport:

"Discontinuation of expenditure programmes

The Group recommends the discontinuation of a number of programmes within the Department which are no longer justifiable given the significantly reduced Exchequer resources and the existence of other more important expenditure priorities.  These include Public Service Obligation (PSO) payments for regional air services, the related regional airport management operational grants and the Green Schools Initiative.  The Group also recommends that there should be no further development of the Western Rail Corridor."

In a request dated 27 January 2010, the applicant sought access under the FOI Act to records relating to the decision of the Special Group to include the Western Rail Corridor in its report.  More specifically, she requested the following:

1. All records and correspondence in the Department of Finance relating to the Western Rail Corridor during the period July 1st 2008 and July 20th 2009.
2. Reports and correspondence relating to the remit of the "Special Group on Public Service Numbers and Expenditure Programmes" to report on capital infrastructure projects which are included in Transport 21.
3. Reports and correspondence relating to other capital infrastructure capital projects which the "Special Group on Public Service Numbers and Expenditure Programmes" considered for inclusion in its report and the basis upon which a decision was taken to exclude these other projects from the final report.
4. Reports and correspondence detailing the criteria used to select the members and the advisors of the "Special Group on Public Service Numbers and Expenditure Programmes".
5. All reports and correspondence between the Department of Finance on the one hand and the members and advisors of the "Special Group on Public Service Numbers and Expenditure Programmes" on the other, which relate to the Western Rail Corridor.
6. Any other information relating to the Western Rail Corridor in the Department of Finance for the period from July 1st 2008 and July 20th 2009.

In its decision, the Department granted partial access to the records requested.  The Department released what it described as "comprehensive extracts from the minutes of the Special Group meetings".  According to the Department, all of the extracts relevant to the request were released.  Access to an additional relevant record relating to the consideration of individuals for membership in the Special Group was granted in part; extracts relating to named individuals who were not ultimately appointed to the Special Group were withheld under section 28(1), the exemption which protects the personal information of third parties.  The Department stated:  "Other than in the context of the work of the Special Group . . . and its Report (which is publicly available at the Department of Finance website), there are no records relating specifically to the Western Rail Corridor during the period in question."  The Department explained later in its decision that the records relating to "the context of the work of the Special Group" were in fact the minutes that were released.  It clarified:  "There are no records/correspondence that meet the terms of [the] request [insofar as it relates to the Western Rail Corridor] apart from these minutes."

In a letter dated 14 May 2010, the applicant applied to this Office for a review of the Department's decision on the grounds that the information made available by the Department "does not provide the information sought and fails to provide any clarity with regard to the basis of the decision made to select the Western Rail Corridor project for inclusion in the [McCarthy Report]."  This Office considered that the application for review in effect raised an issue regarding the adequacy of the search undertaken by the Department for records relevant to the FOI request.  Accordingly, the application for review was accepted and processed on the basis of the adequacy of search issue.  During the course of the review, Mr. Seán Garvey advised the parties of his preliminary observations on the matter.  The applicant replied to Mr. Garvey in submissions dated 8 September 2010 and 4 October 2010, respectively.

With the authority delegated to me by the Commissioner, I have now completed my review in accordance with section 34(2) of the FOI Act.  In conducting this review, I have had regard to the submissions made by the Department and the applicant, including the applicant's written comments in response to Mr. Garvey's preliminary observations.

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

Scope of Review

It is apparent that the applicant considers that the Department has not made adequate information available to her to explain the basis for the decision of the Special Group to include the Western Rail Corridor in the McCarthy Report.  She states in her submission dated 8 September 2010 that "the Department has failed to acknowledge the absence of any basis for targeting the Western Rail Corridor and sought to conceal this fact".  The applicant's comments suggest that she may seek to challenge the adequacy of the rationale provided in the records released to her for the decision to include the Western Rail Corridor in the McCarthy report rather than the adequacy of the Department's search for records relating to this decision.  I therefore wish to emphasise that it is not within the remit of the Commissioner to investigate complaints against public bodies.

I also note that the applicant has not expressly challenged the Department's decision in relation to section 28(1) of the Act.  However, when contacted by this Office for clarification, the application stated that she was unable to discuss the matter.  Therefore, giving the benefit of the doubt with respect to the scope of her request on review, I consider that the issue before me is whether the Department is justified in refusing to grant access to any further records relevant to the original request in this case. 

Submissions

.

Findings

Section 10(1)(a) - Adequacy of Search

Section 10(1)(a) 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".  In cases such as this, the role of the Commissioner is to decide whether the decision maker has had regard to all the relevant evidence and to assess the adequacy of the searches conducted by the public body in looking for relevant records.  The evidence in "search" cases generally consists of the steps actually taken to search for the records along with miscellaneous other information about the records management practices of the public body insofar as those practices relate to the records in question.  On the basis of the information provided, the Commissioner forms a view as to whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found.   It is not normally the Commissioner's function to search for records.  

I should also explain that the FOI Act confers a general right of access to records rather than a general right of access to information.  This means that, if the information sought is not contained in a record, the FOI Act does not impose an obligation on a public body to create a record where none exists; nor does it  provide a mechanism for answering questions, or for seeking clarification, except to the extent that the question posed or clarification sought can reasonably be inferred to be a request for a relevant record that exists as of the date of the request, and which contains the answer or clarification sought.  In other words, the Act does not provide for a right of access to records which, arguably, ought to exist.  While on occasion a public body may decide to create or compile information, this is beyond what is required by the FOI Act and the Information Commissioner has no power to require a public body to do so.  It is also outside the remit of the Information Commissioner to adjudicate on how public bodies perform their functions generally.

The Commissioner's approach in search cases was upheld in a decision of the High Court in the case of Matthew Ryan & Kathleen Ryan and the Information Commissioner (2002 No. 18 MCA).  In his decision, Mr. Justice Quirke stated: 

"I am satisfied that the respondent's (the Commissioner) understanding of his role, as outlined in evidence, was correct in that he was not required to search for records but was required rather to review the decision of the Department and in doing so to have regard to the evidence which was available to the decision-maker and to the reasoning used by the decision-maker in arriving or failing to arrive at a decision."

In this case, the Department has stated categorically that there are no other records relating to the Western Rail Corridor which fall within the scope of the applicant's request.  The Department considers that it has granted access to all of the relevant records, apart from the deletion of personal information as described above.  Nevertheless, in a submission dated 6 July 2010, the Department described its records management policy and the steps taken to search for any further records which might be relevant to request. 

In his preliminary view letter dated 7 September 2010, Mr. Garvey advised the applicant that he was satisfied that the Department had considered all relevant records.  In a subsequent letter dated 13 September 2010, Mr. Garvey expressly invited the applicant to specify any further relevant records which she contends should exist.  To date, the applicant has not directly disputed the adequacy of the search undertaken by the Department, nor has she availed of the opportunity to specify any further records relevant to her request.  Nevertheless, I consider that it would be helpful to set out in greater detail the information provided by the Department in relation to its search for relevant records in this case. 

According to the Department's submission dated 6 July 2010, there are two areas where relevant records are likely to have been stored:

1. the Transport Vote section of Sectoral Policy Division (SPD), which is responsible for overseeing and sanctioning all expenditure under the aegis of the Department of Transport (apart from administrative-related expenditure);
2. the Central Section of the SPC, which coordinates expenditure policy generally within the Department of Finance and which, in particular, was responsible for providing the Secretariat to the Special Group's work programme from late 2008 through to 2009, including managing all of the relevant files in the context of Special Group meetings and drafting the actual Report.

The Department explained: 

"Given the clear delineation of functions [within] the Department of Finance (in other words, no sections other than the two mentioned above would have any involvement with the specific issue raised by the [applicant]), it is most unlikely that any relevant records would be stored elsewhere within the Department of Finance."

The Department identified the possible relevant files within the Transport Vote section as:

• S98/10/04 - Western Rail Corridor
• S98/09/09 - Special Group on Public Service Numbers and Expenditure Programmes
• S98/28/06 - Transport 21 Monitoring Committee Parts 3 & 4.

The Department stated: 

"There were of course records held on File S98/10/04 but none that fell within the period set by the FOI request, i.e. July 1st 2008 to July 20th 2009.  There were records relating to the subject matter contained on File S98/09/09.  These records were already in the public domain as published in the final report.  There were no records relating to the subject matter on File S98/28/06 Parts 3 and 4."

The Department's explanation regarding the SPD Central section is as follows:

"As the Special Group exercise was a discrete process, the Secretariat was in a position to put in place a new, comprehensive and self-contained filing system for this project.  All of the documents that were prepared in support of the Special Group exercise were channelled through the Secretariat, and all such records were systematically filed, and are retained in full within the section at present . . . . 

Any possible relevant files, and in particular those relating to the Group's interactions with the Transport area, were examined, along with the Minutes of the Special Group meeting with the Department of Transport.  Furthermore, the original FOI decision-maker arranged for electronic searches of the computer folder on which all of the Special Group documents were electronically stored, using 'Western Rail Corridor' (collectively as a search term, and also searching against each of the words individually) to identify any records that might have been overlooked in the manual review."

The Department's submission also specifically identifies the reference numbers and titles of the files that were searched.  The Department emphasises that no records have been withheld from the applicant (apart from the personal information deleted under section 28(1) of the Act). 

In light of the Department's categorical statements and detailed explanation of its relevant records management practices and the searches undertaken, I accept that no further records relevant to the applicant's request exist.  While it is apparent that the applicant considers that the records made available to her do not provide an adequate rationale for the decision to include the Western Rail Corridor in the McCarthy Report, it is not within the remit of this Office to determine whether decisions made by either the Department or the Special Group with respect to the discontinuation or otherwise of the Western Rail Corridor have been adequately justified or not.  The issue before me here is whether the Department's decision to refuse access to any further relevant records is justified on the basis of section 10(1)(a).  I am satisfied that section 10(1)(a) applies in this case and the Department's decision in relation to the applicant's FOI request is justified accordingly.

Section 28 - Personal Information

As noted above, the applicant has not expressly challenged the Department's decision in relation to section 28(1) of the Act.  Nevertheless, I note that section 28(1) provides that a public body shall refuse to grant access to a record where access would involve the disclosure of personal information relating to a third party.  Section 28(2) specifies certain exceptions to the exemption, none of which is applicable in the case at hand.  For the purposes of the FOI Act, personal information is information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or his/her family or friends, or (b) is held by a public body on the understanding that it would be treated by it as confidential.  The FOI Act details twelve specific categories of information which is personal without prejudice to the generality of the forgoing definition, including "(iii) information relating to the employment or employment history of the individual, . . . (x) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to, establish that any personal information held by the public body concerned relates to the individual, . . . [and] (xii) the views or opinion of another person about the individual".

In this case, I accept that information relating to individuals who were considered for membership in the Special Group, but who ultimately were not selected, is personal information about the individuals concerned.  Under section 28(5), access to the personal information of a third party may be granted where (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the information would be to the benefit of the person to whom the information relates.  However, the FOI Act recognises a very strong public interest in protecting privacy rights and this is reflected both in the language of section 28 and in the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with "THE RIGHT TO PRIVACY").  The right to privacy also has a constitutional dimension in Ireland.  Privacy rights will therefore be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting the constitutionally recognised right to privacy.  

In this case, I do not accept that the public interest in granting access under FOI to the excerpts in the records relating to individuals who were not selected for membership in the Special Group outweighs the right to privacy of the individuals concerned.  Moreover, I find no basis for concluding that the release of the information under FOI would be to the benefit of the third parties concerned.  In the circumstances, I am satisfied that the Department's decision to withhold the excerpts relating to the individuals concerned is justified under section 28(1) of the FOI Act.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of the Department 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 after notice of the decision was given to the person bringing the appeal.

Fintan Butler

Senior Investigator

11 April 2011