Whether the Department was justified in refusing six of the nine separate elements of the applicant's request for records concerning the School Transport Scheme.

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

Background

On 20 May 2011, the applicant made the following FOI request to the Department:

"1. The DES has on its website in the Publications section a statement that the DES provide a school transport scheme and that Bus Eireann are its agent. Please furnish for school year 2009/2010, 2010/2011 and for next year 2011/2012 the contracts or agency agreement between the DES and Bus Eireann relating to the administration of the School Transport Scheme (STS). If there is no formal contract please give us a copy of the correspondence formalizing the arrangement for same school years;

2. An electronic version of the source documents used for the School Transport "A VALUE FOR MONEY REVIEW OF THE SCHOOL TRANSPORT SCHEME" March 2011;

3. A copy of the current file relating to the negotiations or communication between the DES and BE relating to the school year 2011/2012 as regards the STS;

4. A copy of the DES projections of costs for the year 2011/2012 for the STS;

5. A copy of BE estimates of charges by Bus Eireann to the DES for the year 2011/2012.

Bus Eireann are contracted to administer for the DES the School Transport Scheme. Documents in the possession of Bus Éireann relating to this scheme are subject to the Freedom of Information Acts 1979 to 2003."

The request then went on to refer to what was argued to be public interests in release, and the "requirement to give information to the greatest extent possible", of the following:

6. Under section 12(1)(c) Please furnish us with an electronic back up disc or other electronic device of the entire computer database of the school transport scheme held by Bus Eireann from its Wayfarer software and other software package as related to the programs relating to the operation of the scheme and excluding the programs relating to individual students to enable our client to upload the same database onto our client's own Wayfarer software and other software. For the avoidance of doubt we are excluding the administration documents of application of individual students. A backup as requested is recommended to be done daily so this information requested is simply available;

7. Please furnish us with a print out of all the reports available to Bus Eireann that can be generated by the said Wayfarer software for the School Transport Scheme for year school year (sic) 2010/2011;

8. As regards the request for a copy of documents from Bus Eireann, please note that we also request under Section 12(1) of the Act in addition to a copy of the record a 'reasonable opportunity to inspect the original record. Under Section 12(1)(d)';

9. As regard the computer programs and database requested in the possession of Bus Eireann that are on a computer screen, we request under Section 12(1)(e) to see the visual image of the screens so that we can be sure that we are going to get the entire record and an understanding of how the records are produced.

We wish to point out Section 7(9) and (10) of the Freedom of Information Act 1979 (sic). Section 7 of the Freedom of Information Act 1979 states at sub section 9 (our added words in brackets and emphasis);

(9) A record in the possession of a person (Bus Eireann) who is or was providing a service for a public body (DES) under a contract for services shall, if and in so far as it relates to the service, be deemed for the purposes of this Act to be held by the body, and there shall be deemed to be included in the contract a provision that the person shall, if so requested by the body for the purposes of this Act, give the record to the body for retention by it for such period as is reasonable in the particular circumstances.

... ."

The Department's decision of 21 June 2011 was to release some of the requested records and refuse the rest. The Department said that the "request for information under part 1, 3, 5, is denied as the information requested is considered commercially sensitive"; that the "request for information under part 6, 7, 8 & 9 is also denied as Bus Éireann may be prescribed as a public body under the Freedom of Information Acts and therefore it is not possible to benefit from Section 6(9)"; and that whilst access to some of the records had been sought by means of an electronic version, it was considered that "photocopies are an appropriate form of access in this case."

According to the schedule of records that the Department says it provided to the applicant, a number of the records identified as relevant to part 2 of the request were released in full or in part, with the remainder being withheld in full. According to the same schedule, the Department fully released one record of relevance to part 4 of the request.

The applicant's internal review application of 1 July 2011 appealed the Department's decision in so far as it related to parts 1, 3, 5 and 6 to 9 of the request. In particular, it did not seek a review of the Department's decision on part 2 of the request, whether in respect of its decision not to release all relevant records in full, or in respect of its refusal to release records in an electronic format.

The Department's internal review decision of 21 July 2011 upheld its decision on parts 1, 3, 5 and 6 to 9 of the original request but also referred the applicant to certain material that was publicly available in relation to parts 5 and 6 of the request.

On 2 August 2011, the applicant sought a review by this Office of the Department's decision on parts 1, 3, and 6 to 9 of the FOI request.

In carrying out this review, I have had regard to the correspondence between the Department and the applicant as set out above. I have had regard also to all of the various and detailed communications between this Office and the applicant, and between the Office and the Department. Finally, I have had regard to the provisions of the FOI Act.

Scope of the Review

The only issue in this review is whether or not the Department has justified its refusal of the records sought in parts 1, 3, and 6 to 9 of the applicant's FOI request.

Findings

Section 34(12)(b) of the FOI Act provides that a decision to refuse to grant a request under section 7 shall be presumed not to have been justified unless the head of the relevant public body shows to the Commissioner's satisfaction that its decision was justified. Furthermore, the Courts have recognised that a review decision by this Office is by way of a hearing de novo in the light of the facts and circumstances applying at the date of the review by this Office, rather than by reference to the facts and circumstances that applied at an earlier date. Therefore, although the applicant objects, it is open to the Department to "introduc[e] new reasons for refusal" in the course of its submissions to this Office.

I do not consider the Department to have justified its refusal of certain aspects of elements of the request that are under review. It is open to me to direct the release of records whose refusal in my view has not been justified. However, such records are likely to refer to Bus Éireann and their release might adversely affect its interests. It is not appropriate to make a decision affecting the interests of a third party solely on the basis that the relevant public body has not properly justified its decision to refuse access to records under the FOI Act.

Part 1 of the Request

Withheld Records
Section 27 of the FOI Act was relied on in the Department's decision in respect of a number of records that are of a financial nature. The Department's submissions to this Office regarding those records were confusing and inconsistent, however. Consequently, the Department was asked to clarify if it considered the records concerned to be relevant to the request in the first place (it was also told that if it if the records were relevant, the next step would be the consideration of the contents of the records for release).

The Department stated that it had interpreted part 1 of the request "to mean that a copy of a formal "Contract" or "Agreement" for the school years referred to was being sought. In the event that no such Contract or Agreement document existed then a copy of documents which approved/sanctioned Bus Éireann as operators of the School Transport Scheme for the years in question would suffice." It said that the documents to which it had applied section 27 of the FOI Act were "routine administrative documents which relate to the Department's internal estimates process [which] do not "formalise"/sanction/approve Bus Éireann as operators of the School Transport Scheme"

The applicant maintains that the records should be reviewed. However, and particularly where third party interests are involved, this Office must be satisfied that it has legal standing to conduct a review of a particular record. In the case at hand, this requires a view to be taken on whether or not the records at issue are covered by the scope of part 1 in the first instance.

I consider the use of the word "formalising" to indicate that the request intended to seek record(s) that gave the arrangements between the Department and Bus Éireann a formal or legal status, or a definite form or shape, particularly where such records were requested only "[i]f there is no formal contract ... ".I consider the Department's interpretation of part 1 of the request to have been correct in the circumstances.

I do not consider documents concerning the making of financial arrangements between the parties to equate to documents that "formalise" the relationship concerned. Therefore, I do not consider the documents to which section 27 was applied by the Department to be covered by the scope of Part 1 of the request in the first instance, notwithstanding the Department's apparent initial consideration of such records. Under such circumstances, I do not consider this Office to have any remit to consider whether or not these records should be released. It is of course open to the applicant to make a fresh FOI request for the records concerned.

Existence of Further Records
In October 2012, subsequent to the Department's FOI decisions in this case, the High Court determined that no contract exists between the Department and Bus Éireann in respect of the latter's provision of the School Transport Scheme. The applicant has, I understand, been provided with documents, pre-dating the FOI Act, which set out the administrative and financial arrangements concerned.

Section 10(1)(a) of the FOI Act provides for the refusal of a request on grounds including that the requested record does not exist. In light of the Court's finding, the applicant was given a preliminary view by this Office that section 10(1)(a) seemed applicable to that aspect of the request seeking a copy of the contract between the two parties for the specified years. He was also told that the Department had stated that "no [further] document/correspondence approving Bus Éireann as operators of the STS for the years in question exists" and that section 10(1)(a) seemed applicable to any contention that any further such records might exist.

The applicant responded that the High Court finding was concerned with "a contract under the European Directive". He argued that the documents sought at part 1 "go beyond the definition that the Court used". I am taking it that the applicant requires this Office to consider whether there exists a contract for service between the parties and, thus, whether relevant records exist.

The judgment of McGovern J. , (dated 23 October 2012 in the case of Student Transport Scheme Ltd v Minister for Education and Skills & Anor [2012] IEHC 425) concerned the claim by Student Transport Scheme Ltd that there existed a contract between the Department and Bus Éireann that ought to have been put out to tender, as required by EU legislation.

McGovern J. found that "there was no contract within the meaning of the [relevant EU legislation]", in which regard I find section 10(1)(a) to apply to any such contract that might be encompassed by Part 1 of the request. However, McGovern J. also found that the "evidence establishes that the arrangements [between the Department and Bus Éireann] do not contain any terms that might normally be associated with a commercial contract". He listed a number of facts "which have been established" that he considered to be "indicia of a relationship [between the Department and Bus Éireann] which is not contractual".

It would seem to me that if the High Court has found that the arrangement between the parties is not of a contractual nature, there is no basis for me to consider that there might exist any contract, including a contract for service, between the parties. It follows that I have no basis to question whether there might exist records comprising such a contract for service. I find section 10(1)(a) to apply to any such record that may be contended to exist.

Also in response to the preliminary view, the applicant argued that new arrangements had been entered into between the Department and Bus Éireann in the 2011/2012 year, as evidenced by the commencement by Bus Éireann of a public procurement process in relation to private operator contracts. Thus, the applicant maintained that there should exist records formalising such an arrangement.

The Department responded that Bus Éireann, which it says is responsible for the operational matter of negotiating and awarding contracts to private operators, undertook the tender process for the 2011/2012 school year in compliance with EU procurement regulations and that the process "did not result in new arrangements between the Department and [Bus Éireann].". In this regard it supplied copies of documents that concerned the new arrangements being made by Bus Éireann in respect of the private contractors, which I do not consider to comprise new arrangements between the Department and Bus Éireann of the nature sought at part 1 of the request. I find section 10(1)(a) to apply to any records formalising what is contended to be a new arrangement entered into between the Department and Bus Éireann for the 2011/2012 school year.

While the applicant appears to accept that it is not entitled to records that were created before the commencement of the FOI Act, its response to the preliminary view said that, at some point after the commencement of the FOI Act, the Department had re-typed a 1975 agreement between the Department and Bus Éireann. The applicant maintained that the re-typed copy was thus within the scope of the FOI Act.

The Department says that a re-typed version of the 1975 agreement "was completed in the context of the High Court case as [the applicant] complained that the version provided was not legible. A more readable version of the 1975 arrangements was then located and this was provided [to the applicant] on 15th March 2012." It says that it is "not aware of any other re-typed versions created at any other point in time" and notes that the "re-typed documents were created after the 20th May 2011 viz. around March 2012". It also stated that it is "not aware of any other drafts/versions of re-typed documents that might exist."

Having regard to the above, it would seem that a re-typed document was prepared, but not provided to the applicant, in the course of the court proceedings. However, further to the above details, I am satisfied that such a document post-dates the FOI request the subject of this review and is therefore outside the scope of both the request and this review. I also consider section 10(1)(a) to apply to any other re-typed documents, or drafts thereof, that the applicant contends might exist. I find accordingly.

Finally, in response to the preliminary view, the applicant appears to suggest that records in the possession of Bus Éireann are relevant to this aspect of the request. For reasons set out in respect of similar arguments made regarding part 3, I do not consider the request as framed to have indicated that it encompassed such records.

Part 3 of the Request

The Department refused certain records of relevance to this aspect of the request on the basis that they were commercially sensitive. In the early stages of this review, as is the usual procedure, the Department was asked to provide copies of the records concerned. It responded that "the situation in reality is that no such file or records exist".

Although the applicant disputes the Department's position that, due to the nature of the arrangement between it and Bus Éireann, there is nothing to negotiate between the parties (in which case there are no records of such negotiations), I see no need to determine this point. It would seem to me that any records that the applicant contends would comprise "negotiations" would equally comprise "communication".

In this regard, on various occasions in 2012 and 2013, this Office had queried the Department's position that there existed no records of "communication" between it and Bus Éireann concerning the 2011/2012 school year. The Department now accepts that it has taken a narrow view over what might be taken to be a record of a "communication" between it and Bus Éireann.

At this point, I consider it necessary to comment on what is captured by part 3 of the request in general, particularly in light of the applicant's ongoing arguments as to specific documents that he considers should have been considered relevant to this aspect of the request.

In particular, the applicant maintains that the records "relating to the negotiations or communication between the DES and BE relating to the school year 2011/2012" include a report, compiled by Farrell Grant Sparks (FGS) in 2009, as part of the Department's Value for Money Review of the School Transport Scheme. The applicant emphasises its use of the phrase "relating to" and has provided excerpts of various documents that it considers to support its position. The applicant has argued also that submissions on the FGS report, which were made to the Department by Bus Éireann in 2010, are relevant to part 3 of the request, as well as a notebook stated to be held by one of the Department officials, and records concerning the preparation of a report to Government. The applicant has also argued that the "current file or records of Bus Éireann relating to the communications form part of Part 3 of the request and all the other parts."

According to the Department, it supplied the FGS report to Bus Éireann in 2009 so that Bus Éireann could comment on the general content and on the views and recommendations contained in the report. The FGS report is one of the documents relevant to part 2 of the request to which the applicant has been refused access. The applicant maintains that the schedule of records at issue did not properly describe the report and, thus, it was deprived of an opportunity to make a fully informed decision on whether or not to appeal the decision on part 2 of the request. However, this Office has no remit to review the refusal of records where, regardless of reason, such refusal has not been raised in the internal review application and also in the application for review to this Office.

The applicant argues that the FGS report must be subject to review because the Department provided this Office with a copy of it. However, the Department supplied the FGS report, and other records, to this Office on the basis that they were relevant to part 2 of the request. The Department was not obliged to provide copies of such records, given that its decision on part 2 of the request was not under review. This Office has no right to review, or make a decision on, the contents of the FGS report in such circumstances.

It is not always possible for a person seeking access to a document to know its exact title. It is also the case that many requesters, including those who are not acting in a professional capacity, may not be able to articulate a request particularly clearly. However, when a request such as that framed at part 3 of the present request is received, the public body should ensure that it understands clearly the nature of the records being sought, and the date range of the records concerned, particularly where those records are likely to affect the interests of third parties. Not only does this protect the interests of the public body (in terms of efficient processing of a request and ensuing appeals) and the third party, this protects the interests of the applicant by ensuring that all records of relevance to the request can be identified and considered for release.

However, whilst the FOI Act requires high standards of public bodies, it also places certain requirements on persons seeking access to records. In particular, section 7(1)(b) provides that anyone "who wishes to exercise the right of access shall make a request ... containing sufficient particulars in relation to the information concerned to enable the record to be identified by the taking of reasonable steps". If "sufficient particulars" are not contained in the request that enables the ready identification of the relevant records at the outset, section 10(1)(b) of the FOI Act enables a public body to refuse the request concerned. Such refusal is, however, subject to section 10(2), which requires the public body to assist the applicant to re-frame the request so as to enable the identification of all relevant records.

The Department, in the course of processing the request, appears not to have considered the relevance of section 10(1)(b). Neither did it establish the scope of part 3 of the request at any point. This has led to the situation that, in the course of this review, the applicant has identified a variety of records of a sort that it claims it intended to capture by part 3 of the request. In my view, it is in no way apparent that the request as framed was intended to encompass such records, in that I consider it to have lacked sufficient particulars to enable the identification of the records as relevant to the request.

For instance, I do not consider it to be readily apparent that a request submitted in May 2011, for a "current file [that] relat[es] to the school year 2011/2012" was intended to encompass records dating from 2009 (i.e. the FGS report) or 2010. Likewise, whilst what is encompassed by a record of a negotiation or communication should be easily enough identified, it is in no way apparent what the applicant considers to be a record that "relate[s] to negotiations or communication" generally. I certainly would not consider it to be immediately obvious that a record that "relate[s] to negotiations or communication" would be intended to encompass, for instance, records concerning the preparation of a report to Government in respect of the School Transport Scheme. Furthermore, although the applicant contends that the "current file or records of Bus Éireann relating to the communications form part of Part 3 of the request and all the other parts", I consider it to be the case that only parts 6 to 9 of the request clearly specify that records held by Bus Éireann are sought. It is in no way apparent that parts 1 to 5 of the request were intended by the applicant to encompass records held by Bus Éireann.

I do not consider it open to me to find that part 3 of the request should be refused under section 10(1)(b) of the FOI Act. Whilst I do not consider section 7(1)(b) of the FOI Act to have been met by part 3 of the request as it stands, the Department did not seek to invokesection 10(1)(b) or, as required by section 10(2) of the FOI Act, offer to assist the applicant to amend the request so that it could be said to contain sufficient particulars to enable the requested records to be identified. At the same time, however, I am not prepared to accept the applicant's various arguments that the request was intended to capture particular unspecified records and that I should now proceed to consider whether or not those records are releasable.

Notwithstanding that the precise scope of part 3 has not been determined, the Department accepts that it has not fully considered for release at least some categories of potentially relevant records. In such circumstances, the Department cannot be said to have justified its refusal of the relevant records. I find accordingly.

For avoidance of doubt on the matter, I do not accept that part 3 of the request as it stands encompasses the FGS report or the other records contended by the applicant to be relevant, including such records as held by Bus Éireann. This review will not consider, or make any finding on, the content of such records.

Parts 6 to 9 of the Request
These elements of the FOI request argued that the requested records, which are held by Bus Éireann, were subject to FOI further to the operation of sections 6(9) and (10) of the FOI Act (the request incorrectly referred to sections 7(9) and (10) in this regard). The Department refused this aspect of the request on the basis that records held by Bus Éireann, and which relate to the School Transport Scheme, are not to be deemed as being records held by the Department for the reason that Bus Éireann may be prescribed as a public body. I take it that the Department was seeking to rely on the exclusion at section 6(11)(b) of the FOI Act. Where the Minister has power to prescribe an entity as a public body, and has not done so, section 6(11)(b) displaces the usual rule - provided for at section 6(9) - that a record in the possession of a person, "who is or was providing a service for a public body under a contract for services shall, if and in so far as it relates to the service, be deemed for the purposes of this Act to be held by the body".

The Department's decision was made before the High Court judgment referred to earlier. For reasons already set out, I consider that I have no basis to find that there exists a contract for service between the parties. Thus I have no basis to consider the requested records to be subject to the FOI Act further to the provisions of section 6(9) of the FOI Act. I find accordingly.

it does not appear that the Department has considered the relevance of section 2(5)(a) of the FOI Act to the records sought at parts 6 to 9 of the FOI request. Section 2(5)(a) provides that a "reference to records held by a public body includes a reference to records under the control of the body". Accordingly, it cannot be said to have fully justified its decision to refuse access to the records concerned further to its consideration of this particular provision of the FOI Act.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby decide as follows:

• in relation to Part 1 of the request, I vary the decision of the Department and decide that section 10(1)(a) is applicable;
• in relation to Part 3 of the request, I annul the Department's decision;
• in relation to Parts 6 to 9 of the request, I affirm its decision in part, in so far as I find section 6(9) of the FOI Act not to be applicable; however, I annul its decision in so far as the Department has not considered the relevance of section 2(5)(a) of the FOI Act.

In those instances in which I have annulled the decision of the Department, I direct that it undertake a fresh decision making process and inform the applicant of the outcome in accordance with the requirements of the FOI Act. In so far as part 3 is concerned, this will require the Department and the applicant to establish the precise nature, and date range, of records encompassed by part 3 of the request. It should also be noted that it remains open to the Department to consider the potential application of section 10(1)(b) (or (c) of the FOI Act, subject of course to section 10(2) of the Act.

The further decision of the Department will be subject to the usual rights of internal review as well as external review by the Information Commissioner.

Following this present decision, it is open to the applicant to withdraw the request as made on 20 May 2011 and replace it with a fresh FOI request. In this event, it would not be necessary for the Department to re-decide those aspects of its original decision which have been annulled in this present decision. However, this is a matter for the applicant to decide.

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.

Fintan Butler
Senior Investigator
26 September 2013