Whether the Department was justified in its decision to refuse the applicant's request for a copy of the transcript of his submission for the Drogheda Review on the basis that the record(s) in question are not held by it or under its control.

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

Background

The then Minister for Health, Mary Harney, appointed former High Court Judge, Mr T.C. Smyth, on 15 January 2010 to carry out a non-statutory review, (known as the Drogheda Review). The purpose of the review was to advise on whether a further investigation into the procedures and practices operating at Our Lady of Lourdes Hospital Drogheda during the period 1964 to 1995 to protect patients from sexual abuse while undergoing treatment or care at the hospital would be of benefit. Precise terms of reference for the review were set down by the Minister. During the course of his review, the reviewer met with former patients, including the applicant, in or around May 2010.

The reviewer submitted his report to the Minister in September 2010. While the report was not published for legal reasons, I understand that the Department provided the parties involved with a short summary. The reviewer also forwarded records relating to the report to the Department at the time. The Department has informed this Office that these are the only records of the review in the Department.

On 16 May 2012, the applicant applied to the Department for a copy of his transcripts of evidence for the review. On 15 June 2012, the Department informed the applicant that it was not in a position to provide the information sought at that time as it was awaiting legal advice on the matter which it required to deal effectively with the applicant's request. Following the applicant's request for an internal review, the Department, on 2 July 2012, refused the applicant's request on the basis that the records requested are not held by, or under the control of, the Department. The applicant was informed that the records created by the Drogheda Review had been sealed by the reviewer who placed them with the Department for safe-keeping. The applicant applied to this Office for a review of the Department's decision on 5 July 2012.

In carrying out my review, I have had regard to the correspondence between the Department and the applicant as set out above, to the details of the various contacts between the applicant and this Office, to the correspondence between this Office and the Department and to the relevant provisions of the FOI Act.

By letter dated 14 November 2012, Mr Brian Murnane, Investigator, informed the Department of his preliminary view that the records at issue are held by the Department for the purposes of the FOI Act. In its response, the Department confirmed that it remains of the opinion that the records are not held by it or under its control. Accordingly, I consider that it is appropriate to conclude the review by way of a formal, binding decision.

Scope of Review.
The scope of this review is confined to assessing whether or not the Department was justified in refusing the applicant's request for a copy of the transcript of his submission for the Drogheda review on the basis that it does not hold the records sought.

Preliminary Matters:
Before dealing with the Department's reasons for refusing the applicant's request, I should clarify that I have had regard to the provisions of section 34(12)(b) of the FOI Act which provides that, in a review, "a decision to refuse to grant a request under section 7 shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified." This places on the Department the onus of showing, to the satisfaction of the Commissioner, that the decision to refuse access to the records at issue in this case was justified under the provisions of the FOI Act.

Secondly, it is important to note that decisions of the Information Commissioner are de novo. That is, only the circumstances and the law as they pertain at the time of the Commissioner's decision may be taken into account. This view is supported by the 2001 High Court Judgement in the case of The Minister for Education and Science v the Information Commissioner (Cases Numbered 98104, 98130 and 99024 - The Sunday Times, The Sunday Tribune and the Kerryman Newspapers and the Department of Education and Science refer). In that case Justice O'Caoimh, stating that the Commissioner's decisions are de novo, judged that the then Commissioner erred in law in not taking the legal position at the time of his decision (rather than the situation which pertained at the making of the original decision) into account. Justice O'Caoimh stated: "... it is clear that the decision that was to be made by [the] Information Commissioner in light of the appeals taken to him was 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."

Analysis and Findings.

Section 6(1) of the FOI Act confers a general right of access to records held by a public body. While the term "held" is not defined in the Act, section 2(5)(a) of the Act provides that a reference to records held by a public body includes a reference to records "under the control" of that body. It is clear that the intent of section 2(5)(a) is to ensure that records which are not physically held by a public body but are under its control are deemed to be held by it for the purposes of the FOI Act.

In essence, it is the Department's position that the records sought are neither held by it nor under its control and that they cannot be released under the FOI Act. In its submission of 11 September 2012, the Department informed this Office that on conclusion of the review at the end of September 2010, the reviewer wrote to the Department enclosing his written report and seven boxes of records of the review, six of which contained copies of transcripts including, presumably, the record(s) at issue in this review. According to the Department, it was advised, presumably by the reviewer, that the boxes should be opened by him alone. The Department confirmed that it subsequently contacted the reviewer to ask him to consider the release of the records at issue and that the reviewer held the view that the records concerned are the property of the Drogheda Review and not those of the Department. The Department argued that the records requested remain the property of the Drogheda Review.

In a further submission dated 13 December 2012 in response to Mr Murnane's preliminary views letter, the Department provided further details as to why it considers that it does not hold the records and that they are not under its control. It claimed that it was the common understanding of the Minister and the reviewer that all documentation should be the property of the reviewer. According to the Department, the reviewer pointed out that the transcripts are his property which he has lodged with the Department for safekeeping and he recalls that he made it clear to everyone that the transcripts were for his exclusive use only and would not be made available to those who met with him or to anyone else.

In his preliminary views letter, Mr Murnane suggested that the reviewer was effectively providing a service for or on behalf of the Minister and he drew the attention of the Department to section 6(9) of the FOI Act which provides that records in the possession of a person who is or was providing a service for a public body shall be deemed to be held by the public body. In response, the Department stated that the reviewer was not acting on the Department's behalf and that he was entirely independent in the discharge of his functions. Mr Murnane also drew the Department's attention to the contents of a letter of 18 December 2009 from an official of the Department to Judge Smyth prior to the announcement of his formal appointment as reviewer. While the letter contained details of the agreed fee for conducting the review, it also stated, under the heading "Records of Review", that "The records of the Enquiry itself should be preserved in any event and could be used by any subsequent statutory Tribunal which will have its own powers in relation to witnesses and documents". In response, the Department stated that this letter simply points out that the records should be preserved but is not equivalent to saying the Department owns the documents or exercises control over them.

The Department also cited two previous decisions of this Office, Mr X and the Department of Public Enterprise (Case 99379) and Mr X and the Mid Western Health Board (Case 99125) in support of its views that it does not hold the records in question. It further indicated that legal advice from the Office of the Attorney General supports its view that the records concerned are outside the control of the Department.

Assessment of Department's position.
As I have outlined above, while section 6(1) of the FOI Act confers a general right of access to records held by a public body, the word "held" is not defined in the FOI Act. According to the Oxford English Dictionary, the word "hold" means "The action or fact of having in charge, keeping, guarding, possessing, etc.; keeping, occupation, possession; defence, protection, rule". Having regard to the ordinary meaning of the word "hold", I find that the relevant records are held by the Department in this case because it has physical possession of the records in question. I would add that the FOI Act does not appear to be concerned with the question of whether or not a particular public body ought to be in possession of given records. It simply confers a right of access to a requester to records "held" by such a body. In any event, given their subject matter, it seems to me that it is entirely appropriate that the records are in the possession of the Department in this case.

Arguably, the issue of whether records can be deemed to be under the control of a public body should arise only where records are not physically held by the body. Nevertheless, for the avoidance of doubt, I have considered the Department's arguments that the records in question are not under its control. As Mr Murnane explained in his preliminary views letter, the FOI Act does not define the concept of "control". In Case No. 99379 (Mr X and the Department of Public Enterprise), the former Commissioner set out his understanding of the meaning of control in the context of the FOI Act 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."

In Case No. 010355 (A.V. Niche and the Department of Justice, Equality and Law Reform), this Office considered whether records created by An Garda Síochána relating to a tender competition, where the Department was the contracting authority, were under the control of the Department. The Commissioner considered that a range of factors regarding whether or not records were under the control of a public body needed to be considered, including not only whether a public body had a legal entitlement to access the records but other factors, including the question of ownership, physical possession, circumstances of the records creation and the public body's reliance on the records.

In this case, while the records are physically located on the Department's premises, the Department argues that they are merely being held by it for safekeeping and are the property of the Drogheda Review under the control of the reviewer. Indeed, the reviewer himself apparently informed the Department that the records are the property of the Drogheda Review. It is suggested, therefore, that the status of the "Drogheda Review" and the nature of the relationship between the reviewer and the Department is worthy of consideration. The Drogheda Review is not, and never was, a statutory body. It is not, for example, a body which is capable of being prescribed by the Minister for Finance as a body to which the FOI Act applies (as per paragraph 1.5 of the First Schedule of the FOI Act). Indeed, it is not a legal entity and has no legal basis. Rather, "Drogheda Review" simply reflects the name by which the review undertaken became known, given the nature of the issues being examined. Furthermore, the review itself is now completed. I find, therefore, that the records cannot be deemed to be under the control of the "Drogheda Review" as no such entity exists.

On the matter of whether the records are held by the reviewer in the context of the FOI Act, the following facts are pertinent in my view. The then Minister appointed Judge Smyth to examine specific matters and to make recommendations as to whether a further investigation was required. Specific terms of reference were set. The Department's letter of 18 December 2009, which contained details of the fee to be paid, also contained an instruction that "the records of the enquiry should be preserved" and indicated that they could be used by any subsequent statutory tribunal. It seems clear to me therefore, that while no written contract for services exists, Judge Smyth was indeed providing a service for the Minister. The Department argues that the reviewer was not acting on the Department's behalf and that he was entirely independent in the discharge of his functions. However, it seems to me that that the Department is attempting to draw a distinction between the Minister and the Department, in so far as FOI legislation is concerned. It should be noted that for the purposes of the FOI Act, the Minister is deemed to be the head of the Department. It would appear therefore, that regardless of whether the reviewer acted independently of the Department's staff, he did, nevertheless, provide a service for the Minister and, by extension, the Department. On this point, it is noteworthy that section 6(9) of the FOI Act provides that a record in the possession of a person who was providing a service for a public body under a contract for services shall, in so far as it relates to the service, be deemed for the purposes of the FOI Act to be held by the body.

It is also worth repeating at this stage that decisions of the Information Commissioner are de novoand that only the circumstances and the law as they pertain at the time of the Commissioner's decision may be taken into account. No evidence has been presented to this Office to suggest that the reviewer would have any further role in the matter once he had concluded his report to the Minister. In my view, once the reviewer presented his report to the Minister, the service he provided was completed. The reviewer was not acting under any legal authority, nor had he specific powers inherent in his role. This remains the case following the completion of the review. I consider it unreasonable for the Department to take the view that the reviewer holds veto over the potential further uses to which the records might be put, given that his role is now completed and given also the instruction contained in the Department's letter of 18 December 2009. I note that the Department argues that the letter simply points out that the records should be preserved but is not equivalent to saying the Department owns the documents or exercises control over them. I do not accept this argument. The Department clearly envisaged that the records might be put to some other use in the future. In my view, it is a matter for the Department to make the records in question available to any subsequent statutory tribunal. I would consider that it is not a matter for any individual to lay down conditions as to the uses to which the records might be put once that individual has completed his/her body of work. Once the reviewer had completed the review and given the final report and related records to the Department, those records were then, in my view, under the control of the Department. While I make no finding on who might have held the records during the course of the review, it seems to me that there is no basis for suggesting they remain under his control at this point, given that the service he was asked to provide has since been completed.

I note the Department does not consider it has the legal right to access the records at issue. While I am not aware of any express statutory entitlement of the Department to access the records, neither am I aware of any express statutory entitlement afforded to the reviewer granting legal entitlement to withhold access to the records he gave to the Department. The terms of reference of the review did not expressively provide for such an entitlement. The reviewer fulfilled the task assigned to him and reported to the Minister for Health; he created the back up records to his report which he transmitted to the Department; the records were clearly in the Department's possession when the FOI request was made and remain so.

The Department also made reference in its submissions to two previous decisions of this Office in support of its contention that the records in question are not under its control. I consider that the circumstances arising in both cases are such that they can be distinguished from the current case. In Case 99379, the former Commissioner found that while certain records held by Aer Rianta were under the control of the relevant Minister during the currency of an agency arrangement pertaining to the management of Dublin Airport, they were no longer under his control once the agency agreement was terminated. In Case 99125, the Commissioner found that records of a private patient held by a Health Board consultant (in a private capacity) could not be released since the records were not under the control of a public body and there was no legal entitlement to the records. In my view, the Commissioner's findings in these cases are not relevant to the circumstances of this review. In case 99379, the records at issue were in the possession of, and related to the business of, Aer Rianta. In Case 99125, the records were in the possession of the consultant in her treatment of the applicant as a private patient.

In summary, the position regarding control of records is, in my view, very clear. The review was commissioned by the head of the Department; the reviewer was, in essence, providing a service for or on behalf of the head; the reviewer was not acting on the basis of any legal powers either inherent in his status as a retired judge or inherent in the status of the review itself; once the reviewer had completed the review, and given the final report and related records to the Department, those records were then under the control of the Department. In any event, as I have indicated above, the records are in the possession of the Department. Accordingly, for the purposes of the FOI Act, I find as a matter of fact that the records in question are held by the Department.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby annul the decision of the Department of Health in this case. I direct that the Department must now deal with the applicant's request as first made by him on 16 May 2012, subject only to the provisions of the FOI Act.

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.

Stephen Rafferty
Senior Investigator
7 June 2013