Whether the Department has justified its decision to refuse to release, in line with the provisions of section 10(1)(a) of the FOI Act, certain records relating to the applicant's employment with a company which provided services to FÁS (for which body responsibility for FOI has now been transferred to the Department).

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

Background

On 20 August 2013, the applicant made an FOI request to FÁS, the National Training and Employment Authority, for "All copies of correspondence, records including personal records, reports, tax deductions, PRSI contributions, wage slips, for the years 2009 to 2011 inclusive" held by a company for which he worked in that period. The work he carried out for the company pertained to the performance, by the company, of a contract for services to FÁS. By the time he made his request, responsibility for FOI matters in FÁS had been transferred to the Department, and the request was therefore forwarded by FÁS to the Department.

The Department replied on 28 August 2013, and refused the application on the grounds that neither FÁS nor the Department held the records he sought. Instead, he was advised to contact the company for the records sought. The applicant sought an internal review of this decision on 6 September 2013, and, in its response dated 27 September 2013, the Department stated that while certain records of contractors were due to be held by it, and would thus be liable to FOI, none of the records the applicant sought fell into this category. Nonetheless, with a view to demonstrating cooperation and full compliance with FOI legislation, it released certain records that it held which it felt might assist him in relation to his request. However, the records in question are outside of the scope of his FOI request.

On 8 October 2013, the applicant sought a review by this Office of the Department's decision to refuse the FOI request.

In carrying out my review, I have had regard to correspondence between the Department and the applicant as set out above; to details of various contacts between this Office and the Department; to details of various contacts between this Office and the applicant, and, in particular, the 'preliminary views letter' sent to him, dated 10 February 2014, by Mr. Richie Philpott, Investigator in this Office, and to his reply dated 3 March 2014. His response did not indicate his acceptance of the contents of the 'preliminary views letter', and nor did it provide any basis for amending the views in question. I have therefore decided to conclude the review by way of a formal binding decision. I have also had regard to the provisions of the FOI Act.

Scope of the Review

Section 10(1)(a) of the FOI Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Department refused the FOI request on the grounds that the records sought are not held by the Department but rather are held by a company which is not a public body for the purposes of the FOI Act. Accordingly, my review is concerned solely with the question of whether the Department was justified in deciding to refuse access to the records sought.

Analysis
The matter at issue turns on whether the Department has control of the records in question, and, consequently, whether it is in a position to obtain and release them to the applicant. The key provision of the FOI Act is Section 6(9), which states

"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, 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. "

Section 2(5)(a) of the FOI Act states that "A reference to records held by a public body includes a reference to records under the control of the body".

The key phrase is in bold above, i.e. "...if and in so far as it relates to the service...". While the Department has acknowledged that the company had a contract to provide services to FÁS, and that this placed on the company an obligation to retain, and to provide on request, all records relating to the provision of the service by it, this requirement is limited to records directly relating to the service provided. The requirement does not extend to personnel type records pertaining to employees of the company, such as those which the applicant is seeking, in relation to his employment. The terms of the applicant's employment with the company were a matter between him and the company, and not a matter which was under the supervision or control of FÁS, and therefore the records pertaining to his employment could not have been said to be under the control of FÁS, and neither were they held by FÁS. The applicant has relied on the fact that FÁS had issued a notice to the contracting company advising it of the obligation for FÁS, under FOI legislation, to make records available, in response to legitimate requests under the Act, where such records were provided by the company to FÁS. However, it is clear to me (and the Department has confirmed this point) that the records the applicant is seeking were never supplied to FÁS, and they are thus not subject to FOI.

Accordingly, I am satisfied that the Department is correct in its refusal to release the records the applicant is seeking. I find accordingly.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997 (as amended) I hereby uphold the Department's refusal to release the records concerned.

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.

Sean Garvey
Senior Investigator