Whether the Commission was justified in its decision to refuse records sought by the applicant relating to a petition to the Joint Committee on Public Petitions on the basis that the Committee records are exempt from release under section 22(1)(c) of the Act; or are publicly available; or do not exist or cannot be found after all reasonable steps have been taken to ascertain their whereabouts

Conducted in accordance with section 34(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

The applicant submitted an FOI request to the Commission on 12 November 2013 in relation to a petition he made to the Joint Committee on Public Service Oversight and Petitions. The applicant requested:
1. All correspondence/information between the Joint sub Committee on Public Petitions and the IMB involving petition No POOO57/12.
2. All correspondence/information between the Joint Sub Committee on Public Petitions relating to the Committee's enquiry as to whether the IMB has received other requests from members of the Public, GP's, or Consultant's necessary to remove Ro/Accutane from the market.
3. What members of the Joint sub Committee on Public Petitions were present on each date my petition No. POOO57/12 was considered/discussed?
4. Name individual Joint sub Committee members present on each date my petition No POOO57/12 was considered/discussed.
5. Do any members of the Joint sub Committee on Public Petitions have a declared interest in any Pharmaceutical Company?
6. Do any members of the Joint sub Committee on Public Petitions have a declared interest in the EMA?
7. The Minutes of each meeting the Joint sub Committee on Public Petitions considered/discussed my petition No. POOO57/12.
8. Name Individual members of the EMA or otherwise the Joint sub Committee on Public Petitions have considered/discussed my petition No. POOO57/12.
9. Name individual members of the IMB or otherwise the Joint sub Committee on Public Petitions have considered/discussed my petition No. POOO57/12.
10. Name the Person/Persons directly or indirectly who wrote the Joint sub Committee Summary Note dated 16 September 2012 Seq. No. 001 which puts me the Petitioner in the very rare side effects list in Appendix 1.
11. What qualification does this person/persons who wrote the Summary Note dated 16 September 2012 Seq: No 001 have?
12. Are there any members of the Joint sub Committee on Public Petitions who have a declared interest in the Irish Association of Dermatologists in association with RO/Accutane since 1983?
13. Why did Hoffman La-Roche Pharmaceuticals prosecute a determined, energetic and vindictive campaign against Dr. JD Bremner?
14. Why do I have a written refusal from Roche to discuss Ro/Accutane on Television and the Media?
15. Is the Joint sub Committee on Public Petitions aware that RO/Accutane was originally developed as an anti-cancer Chemotherapy drug?
16. Why didn't the Joint sub Committee on Public Petitions invite me to come before the Committee to represent my Petition?
17. Is the Joint sub Committee on Public Petitions aware that Ro/Accutane has a side effect list of 152?

The Commission issued its decision in response to this request on 9 December 2013, part granting the applicant's request. The applicant was not satisfied with the Commission's response and sought an internal review of this decision on 14 January 2014. The Commission issued its internal review decision on 6 February 2014 affirming its original decision. The Commission stated in its internal review decision that in relation to questions one to six, eight, and nine, and question twelve of the applicant's request all relevant records were released or the applicant was directed to where the information could be found; in relation to questions seven, ten and eleven, related records were exempt from release under section 22(1) of the FOI Act; questions 13 and 14 were more appropriately addressed to Hoffman LaRoche Pharmaceuticals and were not appropriate for address by the FOI process; questions 15 and 17 may have been addressed in the minutes of meetings of the Joint sub-Committee, which records are not eligible for release under FOI; and, in relation to question 16, the internal review decision maker stated that it is a matter for the Joint sub-Committee in relation to any petition received to 'take such action as it considers appropriate in relation to that petition', and this includes inviting a petitioner to present before it and taking a decision to close off a petition.

The applicant appealed this decision to this Office on 9 July 2014. In his application to this Office the applicant also sought to appeal the Committee's decision to close his petition.

During the course of this review Mr. Christopher Campbell of this Office spoke with the applicant by phone on 22 September 2014. Mr. Campbell outlined that the purpose of the FOI Act was to grant access to records where possible within the provisions of the FOI Act and explained the limitations of the Act perceived by the applicant in the context of some of the 17 questions outlined in his FOI request. Mr. Campbell sought to clarify with the applicant the parts of his FOI request he wished this Office to review. The applicant indicated that he was not satisfied with the responses of the Commission generally and also reiterated the queries relating to the substance of his petition to the Joint Committee which he had addressed to the Information Commissioner in his application to this Office. Mr. Campbell also wrote to the applicant on 4 November 2014 and outlined his view that certain records sought by the applicant were not eligible for release under section 32(1)(a) of the Act. Section 32(1)(a) provides that a request shall be refused where the disclosure of the record is prohibited by any other enactment. Mr. Campbell outlined his view that section 127(1) of the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013, prohibits disclosure of certain of the records sought, as detailed below; and so, access to the records was required to be refused by section 32(1)(a).

Having considered the communications and submissions of the applicant, the Commission, and all available information, it is my view that this review should now be brought to a close by the issue of a formal binding decision. In conducting this review I have had regard to the decisions of the Commission on this request and its communications with this Office, the communications of the applicant with the Commission and this Office, the submissions of the applicant, and the provisions of the Act.

In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997 -2003 notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Scope of Review

The position of the Commission is that some of the records sought by the applicant are exempt from release under section 22(1)(c) the FOI Act and under the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013. It also contends that it does not hold records relating to the other parts of the applicant's request. The position of the Commission in relation to the 17 points raised in the applicant's request is as follows:
- Parts 1, 2, 8 and 9 - records were released.
- Parts 13, 14, and 16 - records were refused on the basis that such records do not exist in accordance with section 10(1)(a) of the FOI Act.
- Parts 3 to 6, and 12 - records are publicly available.
- Parts 7, 10, 11, 15 and 17- records were refused under Section 22(1)(c) and section 127 Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013.

Therefore, this review is concerned with the question of whether the Commission was justified in deciding that it does not hold certain records sought by the applicant and in refusing access to a number of records held.

Preliminary matters

I should explain at the outset that requests for information, as opposed to requests for records, are not valid requests under the FOI Act. The FOI Act does not require public bodies to create records if none exist and does not oblige public bodies to answer general queries. The FOI Act does not generally provide a mechanism for answering questions, except to the extent that a question can reasonably be inferred to be a request for a record containing the answer to the question asked or the information sought. In this regard, the questions asked by the applicant are deemed to be a request for records which contain the information sought by the applicant.

I also wish to explain that it is outside the remit of the Information Commissioner to adjudicate upon the performance of a Public Body in the performance of its functions generally. This includes any decisions taken by a Committee of the Houses.

Furthermore, section 8(4) of the FOI Act expressly provides that decision makers shall, subject to the provisions of the FOI Act, disregard any reasons that the requester has for making a request.

Analysis and Findings

Records released
In response to the applicant's questions 1, 2, 8, and 9, the Committee states that it has released the relevant records. In his phone call with Mr. Campbell of this Office of 22 September 2014, the applicant indicated his dissatisfaction with the responses of the Committee to these questions; however, he did not identify any further records that should be released in relation to these queries. Having reviewed the records released to the applicant by the Commission on 14 October 2013, I am satisfied that the Commission has released records addressing the questions of the applicant numbered above. Accordingly I uphold the decision of the Commission in relation to these questions, which is that all relevant records have been released.

Sections 22(1)(c), 32(1)(a), and section 127 Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013
In relation to questions 7 (minutes of Joint sub-Committee meetings), 10, 11 (details relating to a Joint sub-Committee Summary Note), 15 and 17 (details relating to Joint sub-Committee discussions), the Commission contends that the FOI Act does not apply to these records under Section 22(1)(c) of the FOI Act and section 127 Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013. In relation to question 7, the applicant was directed by the Commission to meetings of the Joint sub-Committee on 27 March, 15 May, and 9 October where there was some public discussion on the applicant's petition, and a link to these debates was provided to the applicant.

In relation to questions 15 and 17 raised by the applicant, the Commission states that private discussions of the Committee were recorded in the minutes of meetings and are official documents of the Joint sub-Committee. The Commission contends that these records, as well as advices received and documents circulated relating to Committee business, are not subject to release under FOI.

Section 22(1)(c)(ii)(II) of the FOI Act provides:
A head shall refuse to grant a request under section 7 if the record concerned consists of opinions, advice, recommendations, or the results of consultations, considered by a committee appointed by either (House of the Oireachtas) or jointly by both such Houses and consisting of members of either or both of such Houses or a member of such a committee or a member of the staff of the Houses of the Oireachtas Service for the purposes of the proceedings at a meeting of such a committee.

Furthermore, section 32(1)(a) of the FOI Act provides that a request shall be refused where the disclosure of the record is prohibited by any enactment.

Section 127(1) of the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013 provides:
Without prejudice to the exemption for official documents and private papers, the Freedom of Information Acts 1997 and 2003 shall not apply to a record relating to a Part 2 inquiry or other committee business unless --
(a) the record was created before the inquiry or other committee business, as the case may be, commenced, or
(b) the record relates to the expenses of the committee or other matters concerning the general administration of the committee.

It is clear to me that the records the applicant is seeking fall within the exemptions outlined above as they consist of either 'of opinions, advice, recommendations, or the results of consultations, considered by' the Joint sub-Committee, or, 'a record relating to a Part 2 inquiry or other committee business'. Therefore, in line with section 22(1)(c)(ii)(II), and with 32(1)(a) of the FOI Act, I find that the Commission was justified in its decision in relation to records concerning the applicant's questions referred to above in regard to Committee business.

Section 46(2)
In response to the applicant's questions 3 to 6, and 12, the Commission's position is that these records are publicly available. In the case of questions 3 and 4, transcripts of the relevant meetings were forwarded to the applicant. In the case of questions 5, 6, and 12, the Commission directed the applicant to the Oireachtas Register of Interests and provided the applicant with a url link to where he could access the information sought.

Section 46(2) of the FOI Act provides that the Act does not apply to a record that is available for inspection by members of the public whether upon payment or free of charge or to a record a copy of which is available for purchase or removal free of charge.

As noted above, in an effort to assist the applicant in accessing the information he sought, the Commission directed him to the information that was already published and also provided him with copies of transcripts of meetings which are publicly available.

I find, therefore, that the FOI Act does not apply to records containing the relevant information in response to questions 3 to 6, and 12 and that the Commission is entitled to refuse the applicant's request in accordance with section 46(2) insofar as this information is publicly available.

Section 10(1)(a)
Section 10(1)(a) of the FOI Act states:
A head to whom a request under section 7 is made may refuse to grant the request if the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken

As averred to in Preliminary Matters, above, the Act does not require the creation of a record in response to a request where no record exists. If the information sought is not contained in a record held by the public body, the FOI Act does not oblige public bodies to create records to respond to the request.

In its original decision the Commission pointed out that questions 13 and 14 might be more appropriately addressed to Hoffman La-Roche Pharmaceuticals and not in the context of the FOI Act which provides for access to records held by public bodies. Regarding question 16, the Commission stated in its internal review decision that it is a matter for the Joint sub-Committee to take such action as it considers appropriate in relation to a petition, including inviting a petitioner to present before the sub-Committee; records in relation to this question did not exist.

Taking into consideration the submissions of the Commission, I am satisfied that it does not hold records relating to these questions Accordingly, I find that the Commission was justified in its decision on the basis of section 10(1)(a) of the FOI Act.

In summary, the applicant asked a series of questions in his FOI request. As noted above, Public Bodies are not required to provide answers to questions under the FOI Act, but rather are required to provide access to any records which address such questions, subject to the provisions of the FOI Act. I am satisfied that the Commission endeavoured to identify records it held which may contain the answers to the questions posed by the applicant. I am also satisfied that the Commission was justified in its decision to refuse access to certain records on the basis that such records are exempt under the provisions of the Act, as outlined above, or cannot be found or do not exist and I find accordingly.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby affirm the decision of the Commission.

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.

Stephen Rafferty
Senior Investigator