Whether the Service was justified in refusing the applicant's request for access to a summary of a report concerning alleged tax evasion under sections 15 and 42(k) of the FOI Act

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

In a request dated 10 November 2014, the applicant sought access to a summary of a report that had been mentioned in the media. In his request, he referred to allegations made by a civil servant of political corruption in a report that ran to several hundred pages. He also attached a clipping from a newspaper that referred to alleged tax evasion by senior politicians and to a dossier that had been presented to the Dail's Public Accounts Committee (PAC) by a named civil servant. He requested 30 copies of a summary of the report, between twelve and twenty five pages long.

On 17 December 2014 the Service refused the request on the basis that the dossier is the private papers of particular Member(s) of Dail Eireann and as such was exempt from release under section 42(k) of the FOI Act. In a letter dated 19 December 2014 that the Service states it received on 8 January 2015, the applicant requested an internal review of this decision. By letter dated 2 February 2015, the internal reviewer upheld the original decision to refuse access but for a different reason. He stated that, as far as can be established, no summary ever existed and on that basis it was not possible to grant access. However, he went on to state that, to the extent that the report mentioned in the media may be held by members as part of their private papers, then the FOI Act does not apply to those papers in accordance with the provisions of section 42(k). On 6 February 2015 the applicant applied to this Office for a review of that decision.

In carrying out my review, I have had regard to the correspondence between the Service and the applicant and to the submissions made by both the applicant and the Service to this Office.

Scope of the Review

The scope of this review is concerned solely with whether or not the Service was justified in refusing access to the record sought.

Analysis and Findings

As outlined above, the Service stated in its internal review decision that it had not been able to establish whether a summary of the report sought ever existed. During the course of this review, however, it emerged that the dossier itself that was presented to PAC may have been a summary of a much larger report.

In email correspondence with this Office dated 26 February 2015, the clerk to the PAC stated that he received a copy of the dossier on 14 November 2014 and that it did not contain a summary. However, he stated that the debates of the PAC with the Office of the Revenue Commissioners of 4 December 2014 references a "huge effort report" that ran to 763 pages. He stated that while the 763 page report was not given to him or the Committee members, it appears to be the case that the dossier he received was a summary of that report. In the circumstances, it would appear that the summary report to which the applicant sought access, as referenced in the media, is, in fact, the dossier that the senior civil servant presented to the PAC.

On the matter of whether a right of access to that report exists under the FOI Act, the Service stated that the report was received by the individual members of the PAC and subsequently by the Clerk of the Committee. It stated that legal advice was taken by the Committee on what to do with the report, that advice received was that the issues raised were outside the remit of the Committee, and that it was agreed that the matter should be referred to an Garda Siochana. The Service further stated that following this referral, the Clerk did not keep a copy of the record and while some members may still hold copies, they are deemed to be private papers of the members and excluded from the provisions of the FOI Act by virtue of section 42(k).

Section 42(k)
Section 42(k) provides that the Act does not apply to a record relating to any of the private papers (within the meaning of Article 15.10 of the Constitution) of a member of either House of the Oireachtas or an official document of either or both of such Houses that is required by the rules or standing orders of either or both of such Houses to be treated as confidential.

Article 15.10 of the Constitution provides as follows:

"Each House shall make its own rules and standing orders, with power to attach penalties for their infringement, and shall have power to ensure freedom of debate, to protect its official documents and the private papers of its members against any person or persons interfering with, molesting or attempting to corrupt its members in the exercise of their duties."

During the course of this review, the Service stated that neither House has adopted any standing order or rule to protect its official documents or private papers. However, it argued that this did not mean that there had to be a standing order for article 15.10 to be effective. Article 15.10 was considered by the Supreme Court in Howlin v. Morris [2006] 2 I.R.321. At p. 384, Geoghegan J. stated the following:

"Still less of course is there anything in Article 15.10 to suggest a self-executing privilege, a point which now arises out of the notice to vary. The most that can be said is that Article 15.10 does seem to assume that, independently of the terms of Article 15.10 itself, the freedom of debate, the protection of official documents and the protection of private papers of members were all natural to the efficiency and efficacy of a house of parliament. The main purpose of Article 15.10 is to dispense with the necessity for legislation to secure these freedoms and protections by allowing each House to make its own separate rules relating to them."

The Commissioner's understanding of section 42(k), which is to be read in the context of Article 15.10 of the Constitution, is that it protects those private papers of members, and official documents of the House, that are required "by the rules or standing orders of either or both of such Houses to be treated as confidential." It is not solely sufficient that a document is determined to be a private paper or an official document to be excluded by this section; it must be a private paper or official document that is required by a rule or standing order of the Oireachtas to be treated as confidential.

The Service has not identified any such rule or standing order in this case. Therefore, assuming that one or more of the members of PAC have retained a copy of the report at issue in this case, I find that the Service was not justified in refusing access under section 42(k).

Section 42(l)
Although it has not been raised by the Service, I have considered whether the restriction created by section 42(l) might be applicable. This section provides that the Act does not apply to: -

"a record relating to any private paper or confidential communication, within the meaning of Part 10 of the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013, or official document, within the meaning of Part 11 of that Act", unless consent has been lawfully given for its disclosure.

The Service claims that the record is a private paper and it is therefore necessary to examine the definition of private papers at Part 10 of the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act, 2013. Section 104(1) of that Act defines "private paper" as, inter alia:

"in relation to a member, means whichever of the following as applies to the member (other than a paper that has already been lawfully put into the public domain):

(a) in relation to a member who is not a holder of ministerial office, any paper in the possession or control of the member in relation to his or her political (including party political) role or in his or her capacity as a member;

(b) in relation to a member who is the holder of ministerial office, any paper in the possession or control of the member in relation to his or her political (including party political) role or in his or her capacity as a member, but does not include any paper (whether or not held by his or her Department or Office, by the member, or by any special adviser in his or her Department or Office) which relates to the member's own functions in relation to his or her ministerial office..."

I find that the report was given to the members of the PAC in their capacity as members of Dail Eireann and I also find that the record is "in the possession or control of the member". Given the nature of the applicant's submissions to this Office, I have considered whether or not the record can be said to have already been "lawfully put into the public domain". The applicant submitted an extract from the Village magazine as part of his submissions. The extract is heavily redacted and states at various points that pages have been removed for reasons of space. The applicant states that the magazine is being threatened with legal action if it does not publish a retraction. I have no knowledge of the source used by the Village magazine, or how it came into possession of the record it published in part. Given the heavy redactions which are present and the removal of various pages I cannot conclude that the extract in the magazine is one and the same as the record requested, nor am I in a position to conclude that it has been lawfully put into the public domain if it is, indeed, the same record. In the absence of evidence that a complete copy of the report that is at issue in this case has been lawfully put into the public domain, I find as a matter of fact that it has not.

Section 42(l) also states that such private papers are exempt from the FOI Act unless consent has been lawfully given for their disclosure. I am unaware of any consent which has been given for the disclosure of the record. I am satisfied, therefore, that the record falls within the definition of "private paper" as set out at section 104 of the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act, 2013 and that, accordingly, section 42(l) of the FOI Act applies.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of the Service to refuse access to the report sought. While I find that it was not justified in refusing access under sections 15(1)(a) or 42(l), I find that it was justified in refusing access under section 42(l)

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 four weeks after notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator