Whether the Department was justified in refusing the applicant's request for access to records concerning the School Transport Scheme (the scheme) on the basis that: it does not physically hold the requested records so that section 10(1)(a) of the FOI Act applies; it does not control any such relevant records as may be held by Bus Éireann such that it may be deemed to hold the records further to section 2(5)(a) of the FOI Act; and that there does not exist a contract for services between the Department and Bus Éireann such that a right of access to any such relevant Bus Éireann records arises further to the operation of section 6(9) of the FOI Act

Conducted in accordance with section 34(2) of the FOI Act, by Peter Tyndall, Information Commissioner

Background

The background to this case is complex and procedurally difficult to follow. It is necessary to set out the sequence of events since this is relevant to the subsequent analysis and findings.

In a letter dated both 9 July 2011 and 9 August 2013, received by the Department on 12 August 2013, the applicant made the following FOI request to the Department:

"We request under the Freedom of Information Act the following.

The Department of Education and Skills or BE (sic) engaged contractors for "Visual Inspection Contract (sic) and IT Contractors for school transport hereinafter called contractors.

Part 1. Please give the contracts for the contractors and any amendments or extensions for all periods or all parts of periods for all or any part of school year 2011/2012 and 2012/2013, 2013/2014.

Part 2. Records of Patricia O'Connor's correspondence with Bus Éireann about these contracts and or the proposed or planned contract relating to the said periods.

Part 3. Record of the bills for the said contracts for the said periods."

The Department's decision, dated 5 September 2013, refused the request "under [s]section 10(1)(a) of the FOI Act: - 'The record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken'." It did not say whether or not any of the requested records might exist in the first place. Neither did it give any explanation of steps taken to look for any records.

The applicant sought an internal review of this decision on 11 September 2013. He referred in part to a decision issued by this Office on 26 September 2013 (Case Number 110143) on foot of a previous request he had made to the Department for access to school transport records, including records that were held by Bus Éireann. The applicant drew attention to the direction in the 2013 decision that the Department undertake a fresh decision making process in respect of the potential application of section 2(5)(a) of the FOI Act in that case. 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". He also expressed dissatisfaction with the Department's procedures for handling the request. He argued that the requested records exist.

The Department's internal review decision of 4 October 2013 broke the applicant's three part request into 42 parts. It cited the wording of section 10(1)(a) of the FOI Act 42 times. It gave no explanation of why it was relying on the provision concerned, and made no mention of section 2(5)(a) of the FOI Act.

The applicant sought a review by this Office of the Department's refusal of his request on 14 October 2013. He again argued that records must exist, and that the Department controls relevant records as held by Bus Éireann.

Reference number 130254 was assigned to the review concerned. Initial submissions were sought from Department in relation to section 10(1)(a) of the FOI Act; these were received on 25 November 2013.

The case was assigned to Ms Anne Lyons, Investigator in this Office on 2 October 2014. She wrote to the Department on 9 October 2014, asking it why it had not considered section 2(5)(a) in this case, given this Office's direction to that effect in Case Number 110143. Having regard to comments in the judgment of McGovern J. (dated 23 October 2012 in the High Court case Student Transport Scheme Ltd v Minister for Education and Skills & Anor [2012] IEHC 425 which concerned the nature of the relationship between the Department and Bus Éireann), and to comments in certain documents provided by the applicant with his OIC application, Ms Lyons asked the Department to justify its contention that it does not control, and thus hold, the requested records. She also asked the Department to further justify its position that it does not physically hold the records concerned. Furthermore, she drew attention to section 8(2)(d) of the FOI Act, which provides that a public body refusing a request "shall specify the reasons for the refusal", and asked the Department to explain why reasons for the refusal of records under section 10(1)(a) were not given in the Department's original or internal review decision even though it had quoted section 10(1)(a) 42 times in the latter.

The Department, having consulted with the Chief State Solicitor, responded on 7 November 2014. On 7 January 2015, Ms Lyons invited comment from Bus Éireann, which replied on 26 January 2015. Neither the Department nor Bus Éireann accepted that the former controls the latter.

Given the complexity of the matters that I would be required to consider and the resource implications involved, , Ms Lyons wrote to the applicant on 2 February 2015, asking for confirmation by email within a week that the review was to proceed. No reply was received and Ms Lyons wrote again on 10 February 2015, saying that if she did not hear from him by email by close of business on 17 February, she would take it that he did not wish for the review to proceed. Again, no reply was received. Ms Lyons closed the file on case 130254 on 23 February 2015, and informed the applicant who then sent three emails on 25 February 2015 (with copies of this Office's letters of 2, 10 and 23 February) saying that he wished the review to proceed. He also wrote on 2 March about the substantive matter of the review, "not[ing] that [the Office] will be soon considering the appeal."

Ms Lyons and the applicant discussed the potential reopening of the case on 2 March. She said she considered it reasonable to expect that an applicant would confirm interest in a review when it is clear that no reply by a certain date would result in its closure. The applicant acknowledged he had received her letters and said he had overlooked them because of new staff in his office and because he had been dealing with a High Court case involving the Department. Although the view could reasonably have been taken that a legal professional should have procedures in place to ensure that post is properly dealt with, my Office agreed to reactivate the review and this was done, under Case Number 150067, on 4 March 2015.

Also on that date, Ms Lyons sought further explanation from the Department on its contention that it holds none of the requested records in its own right. The Department replied on 16 March 2015 and gave further clarifications on 20 March 2015.

On 10 July 2015, Ms Lyons wrote to the applicant to outline why she considered the Department to have justified its refusal of the requested records on the basis that it did not physically hold them, and that section 10(1)(a) of the FOI Act therefore applied. She also outlined her views on the application of sections 2(5)(a) and 6(9) and invited the applicant to reply by 31 July 2015. She said that if he did not reply by this time she would proceed to make a recommendation to me. No response was received from the applicant.

Ms Lyons also gave her views to the Department on 13 July 2015, largely concentrating on section 2(5)(a) of the FOI Act. She sent a copy of this correspondence to Bus Éireann at the email address she had successfully used in January 2015. While the Department replied on 6 August 2015, no response (or email failure message) has been received from Bus Éireann.

I have now decided to conclude this review by way of a binding decision. In carrying out this review, I have had regard to the above correspondence, to relevant Court judgments, to relevant historic documents that set out the arrangements between the Department and Bus Éireann (and formerly, Córas Iompair Éireann (CIE)) in relation to the provision of school transport, to the provisions of the FOI Act and to legal advice received by my Office.

This review is being 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 the Review

A review such as this cannot assess the adequacy of the practices and procedures in place in a public body for the purposes of compliance with the FOI Act. Such an assessment, if it were deemed necessary, would have to be carried out pursuant to section 36 of the FOI Act. This review, conducted pursuant to section 34 of the FOI Act, is confined to whether the Department has justified its refusal to release the requested records (specifically records that existed at the date of the FOI request, which I take to be 9 August 2013).

Findings

Section 34(12)(b) places the onus on the Department to justify its refusal of the requested records.

Section 10(1)(a)
The Department said how it dealt with this provision in its internal review decision was intended "to bring clarity to each part of the request in response to the applicant". I fail to see how any clarity was achieved by quoting the wording of section 10(1)(a) over 40 times, without any explanation as to why the Department contended that it did not (physically at least) hold the requested records.

The Department maintained that records relevant to Part 1 of the request are physically held by Bus Éireann, rather than by the Department, and that the records sought at Parts 2 and 3 do not exist. This amounts to a refusal of the request under section 10(1)(a) of the FOI Act, which provides for the refusal of a request on the basis that the record sought does not exist or cannot be found after reasonable steps have been taken to look for it. In conducting a review of a refusal under section 10(1)(a), it should be noted that it is not normally my function to search for records.

Part 1
As outlined to the applicant in her letter of 10 July 2015, Ms Lyons interpreted this aspect of the request as seeking the actual contracts and any records that set out the details of how those contracts were amended or extended. The applicant did not take issue with this understanding, which I consider to be reasonable.

It is not clear from the applicant's correspondence if references, to the Department having engaged the relevant contractors, is to be read as such contractors having been engaged directly by the Department, or indirectly on its behalf through Bus Éireann. Be that as it may, the Department said on 25 November 2013 that Bus Éireann "operates the scheme on behalf of the Department" and that "Bus Éireann engages the contractors" for the scheme's operation. I see no reason to dispute this as a statement of fact; neither has the applicant. The Department said that, therefore, it "does not hold any contracts in relation to the engagement of [the contractors referred to in the request] ...", which engagements it described as "matters solely for Bus Éireann".

It also said, on 7 November 2014, that when engaging private contractors such as those at issue in this case, "Bus Éireann prepares the contracts and amends them as appropriate to particular circumstances", and the Department has the "clear understanding that Bus Éireann procures these services in accordance with the appropriate procurement processes."

Bus Éireann also told this Office, on 26 January 2015 that it did not provide the Department with copies of the contracts it entered into with the suppliers of the visual inspection or IT services.

I see no grounds to dispute the position of both entities that the relevant contracts are held by Bus Éireann and were not provided or copied by it to the Department. The applicant has not argued to the contrary and accordingly, I accept that the Department does not physically hold the records requested at part 1 of the request. On this basis, I accept that the records do not physically exist within the Department and I find that section 10(1)(a) applies. (The fact that pertinent records exist but are held by Bus Éireann will be dealt with under section 2(5)(a)).

Part 2
Ms O'Connor, who is referred to in Part 2, is a Department employee.

I consider it reasonable to interpret "correspondence" to comprise letters or emails, and not to cover minutes of meetings, as the applicant sought to argue in his OIC application. The applicant has been notified of this and did not object.

The Department said, on 7 November 2014, that the visual inspection contract was put in place by Bus Éireann after the fatal school bus crash at Kentstown in 2005, following discussions with the Department, "as part of [Bus Éireann's] functions in the day to day supervision and monitoring of service performance and standards". Because regulations in relation to seat belts became mandatory on 31 October 2011, the Department said that it and Bus Éireann agreed it was appropriate to keep the visual inspection process in place until the end of the school year 2010-2011 i.e. to June 2011. The Department said that the "design and content of the visual inspection services contract, amendments to that contract, and the procurement process has always been a matter for Bus Éireann", which it said "holds and controls all the records in relation to that contract." It further clarified, on 16 March 2015, that the extension of the visual inspection process "was an extension of the agreed implementation period for that particular safety measure", and that the "contractual arrangements for the putting in place of the visual inspection process for this time period continued to be an operational matter for Bus Éireann to be implemented in accordance with the appropriate procurement processes."

The Department said it holds no records concerning the IT Contract. It said this was a Bus Éireann initiative, of which the latter verbally advised the Department. The Department said it "did not consider it necessary to hold any records ... as it considered that this was a matter to be managed and progressed by Bus Éireann." It said it received verbal updates from time to time that it "considered [to be] sufficient", with progress being reported on by Bus Éireann representatives to Department representatives at routine operational meetings. As set out above, minutes of such meetings are not covered by Part 2 of the request.

In support of his contention that relevant correspondence exists, the applicant provided this Office with a minute of a meeting held between the Department and Bus Éireann on 18 January 2011. Part of that minute concerns the extension of the Visual Inspection Contract "to the end of June." It continues "Patricia to write to Bus Éireann confirming this. BE was requested to submit a further bill. Action: Patricia to write to Bus Éireann."

Ms O'Connor stated to this Office, on 7 November 2014, that she "do[es] not recall writing such a letter in January 2011 or on any other occasion to Bus Éireann extending the process [the visual inspection contract] for the period in question". She said this "would not be unusual however given the work pressures in the section and given the already documented extension of the process [as referred to in the minutes concerned]". She also "confirm[ed] that she did not write to Bus Éireann about the IT project, the contract, [or] the procurement process ....", or any amendments to that contract.

On 26 January 2015, Bus Éireann also said it did not receive any correspondence from Ms O'Connor pertaining to the visual inspection or IT contracts in the relevant years.

In her various contacts with this Office, Ms O'Connor has said that there is no correspondence relevant to Part 2 of the request.

Having regard to the above, I accept that the Department has justified its refusal of the requested correspondence on the basis that it does not exist. I find that section 10(1)(a) applies.

Part 3
I consider it reasonable to interpret this part of the request as seeking only any bills submitted, and to proceed on this basis. I do not consider this element of the request to extend to any records concerning the consideration given to such bills or their payment. The applicant did not take issue with this Office's interpretation.

On 16 March 2015, the Department said it holds bills submitted to it by Bus Éireann, in relation to the visual inspection contract, from 2007 to 2010. I agree with the Department that the bills for those dates do not fall within the scope of the request or this review. It said that, in 2011, it anticipated the final bill for the visual inspection process for the school year 2010-2011 (i.e. the "further" bill as referred to in the 18 January 2011 minutes) but that this "was never submitted by Bus Éireann to the Department". The Department said it understood Bus Éireann had absorbed the costs concerned, which it believed to have been modest given that the visual inspection process was coming to an end.

On 7 November 2014, the Department said that, "[i]n relation to the IT project, no bill was required to be submitted". It explained that the cost of this project was met from the contribution element of the Transport Management Charge (which, the Department explained on 20 March 2015, is an amount ("a 13% charge") reimbursed to Bus Éireann by the Department to cover certain direct and all indirect costs attributable to the work carried out by Bus Éireann for the Department in relation to the scheme). Bus Éireann also confirmed on 26 January 2015 that it did not submit any relevant bills to the Department during the period the subject of the request.

Having regard to the above, I accept that the Department has justified its refusal of the requested bills on the basis that they do not exist. I find that section 10(1)(a) applies.

Section 2(5)(a)
In so far as any records relevant to the request exist in the first place and are held by Bus Éireann, section 2(5) is potentially relevant. 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".

The Department's letter of 7 November 2014 said that its position in the original and internal review decisions was that section 2(5)(a) did not apply, and it "regret[ted] that this position was not explicitly referred to in earlier correspondence." It continued that "[t]he general principle is that the Department is only obliged to release records held by it or under its control. Bus Éireann is not in any normal sense under the control of [the Department]. It is difficult therefore to see how the Department can compel Bus Éireann to hand over its records if it did not wish to do so. " It then went on to say that the "only exception" was section 6(9), but given that Mr Justice McGovern, in his judgment of 23 October 2012 in the case of Student Transport Scheme Ltd v Minister for Education and Skills & Anor [2012] IEHC 425, had found there to be no contract between the parties, section 6(9) "cannot apply".

Sections 2(5)(a) and 6(9) are entirely independent provisions of the Act and must be considered in this light. A public body can control another entity even if there is no contract for service between the two of them. Furthermore, the question of how Bus Éireann might be compelled to provide records relating to the scheme to the Department is an entirely different matter to the question of whether the Department controls those records in the first place.

Bus Éireann's email of 26 January 2015 merely said that reference to the decision and opinion of Mr Justice McGovern, in light of the ongoing appeal, was "premature at this juncture".

The FOI Act does not define the concept of control. Thus, I have had regard to the two High Court judgements that deal with section 2(5)(a) of the FOI Act. The first is The Minister for Enterprise, Trade and Employment vs the Information Commissioner[2006] IEHC 39, and to which I will refer as the "Freyne" case (see http://www.courts.ie/Judgments.nsf/bce24a8184816f1580256ef30048ca50/e07f46479765c6c1802571410040ccb1?OpenDocument). The second is Westwood Club v Information Commissioner and Anor[2013 No. 176 MCA] , to which I will refer as the "Westwood" case (see http://www.bailii.org/ie/cases/IEHC/2014/H375.html). These judgments set out various non-exhaustive matters to consider when considering if an entity is controlled by a public body, such as which party has day to day operation of the relevant functions; which party has real strategic control; and the extent of the financial nexus between the parties. In considering the Westwood judgment, I have had proper regard to the fact that the circumstances of the establishment of the company at issue in the Westwood case are entirely different to the circumstances of the establishment of Bus Éireann.

That the FOI Act does not define "control" suggests that it is not a concept unique to FOI. I note that in the Freyne judgment, Murphy J. looked to the concept of control in the context of taxation in contracts for services, in the case of O'Coindealbhain (Insp of Taxes) v Mooney [1990] 1 I.R. 422. I consider it appropriate to take account of the judgment in the case of Student Transport Scheme Ltd v Minister for Education and Skills & Anor, as referred to earlier and to which I will refer as the "McGovern judgment". While that judgment did not deal with control in an FOI context, it concerned the nature of the relationship between the Department and Bus Éireann. Notwithstanding that the decision is under appeal, I consider it appropriate to have regard to certain of McGovern J.'s findings, including matters he described as "established fact", and obiter comments.

I have also had regard to a letter sent to CIE in 1969 (the 1969 letter) by the then Minister for Education, which set out the various arrangements for the operation of the scheme. I have also had regard to an "updated agreement from 1975" (the updated agreement) on which current accounting arrangements are based (and which I note was described as having been confirmed as such by the Irish authorities, in the European Commission Decision 2015/635 of 15 October 2014 on State Aid SA.20580 (C 31/07) (ex NN 17/07), to which I will refer in this decision as the Commission Decision. The Commission Decision concerned the question of whether Ireland had provided illegal State Aid to Bus Éireann and Dublin Bus).

Does the Department Control Bus Éireann's Operation of the Scheme?

Day to Day Operations

Paragraphs 66 and 67 of the Freyne judgment suggests that the High Court was prepared to look at the individual function being conducted - in that case the awarding of grants by a City Enterprise Board - to see whether control was exercised by the relevant public body in relation to that function. I see no reason to consider that the Department is involved, at a hands-on level, in the day to day operation of school transport; neither has the applicant argued that this is the case.

Principal and Agent

At paragraph 72 of the Freyne judgement, Murphy J. found there to be "no relation of principle [sic] and agent in the present case." Thus, that judgment indicates that the relationship of principal and agent is relevant when considering the control of one entity by another. According to Bowstead and Reynolds on Agency (2006), a defining characteristic of an agency is control by the principal.

The 1969 letter says that CIE/Bus Éireann "will administer the scheme as agents of the Minister ... and as such will operate the scheme in accordance with his general directions and policy". The updated agreement outlines how CIE operates the scheme "on behalf of" the Department (in this regard, the Commission decision of 15 October 2014 does not reflect any suggestion that the 1975 arrangement supersedes the agency relationship referred to in the 1969 letter).

In addition, the McGovern judgement describes it as an "established fact" (which, with others, he stated to be indicia of a non-contractual relationship between the parties) that CIE/Bus Éireann "is required to administer the scheme as agents of the [Department] and is obliged to operate the Scheme in accordance with its general directions and policy." A further "established fact" identified by McGovern J., as to the lack of power on Bus Éireann's part to hold the Department to the status quo ante in terms of funding, arguably indicates more control than most principals could ever exercise over their agents.

Real Strategic Control

McGovern J. concluded that "there was no contract [between the Department and Bus Éireann] within the meaning of the [relevant EU legislation]" and said 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".

McGovern J. also noted that the basis of the operation was "entirely administrative" (similarly, the Department's email to this Office of 6 August 2015 describes the arrangement between it and Bus Éireann as a "long standing administrative arrangement") and that "CIE and in turn [Bus Éireann], had no choice as to whether or not they would administer the scheme". He noted that Bus Éireann's functions "can be varied at will by the Department". As already mentioned, McGovern J. identified a number of "established" facts that he considered to be indicia of a non-contractual relationship. These include: the unilateral nature of the scheme (as evidenced by a letter that McGovern J. described as having been sent by the Minister in 1967 to CIE, informing it that the Minister had "decided to give the total administration of that scheme to CIE", and CIE's acknowledgment of the Minister's decision to "entrust to us responsibility for the total administration of your new scheme ..."); CIE being required to administer the Scheme "as agents of" the Minister; the Minister's control and direction of the policy of school transport through eligibility criteria laid down by Government; the cost recovery basis of the scheme; and the fact that Bus Éireann could not bind the Minister in any way to the "status quo ante" when the latter cut funding to the Scheme.

In considering real strategic control, thus, it is hard to see how Bus Éireann can be said to be in business on its own account in the operation of the Scheme.

McGovern J. also said, in obiter remarks, that even if he had found a contract to exist, he would consider the "Teckal exemption" to apply - essentially, that the Department exercises a control over Bus Éireann, in relation to the latter's operation of the scheme, which is similar to that which the Department exercises over its own units or sections.

Financial Nexus

As already outlined, the cost of the IT project was "met from the contribution element of the transport management charge", which is an amount reimbursed to Bus Éireann by the Department to cover certain costs it incurs in operating the scheme.

The visual inspection contract was also financed by the Department, once invoices submitted by Bus Éireann had been approved and sanctioned for payment. The arrangements for financing the visual inspection contract, in particular, appear to differ quite significantly from those in Freyne. In that case, the Minister had a "financing role" and gave directions to "safeguard the grants given" in the context of overall financial capacity, rather than in the context of deciding to award individual grants.

Furthermore, McGovern J.'s description as an "established" fact, of Bus Éireann's lack of power to hold the Department to the status quo ante in respect of funding, seem to me to be particularly relevant in considering the financial nexus between the Department and Bus Éireann, in respect of the latter's operation of the scheme. His description could also suggest that Bus Éireann can legitimately be considered as dependent upon the goodwill of the Department in the funding of the Scheme. In the Westwood judgment, Cross J. said that a company that is dependant on the goodwill of a public body might well be deemed to be controlled by that body.

The Commission Decision

The applicant argued that the Commission Decision found that there was an "agreement" between the Department and Bus Éireann in relation to the latter's operation of the scheme. He contends that, therefore, that the Department controls Bus Éireann's records (in so far as they relate to the scheme, presumably).

It is not apparent to me that the Commission's decision actually made any finding on the existence or otherwise of an "agreement". Rather, it either relied on confirmation from the Irish authorities that such an agreement existed since 1975, or alternatively, used the term "agreement" as its own description of the arrangement. In other words, the Commission does not seem to me to have made any finding on the existence or otherwise of an "agreement".

Ms Lyons asked the Department to clarify if the Commission made any such finding, but the Department did not do so. Rather, it replied that the "use of terms such as 'agreement' ha[d] been dealt with on affidavit in relation to the High Court [and forthcoming Court of Appeal] proceedings". It is not clear if the Department considers me to have ready access to these affidavits, which in any event have no relevance to the question of whether or not the European Commission made a finding on the existence or otherwise of an agreement. I have decided not to pursue this matter with the Department. It seems to me that any such finding on the Commission's part would not, of itself, conclusively determine whether the Department controls Bus Éireann's operation of, and records relating to, the scheme in any event.

Conclusion on The Above

On 13 July 2015, my Office put the issues along the lines outlined above to the Department and to Bus Éireann. The latter did not respond. The Department replied that the analysis of the concept of control in this case was incorrect. It said that, in particular, the analysis "was in error by referencing 'control' of Bus Éireann records to the day to day operations of [the scheme]". It did not elaborate on this comment.

However, at no point did my Office suggest that the Department, as one of its submissions put it, "micromanage[s]" Bus Éireann's operation of the scheme. In fact, in her letter of 13 July, the Investigator said "I see no reason to consider that the Department is involved, at a hands-on level, in the day to day operation of the Scheme." Furthermore, the Department also appears to have overlooked the fact that the Westwood judgment makes it clear that factors beyond day to day control must also be looked at. It is my assessment of such other factors as applicable to this particular case that leads me to conclude that the Department controls Bus Éireann's operation of the scheme.

The Department also referred to the fact that the Minister for Public Expenditure and Reform had extended the definition of a service provider in the Freedom of Information Act 2014, to include administrative arrangements such as that in place between it and Bus Éireann. It said that this means the 1997 and 2003 Acts could not have been intended to extend to Bus Éireann, which it notes is listed under the 2014 Act as an exempted agency. Again, the Department is effectively arguing that a right of access to records under section 2(5)(a) requires there to be a contract for services in place, notwithstanding that such potential access is contemplated by the entirely separate section 6(9) of the FOI Act.

In its submissions the Department also took issue with Ms Lyons' July 2015 letter as having described the IT project as having been financed by the Department via the payment of invoices submitted to it by Bus Éireann. However, while her letter did indeed say this, it is apparent from other comments in her letter, and especially in light of the various other correspondence between this Office and the Department on the financing of the projects, that the particular comment was intended to refer to how the visual inspection contract had been funded. In any event, it seems to me that the facts in relation to the financing arrangements for each project are not in dispute.

Having considered the above, it seems to me that Bus Éireann operates the scheme as agent of the Department. Furthermore, having considered the extent of the real strategic control exercised by the Department over Bus Éireann's operation of the scheme, and the nature of the financial nexus between the two parties, I consider the Department to control Bus Éireann's operation of the scheme. It is now necessary for me to consider if the Department, in turn, controls relevant Bus Éireann records.

Does the Department's Control of Bus Éireann's Operation of the Scheme Equate to Control over Relevant Bus Éireann Records?

It could be argued that in, considering this issue, I should distinguish between records that might be described 'at the heart' of the scheme - such as records concerning Bus Éireann's interactions with the Department about the scheme - and records that might be at more of a remove - such as those concerning Bus Éireann's contracts with third parties, and its payment of related bills. However, it would seem to me that work undertaken by the relevant third parties in this case is work ultimately undertaken to enable Bus Éireann to operate the scheme as agent of the Department. Accordingly, I see no need to distinguish between different types of record held by Bus Éireann in this regard, nor has it or the Department made any arguments to this effect.

As already stated, I consider Bus Éireann to be acting as the Department's agent in operating the scheme on the latter's behalf (which, again, was one of the established facts noted by McGovern J.).

I understand that a principal has general entitlements, under laws of agency, to records created in the scope of the agency, such as all books and documents in the agent's hands relating to the principal's affairs that have been prepared by the agent for him. Bowstead and Reynolds, paragraphs 6-088 and 6-091, refer.

I also note that, at paragraph 6-090 and also at paragraph 6-091, Bowstead and Reynolds say that the agent is not required to produce records of transactions that do not concern the principal, or documents that the principal has agreed not to require of him, and that each case requires consideration of whether the document was created for the purpose of the agency relationship or some other purpose. However, I consider the documents requested in this case to be of a sort that reasonably can be said to have come into existence for the purpose of Bus Éireann's operation of the scheme and, in turn, its agency relationship with the Department. I am not aware of any material that the Department has agreed not to seek of Bus Éireann in relation to its operation of the scheme. Neither it nor Bus Éireann have brought any such agreements to my attention.

It seems to me that an analysis of the extent to which records are "under the control of a body" means looking beyond the control actually exercised over the records at issue (in which regard, the Department's submissions on section 10(1)(a) indicate that it has not considered it necessary to obtain the records concerned). Thus, I have also considered whether, and the extent to which, the Department has a right to obtain records relating to the scheme from Bus Éireann.

The Freyne judgment found that the Minister in question in that case only had a right of access to certain types of documentation held by the relevant Board. That Board's Articles of Association said that it would provide the Minister with "relevant information" that was required for the overall monitoring of the Board. The Articles did not provide the Minister with a right of access to the records the subject of the ensuing FOI request in that case i.e. internal records concerning decisions on a grant application.

In the case at hand, recitals 4 and 5 of the 1969 letter, and paragraph 11 of the 1975 Summary are relevant. The 1969 letter provides for the Minister's right of examination of Bus Éireann records in so far as they relate to the scheme, and requires that the Company "shall give" to the Minister "any information relative to the services when so requested". The "updated agreement from 1975", which as noted earlier, does not appear to supersede the 1969 letter, gives the Minister a "right to examine at reasonable times the books and records" of Bus Éireann "in so far as they relate to schools transport services". It provides that Bus Éireann "also undertakes" to give to the Department "all reasonable information relative to the services when so requested". It also provides for a separate right of access to Bus Éireann's accounts, for audit purposes, "to ensure that the methods and procedures laid down in [the] agreement are fully and properly applied".

The rights of access provided for in the Freyne case seem to me to be broadly similar to the Department's right of access to records for audit purposes as provided for in the 1975 updated agreement. However, the other rights of inspection of, and access to, records and information held by Bus Éireann in relation to the scheme, as set out in the preceding paragraph, seem to me to be much broader than those provided for in the Freyne case. They can be distinguished accordingly. In short, I do not consider the 1969/1975 arrangements to limit the Minister's right of examination to information relevant to the overall monitoring of Bus Éireann's operation of the scheme.

Furthermore, while the 1975 agreement undertakes to provide "all reasonable (emphasis added) information", it seems to me that a request from the Department to Bus Éireann for records pertaining to visual inspection and IT contracts could not be deemed as anything other than a request for reasonable information concerning the school transport service. Neither am I aware of any duty of confidentiality imposed in respect of the records sought in this case, as was noted in Freyne in respect of records held by the Board concerning individual grant aided companies. Again, neither the Department nor Bus Éireann have argued that any such duties exist.

The Department and Bus Éireann, being aware of my Investigator's views on this issue, did not dispute them.

It seems to me, accordingly, that the Department controls Bus Éireann's records in so far as they pertain to the latter's operation of the scheme. Furthermore, while the question of whether control over an entity equates to control over its records was not argued in the Westwood case, Cross J.'s judgment seems to indicate that control over an entity results in control over its records. This would also seem to support my conclusion above that there is no distinction to be drawn between records pertaining to Bus Éireann's interactions with third parties, and records that might be said to be more 'at the heart of' the scheme).

Accordingly, I consider that the records held by Bus Éireann in relation to its operation of the scheme, including any such records that may exist that are relevant to the request in this case, can be deemed to be held by the Department and subject to FOI further to the provisions of section 2(5)(a) of the FOI Act. I find accordingly.

I must emphasise, again, that this finding is not concerned with any other records held by Bus Éireann, which I have no basis to consider to be under the Department's control.

Section 6(9) of the FOI Act

Section 6(9) of the FOI Act provides 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".

As this review is being conducted under the provisions of the FOI Acts 1997 and 2003, I must disregard the fact that the FOI Act 2014 extends the definition of service provider to encompass administrative arrangements, which the applicant has argued I should do. It is also the case that comments made publicly by any Minister in relation to their rationale for drafting particular provisions of legislation cannot be taken into account when interpreting that legislation, as also has been argued by the applicant.

In a decision of 26 September 2013 in case number 110143 (referred to by the applicant in his internal review application), the then Commissioner's delegated decision maker considered whether records concerning the scheme as held by Bus Éireann were potentially releasable under FOI further to the provisions of section 6(9). This decision had regard to the McGovern judgment. It concluded that there was no basis to find that there existed any contract, whether a contract for services or otherwise, between the parties in light of McGovern J.'s finding that the arrangement between the parties was not of a contractual nature.

As already noted, McGovern J.'s judgment stands until such time as it has been adjudicated upon by the Court of Appeal. It would be totally inappropriate for me to purport to act as some other means of appeal of that judgment. Thus, I consider the basis for the finding on section 6(9) in case 110143 to be equally relevant to this case. I affirm the Department's position and find that the requested records are not subject to the FOI Act further to the provisions of section 6(9).

Decision

Having carried out a review under section 34(2) of the FOI Act 1997 (as amended) I hereby affirm the Department's refusal of records under section 10(1)(a) on the basis that such records do not exist in the first instance or are not physically held within the Department; and its refusal of any such relevant records that may be held by Bus Éireann on the basis that such records are not subject to the FOI Act further to the provisions of section 6(9).
I annul the Department's effective refusal of any such relevant records as may be held by Bus Éireann on the basis that section 2(5)(a) does not apply. I direct that the Department undertakes a fresh decision making process in respect of such records and informs the applicant of the outcome in accordance with the requirements of the FOI Act. The effect of this is that the Department is required to make a new, first instance, decision in accordance with the provisions of the FOI Act, including the requirements of section 8 of that Act.

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.

Peter Tyndall
Information Commissioner