Whether the Service was justified, under section 42(l) of the FOI Act, in refusing the applicant's request for receipts and invoices relating to an audit of members' expenses conducted in 2013

Conducted in accordance with section 22(2) of the FOI Act by the Information Commissioner

Background

On 17 December 2014 the applicant sought copies of all receipts/invoices held by the Oireachtas in relation to the 2013 audit of expenses of the members of the Houses of the Oireachtas conducted by Mazars and copies of all receipts/invoices submitted for review by the 22 members chosen for the 2013 audit.

In its decision of 16 January 2015, the Service refused the request under section 15(1)(a) of the FOI Act on the ground that it held no records relating to the applicant's request. On 9 February 2015 the applicant sought an internal review of that decision. On 25 February 2015 the Service decided to refuse the request under section 42(l) on the ground that the records sought comprise the private papers of the members as per Part 10 of the Houses of the Oireachtas (Inquiries, Privileges, and Procedures) Act 2013 (the 2013 Act).

On 13 March 2015 the applicant sought a review by my Office of the decision of the Service to refuse his request. During the course of the review, the Service stated that while the receipts and invoices sought are held by the members, it discovered that copies of certain records were held by Mazars, the company that had conducted the audit in question. It stated that Mazars had retained this sample solely for the purposes of any professional audit or professional compliance test to which it might be subject in future and that this was necessary in order for it to comply with professional standards. However, the Service deemed the records to be held by it, in accordance with the provisions of section 11(9) of the FOI Act. Copies of the records were made available to my Office for the purpose of conducting the review. The records in question relate to expenses of 15 members of the Oireachtas: 13 members of the Dáil, and two members of the Seanad.

In conducting this review, I have had regard to the correspondence between the applicant and the Service, and to the correspondence between my Office and both the applicant and the Service.

Scope of the Review

The scope of this review is concerned solely with whether the Service was justified in refusing access to copies of all receipts/invoices held in relation to the 2013 audit of expenses under section 42(l) of the FOI Act.

Preliminary Matter

Following receipt of the application for review, my Office wrote to the applicant on 30 March 2015 confirming that the decision of the Service would be reviewed and inviting him to make a submission on the matter. In response, the applicant referred to the burden on the Service to justify its refusal of the request to my satisfaction and stated that he was reserving his position until such time as that justification had been provided to him.

While the applicant is correct that the Service must justify its refusal, my Office does not generally provide applicants further opportunities to make submissions, unless it considers that they should be informed of material issues arising during the course of the review. Such issues might include applicable exemptions not previously raised, pertinent search details not previously disclosed to the applicant, and new court judgments which may have a bearing on the outcome of the review.

It should be noted that under section 45(6), the procedure for conducting a review shall be such as I consider appropriate in all the circumstances of the case and shall be as informal is is consistent with the due performance of my functions. My Office has documented procedures for conducting reviews, details of which are available on my Office's website, www.oic.ie.

In this case, the applicant was already aware that the Service was seeking to rely upon the provisions of section 42(l) to refuse the request when he was invited to make a submission and my review involved a consideration of the applicability of that provision to the records at issue. No new material issues arose during the review. Furthermore, given the nature of the argument presented by the Service, I am satisfied that the review was not amenable to settlement. Accordingly, I am satisfied that the appropriate course of action is to conclude the review by issuing a formal decision on the matter.

Analysis and Findings

Section 42(l)
Section 42(l) of the FOI Act provides that unless consent has lawfully been given for its disclosure, the Act does not apply to a record relating to any private paper or confidential communication, within the meaning of Part 10 of the 2013 Act, or official document, within the meaning of Part 11 of that Act.

The effect of this provision is that if the receipts and invoices sought are found to be, or to relate to, the private papers of the members as defined by the 2013 Act, and consent has not been lawfully given for their disclosure, then the FOI Act does not apply and no right of access exists. Accordingly, I will firstly consider whether such records are private papers or relate to private papers within the meaning of Part 10 of the 2013 Act.

Part 10 of the 2013 Act is concerned with privilege in relation to private papers and confidential communications. Section 104 defines private paper in the following terms:

""private paper", 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;

(c) in relation to a member who is the Attorney General, 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 Office, by the member, or by any special adviser) which relates to the member's own functions in relation to the office of the Attorney General;".

The records sought in this case are receipts and invoices relating to expenses incurred by members for which an allowance may be payable. In its submissions to my Office, the Service explained that the Parliamentary Standard Allowance (PSA) is an annual allowance paid monthly and covers members' travel and accommodation allowance (TAA) and the Public Representation Allowance (PRA) for specified office and communication expenses. Under the PRA, members are paid a vouched allowance for the relevant period. Members may opt for a lower amount or waive the payment in its entirety. Not less than 10% of members in receipt of the PRA may be selected for audit. There are a number of categories of expenses allowable under regulations SI 84/2010, SI 37/2012, and SI 149/2013. All members who received vouched amounts are required to hold their own receipts and supporting documents for inspection under audit for a period of five years. The audit of PRA payments relating to 2013 was conducted by Mazars, independently of the Service.

While the term "private papers" appears in the FOI Act several times, it is not defined in the Act. 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 or either House of the Oireachtas or an official document or either or both of such Houses that is required by the rules or standing orders or either or both of such Houses to be treated as confidential. The equivalent provision in the FOI Acts 1997 & 2003 was section 46(1)(e).

The question of whether records of the expenses of members could be considered private papers in the context of article 15.10 and section 46(1)(e) of the FOI Act arose in one of the earliest decisions of my Office (Case 99168 - Mr. Richard Oakley of The Sunday Tribune Newspaper & the Office of the House of the Oireachtas). In that case, the then Commissioner, Kevin Murphy, considered whether the identities of members should be disclosed in association with a published list of expenses paid. During the course of the review, it was argued that Article 15.10 provided protection for private papers of the members. In his decision, Mr Murphy stated the following:

"...the subject matter of the records does not concern the private business of the members or their dealings with constituents or other third parties but relates to the discharge of their public duties as Oireachtas members. In these circumstances I cannot accept that the records come within the term "private papers of its members"."

I also note that in Howlin -v- The Hon. Mr. Justice Morris, [2005] IESC 85, the Supreme Court accepted, for the purposes of article 15.10, that private papers included papers that directly relate to communications by members of the public to members of the Oireachtas in connection with their work as members of the Oireachtas.

Against this background, it would seem reasonable to conclude that receipts and invoices for expenses incurred by members in the course of the performance of their functions would not ordinarily be considered to be private papers of the members. However, for the purposes of considering the applicability of section 42(l), the question I must consider is whether such records are private papers within the meaning of Part 10 of the 2013 Act. For the receipts and invoices held by the members to be deemed private papers within the meaning of the 2013 Act, they must be in the possession or control of the members in relation to their political role or in their capacity as members. Having regard to the nature of the procedures that apply to the payment of PRA, as described by the Service, I accept that receipts and invoices are held by the members. I also accept that the members hold such records in their capacity as members. Accordingly, I find that such records are private papers within the meaning of Part 10 of the 2013 Act.

As for the records held by Mazars, which the Service accepts are under its control, such records are clearly not held by the members. However, for section 42(l) of the FOI Act to apply, it is sufficient that the records sought relate to private papers within the meaning of Part 10 of the 2013 Act. The records held by Mazars, being copies of records which I accept to be private papers, clearly relate to such private papers.

Accordingly, as it has not been argued before me that consent has lawfully been given for their disclosure, I find that with section 42(l) applies in relation to the records sought, the effect of which is that the FOI Act does not apply to the records and no right of access exists.

Before concluding, I would like to comment upon the apparent inconsistency between this finding and the conclusions drawn by Kevin Murphy in case 99168. Section 42(l) is an entirely new provision in the FOI Act 2014. There was no equivalent provision contained in the FOI Acts 1997 & 2003. It is quite broad in nature and affords a more significant protection for private papers of members of the Houses than previously existed. It might be argued that such a broad protection for records of the type at issue in this case is inconsistent with the requirements imposed on FOI bodies under section 11(3). Under that section, an FOI body, in performing any function under the Act, must have regard to;

the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs,
the need to strengthen the accountability and improve the quality of decision making of FOI bodies, and
the need to inform scrutiny, discussion, comment and review by the public of the activities of FOI bodies and facilitate more effective participation by the public in consultations relating to the role, responsibilities and performance of FOI bodies.

Nevertheless, while it might be expected that information relating to expenses of members of the Oireachtas should be fully transparent and subject to public scrutiny under FOI, I must have regard to the prevailing legislation at the time of my decision. For the reasons set out above, I accept that the records sought by the applicant in this case are records falling within the scope of section 42(l) of the FOI Act 2014.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014 I hereby affirm the decision of the Service to refuse access to copies of all receipts/invoices held in relation to the 2013 audit of expenses.

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 from the date on which notice of the decision was given to the person bringing the appeal.

Peter Tyndall
Information Commissioner