Whether the Commissioner has the jurisdiction under the FOI Act to review a decision effectively refusing an access request on the basis that Schedule 1, Part 1 applies; whether any record "containing" information falling within the ambit of Schedule 1, Part 1(b)(i) is excluded from the remit of the FOI Act in its entirety even where the record also contains information that would otherwise be subject to the provisions of the Act

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

Background

In a request dated 1 May 2015, the applicant sought access, in pertinent part, to a copy of all minutes of meetings of the Central Bank Commission in 2014 and to date in 2015. In its decision dated 29 May 2015 (and referenced 2015-000089), the Bank identified only one record as being "accessible" by way of an FOI request to the Bank, namely, the minutes of meeting number 52 of the Central Bank Commission of 13 January 2015.

In a separate letter that also issued to the applicant on 29 May 2015 (and also referenced 2015-000089), the Bank addressed the remaining minutes requested, which it referred to as the "Residual Minutes". The Bank explained that all of the Residual Minutes contain information falling within Part 1 of Schedule 1 to the 2014 Act. Schedule 1, Part 1 contains a list of bodies that are partially included for the purposes of the Act and also includes details of the functions and/or records of those bodies that are included or excluded.

The Bank stated that "where a request is addressed to the Bank in respect of records containing such information, neither the 2014 Act, nor any of its processes or procedures, apply to, or in respect of the Bank, as it is not a public body or FOI body in such circumstances". Consequently, the Bank's position was that the request for the Residual Minutes could not be processed by the Bank under the 2014 Act. The Bank added that none of the review or appeal processes provided for in the 2014 Act applied in respect of records held by the Bank containing the type of information prescribed by paragraph (b)(i) of Part 1 of Schedule 1. Thus, the Bank purported to notify the applicant that he did not have any right to internal review or external review before the Commissioner in respect of the Residual Minutes.

On 2 June 2015, the applicant requested "an internal review in relation to FOI Request No 2015-000089". In a decision dated 24 June 2015, the Bank affirmed its original decision with respect to the one record regarded as being "accessible" under FOI without any further reference to the Residual Minutes. Nevertheless, in his application for review to my Office, dated 24 June 2015, the applicant made reference to seeking access to "minutes of Central Bank [Commission] meetings", thus indicating that he did not accept that the minutes of meetings other than the meeting of 13 January 2015 were outside remit.

During the course of the review, the applicant confirmed that he regarded his internal request and application for review to my Office to be in relation to all of the minutes originally requested. However, he accepted my Investigator's preliminary view, as expressed in a telephone conversation on 20 October 2015, that the minutes of meeting number 52 of the Central Bank Commission of 13 January 2015 were exempt under sections 29(1) (deliberations of FOI bodies) and 40(1) (financial and economic interests of the State) of the FOI Act and agreed to withdraw his application for review in relation to this record. Despite numerous contacts between my Office, the Bank, and the Central Policy Unit (CPU) of the Department of Public Expenditure & Reform, my jurisdiction under the FOI Act to review the Bank's determination with respect to the Residual Minutes continues to be disputed by the Bank. I have therefore decided to bring this matter to conclusion by way of a formal, binding decision.

Scope of the Review

The first question that I must address in this case is whether I have the jurisdiction under the FOI Act to review the Bank's effective decision to refuse the applicant's request for the Residual Minutes on the basis that Schedule 1, Part 1 applies. The second, related question to be addressed is whether any record "containing" information falling within the ambit of Schedule 1, Part 1(b)(i) is excluded from the remit of the FOI Act in its entirety even where the record also contains information that would otherwise be subject to the provisions of the Act.

Analysis and Findings

The Bank's position
It should be noted at the outset that while there have been numerous developments in recent months, the Bank's position with respect to the Schedule 1, Part 1 issue has not fundamentally changed from that set out in its letter to the applicant dated 29 May 2015. Officials from my Office and the Bank met on two occasions, with numerous exchanges of correspondence taking place both before and after the meetings. Throughout these exchanges, the Bank has highlighted its commitment to the principles of openness, transparency and accountability in respect of the governance and functions of public bodies. It has published the minutes of the monthly meetings of the Central Bank Commission from December 2015 on, though it advises that information may be omitted from the published record where it is legally or commercially confidential, where it contains supervisory information, or where it is in the public interest to do so. It has stated its intention to publish the Residual Minutes at issue in this case, albeit again with omissions. It has also outlined proposals for submitting to my Office's review process on a voluntary, non-statutory basis.

In line with its proposals, the Bank forwarded redacted versions of the Residual Minutes to my Office and invited my Investigator at attend at its premises to examine the withheld information if necessary. The Bank said that the redacted information relates to particular types of regulated entities and is subject to strict professional secrecy obligations under the confidentiality provisions of section 33AK of the Central Bank Act 1942 and the relevant European supervisory laws. The Bank acknowledged that there is a "gateway" in section 33AK for disclosing information to my Office for the purpose of my functions under the FOI Act, but it maintained that European supervisory laws do not allow for the disclosure of the redacted information without the consent of the regulated entitles concerned. The invitation to disclose the redacted information to my Investigator at its premises was, however, inconsistent with its claim that the information could not otherwise be made available for the purposes of my review even by way of encrypted records. In any event, the Bank subsequently confirmed that its position remains that "records which fall partly within the scope of paragraph (b)(i) of Part 1 of Schedule 1 are excluded in their entirety from the scope of the FOI Act because that paragraph specifically references records 'containing' the relevant information"; thus, its willingness to submit to my Office's review process is on a "without prejudice" basis only.

CPU Guidance Note 23
To resolve any doubts on the matter arising from any perceived ambiguity in the statutory language, my Office contacted the CPU, which has responsibility for ensuring that the policy and legislative framework for FOI supports the effective operation of FOI in public bodies. Following the receipt of legal advice from the Office of the Attorney General on the matter, the CPU confirmed that my interpretation of the legislation is correct. To put the matter beyond doubt, it subsequently issued Guidance Note 23, which is available at
www.foi.gov.ie.

The Guidance Note clarifies that, where access to records (or parts of records) is refused on the basis that the body is not a public body for the purposes of records covered by Schedule 1, Part 1 of the Act, the requester is entitled to apply for an internal review of that decision and ultimately to appeal to the Information Commissioner if the internal reviewer upholds the original decision. The Guidance Note further clarifies that in the case of a request where parts of the records contain information which fall into the specific categories listed in Schedule 1, Part 1, only those parts of the records should be excluded consistent with the purpose of the Act, namely to give members of the public access to the greatest extent possible to records that are in the possession of public bodies.

The Legislation
The vast majority of relevant bodes are deemed to be public bodies for the purposes of the Act by virtue of their inclusion in the categories set out in section 6 of the Act. Section 6(2) states that an entity specified in Part 1 of Schedule 1 shall, subject to the provisions of that Part 1, be a public body for the purposes of the Act. Part 1(b) of Schedule 1 states that section 6 does not include a reference to the Central Bank of Ireland, insofar as it relates to -

 

"(i) records held containing -

(I) confidential personal information relating to the financial or business affairs of any individual, or

(II) confidential financial, commercial or regulatory information relating to the business affairs of any person who holds or has held or who has applied for a licence, authorisation, approval or registration from the Central Bank of Ireland, or is otherwise regulated by the Central Bank of Ireland,

 

that the Central Bank of Ireland has received for the purposes of performing, or in the discharge of, any of its statutory functions (other than when that information is contained in records in summary or aggregate form, such that persons cannot be identified from the record), and

(ii) records -
(I) held by the Central Bank of Ireland on the Central Credit Register established by it under section 5(1), or
(ii) produced by the Central Bank of Ireland under section 30(1), of the Credit Reporting Act 2013 (No. 45 of 2013)".

Jurisdiction to review
My view of the matter, as supported by the Guidance Note, is based on the spirit and intent of the legislation. The purpose of the Act, as specified in its Long Title, is "to enable members of the public to obtain access, to the greatest extent possible consistent with the public interest and the right to privacy, to information in the possession of public bodies", as well as other bodies in receipt of funding from the State and certain other bodies.

As I explained in my letter of 18 February 2016 to the Governor of the Bank, it seems to me that the Bank's position on this matter is entirely at odds with the spirit and intent of the legislation. Indeed, I consider that adopting the position taken by the Bank would lead to absurd consequences that could not have been intended by the Oireachtas in the passing of the Act. If I were to accept the Bank's position, it would essentially allow the Bank to throw a blanket over all of its records without external, independent oversight by my Office. Furthermore, it would result in the possible withholding of information that the Oireachtas intended should be released under the Act.

As an FOI body, the Bank generally must deal with access requests made under section 11 and make decisions on these requests in accordance with section 13. The logic of the Bank's position is that, in respect of the records listed in Part 1 of Schedule 1, it is an FOI Body only until it makes a decision under section 13 and thereafter it falls outside of the scope of the Act. In my view, this position is untenable.

I find no basis for concluding that the Bank is entitled to avoid the normal obligations on an FOI body under section 13 to give reasons for refusing access and particulars of rights of review and appeal under the Act. On the contrary, I consider that, as an FOI body, the Bank must make a "decision" under section 13 in relation to an access request made under section 11; in making that decision, it may look to the relevant provisions of the Act, including Part 1 of Schedule 1, in deciding whether or not to grant access, but it must otherwise adhere to the requirements of the Act, including in relation to the statutory rights of review. Any decision to refuse access on internal review under section 21 of the FOI Act is in turn subject to my review under section 22(1)(b) of the FOI Act.

Accordingly, I find that I have the jurisdiction under the FOI Act to review the Bank's effective decision to refuse the applicant's request for the Residual Minutes on the basis that Schedule 1, Part 1 applies.

The effect of the word "containing"
As I have outlined above, the Bank's position is that "records which fall partly within the scope of paragraph (b)(i) of Part 1 of Schedule 1 are excluded in their entirety from the scope of the FOI Act because that paragraph specifically references records 'containing' the relevant information".

In my view, the Bank's position on this point is also entirely at odds with the spirit and intent of the legislation. As noted above, the purpose of the FOI Act is to achieve the disclosure of information in the possession of public bodies to the greatest extent possible consistent with the public interest and the right to privacy. Section 11(3) of the Act sets out the following principles which FOI bodies must have regard to when performing their functions under the Act:

"(a) the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principle of transparency in government and public affairs,

(b) the need to strengthen the accountability and improve the quality of decision- making of FOI bodies, and

(c) 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."

I do not believe that it can reasonably be disputed that the application of Schedule 1, Part 1 should be informed by these principles as well as by the purpose of the Act as set out in its Long Title.

I further note that a record is defined, at section 2 of the Act, as including part of a record. In the circumstances, it seems to me that any part of a record held by the Bank that does not contain information of a type covered by paragraph (b)(i) of Part 1 of Schedule 1 is, of itself, a record that must be considered for release in accordance with the provisions of the Act.

In the circumstances, I find, consistent with the CPU Guidance on the matter, that a record falls within the scope of the Schedule 1, Part 1(b)(i) only insofar as it contains the information specified as excluded from the scope of the Act and that the parts of the record that do not contain Schedule 1, Part 1(b)(i) information fall to be considered for release in accordance with the provisions of the Act.

It is apparent from the redacted records made available to my Office that the Residual Minutes contain information that does not fall within the scope of Schedule 1, Part 1(b)(i). I therefore consider that the Bank's effective decision to refuse the applicant's request for access to the Residual Minutes should be annulled and that the Bank should be directed to make a fresh, first instance decision in respect of the applicant's request for these records in accordance with the provisions of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act 2014, I hereby annul the effective decision of the Bank to refuse the applicant's request for access to the Residual Minutes. I direct the Bank to undertake a fresh decision-making process in respect of the request for access to the Residual Minutes, as set out above, and to inform the applicant of the outcome of its decision, in accordance with section 13 of the FOI Act.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.

Peter Tyndall
Information Commissioner