Whether the Department was justified in its decision to refuse access to records relating to agreements attached to the transfer to the State of the McShane Estate in relation to the Killarney Lakes on the ground that the records at issue were created before the commencement date 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

On 29 March 2015 the applicant submitted a request to the Department for details of all agreements attached to the hand-over to the State of the McShane Estate, in relation to the Killarney Lakes.

On 30 April 2015 the Department refused the applicant's request on the basis that the records requested were created before the commencement of the FOI Act. On 18 May 2015 the applicant sought an internal review of the Department's refusal. On 8 June 2015 the Department issued an internal review decision in which it affirmed its original decision. The applicant applied to this Office for a review of that decision on 9 September 2015.

In conducting this review I have had regard to the correspondence between the applicant and the Department, and to correspondence between this Office and both the applicant and the Department on the matter.

Scope of Review

This review is solely concerned with the question of whether the Department was justified in its decision to refuse access to records relating to agreements attached to the transfer to the State of the McShane Estate in relation to the Killarney Lakes on the ground that the records at issue were created before the date on which the FOI Act took effect in relation to records held by the Department, i.e. before 21 April 1998.

Preliminary Matters

In his correspondence with both the Department and this Office, the applicant contended that there was a stipulation attached to the hand-over of the Lakes of Killarney to the State that the Lakes would remain available, free of charge, to the public and that the Department's attempts to implement rules and regulations for the use of the lakes is in contravention of that condition. He argued that access to the records sought is required so that the public is aware of the conditions attached to the hand-over.

There are two relevant points I wish to make in response to the issues raised by the applicant. Firstly, section 13(4) of the Act requires that, subject to the Act, any reasons a requester gives for making a request shall be disregarded. Secondly, this Office has no role in adjudicating on how FOI bodies carry out their functions generally or to investigating complaints against FOI bodies. The scope of this review is confined to a determination of whether the Department was justified, under the Act, in refusing access to the records sought.

Analysis and Findings

The Department informed this Office that it had identified two records coming within the scope of the applicant's request, namely a "Memorandum of Agreement dated 21st day of December, 1978 between Killarney Estate Limited and The Commissioners of Public Works" and an "Indenture made the Twenty third day of May, 1979 between Killarney Estate Limited and the Commissioners of Public Works in Ireland".

The FOI Act provides for a right of access to records held by the Department that were created on or after 21 April 1998. Furthermore, section 11(5) confers a right of access to records created before 21 April 1998 where such access is necessary or expedient to understand records created after that date, or where the records relate to personal information about the requester.

The applicant has not argued that the records relate to personal information about him. On the matter of whether access to the records sought is necessary or expedient to understand records created after 21 April 1998, the applicant argued that it is necessary or expedient to release the information sought so that the public know the full contents of the conditions attached to the handing over of ownership and control of the Lakes of Killarney. However, he has not identified any records created after 21 April 1998 that cannot be understood without access to the records sought. Accordingly, I find section 11(5) does not apply.

As the records sought were created before 21 April 1998 and as I have found that section 11(5) does not apply, I find that the Department was justified in refusing the request on the ground that the FOI Act does not apply to the records in question.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014 I hereby affirm the decision of the Department to refuse the request.

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.

 

Stephen Rafferty,
Senior Investigator
14 January 2016