Whether the Department was justified in partially refusing access to correspondence between the Department and the management of the Irish Bank Resolution Corporation (the IBRC) concerning the special liquidation process

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 8 May 2015 the applicant submitted a request to the Department for all correspondence between the Department and the management of the IBRC concerning the special liquidation process from 1 December 2012 to 28 February 2013.

As the Department failed to issue a decision within the required time-frame, the applicant sought an internal review of the deemed refusal of her request on 23 September 2015. On 15 October the applicant applied to this Office for a review of the Department's failure to respond to her internal review request. On 16 October 2015, the applicant received the Department's decision dated 15 October 2015, which was to grant partial access to two records.

In conducting this review I have had regard to the correspondence between the applicant and the Department on the request and to correspondence between this Office and both the applicant and the Department on the matter. I have also had regard to the contents of the records identified by the Department as coming within the scope of the applicant's request.

Scope of Review

The records at issue comprise an exchange of correspondence between a director of IBRC and the Minister for Finance. The Department redacted the home address of the IBRC director from both records and three sentences from the director's letter to the Minister. While the applicant informed this Office that she accepts the Department's decision to redact the director's home address, she objects to its refusal to release the remainder of the information. Accordingly, my review is solely concerned with whether the Department was justified in refusing to release the three sentences in the director's letter.

Preliminary Matters

I note that the applicant has expressed concerns as to the manner in which the Department processed her FOI request and in relation to possible resourcing issues within the Department that led to the delays. While it is a matter for the Department to ensure that it has afforded adequate resources to the FOI function, the administration of the FOI Act is a statutory function which should be afforded as much weight as any other statutory function. I note that in response to a PQ on the matter of resources and delays, the Minister for Finance, on 30 September 2015, explained that there has been a significant increase in requests to the Department since the FOI Act 2014 came into force in October 2014, many of which have been broad in terms of ambit and relate to complex issues. He stated that additional decision makers were retained to work exclusively on the backlog of requests. I welcome the Department's decision to afford additional resources to the FOI function which, hopefully, will allow the Department to more readily meet the statutory time-frames in the future.

Regardless of the resourcing issue, however, the manner in which the Department processed this particular request was most unsatisfactory. In acknowledgement of the fact that there may be occasions where an FOI body cannot meet the statutory time-frame for issuing a decision, the FOI Act provides that in such cases, the body is deemed to have refused the request and the requester is entitled to apply for an internal review. Similarly, where the body fails to issue an internal review decision within the required time-frame, the Act provides for an application for review to be submitted to this Office. Notwithstanding the fact that the Department has been subject to FOI for almost eighteen years, it does not appear to have been aware of these provisions in this case.

As the applicant did not receive a decision on her request within the required time-frame, she rightly sought an internal review of the deemed refusal. However, rather than process the internal review request as such, the Department informed this Office that it was not possible to conduct an internal review within the required time-frame as the original decision had not been made at that stage. Furthermore, when the decision eventually issued, it purported to represent an original decision and offered a right of internal review as opposed to a right of review by this Office. This was clearly incorrect. I expect the Department to take note of my concerns and to put appropriate procedures in place to ensure that similar issues do not arise in the future. The Department will be aware that support is available from the Central Policy Unit (CPU) of the Department of Public Expenditure and Reform and that useful standard FOI processing documentation is available on its website at www.foi.gov.ie.

Analysis and Findings

The record at issue has been released to the applicant with the exception of three sentences. The Department has relied on section 31(2)(b) of the FOI Act to withhold this information.

Section 31(2)(b) provides as follows:

"A head may refuse to grant an FOI request if the record concerned relates to the appointment or proposed appointment, or the business or proceedings, of;

(a) a tribunal to which the Tribunals of Inquiry (Evidence) Act 1921 applies,

(b) any other tribunal or other body or individual appointed by the Government or a Minister of the Government to inquire into specified matters at least one member, or the sole member, of which holds or has held judicial office or is a barrister or a solicitor, or,

(c) any tribunal or other body or individual appointed by either or both of the Houses of the Oireachtas to enquire into specified matters

and the request is made at a time when it is proposed to appoint the tribunal, body or individual or at a time when the performance of the functions of the tribunal, body or individual has not been completed."

For the section to apply, a number of conditions must be met, namely
the record must relate to the appointment, proposed appointment, business or proceedings of a tribunal, body or individual specified in paragraphs (a), (b) or (c) above,
the request must be made at a time when it is proposed to appoint the tribunal, body or individual or at a time when the performance of the functions of the tribunal, body or individual has not been completed, and
the record must not relate to the general administration of the tribunal, body or individual or of any of their offices (section 31(3) refers).

According to the Department, on 16 June 2015, Statutory Instrument No. 253/2015 (Commission of Investigation (Irish Bank Resolution Corporation) Order 2015) established a Commission to investigate certain matters under section 3 of the Commissions of Investigation Act 2004. I am aware from the Commission's First Interim Report submitted to the Taoiseach on 15 November 2015 that Mr Justice Brian Cregan of the High Court was appointed as Sole Member of the Commission on 9 July 2015.

While I accept that the Commission is a body specified in section 31(2)(b), it seems to me that the redacted information at issue does not relate to the business or proceedings of the Commission, as argued by the Department, and that the first condition for the exemption to apply has not been met. The terms of reference of the Commission are as set out in S.I. 253/2015. The Commission was established to "investigate all transactions, activities and management decisions ... which occurred between 21 January 2009 ... and 7 February 2013 ...and which either (a) resulted in a capital loss to IBRC of at least €10,000,000 during the relevant period ... or (b) are specifically identified by the Commission as giving rise or likely to give rise to potential public concern, in respect of the ultimate returns to the taxpayer". The S.I. provides for the extension of the Commission's terms of reference to investigating six specified matters (a to f), including, at (f);

"in relation to each transaction under investigation, whether the Minister for Finance or his Department was kept informed where appropriate in respect of the transactions concerned, and whether he, or officials on his behalf, took appropriate steps in respect of the information provided to them".

I note that the authorisation to investigate whether the Minister for Finance or his Department was kept informed applies only in so far as it relates to transactions under investigation. The information withheld from the director's letter in this case is essentially an opinion as to the general availability of certain records and/or information relating to IBRC to the Department. In my view, the information does not concern whether the Minister for Finance or his Department was kept informed in respect of transactions under investigation. I am satisfied, therefore, that the withheld information does not relate to the business or proceedings of the Commission and I find that section 31(2)(b) does not apply.

Accordingly, having regard to section 22(12)(b) which places the onus on the Department of satisfying me that its decision to refuse access was justified, I find that the Department was not justified in redacting the three sentences in question from the record at issue.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby annul the decision of the Department. I direct it to release the three remaining sentences in the director's letter to the Minister.

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