Whether EI was justified in its decision to refuse access to the name(s) of the person(s) at EI who made, or agreed to, the decision to invest, under Innovation Fund Ireland, in a named venture capital fund in 2010, on the basis that no records containing that information exist

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 17 April 2015 the applicant submitted a request to EI for the name(s) of the person(s) at EI who made, or agreed to, the decision to invest, under Innovation Fund Ireland, in a named venture capital fund in 2010.

On 8 May 2015 EI stated that it held no relevant records relating to the applicant's request. It further stated that the investment decision referred to by the applicant was made independently by the National Pensions Reserve Fund (NPRF) and that EI was not represented on the decision making committees or structures within the NPRF. On 17 May 2015 the applicant sought an internal review of EI's original decision. On 18 June 2015 EI issued an internal review decision in which it affirmed its original decision, stating that EI had no involvement in the decision that resulted in the NPRF investment and that therefore no EI staff would have "made, or agreed to" any investment. The applicant applied to this Office for a review of that decision on 16 December 2015.

I note that during the course of the review, Mr Benjamin O'Gorman of this Office informed the applicant of EI's position that the investment decision in question was made by the NPRF, and that EI was not represented on any decision making committees or structures within the NPRF and had no role in approving or agreeing to the NPRF's investments. He explained that EI's position is that it therefore does not hold any records relevant to the applicant's request. Mr O'Gorman also informed the applicant of his view that the decision of EI to refuse to grant access to the information sought was justified.

The applicant indicated that he did not accept that EI had no role in the investment decision in question and consequently he did not accept it did not hold relevant records. Therefore, I consider that this review should now be brought to a close by issue of a formal, binding decision.

In conducting this review, I have had regard to correspondence between EI and the applicant as set out above. I have also had regard to the communications between this Office and both the applicant and EI.

Scope of Review

This review is concerned solely with whether EI was justified in refusing access to the information sought by the applicant concerning the name(s) of the person(s) at EI who made, or agreed to, the decision to invest, under Innovation Fund Ireland, in a named venture capital fund in 2010, on the basis that the records do not exist.

Preliminary Matters

I should explain at the outset that requests for information, as opposed to requests for records, are not valid requests under the FOI Act. The FOI Act does not require FOI bodies to create records if none exist and does not oblige FOI bodies to answer general queries. Furthermore, the FOI Act does not generally provide a mechanism for answering questions, except to the extent that a question can reasonably be inferred to be a request for a record containing the answer to the question asked or the information sought. Accordingly, the question to be considered in this case is whether relevant records are held by EI that contain details of the information sought by the applicant.

During the course of this review the applicant raised a number of matters which did not appear to directly relate to this review. Section 13(4) of the Act requires that, subject to the Act, any reasons a requester gives for making a request shall be disregarded. Furthermore, this Office has no role in adjudicating on how FOI bodies carry out their functions generally or to investigating complaints against FOI bodies.

Analysis and Findings

As I have outlined above, the applicant's request relates to the investment under Innovation Fund Ireland into a named venture capital fund.

EI's position is that the investment decision in question was made by the NPRF and EI does not hold any records containing the information requested by the applicant. Accordingly, section 15(1)(a) of the FOI Act is relevant in this case. That section provides that a request for access to a record may be refused if the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. This Office's role in cases such as this is to review the decision of the public body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision.

In a submission to this Office dated 13 January 2016, EI explained that the Innovation Fund Ireland programme was a joint initiative between EI, the NPRF and the Department of An Taoiseach. EI stated that there were two funding streams and that both funding agencies, EI and the NPRF, made independent investment decisions in line with their respective legislative mandates. It explained that the investments made by EI were made as part of a published open competitive process.

EI stated that the investment decision referred to by the applicant in his request was made by the NPRF, and explained that EI was not represented on any decision making committees or structures within the NPRF and had no role in approving or agreeing to the NPRF's investments.

The applicant does not accept that EI had no role in the decision which led to the investment under Innovation Fund Ireland in the named venture capital fund. In support of his contention that EI should hold relevant records, the applicant has asserted that several emails he received from EI indicate that it did have a role in the investment decision. However, having considered EI's explanations, as set out above, I am satisfied that the applicant is drawing inaccurate inferences from the wording of said emails.

The position of EI is that it does not hold records relevant to the applicant's FOI request. While the applicant may not be satisfied with EI's responses, he has provided no evidence to suggest that EI would hold relevant records. Having reviewed the explanations provided by EI, I find that EI was justified in refusing the applicant's request under section 15(1)(a) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of EI to to refuse access to the records under 15(1)(a) of the FOI Act, on the basis that they do not exist.

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