Case Number: 160108

Whether the Department was justified in refusing access to records containing information relating to who within the Department and Enterprise Ireland (EI) made, or agreed to, the decision to invest, under Innovation Fund Ireland (IFI), in a named venture capital fund in 2010, on the basis that the records do not 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 22 May 2015 the applicant made a request to the Department for information relating to who within the Department and EI made, or agreed to, the decision to invest, under IFI, in a named venture capital fund in 2010. It appears that following receipt of the request, the Department engaged in a considerable amount of correspondence with the applicant in which it attempted to clarify the precise nature of the information sought.

In its decision of 23 July 2015 the Department's decision maker referred to electronic links that led to documents the applicant had published on a website and that the applicant had apparently indicated would provide sufficient context regarding the records sought. The decision maker noted that the documents in question relate to decisions taken by EI and the National Pension Reserve Fund (NPRF) concerning IFI. She explained that while the Minister and the Department have policy responsibility for IFI, investment decisions are a matter for those agencies and records on those decisions are not held by the Department. She refused the request under section 15(1)(a) of the FOI Act on the ground that the Department holds no relevant records.

On 5 August 2015 the applicant sought an internal review of the Department's original decision, but made no comment concerning the Department's understanding of the scope of his request. On 18 September 2015 the Department's internal reviewer decided to affirm the original decision. In his letter, he noted that the Department had informed the applicant that the Department was not involved in investment decisions and invited him to withdraw his request. He noted that the applicant had instead sought to re-word and significantly broaden the scope of his request to the extent that it was so broad it fell to be refused under section 15(1)(c) of the Act. Following further exchanges of correspondence, the applicant provided the links referred to above. The internal reviewer stated that in making his decision, he had regard to the original wording of the request, the exchanges of correspondence and his application for internal review.

The applicant sought a review by this Office of the Department's decision on 4 March 2016, in which he argued that the Department had ignored his amended FOI request for '"communications in general" pertaining to the awarding of funding to the named venture capital fund under IFI.

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 the Department and the applicant as set out above. I have also had regard to the communications between this Office and both the applicant and the Department.

Scope of Review

Although section 11(2) provides that an FOI body shall give reasonable assistance to a person making a request under the FOI Act, section 12(1)(b) requires that a request contain sufficient particulars in relation to the information sought. As the Department failed to agree an appropriate clarification with the requester as to the nature of the records sought, it processed the request on the basis of the wording of the request as set out in the applicant's original application of 22 May 2015. In my view this was not unreasonable. I do not accept that the applicant is entitled to significantly broaden the request at a later stage.

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 the Department that contain details of the information sought by the applicant.

Accordingly, this review is concerned solely with whether the Department was justified in refusing access to records containing information relating to who within the Department and EI made, or agreed to, the decision to invest, under IFI, in a named venture capital fund in 2010, on the basis that the records do not exist.

 

Preliminary Matters

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

In a submission to this Office dated 22 April 2016 the Department explained that IFI is a €500 million Government initiative designed to attract leading international venture capital fund managers to Ireland to complement the domestic venture capital sector. It stated that IFI funding involves EI and the NPRF (now the Irish Strategic Investment Fund) investing together and separately.

The Department stated that while IFI was established on foot a policy decision taken by Government and implemented by the Department, the Department has no act or part in the execution of the decisions regarding the funds, and no records relating to the executive functions of the NPRF/ISIF or EI are held in the Department. Specifically, the Department stated that it had no role in the particular IFI investment decision identified by the applicant, and that it consequently does not hold any records relating to that decision.

The applicant does not accept that the Department and EI had no role in the decision which led to the investment under IFI in the named venture capital fund. In support of his contention that the Department should hold relevant records, the applicant has asserted that when he contacted the Department of the Taoiseach about the investment decision in question, it referred him to the Department. However, having considered the Department's explanations, as set out above, I am satisfied that the applicant is drawing inaccurate inferences from this referral.

The position of the Department is that it does not hold records relevant to the applicant's FOI request. While the applicant may not be satisfied with the Department's responses, he has provided no evidence to suggest that the Department would hold relevant records. Having reviewed the explanations provided by the Department, I find that the Department 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 the Department 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