Case Number: 160447

Whether the Commissioner has the jurisdiction under the FOI Act to review a decision of the ODPC to refuse a request on the basis that Schedule 1, Part 1(f) applies and whether the ODPC was justified in refusing the applicant's request for access to records relating to eight specific entries in the lobbying register pursuant to Schedule 1 Part 1(f) of the FOI Act on the ground that the records sought do not concern the general administration of the ODPC

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

Background

The Regulation of Lobbying Act 2015 is designed to provide information to the public about who is lobbying whom about what. The Act provides that the Standards in Public Office Commission is the Registrar of Lobbying. The Commission maintains a Register of Lobbying on its website, www.lobbying.ie. In a request dated 2 September 2016, the applicant sought access to records relating to eight specific entries in the lobbying register concerning the ODPC. The records sought related to the specific lobbying activities registered by the various lobbyists.

Following an exchange of correspondence, the ODPC refused the request on the basis that any records of the categories described in the request fall outside the scope of its obligations under the FOI Act in relation to access to records because they do not concern the general administration of the ODPC. On 16 September 2016, the applicant sought an internal review of that decision.
In its response dated 7 October 2016, the ODPC outlined its position that no right of internal review arose as the records sought concern matters for which it is not a public body for the purposes of the Act. Without prejudice to that position, however, it went on to provide a detailed explanation of why it considered that records relating to each of the eight specific lobbying register entries did not concern the general administration of the ODPC and it affirmed the original decision to refuse the request. On 17 October 2016, the applicant sought a review by my Office of that decision.

I have decided to conclude this review by way of a formal, binding decision. In conducting the review, I have had regard to the correspondence between the ODPC and the applicant as described above. I have also had regard to the correspondence between this Office and both the ODPC and the applicant on the matter.

Scope of the Review

While the ODPC engaged with my Office in relation to the review, it has maintained its position that I have no jurisdiction to review its decision to refuse a request on the ground that the records sought concern matters for which the ODPC is not a public body for the purposes of the Act. Therefore, the first question I must consider is whether I have the jurisdiction under the FOI Act to review the ODPC's refusal of the request. If I find that I have, I will then proceed to consider whether the ODPC was justified in refusing the request on the ground that the records sought do not concern the general administration of that Office.

Analysis and Findings

Jurisdiction to Review
The vast majority of relevant bodies 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) provides that an entity specified in Part 1 of Schedule 1 shall, subject to the provisions of Part 1, be a public body for the purposes of the Act. Part 1(f) of Schedule 1 provides that section 6 does not include a reference to the Data Protection Commissioner, or an officer of the Commissioner, in relation to a record (save as regards a record concerning the general administration of the Office of the Commissioner).

The position of the ODPC is that it is a public body for the purposes of the Act only in respect of records concerning the general administration of the Office, and that it is therefore subject to the obligations that apply to FOI bodies under the Act only where the records sought concern the general administration of the Office. Essentially, its argument is that none of the provisions of the FOI Act apply where the records sought do not concern the general administration of the ODPC.

During the course of the review, my Office explained to the ODPC that accepting its position would essentially allow it to throw a blanket over all of its records without external independent oversight by me and that it would result in the possible withholding of information that the Oireachtas clearly intended should be released under the Act. The attention of the ODPC was drawn to the Guidance Note issued by the Central Policy Unit (CPU) of the Department of Public Expenditure and Reform (the Department) which clearly states that where access to 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, the internal and external review provisions clearly apply. Its attention was also drawn to the fact that the approach adopted by the ODPC apparently runs contrary to the legal advice that the Office of the Attorney General provided to CPU on the matter, and to my decision in Case 150195 (available on www.oic.ie) where I considered and rejected similar arguments made by the Central Bank of Ireland.

In response, the ODPC argued that the interpretation of the Act advanced by my Office and by CPU is not supported by the explicit statutory provisions of the Act and it stated that its position remains unchanged. I should add, however, that while signalling an intention to draw the attention of the Department to what it perceives as gaps in the legislation and to seek a legislative amendments to address those gaps, it confirmed that it remains committed to the principle of transparency as set out in the Act. It further confirmed that it will deal with any request for "non-covered" records in a manner analogous to how they must be dealt with under the FOI Act, where possible. While I appreciate the ODPC's commitments on this point, I must make a determination on whether I have the jurisdiction to review such decisions of the ODPC before I can appropriately proceed to review those decisions

As an FOI body, I consider that the ODPC 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 review by my Office under section 22(1)(b) of the FOI Act. Accordingly, I find that I have the jurisdiction under the FOI Act to review the ODPC's decision to refuse the applicant's request on the basis that Part 1(f) of Schedule 1 applies.

Refusal of Request
The question I must now consider is whether the ODPC was justified in refusing the request on the ground that the records sought do not concern the general administration of its Office. While the term "general administration" is not defined in the Act, my Office has previously considered what types of records are captured by the term. In Case 160055 (Mr. X and the Office of the Attorney General), Stephen Rafferty of my Office stated the following:

"While the Act is silent on the meaning of general administration, this Office considers that it clearly refers to records which have to do with the management of the AG's Office such as records relating to personnel, pay matters, recruitment, accounts, information technology, accommodation, internal organisation, office procedures and the like. I am satisfied that it does not refer to records relating to matters concerning the core business of the Office, such as advising on legislation or litigation."

In this case, the records sought relate to various discussions held between various entities and the ODPC which were included on the register of lobbying. The lobbying register provides details of the subject matter of each lobbying activity and the intended results and a description of the activities that occurred for the specific subject matter area. In its letter of 7 October 2016 to the applicant, the ODPC provided a detailed explanation as to why it considered that the subject matter of each activity engaged the Commissioner's statutory functions and the core business of the ODPC and that related records did not concern the general administration of the Office. While I do not propose to repeat that explanation in detail here, I can confirm that I have had regard to it for the purposes of the review.

In its letter of 17 October 2016 to my Office, the applicant stated that the records relate to returns to the Lobbying Register in respect of public policy issues and EU legislation. It argued that the activities in question are not related to the statutory functions of the Data Protection Commissioner (DPC) since there is no obligation to make lobbying returns if the activity in question relates to the DPC's statutory duties. It argued that the DPC has no relevant statutory functions in relation to public policy or programmes or EU legislation and that the subject of the request must, therefore, be considered to be within the scope of the FOI Act. In essence, the applicant's argument is that records relating to lobbying of the DPC are outside of what could reasonably be considered as her core functions and as such, they must therefore be regarded as records concerning the general administration of the ODPC. The applicant cited a previous case of my Office, Case 090315, in support of that argument.

It seems to me that the applicant's argument is based on a misinterpretation of my Office's decision in Case 090315. That case involved a consideration of whether certain records could be said to concern the general administration of a Commission of Investigation as set out in section 40(1) of the Commissions of Investigation Act 2004. The Senior Investigator found that the term "general administration" excluded anything which served to disclose details of the collection and assessment of evidence or the thought processes of the Commission more generally. However, the decision does not find that all other records must therefore be regarded as concerning the general administration of the Commission. It seems to me that while records concerning the core function of a body cannot be regarded as concerning general administration, it is not the case that all other records must, by definition, be regarded as concerning general administration.

In any event, part 1(f) of Schedule 1 of the FOI Act does not provide for a right of access to all records held by the ODPC other than those regarding its core functions. Rather, it excludes all records held, except for records relating to the general administration of the Office. The question I must address, therefore, is not whether records relating to lobbying of the DPC concern her core functions, although it is worth noting that the fact that the records relate to lobbying does not, of itself, mean that they cannot also relate to the core business of the ODPC. Rather, I must consider whether the records sought concern the general administration of the ODPC.

As outlined above, I consider that the term "general administration" refers to records which have to do with the management of an FOI body such as records relating to personnel, pay matters, recruitment, accounts, information technology, accommodation, internal organisation, office procedures and the like. Whatever else the records at issue might be in this case, I am satisfied, having regard to the ODPC's explanation of the nature and subject matter of the relevant lobbying activities and to my understanding of the term, that they do not concern the general administration of the ODPC.

The applicant also argued that the ODPC had not met the legal standard required to refuse the request as it did not examine each relevant record on an individual basis to see whether or not it comes within the scope of the FOI Act. It is clear from the wording of the FOI request that the applicant was seeking access to records relating directly to the specific lobbying activities. As I have outlined above, the ODPC clearly held the view that the subject matter of each lobbying activity engaged the DPC's statutory functions and the core business of the ODPC and that related records did not concern the general administration of its Office. In such circumstances, it was, in my view, entirely reasonable for the ODPC to refuse the request without having examined each individual record. The fact that they did not examine each record in this case does not, of itself, provide a basis upon which I may annul the decision of the ODPC.

Finally, I note that the applicant informed my Office of an investigation being undertaken by the ODPC in relation to contraventions of the data protection law and argued that there is a clear public interest in accessing lobbying information where the lobbyist is subsequently the subject of an investigation. The question of whether or not such a public interest exists is of no relevance to the question of whether or not the records come within the scope of the FOI Act by virtue of the fact that they concern the general administration of the ODPC.

Decision

Having carried out a review under section 22(2) of the FOI Act 2014, I hereby affirm the decision of the Office of the Data Protection Commissioner to refuse the applicant's request for access to records relating to eight specific entries in the lobbying register.

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