Case Number: 170110

Whether the Department was justified in its decision, pursuant to section 2(5) of the FOI Act, to refuse access to records on the basis that they are not held by, or under the control of, the Department

Conducted in accordance with section 22(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 18 September 2015, the applicant made a request for access to records concerning "... the matters subject of the Report of the Cork Local Government Committee [CLGC], titled 'Local Government Arrangements in Cork', dated September 2015". I note here that the applicant's request was the subject of a previous decision of this Office (see Case No. 160096 on www.oic.ie).

The Department identified the four parts of the request as (a), (b), (c) and (d). In its original decision on parts (a) and (b), the Department granted access in full to nine records; 46 records were part granted on the basis of section 37(1) (personal information) of the FOI Act; a further 34 records were withheld under section 15(1)(d) of the Act, on the basis that the information is already in the public domain. The remaining records within parts (a) and (b) were withheld in full on the basis of sections 29 (Deliberations of FOI bodies) and 30 (Functions and negotiations of FOI bodies) of the FOI Act. The Department refused access to the records at parts (c) and (d) on the basis that it was neither in control of, nor held, these records.

Following a request for an internal review, the Department issued a decision on 6 December 2016, in which it affirmed the original decision. On 3 March 2017, this Office received an application for review from the applicant. In his application, the applicant stated he accepted the decision of the Department to refuse access to records under section 15(1)(d) of the FOI Act.

During the course of this review, the Council re-considered its position on the records it had previously withheld at parts (a) and (b). In a letter to the applicant, dated 27 July 2017, the Department part granted access to the records. The records were released with personal information redacted, on the basis of section 37(1) of the FOI Act. The applicant accepts that he has been provided with the information he is seeking insofar as parts (a) and (b) are concerned. Consequently, those records at parts (a) and (b) of the applicant's request are no longer within the scope of this review.

The applicant referred to minutes of a Special Meeting of Cork City Council, dated 22 September 2015, in which the Council proposed a resolution under section 140 of the Local Government Act 2001, directing its chief executive to commence judicial review proceedings over the recommendations of the CLGC. The applicant said that judicial proceedings had been initiated by Cork City Council and that the proceedings "have yet to be concluded". However, the Department advised this Office that it had no knowledge of the current status of any judicial review proceedings, and that "No request for records under an order for discovery has been received [by the Department]." I take it that any such proceedings would not affect consideration of the remaining issues in this review.

In conducting my review I have had regard to the submission of the Department, and to correspondence between the applicant, the Department and this Office. I have had regard to the provisions of the FOI Act and the records provided to this Office for the purposes of this review.

Scope of the Review

This review is concerned solely with whether the Department was justified in its decision to refuse access to records covered by parts (c) and (d) of the applicant's request on the basis that they are not held by it or under its control. The records requested concern

 

"(c) Any communications between the Cork Local Government Committee and the interested parties.

(d) Agendas and minutes of all meetings of the Cork Local Government Committee and of any of its constituent members including those listed on the website of the Cork Local Government Committee".

Preliminary Matters

Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant access to a record shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified.

Analysis and Findings

Control
Section 11 of the Act provides for a right of access to any record "held" by an FOI body. The FOI Act does not define "held". However, section 2(5) states that a reference to records held by an FOI body includes a reference to records under the control of that body. Section 11(9) further provides that records in the possession of a service provider shall, in so far as they relate to the service, be deemed to be held by the FOI body.

In considering the matter of "control", I believe that it is necessary to have regard to the relationship between the parties, to any agreement between them concerning the records and to any legal rights which a party seeking to assert control over the records might have. It seems to me that where records are not physically held by a public body, at the very least the public body concerned must have some legal entitlement to procure the records if they are to be under its control.

In its submission, the Department stated that "the records of the type requested at (c) and (d) above are not held and were never held by [it]. Indeed the Department has no evidence that such records even exist." It said that the Cork Local Government Committee was set up under section 28(1) of the Local Government Act 1991 and that section 28(3) of the Local Government Act 1991 defines the committee as "independent in the performance of its functions". The Department stated that while it provided assistance to the Committee, it had no involvement in the performance of the Committee's functions. The Department also said that it did not act as secretariat to the CLGC, and that it is "... not in control of any records created by this, or any Local Government committee".

It is not disputed that the secretariat for the CLGC was provided jointly by Cork City and County Councils. The CLGC ceased to exist following publication of its report in September 2015. However, in October 2016, the Minister for Housing, Planning, Community and Local Government established an Expert Advisory Group (EAG) on Local Government Arrangements in Cork, "... having regard particularly to the review carried out by the Cork Local Government Review Committee and its report". The secretariat for the EAG was provided by the Institute of Public Administration (IPA). The terms of reference of the EAG state that "...all available relevant information, documents, records or other relevant material of the Cork Local Government Committee shall be made available to the Group...". The Department stated that while at that time, it had requested the CLGC to provide the EAG with all relevant work of the Committee, "Any remittance of papers etc between the former chair [of the CLGC] and the Cork Expert Advisory Group was a matter for those individuals. At no time were any records sent to or via the Department". The Department stated that the IPA was independent in its role as secretariat and was separate from the Department. During the course of this review, the IPA confirmed to this Office that it returned the records to the Councils on 19 September 2017.

I have considered the decision of the High Court in Minister for Enterprise, Trade and Employment v The Information Commissioner [2006] IE HC 39, Unreported, in which the finding was that records of a grant application held by a County Enterprise Board were not under the control of the relevant Department having regard to factors such as the nature of the Board, the level of control over the Board exercised by the Department and whether the Minister had a right of access to certain information held by the Board.

On balance, I consider that the records comprising communications and meetings of the CLGC are neither held by, nor are under the control of, the Department. Consequently, I have no remit to require that they be furnished to this Office for the purposes of this review, to consider their content or to consider directing their release.

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 on parts (c) and (d) of the request on the ground that it does not hold or control the records as required by section 2(5) of the FOI Act.

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.

Elizabeth Dolan
Senior Investigator