Whether the Department was justified, under section 15(1)(a), in refusing to release records relating to the former Minister for Justice and Equality and a company, on the basis that they are not held or do not exist

16 August 2018 

Background

On 11 March 2017 the applicant submitted an FOI request to the Department for access to:- 

"Copies of all correspondence - both written and electronic - between Minister Frances Fitzgerald and/or her private office and any of the following people or companies: [name of an individual and a company]. This request to cover the period from Minister's appointment to the date of receipt of this request."

For convenience, I refer to the individual and/or the company who were providing a service to the former Minister as "the company". The Department did not issue a decision on the initial request. The applicant then submitted a request for an internal review on the basis of his request being deemed refused by the Department, under the provisions of section 19(1) of the Act. In its decision of 8 June, the Department refused access to the records on the basis of section 15(1)(a) of the Act. 

Two days after receipt of the initial FOI request, the Department wrote to the requester and stated that under section 14 of the Act, it was extending the time period within which it would make a decision on the request by four weeks beyond the initial four weeks provided for at section 13(1). The Department gave no reason for its decision to extend the time. During the review, the Investigator queried the basis on which the Department had relied on section 14. In response, the Department stated that "an extension was sought ... due to the number of FOI requests on hand, [and] ... in order to ensure that an adequate search of all relevant databases and files were undertaken". Section 14(1) of the Act provides for an extension based on the number of records related to the request or the number of other FOI requests relating to the same records such that compliance with the time limit is not reasonably possible. However, it does not provide for an extension on the basis that the FOI body is experiencing an increase in FOI requests generally.

In conducting this review I have had regard to the submissions of the Department, to correspondence between the applicant and the Department and to correspondence between my Office, the applicant and the Department in relation to the request.

Scope of Review

This review is solely concerned with whether the Department's decision to refuse the applicant's request under section 15(1)(a) of the FOI Act was justified.

Section 22(12)(b) of the FOI Act provides that when the Commissioner reviews a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore in this case, the onus is on the Department to satisfy me that its decision is justified.

Analysis and Findings

Section 15(1)(a) - Refusal on administrative grounds

Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused if the record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. The role of my Office in cases such as this is to review the decision of the FOI 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 and I also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.

In his application to this Office the applicant questioned whether "a full and thorough search" had been undertaken. He said he found it difficult to believe that within the Department there are no records (including any records relating to "professional and personal email addresses and/or messaging services") associated with his request. 

Records located by the Department

During this review, the Investigator asked the Department about the existence of records and the steps that it had taken to search for records which were relevant to the applicant's FOI request. The Department eventually identified 74 records which it had not previously considered. It seems that in late January 2018, following concerns expressed by my investigative staff that further records could be held, the Department searched archived email accounts. My Office identified 68 records that fall within the scope of the applicant's request and advised the Department of this. The remaining six records were created after the FOI request was made and are not therefore within the scope of the review. 

In the circumstances, where the Department has not considered or made a decision, I believe that I should not make a first instance decision and findings on whether any provision or exemption applies. Section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of these records is limited. However, I can say that some of the records located by the Department were created in the context of speeches given by the former Minister. 

The applicant pointed out in his application for review that the company involved was retained through the special secretarial allowance paid via the Oireachtas.  The Department stated that under a Scheme for Secretarial Assistance, Members of the Oireachtas can claim a Secretarial Allowance for the purposes of obtaining additional secretarial services. It stated that the Scheme is administered by the "One Stop Shop" which liaises with the Human Resources Unit of the Oireachtas. The Department says that the allowance can assist towards expenses arising from the purchase of certain secretarial assistance, public relations, information technology and training services from a person employed under a contract of service. It stated that it has no responsibility for allowances paid by the Houses of the Oireachtas Service and "does not hold any information or records in respect of these types of allowances ... in respect of the Minister for Justice and Equality". I am satisfied that the Department does not hold records related to the Secretarial Allowance scheme itself.

Adequacy of search

The evidence in "search" cases consists of the steps actually taken to search for records, along with miscellaneous other evidence about the record management practices of the FOI body, on the basis of which the FOI body concluded that the steps taken to search for records were reasonable. Having regard to the information provided, I form a view as to whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found.  However, it is not normally the function of my Office to search for records that a requester believes are in existence.

On 28 July 2017, the Investigator invited the Department to make a submission. The Investigator referred to the applicant's queries concerning the Department's decision that no records exist in the Minister's email (Ministerial and personal), messaging services (e.g. Viber, WhatsApp, Facebook Messenger) and other electronic messaging and/or social media accounts. The Investigator asked the Department to identify any access it has to official communications held by the former Minister, her Private Secretary or other staff concerning the company. In particular, the Department was asked to confirm whether the former Minister used the relevant services during the period under review and if so, to explain in what capacity the Department considers contact between the former Minister and the company to have been made and to confirm whether the Department considers that it controls any records generated for official purposes around such contacts. Other queries regarding searches of various offices/divisions of the Department were also addressed to the Department in the course of this review. The Department was also referred to the Guidance Note 24, created by the Central Policy Unit (CPU) of the Department of Public Expenditure & Reform.

CPU Guidance Note 24

Guidance Note No. 24, which is primarily for the guidance of FOI bodies and users of the Act, refers to records held on non-official systems and electronic devices used by individuals. The Note states that in certain exceptional circumstances, official information subject to FOI may be transmitted via non-official systems e.g. web-based email, including gmail accounts and that public bodies are required to take reasonable steps to search for and extract the records to which the request relates. The Note also states that "the FOI Act does not require records -˜held-™ by a public body to be held in any particular location. If the records relate to official functions and/or business activities of a public body, and if the public body has a legal right to procure the records regardless of whether they are held in official or non-official systems (including web-based email such as Gmail or Hotmail), these records are subject of the FOI Act."

Guidance Note 24 also states that where records fall within the scope of a particular FOI request and are not held on that public body's own systems, "it will necessitate the individual being asked to retrieve the official records from the non-official system or electronic device.  Where a non-official system is required to be used (in exceptional circumstances), the employee must ensure a copy is made available in a form that can be accessed should the record be the subject of an FOI request." 

In its submission, the Department stated that it is responsible for the management of Departmental email accounts, databases and related IT infrastructure. It said that searches were conducted of the Departmental account for the former Minister and also the email accounts of past and current private secretaries. The Department said that searches were undertaken of the "Ministerial document library and generic e-mail inboxes for the Minister's Office and diary secretary". It also stated that it has a mandatory record keeping protocol entitled 'Minister and Secretary General Decisions & Record Keeping Policy', which it said ensures that "an enduring record is created and maintained of all key decisions and relevant key issues at Ministerial, Secretary General and Management Board level." The Department said at that stage (11 August 2017) that it is not aware of any interaction between the former Minister and the particular service provider individual and her company during the period under review. It also said that personal email accounts are not administered by any Government Department.

While the submission clarified the matter to some extent, my Office was not satisfied that the Department had provided sufficient information concerning the adequacy of searches it had undertaken, in order to make a decision on the basis of section 15(1)(a) of the Act. 

Consequently, my Office wrote to the Department and invited it to clarify its position on searches it had conducted to satisfy itself that further records are not held or cannot be found. In particular, the Department was asked if it had considered the possibility that messages/emails concerning official business of the Department may be held on "private" accounts of individuals, including the former Minister, and whether any such official communications were forwarded to officials in the Department. My Office also put it to the Department that from time to time public bodies use such accounts for Official business. 

In response, the Department confirmed the searches that it said it had conducted previously. It also referred to a previous decision of this Office (case no. 170304 onwww.oic.ie) as verification that no communications between the former Minister's gmail accounts to the individual or the company were sent to any Departmental email accounts. However, I note that the subject matter of that request differs from the request to which this review applies. In addition, the question of the accuracy of the search of the former Minister's gmail account does not appear to have been raised in that review.

The Department stated that it checked with the former Minister's political advisors and archived email accounts and that no additional records were located, other than those referred to earlier in this decision. However, in response to the query about whether it had considered records held in personal email accounts, the Department stated that it "has no access to or control over such accounts, particularly in respect of persons no longer working in the Department."  The Department referred to section 11 of the FOI Act and said that "private email accounts of the now former Minister...could not be said to be under the control of the Department...". 

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. 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. 

The Department confirmed that it has not checked whether any records relating to official functions and/or business activities of the Department are held in "non-official" systems. While the Department originally stated that it was not aware of any interaction between the former Minister and the company, it subsequently came to light that its archive records did contain a substantial number of relevant records. The Department stated that it would not be appropriate to ask the former Minister whether she has records in her personal email accounts "that might fall within the scope of the request"[my emphasis], and that the Department "does not feel it is in a position to go outside of the scope of the FOI Act and seek such information from [the former Minister] in an attempt to respond to an FOI request." It seems to me that the Department's position is not consistent with its record keeping protocol referred to earlier, nor with the FOI guidance issued by the CPU. The protocol states that "maintaining a note of decisions, meetings and information conveyed more informally ... provides evidence of the Department's interactions with stakeholders and is also necessary in the context of compliance with legal requirements including the FOI Acts...". Consequently, I cannot accept the Department's position that asking the former Minister whether any relevant records may exist in her personal accounts or devices, is going outside the scope of the FOI Act. It seems to me that the fact that a Minister forwarded some exchanges to staff and others within the Department's "official" systems does not mean that other official records held in personal accounts are not under the control of the Department. 

I accept that not all of the content of the former Minister's email accounts or devices are under the Department's control. I consider that it is reasonable and necessary for the Department to enquire of the former Minister whether she holds relevant records not filed or stored in "official systems" but relating to the functions and business of the Department of Justice and Equality. It appears from the records retrieved by the Department and dealt with above that the former Minister and some of her staff used gmail addresses in correspondence with the company about official functions and activities of the Department. To the extent that a gmail or other account may have been used in this way, I do not accept that such content could reasonably be characterised as "private". I do not believe that it is particularly relevant that the former Minister is no longer working in the Department. 

Guidance Note 24 says that records held by individuals, regardless of the form in which they are held, and which relate to the functions and/or business activities of the public body, are held on behalf of the public body and as such may be subject to the FOI Act. The Note clearly provides for a scenario where a decision maker requests an individual to search non-official systems or other electronic devices. The Note states that in such a situation, the decision maker should record all actions taken, so that the public body can demonstrate that appropriate searches were conducted in relation to a particular FOI request.

I note that among the considerations which might arise in regard to any records retrieved from the former Minister is section 42(k) of the FOI Act, which provides that the Act does not apply to the private papers of a Minister. 

Section 42(k) provides that the FOI Act does not apply to "a record relating to any of the private papers (within the meaning of Article 15.10 of the Constitution) of a member of either House of the Oireachtas or an official document of either or both of such Houses that is required by the rules or standing orders of either or both of such Houses to be treated as confidential."

However, it would be premature for me to express any view on the potential release of any records found to be held in regard to whether section 42(k) or any other exemption might apply. 

Having regard to the fact that the Department failed to ask the former Minister whether further records were held by her within the scope of this request, I consider that the Department has not taken all reasonable steps to ascertain the whereabouts of further records. I find, therefore, that the Department is not justified in refusing access to further records under section 15(1)(a). 

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby annul the Department's decision to effectively refuse access to records identified during the course of this review and I direct it to undertake a fresh decision making process on those records. 

I direct the Department to ask the former Minister whether she holds additional records within the scope of the applicant's FOI request and if she does, to retrieve them and furnish them to the Department so that it can make a decision on them in accordance with the provisions of the FOI Act. 

The fresh decision making process should be carried out and decisions on both elements above notified to the applicant in accordance with section 8 of the FOI Act.

For clarity, I specify that subject to sections 24 and 26 of the Act, the statutory time limit for making a decision begins within five working days of the expiration of the four week period for the bringing of a High Court appeal.

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