Mr. Z and Office of the Director of Corporate Enforcement (FOI Act 2014) (Office of the Director of Corporate Enforcement) [2018] IEIC 170573 (2 February 2018)

Case number: 170573

Whether the ODCE was justified in refusing access to a liquidator's report held by the ODCE on the ground that the record is excluded from the scope of the FOI Act under the provisions of Schedule 1, Part 1(g) of the Act

02/02/2018

Background

On 8 August 2017 the applicant requested access to a liquidator's report held by the ODCE. The ODCE refused the request on 21 August, citing Schedule 1, Part 1(g) of the FOI Act. Following a request for an internal review, the ODCE affirmed its original decision. On 18 December 2017, the applicant sought a review by this Office of that decision.

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

Scope of Review

This review is concerned solely with the question of whether the ODCE was justified in refusing access to the report sought on the ground that the FOI Act does not apply in respect of this record, in accordance with Schedule 1, Part 1(g) of the Act.

Analysis and Findings

The ODCE's argument is that the FOI Act does not apply to the record at issue. Schedule 1, Part 1 of the FOI Act contains details of FOI bodies that are partially included for the purposes of the Act and also details of the certain specified records that are excluded. If the records sought come within the description of the exclusions in Part 1, then the Act does not apply and no right of access exists.

Under Part 1(g) of Schedule 1, the ODCE is not a public body for the purposes of the FOI Act in relation to records held or created under the Companies Acts (save as regards records concerning the general administration of the ODCE). In other words, if the record sought is held or created by the ODCE under the Companies Acts, the FOI Act does not apply to the record and no right of access exists, unless the record concerns the general administration of the ODCE.

In its submission to this Office, the ODCE stated that the type of report that is the subject of this request is made by a liquidator as mandated by section 682 of the Companies Act 2014, and held by the ODCE under this Act in order to fulfil its statutory remit of supervision of liquidators of insolvent companies. I accept that this is the case. The question I must consider, therefore, is whether the record sought can be said to concern the general administration of the ODCE.

While the term "general administration" is not defined in the Act, this Office considers that it clearly refers to matters concerning the management of the ODCE such as personnel, pay matters, recruitment, accounts, information technology, accommodation, internal organisation, office procedures and the like. It does not refer to matters concerning the core business of the ODCE such as the supervision of liquidators of insolvent companies. As such, I am satisfied that the record at issue is held by the ODCE under the Companies Acts and does not concern the general administration of the ODCE.

In the circumstances, I find that the FOI Act does not apply to the record sought and that no right of access exists under the FOI Act. I note the applicant's argument that the record sought relates to him in a personal capacity and that his constitutional rights have been denied by the ODCE's refusal to release the record. However, the fact remains that the Act simply does not apply to the record sought and as such, I cannot take the applicant's arguments into consideration.

I find, therefore, that the ODCE was justified in its decision to refuse access to the record sought on the ground that it is specifically excluded from the scope 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 ODCE in this case.

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