Issue: Whether the Central Bank was justified in refusing access to all expenditure of the Inquiry into the Irish Nationwide Building Society (INBS) since its inception to date

20 July 2018  

Background

On 13 March 2018 the applicant sought access to "all expenditure since its inception to date (in tabular form), of the Inquiry into the Irish Nationwide Building Society, including counsel fees, inquiry fee, expenses, specialist advice, IT etc.".

The Central Bank refused the request on 27 March 2018 under section 15(1)(a) of the FOI Act on the ground that no records containing the information sought exist and that it is not required to search for and extract the information held electronically. The applicant sought an internal review of the Central Bank's decision following which the Central Bank affirmed its original decision. On 25 April 2018 the applicant sought a review by this Office of the Central Bank's decision.

During the course of the review, Mr Benjamin O'Gorman of this Office provided the applicant with details of the Central Bank's submission as to why it decided to refuse his request on the ground that it did not hold the records sought and he informed the applicant of his view that the Central Bank was justified in refusing the request. In response, the applicant indicated that he wished the review to proceed.
 
I have now completed my review in accordance with section 22(2) of the FOI Act.  In carrying out the review, I have had regard to the correspondence between the applicant and the Central Bank and to the correspondence between this Office and both the applicant and the Central Bank on the matter.

Scope of the Review

This review is concerned solely with whether the Central Bank was justified in refusing the applicant's request for details of all expenditure of the Inquiry into the INBS under section 15(1)(a) on the ground that the records sought do not exist and that it is not required, under section 17(4), to search for and extract the information held electronically.

Preliminary Matter

Before I address the substantive issues arising in this case, I wish to make two points concerning the right of access provided for under the FOI Act.

Firstly, it is important to note that while the purpose of the Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from a public body must make a request for records that contain the information sought. Requests for information, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information can reasonably be inferred to be a request for a record containing the information sought.

The second, related, point I wish to make is that the Act does not require public bodies to create records if none exist, apart from a specific requirement, under section 17(4), to extract records or existing information held on electronic devices. If the body does not hold a record containing the information sought and cannot search for and extract the electronically held records by taking reasonable steps, then that is the end of the matter.

Analysis and Findings

The Central Bank does not dispute that it holds the information that is necessary to provide the information sought. Indeed, in its comprehensive submission to this Office, it stated that it intends to collate the costs of the Inquiry following its conclusion. Rather, its position is that no record currently exists that contains the information sought by the applicant and that it is not required, under section 17(4), to search for and extract the information held electronically. 

Section 15(1)(a) provides that access to a record may be refused if the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken.  In cases such as this one, the role of the Commissioner is to decide whether the decision maker has had regard to all the relevant evidence and to assess the adequacy of the searches conducted by the public body in looking for relevant records.  The evidence in "search" cases generally consists of the steps actually taken to search for the records along with miscellaneous other information about the record management practices of the public body insofar as those practices relate to the records in question.  On the basis of the information provided, the Commissioner forms 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.

In essence the Central Bank stated that it would have to collate and process information from a variety of sources in order to grant the applicant's request and that this would involve the creation of a record which it is not required to do, except in limited circumstances as provided for in section 17(4). I accept that the Central Bank does not currently hold such a record. As such the primary issue for consideration is whether it is required by section 17(4) to grant the request.

Under section 17(4), where a request relates to data contained in more than one record held on an electronic device by the body concerned, the body must take reasonable steps to search for and extract the records to which the request relates. "Reasonable steps" are defined in the section as steps that involve the use of any facility for electronic search or extraction that existed on the date of the request and was ordinarily used by the body. The Central Bank has confirmed that all of its expenditure is held electronically in its General Ledger SAP system. The question I must consider, therefore, is whether the Central Bank is in a position to search for and extract the records to which the request relates by the taking of reasonable steps.

As I have outlined above, Mr O'Gorman of this Office provided the applicant with details of the Central Bank's submission. Therefore, while I will not repeat those details in full here, I can confirm that I have had regard to them. The following is a summary of the Central Bank's position on the matter.

While all of the Central Bank's expenditure is recorded in its General Ledger SAP system, it is not possible to create the records sought by running one or more reports. Considerable resources from three Divisions would be required to collate the information in aggregate format. All postings to the SAP system are posted to a particular division/directorate and to one of a number of specific cost elements, such as legal fees. While the SAP system is limited in that the postings are not recorded against a particular activity, e.g. a specific legal case, it is possible for a specific project code to be assigned at the beginning of a large scale project. However, a separate project code was not assigned when the investigation into the INBS commenced in 2010 as it was seen as part of the business as usual costs of the division, leading to the challenge in identifying the costs requested at this point in time.

The SAP system functionality allows reports to be created for any division or any cost centre and for one or more of the cost elements. The report will include data in a "description" field which will generally give a good indication as to what the particular cost relates to and will allow a non-expert to tag the expenditure as relevant or not with relative ease. Tagging involves the Financial Control Division (the FCD) running a report of all entries in a particular cost element, exporting the report to Excel and inserting a new column in the report in which a tag would be added manually.

While costs are tracked and reported against cost centres and cost elements on a systematic basis, some postings make activity reporting difficult. Supplier accruals and prepayments are regularly posted as one line per supplier per division but may relate to more than one activity. In addition, the costs of the INBS inquiry may be invoiced with other non-Inquiry costs. For this reason, the information on what a particular activity costs is not easily available.

In order to respond to the applicant's request, a number of steps would be required, including the following:

• The relevant divisions would be required to identify the relevant cost elements and provide details of the nature of the activity for which costs are sought.
• The FCD would run the report on the SAP system and export it to a spreadsheet.
• The FCD would tag the INBS costs by carrying out a line by line review.
• The relevant division would review the report to identify any further costs relevant to the activity that may have been missed in the first tagging exercise. While some lines can be immediately identified by divisions, some lines could require investigation by the division by reverting to the original invoices.
• Once the relevant divisions reviewed the reports, they would be returned to the FCD for collation.

In essence, the Central Bank's position is that the SAP system does not have the functionality to create a report identifying all of the cost elements related to the INBS Inquiry only and in order to create such a report, a significant amount of manual intervention is required.

It seems to me that had the Central Bank assigned a separate project code for relevant entries in its SAP system when the investigation into the INBS commenced in 2010, which would have allowed for extraction of the information sought by the applicant by running existing reports, section 17(4) would have required it to do so. However, the Central Bank did not do so and instead, it appears that the information would require significant manipulation to create the records sought. The onus on public bodies under section 17(4) to search for and extract information from records held electronically is limited. It is only required to do so by taking reasonable steps, being steps that involve the use of any facility for electronic search and extraction that existed on the date of the request and was ordinarily used. Having regard to the Central Bank's submission, it seems to me that it would have to go far beyond the reasonable steps as described in section 17(4) to grant the request.

In the circumstances, I find that the Central Bank does not hold a record containing the information sought and that it is not required to create a new record under section 17(4). I find, therefore, that the Central Bank was justified in refusing the applicant's request for access to all expenditure of the Inquiry into the INBS since its inception to date under section 15(1)(a) on the ground that the record sought does not exist.

Decision 

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Central Bank to refuse access to all expenditure of the Inquiry into the INBS since its inception to the date of the request on the ground that no relevant records containing the information sought 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