Whether GNI was justified in its decision to refuse access to information sought by the applicant relating to specific gas works in County Dublin on the grounds that the records were created prior to the effective date of the FOI Act

26/09/2018

Background

On 16 April 2018, the applicant submitted a request to GNI for information relating to specific gas works in County Dublin. On 25 April 2018, GNI refused the request on the ground that the records sought were created before the effective date applicable to GNI i.e. 21 April 2008. On 7 May 2018 the applicant sought an internal review of that decision, following which GNI affirmed its original decision to refuse the request. On 29 May 2018 the applicant sought a review by this Office of GNI's decision

During the course of the review, GNI agreed to share its comprehensive submission to this Office with the applicant in an effort to set out its position in respect of some concerns the applicant had relating to the projects that were the subject of his FOI request. The submission contained some, but not all, of the information he was seeking. In his response of 20 July 2018 the applicant indicated that he required the remaining information to be released

I have decided to bring this case to a close by way of a formal, binding decision. In reviewing this case I have had regard to the communications between GNI and the applicant, and to the communications between this Office and both the applicant and GNI on the matter.  

 
Scope of the Review

This review is solely concerned with whether GNI was justified in refusing to release the records sought by the applicant on the ground that they were created before the effective date applicable to GNI i.e. 21 April 2008. 

Analysis and Findings

In light of the applicant's submissions to this Office, it is important to note at the outset that I am required under section 13 (4) to disregard any reasons the applicant has for seeking access to the records in question. Furthermore, the Act does not provide for a consideration of the public interest in respect of records to which no right of access exists.

Section 11(4) of the FOI Act provides that a right of access under the FOI Act does not normally arise in the case of records created before the effective date which, in the case of GNI, is 21 April 2008. This means that any records held by GNI that were created before 21 April 2008 are excluded from the FOI Act unless section 11(5) of the FOI Act applies. In this case, GNI stated that the records sought were created in 2002.

Section 11(5) provides for the release of records created before the effective date where (a) access is necessary or expedient to understand records created after that date, or (b) the records relate to personal information about the requester. The applicant has not suggested that the records sought relate to personal information about him. Accordingly, the sole question I must consider is whether access to the pre-commencement records sought is necessary or expedient in order to understand records created after 21 April 2008

In his submissions to this Office, the applicant argued that access to the records sought is necessary or expedient in order to understand the 2016 Financial Statement of GNI. In essence his argument is that the costs of a mains extension may have been incorrectly logged against a new housing estate in County Dublin and that, as a result, the mains extension may be incorrectly reflected in the financial reports since then.

This Office considers that section 11(5)(a) is directed towards whether the substance or gist or subject matter of a record can be understood. The fact than an earlier record might shed new light on a record or enable a requester to extend or analyse information in a later record does not mean that the earlier record is necessary or expedient to understand the later record. This Office takes the view that the release of a record that was created before the effective date is justified only to the extent that such access is a suitable means to achieving the end of understanding the substance of a record created after the effective date.

This Office has no role in considering whether or not the 2016 Financial Statement of GNI represents a true reflection of its financial position. It seems to me that the applicant is seeking access to the earlier records to allow him to make a more informed judgment as to the accuracy, or otherwise, of the Financial Statement. This is not the same as requiring access to understand the substance or gist or subject matter of the Statement. I am not satisfied that access to the records sought is necessary or expedient in order to understand the 2016 Financial Statement of GNI. I find, therefore, that section 11(5)(a) does not apply.

In conclusion, therefore, I find that GNI was justified in refusing the applicant's request on the ground that the records sought were created before the effective date for GNI and that the Act does not provide for a right of access to those records.

Decision

Having carried out a review under section 22(2) of the FOI Act, I affirm the decision of GNI to refuse the applicant's request on the basis that the records sought were created before the effective date 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.

Stephen Rafferty
Senior Investigator