Whether the Service was justified in refusing to grant access to the constitution of the Sinn Feín party held by the Clerk of the Dáil in his role as Registrar of Political Parties on the basis of that the Service does not hold the record sought

18 June 2019

Background

On 5 June 2018 the applicant submitted a request to the Houses of the Oireachtas Service for access to "the most recent version of the constitution of the Sinn Féin party that is held by the Clerk of the Dáil, in connection with the Clerk's functions as Registrar of Political Parties under section 25 of the Electoral Act 1992 as amended." The Clerk of the Dáil is the Secretary General of the Service and the chief executive of the Houses of the Oireachtas Commission (the Commission) pursuant to the Houses of the Oireachtas Commission Acts 2003 to 2015 (the Commission Acts).

On 19 June 2018 the Service refused the request on the basis that the exercise by the Clerk of his functions as Registrar of Political Parties does not render the Commission or the Service the holder, within the meaning of the FOI Act, of documents submitted to the Clerk in his capacity as Registrar. The Service also stated that neither the Clerk nor the office of the Registrar is a public body within the meaning of the Act.

On 5 July 2018 the applicant sought an internal review of the Service's decision, based essentially on his view that the office of the Registrar is a public body within the meaning of the Act. The Service issued an internal review decision on 25 July 2018 wherein it affirmed its original decision. On 27 July 2018 the applicant sought a review by this Office.

In conducting this review, I have had regard to the correspondence between the Service and the applicant as set out above. I have also had regard to the communications between this Office and both the applicant and the Service on the matter.

Scope of Review

While the applicant has argued that the Registrar of Political Parties is a public body for the purposes of the FOI Act, it is important to note that this review is confined to a consideration of whether the decision of the public body to whom the request was made, i.e. the Service, was justified. 

Regardless of whether or not the Registrar of Political Parties is a public body for the purposes of the Act, the Service refused the request on the ground that it does not hold the record sought. Accordingly, this review is concerned solely with whether the Service was justified in its decision to refuse to grant access to the most recent version of the constitution of the Sinn Féin that is held by the Clerk of the Dáil on the ground that it does not hold the record sought. 

Analysis and Findings

Subject to its provisions, the FOI 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. 

The question I must consider therefore is whether records held by the Clerk of the Dáil can be deemed to be held by, or under the control of, the Service. 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. In its recent judgment in the case of the Minister for Health v the Information Commissioner, the Supreme Court found that for a record to be held within the meaning of the Act, the public body must not only be in lawful possession of the record in connection with or for the purpose of its business or functions but also must be entitled to access the information in the record.

In its submission to this Office, the Service provided the following information in relation to the Registrar. Under section 25 of the Electoral Act 1992 as amended, the Registrar of Political Parties is an office of a statutory nature, the holder of which shall prepare and maintain a Register of Political Parties. Section 25 provides that the person who for the time being holds the office of the Clerk of the Dáil shall be the Registrar. It also prescribes the functions and responsibilities of the Registrar. In relation to the registration of a political party, the Registrar is obliged to satisfy himself that a party applying to be registered is governed by a constitution or similar document adopted by the party which envisages the existence of an executive body and provides for the regular meeting of the party.

To that end, the Registrar may procure any information required for the purpose of his functions and responsibilities as set out in section 25. The Service stated that in so far as the records sought by the applicant are concerned, it is through the exercise of this statutory power that the records come to be in the possession of the Registrar.

The decision of the Registrar in relation to any of his statutory functions may be appealed, in the manner prescribed by the Electoral Act. The appellate body in this instance is referred to as an appeal board and is constituted by a Judge of the High Court and the Chairpersons of Dáil and Seanad Éireann respectively. The appeal board is obliged to consider, among other things, such information as was made available to the Registrar in connection with the application for registration by a political party. The Service stated that it naturally follows that this will include the constitution and associated documents, where same was considered by the Registrar. It stated that it is in these circumstances only that the Electoral Act allows for parties other than the Registrar to have sight of the records at issue in this case. The reasonable charges accrued by the Registrar in respect of the performance by him of his statutory duties, shall be paid by the Minister for Finance.

The Service argued that in summary, the independence of the office of Registrar is evident from the statutory framework as described. It stated that the functions of the Registrar are clearly prescribed and further, when carrying out said functions the charges associated with same are discharged separately from the remuneration otherwise received by the Clerk of the Dáil. It argued that there is no entitlement pursuant to the Electoral Act other than in relation to an appeal as outlined, on the part of any other person or entity to gain access to or to procure the records at issue in this case whilst in the possession of the Registrar.

Pursuant to the Houses of the Oireachtas Commission Acts 2003 to 2015, the Service is defined as 

“the office of the public service that is staffed by civil servants of the State, employed by the Commission, who exercise functions under section 3A and under the Commission in running the Houses of the Oireachtas under section 4(1)”

The Houses of the Oireachtas Commission is the body responsible for the running of the Houses of the Oireachtas and is the governing body of the Service. The Commission is responsible for determining financial and administrative policy for the delivery of programmes and services to the Houses and their members to support them in carrying out their parliamentary functions. It also oversees implementation of those policies by the Service.

The Secretary General of the Commission is the person who for the time being holds the office of the Clerk of Dáil Éireann. The Service stated that the permitted expenditure of the Commission is set out in Schedule 1 of the Commission Acts and relates to the ordinary expenditure one would associate with the day to day running of Parliament. It stated, however, that it does not include any expenditure in relation to any of the ex officio roles held by the Clerk of the Dáil.

In summary, the Service argued that there is a clear statutory framework relating to the role and functions of the Service and the Secretary General of the Commission and that there is no overlap in the functions of the Clerk of the Dáil as Secretary General and those functions as Registrar. It added that it cannot demand of the Registrar documents held by him in that capacity and that there is no legal basis for it to demand such documents.

Having regard to the Service's detailed submission in relation to the respective functions and responsibilities of the Registrar and the Service, I am satisfied that the records sought in this case are held by the Clerk of the Dáil in connection with his functions as Registrar of Political Parties and that he does not hold them in his role as Secretary General of the Service. Given the nature of that role and having regard to the functions of the Service, I am also satisfied that the records are not under the control of the Service for the purpose of the FOI Act.

It seems to me that the applicant does not necessarily dispute the Service's claim that it does not hold the records sought. Instead, his submission focused on his argument that the Registrar of Political Parties is a public body for the purposes of the FOI Act. Given the limitations of the scope of my review as described above, I do not consider it necessary to make a finding in relation to that argument. If the applicant believes that the Registrar is a public body, he can make an FOI request directly to the Registrar for the relevant records. If the Registrar refuses to accept that the office of Registrar is a public body for the purposes of the Act, the applicant may wish to refer the matter to this Office again for further consideration.

In conclusion, therefore, I find that the Service was justified in refusing the applicant's request for the most recent version of the constitution of the Sinn Féin party that is held by the Clerk of the Dáil, in connection with the Clerk's functions as Registrar of Political Parties under section 25 of the Electoral Act 1992 as amended, on the ground that it does not hold the record in question.

Decision 

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the Service to refuse to grant access the most recent version of the constitution of the Sinn Féin party that is held by the Clerk of the Dáil, in connection with the Clerk's functions as Registrar of Political Parties under section 25 of the Electoral Act 1992 as amended on the ground that it does not hold the record sought.

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