Whether the Council was justified in refusing access to a copy of a contract for sale under section 37 of the FOI Act. 

 12 February 2019  

Background

On 5 January 2018, the applicant made a request for records relating to the public procurement process undertaken and ultimate purchase of lands contained in two identified folios.  The applicant framed his request in a series of questions.  The Council refused the request on the basis of section 37 (personal information) of the FOI Act.  The applicant sought an internal review and asked that a number of additional points be addressed in the reply.  The internal review decision upheld the original decision but also provided the applicant with some additional information and released a copy of a Manager's Order that was deemed relevant to the request.  

I have now decided to conclude my review by way of a binding decision. In carrying out my review, I have had regard to the above; to correspondence between this Office, the Council and the applicant; and to the provisions of the FOI Act. 

It is understandable that the applicant was confused in relation to the proper procedures to be followed in this process as they were neither clearly explained nor adequately followed by the Council.  While in other circumstances this may have been a case for remittal with a direction to make a fresh decision, I have not followed that course in this instance for the reasons set out below in the analysis section of this decision.  

Scope of the Review 

While the Council identified one record to this Office as coming within the scope of the applicant's request, the applicant, in submissions to this Office, stated that it includes more than just the lands identified in the two folios.  Due to the nature of the questions asked, the Council determined that a contract for sale relating to the above folios contained the information sought by the applicant.  Access to this contract was refused under section 37(1) of the FOI Act.  The applicant now says that any interpretation that the map of the two folios, in isolation, was the limit of the subject lands in his request is incorrect.  

It is important to note that this review is conducted on the basis of the original request submitted by the applicant.  To that end, I note that the applicant set out a number of paragraphs at the beginning of his request identifying the lands in the specific numbered folios.  He then requested copies of records to "vouch the exact public procurement procedure steps and decisions that were taken by DCC in its acquisition of the said lands [emphasis added] for its works in or around 2000" and outlined seven bullet points of specific information to which he was seeking access.  In my view, the only reasonable interpretation of this statement is that the"said lands"refer to the lands identified in the preceding paragraphs, namely the specified folios.  Further, the first bullet point in the applicant's request asked for the date the contract was entered into with the seller and that seller is identified.  The contract identified by the Council is a contract for sale relating to the two folios and with the seller identified by the applicant.  

The applicant noted that his seventh bullet point specifically requested records with respect to 'additional lands' and that this shows that his request clearly extended beyond the two folios.  I do not agree.  Point 7 of the applicant's request states "whether or not lands, in addition to those in folios [ ] and [ ], formed part of the said contract, or a separate related contract, with the seller".  As noted above, this is a request for information rather than specifically identifying records, but in any case, it is information that is contained within the contract identified by the Council.   

The applicant also referred to the scope of his request in several pieces of correspondence, both to the Council and to this Office.  In his application to this Office he specifically stated that "the precise subject matter of the FOI request [details of particular lands, i.e. the two registered folios [ ] & [ ]] was not specifically addressed".  In correspondence to the Council on 17 May 2018 and 17 July 2018 he also described his FOI request as"purely on the [ ] lands" [emphasis added by the applicant] and referred to the subject of his FOI request as the two folios.  In a schedule to the letter dated 17 May 2018 he stated that "the [ ] lands, the subject of my FOI request" were not part of a CPO and as such those lands had to be entered into and acquired under a separate legal contract.  The applicant stated that this was the information that he requested in his request dated 5 January 2018.  In other words, his request was for that separate legal contract.  

I find that the scope of the applicant's request does not extend to lands other than those two folios and this review is therefore concerned with whether or not the Council was justified in refusing access to records relating to the procurement and acquisition of lands contained in the specified folios.  

It should be noted that the applicant is perfectly within his rights to submit any further requests for records to the Council if he so chooses.

During the course of the review, the Investigator in this case formed the view that the record identified could potentially fall outside the scope of the FOI Act due to the date that it was created.  This review will therefore address whether or not the contract the subject of this review is considered a pre-commencement record or not.  However, before considering this issue, there are a number of preliminary matters that I wish to address.  

Preliminary Matters

Nature of FOI process

Section 7 of the FOI Act provides that "every person has a right to and shall, on request therefor, be offered access to any record held by an FOI body, and the right so conferred is referred to in this Act as the right of access." In turn, section 12 requires persons requesting records under the Act to do so in writing and to provide sufficient details to enable those records to be identified by the taking of reasonable steps.

Accordingly, in spite of its name, the FOI Act does not generally provide a mechanism for answering questions except to the extent that a question can reasonably be inferred to be a request for a relevant record which contains the answer to the question asked.  

There has been some considerable mis-communication on this point in this case.  The applicant phrased his request in a series of questions and sought to expand the information that he was seeking at internal review stage.  Following the issue of the internal review decision, the applicant sought to meet with the internal reviewer in order to discuss the information that he was seeking and has raised a number of concerns in submissions to this Office about the lack of engagement from the Council.  The applicant pointed to the Central Policy Unit (CPU) of the Department of Public Expenditure and Reform Guidance Note 2 which notes that dialogue with FOI requesters is strongly recommended as a means of avoiding unnecessary FOI requests and in terms of bringing clarity to the nature of the information being sought.  It deals with release of information outside of the FOI Act and notes that public bodies are required to produce a publication scheme.  

The applicant also requested that this Office direct the Council to clarify and explain certain factual matters.  As noted above, the FOI process concerns access to records rather than information.  Section 11 of the Act does provide that an FOI body shall give reasonable assistance to a person in relation to the making of the FOI request.  However, this relates to the stage in the process of making the request, rather than a means of answering additional questions after a decision has already been made.  

Section 11(3) of the Act also requires public bodies performing functions under the Act to have regard to, among other things, the need to achieve greater openness in their activities and the need to strengthen their accountability and to improve their decision making.  I do not, however, have any jurisdiction to compel a public body to engage in a dialogue process outside of the FOI Act.  My role is to carry out a review of the decision that has been made in this case.

Finally, section 13(4) of the Act provides that any reasons a requester gives for making a request must be disregarded. This means that I cannot take account of the reasons why the applicant is seeking access to the information at issue. Furthermore, this Office has no role in examining the administrative actions of the Council. I cannot examine the appropriateness, or otherwise, of any actions taken by the Council.  My role is limited to determining whether the provisions of the FOI Act apply and provide a right of access to certain records.  

Procedural issues

The applicant argued that this Office did not provide sufficient details of its interactions with the public body in this case.  He stated that he should have had sight of the questions that were put to the Council and its representations in return so that he could be afforded a right of reply in the same manner as the exchange of legal submissions in a litigation case.  

The practice of this Office in relation to the treatment of submissions is set out in its procedures manual, a summary of which is available atwww.oic.ie.  This provides that, in general, submissions will not be exchanged between parties to a review but that the parties should be notified of material issues arising for consideration.  It describes material issues as issues that are relevant to the outcome of the review and which are likely to influence the decision.  It notes that where the influence of new material issues is likely to be adverse to a party, we notify the party concerned and give them an opportunity to comment.  Under section 45(6) of the FOI Act, the Commissioner has discretion to adopt such procedures as are appropriate in all the circumstances of a case.  The courts have held that the Commissioner has discretion in relation to his procedures (see, for example, Deely v. Information Commisioner [2001] IEHC 91).  In all circumstances, this Office aims to ensure that the approach adopted is fair, and seen to be fair, to all the parties concerned.  

In this instance, the Investigator in this case formed that view that section 11(5) relating to pre-commencement records may be relevant and the applicant was notified of this and offered an opportunity to make submissions, which he duly did.  

The High Court has previously addressed arguments concerning the exchange of submissions during reviews, albeit in relation to the exchange of submissions received from other relevant parties to a review.  In the case of National Maternity Hospital v. Information Commissioner [2007] IEHC 113, Quirke J. commented as follows:

"The review required by the revisions of s. 34 of the Act of 1997 was intended to be inquisitorial rather than adversarial in nature. The procedures to be adopted by the Commissioner in respect of such reviews are entirely within her discretion provided that they do not offend recognised principles of natural and constitutional justice.  The procedures which she adopted in the review under appeal permitted all of the parties with an interest in the review to make full and detailed written submissions on every relevant aspect which affected their respective interests.  Each of the parties who participated in the review was provided with full and equal access to the Commissioner and to her officials.

I know of no principle of natural or constitutional law or justice which confers upon parties who make submissions to a decision making body the right to respond to the submissions made by every other party who participates in the process.  The review undertaken by the Commissioner was a statutory process which expressly envisaged and permitted the adoption of informal procedures."

More recently, in Grange v. Information Commissioner [2018] IEHC 108, Ms. Justice O'Regan dismissed the claim of a breach of fair procedures by reason of the failure to provide the appellant with the submissions of the relevant Minister in that case.  

Council's treatment of this review

I would also note that the Council's treatment of this review was not satisfactory.  The decision did not comply with best practice as it failed to provide the applicant with a schedule of identified records.  The record described under the "scope" section of this decision was identified to this Office, but not to the applicant.  The CPU Code of Practice states that a schedule of records should be furnished to requesters and Section 48 of the FOI Act obliges FOI bodies to have regard to the Code in the performance of functions under the Act.  I would remind the Council of its obligations on this point.  

Further, when applying section 37, both the original decision maker and the internal reviewer failed to carry out a public interest balancing test as required by that section.  The reasons supplied in both of those decisions fell well short of the standard required.  

Finally, it would appear that the Council did not carry out proper searches in this case.  The applicant sought procurement records as well as asking questions about a contract.  While the contract was identified to this Office, it does not appear that any searches were carried out for relevant procurement records.  I will address this issue further below.  

Analysis and Finding

Contract for sale

Section 11(4) of the FOI Act provides for a right of access to records created on or after the effective date.  The "effective date" is defined in section 2(1) as "in the case of the Health Service Executive or a local authority, 21 October 1998".  The effective date for the Council is therefore 21 October 1998.  This means that, generally speaking, there is no right of access to records created before this date unless one of the exceptions set out at section 11(5) apply.  The record itself is undated; however, the Council in its internal review stated that monies were paid on foot of the contract in December 1997.  This led the Investigator to seek to establish the date that the contract was created.  The Council provided two letters from that time period to address this, both of which indicate that the contract was created in 1997.  In the circumstances, I am satisfied that the contract for sale is a pre-commencement record and that there is no right of access to this record unless one of the exceptions set out at section 11(5) applies.  

Section 11(5) provides that access to pre-commencement records may be granted if it is necessary or expedient to understand records created after the commencement of the FOI Act (section 11(5)(a)), or if the records relate to personal information about the requester (section 11(5)(b)).  During this review, the Investigator invited the applicant to make submissions on section 11(5). 

The applicant does not argue that the records relate to personal information about him. Accordingly, the sole question for me under section 11(5)(a) is whether access to the pre-commencement records is necessary or expedient in order to understand records created after 21 October 1998.  

In considering this question, I see no reason to depart from the approach set out by a former Commissioner in Case 98117 (Mr ABE & the Department of the Marine and Natural Resources which is available onwww.oic.ie/decisions). There, the former Commissioner stated that section 6(5) (now section 11(5) of the FOI Act) was directed towards whether the substance or gist or subject matter of a record could be understood. He said that the fact that 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.  He further found that the release of a pre-commencement record is justified only to the extent that such access is a suitable means to achieving the end of understanding the substance of the post-commencement record. 

In this instance, the applicant has not identified any record that cannot be understood without access to the record the subject of this review.  He argued that the Council must have records created post the effective date that it declined to discuss or disclose, but he did not identify a particular record that cannot be understood as required for section 11(5)(a) to be applicable.  Consequently, I find that there is no right of access to the pre-commencement record under section 11 of the FOI Act.  

As I have found that there is no right of access to the record under the FOI Act, it is not necessary for me to consider the exemption relied upon by the Council, namely section 37.  

Procurement records

As discussed above, the applicant's request was not dealt with in full in that no procurement records were identified by the Council.  However, as I have found that the contract is a pre-commencement record then it stands to reason that any procurement records leading up to the execution of that contract would also be pre-commencement as the procurement process culminates in the signing of the contract and payment of monies, both of which took place before 21 October 1998.  If the issue of pre-commencement had not arisen, this is most likely a case where I would have directed remittal to the Council so that appropriate searches would be carried out for procurement records and a fresh decision made.  However, I find that it is not necessary for me to address the search issue in this case as any procurement records would also pre-date the effective date and the applicant has not identified any specific records that cannot be understood without access to them in order for section 11(5)(a) to be applicable.  

If, however, the applicant later identifies post-commencement records that could not be understood without access to pre-commencement procurement records, he would, of course, be entitled to make a fresh request to the Council for access to such records at that stage.      

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Council's decision to refuse access to the record.  I find that there is no right of access to this record under section 11 of the FOI Act as it was created before the effective date of 21 October 1998.  

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.
 

Elizabeth Dolan
Senior Investigator