Whether the Department was justified in its decision to refuse access to records relating to the appointment of Catholic bishops as patrons of primary schools, on the ground that relevant records would have been created before the relevant effective date of the FOI Act

5 December 2019

Background

On 16 August 2018, the applicant submitted a request to the Department for all records relating to the appointment of Catholic bishops as patrons of primary schools in the period 18 May 1962 to 31 December 1965. The applicant referred to section 11(5)(a) of the FOI Act in his request, which provides for access to records created before the relevant effective date if such access is necessary or expedient in order to understand records created after the effective date.

On 13 September 2018, the Department refused the applicant’s request on the ground that the records sought were created before the effective date for the Department (21 April 1998) and that section 11(5) did not apply. On 8 October 2018, the applicant sought an internal review of the Department's decision following which the Department affirmed its original decision to refuse the request. On 11 January 2019, the applicant sought a review by this Office of the Department's decision.

During the course of the review, the Department stated that it was also relying on section 15(1)(a) of the FOI Act, on the basis that relevant records could not be found after all reasonable steps to locate them. Ms Whelan of this Office provided details of the searches undertaken by the Department to the applicant and invited him to make further comments. The applicant made no further comments.

I have now completed my review in accordance with section 22(2) of the FOI Act. In conducting my review, I have had regard to the correspondence between the Department and the applicant outlined above and to correspondence between this Office and both the Department and the applicant on the matter.

Scope of Review

This review is concerned with whether the Department was justified in refusing the applicant’s request for access to records relating to the appointment of Catholic bishops as patrons of primary schools for the period 18 May 1962 to 31 December 1965.

Analysis and Findings

The right of access to records held by public bodies is generally limited to those that were created after the effective date of the FOI Act. In the case of the Department, the effective date is 21 April 1998. Having regard to the nature of the information sought by the applicant and the time frame for which that information is sought, it is clear that any relevant records would have been created before 21 April 1998. As such, no right of access to such records exists unless section 11(5) applies.

Section 11(5) provides that access to records created before the effective date may be granted (a) where access is necessary or expedient to understand records created after the effective date or (b) where the records relate to personal information about the requester. It has not been argued that section 11(5)(b) applies in this case.

In a submission dated 19 February 2019, the applicant stated that he was seeking the records in order to understand certain provisions of the Education Act 1998. The applicant explained that the Education Act conferred on certain people or office holders who held the office of school patron prior to the Act, a statutory basis for the continued holding of that office. He argued that the entitlement to hold the office of school patron could be traced back to correspondence which was available to the applicant from 1961 showing the initiation of a process for the appointment of patrons on a group basis. The applicant stated that he was seeking the remaining available elements of the correspondence he already held in order to understand the basis of the awarding of the further benefit conferred on patrons by section 8(1) of the Education Act 1998 which states that

• The person who, at the commencement of this section, is recognised by the Minister as the patron of a primary school, and
• the persons who, at the commencement of this section, stand appointed as trustees or as the board of governors of a post-primary school and, where there are no such trustees or such board, the owner of that school

shall be deemed to be the patron for the purposes of this Act and the Minister shall enter his, her or their name, as appropriate, in a register kept for that purpose by the Minister.

In submissions to this Office, the Department explained that the Education Act put a structure on many matters which prior to the Act did not have statutory footing. This included codifying arrangements already in place in relation to the patronage of schools. The Department argued that correspondence dating back to 36 years before the enactment of the legislation would not necessarily be of direct relevance to understanding the provisions of the Education Act 1998.

This Office considers that section 11(5)(a) is directed not at the question of whether a record can be understood in a literal sense without reference to earlier records but at whether its substance (or gist or subject matter) can be understood. However, the fact that a document does not contain all the information which a reader might wish to have does not mean that the substance of a document cannot be understood. The fact that an earlier record may throw fresh light on the subject discussed in a later record or that it may enable a requester to extend or analyse information contained in a later record, does not of itself mean that access to the earlier records is necessary or expedient in order to understand the later record.

This Office considers that the release of a record 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 the later record.

I am satisfied that the applicant’s argument is not that he requires access to understand the substance of the relevant provisions of the Education Act. Rather, he appears to be seeking access to allow him to ascertain how particular decisions were arrived at in relation to the appointment of school patrons. I find that section 11(5)(a) does not apply.

In conclusion, therefore, I find that the Department was justified in refusing the applicant's request on the ground that any records containing the information sought would have been created before the effective date of the FOI Act and that the Act does not for provide a right of access to such records. In the circumstances, I do not consider it necessary to consider whether section 15(1)(a) also applies in this case.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Department to refuse the applicant’s request on the ground that any records containing the information sought would have been created before the relevant effective date of the FOI Act and that the Act does not for provide a right of access to such records.

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