Whether the Department was justified in refusing the applicant's request for records of any correspondence between the Minister (and her private office) and a named public relations firm and/or its employees in the period 1 January 2017 to the date of the applicant's request

13 June 2019

Background

On 24 November 2018 the applicant submitted a request to the Department for records of any correspondence between the Minister (and her private office) and a named public relations firm and/or its employees for the period 1 January 2017 to the date of his request. On 24 December 2018 the Department refused the request under section 15(1)(a) of the FOI Act which allows for the refusal of a request where the records sought do not exist or cannot be found. The applicant sought an internal review of that decision following which the Department affirmed its refusal of the request. On 18 February 2019 the applicant sought a review by this Office of the Department's decision. 

During the course of the review, this Office informed the Department that its decision letters fell well short of the requirements of the FOI Act and directed it to provide the applicant with a more detailed explanation of its decision. On 20 March 2019 the Department issued a more detailed explanation of the searches it undertook in an effort to identify relevant records. In response, the applicant informed this Office that he wanted the review to proceed.

I have decided to conclude the review by making a formal, binding decision on the matter. In conducting the review, I have had regard to the correspondence between the applicant and the Department as described above and to the correspondence between this Office and both the applicant and the Department on the matter. 

Scope of Review

This review is concerned solely with whether the Department was justified in refusing access to records of any correspondence between the Minister (and her private office) and a named public relations firm and/or its employees for the period 1 January 2017 to the date of his request under section 15(1)(a).

Analysis and Findings

Section 15(1)(a) of the FOI Act provides that a request for access to records may be refused if the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. My role in such cases is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his or her decision. The evidence in "search" cases consists of the steps actually taken to search for the records, along with miscellaneous other evidence about the record management practices of the public body, on the basis of which the public body concluded that the steps taken to search for the records were reasonable. 

In his application for review, the applicant stated that the Minister uses the services of the PR firm in question through the special secretarial allowance and he argued that relevant records should exist. He subsequently submitted evidence of payments made to the PR firm from the allowance, details of which he received from the Houses of the Oireachtas Service (the Service) on foot of a separate FOI request. The invoices provided described the services provided as media monitoring services and public relations services.
 
The Special Secretarial Allowance (the allowance) is one of a number of allowances that is available to members of the Oireachtas. Its purpose is to assist towards expenses arising from the purchase of certain secretarial assistance, public relations, information technology (not web related) and training services from a person employed under a contract of service or the purchase of such services under a contract of service. It may also be used for remuneration of persons providing secretarial services (temporary vouched employees).

The Service is the paying agent to the employee or service provider as applicable on behalf of the member. Among other things, the member must certify that claims for payment are in respect of expenditure wholly and exclusively incurred for the purpose of facilitating their parliamentary duties in accordance with the relevant legislation. Records relating to such payments such as claim forms and invoices are held by the Service. 

In its letter of 20 March 2019 to the applicant, the Department provided details of the searches it undertook in an effort to locate relevant records. It stated that the wording of the request was very definite with a moderate date range, thereby narrowing the scope of the request to a very specific set of records which would easily be located should they exist. It stated that the following searches were conducted:

• interviews with individual members of staff in the Minister's Office, including the secretary to the Minister and both special advisors
• searches of relevant email accounts including the Minister's private email,
• searches of diary records and messaging services of the Minister, her Office, her secretary and two special advisors, 
• checks of the Department's register of contracts and of its financial systems for any records relating to the PR firm
• enquiries were also made of the Department's Communications Unit

Subsequently, in a submission to this Office, the Department provided further information in relation to its relevant records management practices. Among other things, it stated that any correspondence regarding the Minister is forwarded to her Office for attention and action. It stated that any correspondence received in her Office that concerns her TD and constituency work is forwarded to the Oireachtas and Oireachtas email accounts and that almost all physical mail received in the Minister's Office for her attention is scanned and emailed to the Minister. 

The Department further stated that it had full regard to Guidance Note 24 (issued by the Central Policy Unit of the Department of Public Expenditure and Reform) when processing the request. Among other things, that Guidance Note is concerned with ensuring that records relating to official functions and business activities of public bodies are made available to the public body concerned, including those held in non-official systems, email accounts and devices.

The Department's position is that it does not and would not expect to hold any relevant records as neither the Department, nor the Minister in her role in the Department, has had any dealings with the PR firm. It is important to note that not all records held by Ministers are subject to the FOI Act. As the applicant is aware, the Act does not apply to any record relating to the private papers (within the meaning of Article 15.10 of the Constitution) of any member, or an official document or either House that is required by the rules or standing orders or ether House to be treated as confidential, nor does it apply to any record relating to any private paper or confidential communication, within the meaning of Part 10 of the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013 or official document within the meaning of Part 11 of that Act.

In his submission of 26 March 2019 the applicant accepted that records such as those relating to the services identified in the invoices he submitted may well relate to the constituency or party political work of the Minister as a TD. However, he argued that the existence of such records should be disclosed and the relevant exemptions applied if appropriate. He suggested that this is what happened in a previous review to which he was a party (Case 170315). 

Case 170315 concerned a request for copies of correspondence between the former Minister for Justice and Equality and/or her private office and a named communications company. The Department of Justice and Equality refused the request under section 15(1)(a). Following review, this Office found that the Department had not taken all reasonable steps to ascertain the whereabouts of further records based on the fact that it had failed to ask the former Minister whether she held additional records that fell within the scope of the request. However, it is important to note that during the course of that review, the Department located a number of relevant email records. This Office directed the Department to conduct a fresh decision making process on those records and I understand that a number of the records were subsequently released.

In this case, however, while the PR firm in question clearly provided services as described in the invoices provided by the applicant, there is simply no evidence to suggest that any records of correspondence with the firm the Minister may hold relates to the official functions and/or business activities of the Department, as arose in Case 170315. It is also important to note that the FOI Act does not provide for a right of access to records such as the private papers of members of the Houses that are not exempt by virtue of one or more of the exemptions contained in Part 4 of the Act. Rather, the Act simply does not apply to such records. In the circumstances, I do not consider that the requirement on the Department to take all reasonable steps to locate relevant records extended to it asking the Minister if she holds such records in this case. 

Having considered the details of the searches conducted by the Department in an effort to locate relevant records, I am satisfied that it was justified in refusing the request on the ground that no relevant records exist.

Decision 

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the Department to refuse the applicant's request for records of any correspondence between the Minister (and her private office) and a named public relations firm and/or its employees for the period 1 January 2017 to 24 November 2018 under section 15(1)(a) of the 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