Whether the Council was justified in refusing access to records of the board of the Dublin City Centre Business Improvement District Company received by a Council-designated director of the Company, on the ground that the records are not held by the Council for the purposes of the FOI Act

8 April 2020

Background

On 27 June 2019, the applicant submitted a request to the Council for access to the agenda and minutes received by its designated official of each board meeting of the Dublin City Centre BID Company (BIDC) from 22 March 2019 to 27 June 2019.

The Council refused the request under section 35(1)(a) of the FOI Act, which is concerned with the protection of information given in confidence. Following a request for internal review, the Council affirmed its decision. Acting through a solicitor, the applicant sought a review by this Office of the Council’s decision on 10 September 2019. All references to engagements and exchanges of correspondence with the applicant should be taken to include engagements and correspondence with its legal representative.

During the course of the review, the Council informed this Office that it had revised its position for refusing the request. It argued that the records sought are not held by it for the purposes of the FOI Act. The applicant was informed of the Council’s revised position and was invited to make a submission on the matter. It did so on 12 November 2019.

I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the communications between the parties as set out above, and to the communications between this Office and both the applicant and the Council on the matter. I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

The courts have recognised that a decision by this Office is by way of a hearing de novo in light of the facts and circumstances applying at the date of the review by this Office, rather than any facts and circumstances that applied at an earlier date. It is appropriate, therefore, for me to consider the Council’s revised position, notwithstanding any earlier claim for exemption.

Accordingly, this review is concerned solely with whether the Council was justified in refusing the applicant’s request for certain records relating to meetings of the board of BIDC on the ground that they are not held by the Council for the purposes of the FOI Act.

Analysis and Findings

BIDC

Before addressing the substantive issues arising, it is worth outlining the statutory relationship between the Council and BIDC. Section 129 of the Local Government Act, 2001 (the 2001 Act), as amended by the Local Government (Business Improvement Districts) Act 2006, provides that the rating authority for an administrative area may by resolution;

• specify an area within the administrative area and establish that area as a “business improvement district” or “BID”, and
• approve the implementation of a “BID scheme”, financed in whole or in part by BID contribution levies, to carry out or provide certain specified projects, services or works.

The projects, services and works must be for the benefit of the business improvement district and those who live, work or carry on an activity in it, and must be in addition to and not instead of any project, service or work carried out or provided by the rating authority immediately before approval of the scheme.

Under the 2001 Act, the BID scheme must be financed in whole or in part by BID contribution levies imposed, charged by the rating authority on each rateable property in the BID where the scheme applies. A “BID company” is a company limited by guarantee and formed and registered under the Companies Acts.

The principal objectives of the BID company include;

(a) the implementation, renewal, administration and management of a BID scheme or a scheme being proposed,

(b) ensuring that each project, service and work under the scheme is carried out in accordance with the scheme and the 2001 Act, and

(c) carrying out the functions of a BID company in accordance with the 2001 Act.

The rating authority in question must approve a BID scheme and is entitled to representation on the board of the BID company administering the scheme.

The elected council and manager of the rating authority may nominate between two and four directors to a BID company board, depending on the board’s number of members. However, at least two-thirds of the company’s directors must comprise ratepayers of rateable property in the BID or, as the case may be, in the area being proposed as a BID, or representatives of such ratepayers.

A BID company also has certain financial reporting obligations to the relevant rating authority. Additionally, in certain circumstances, for example where it becomes financially unviable, a BID scheme may be terminated by either of the relevant rating authority or BID company.

In the present case, the relevant rating authority is the Council, the relevant BID company is BIDC, and the BID scheme is that administered by BIDC.

The meaning of “held”

Section 11(1) of the FOI Act provides for a right of access to any record held by an FOI body. While the Act does not define “held”, the Commissioner accepts that mere physical possession of a record does not, of itself, mean that the record is held for the purposes of the Act. Indeed, this Office previously found, in Case No. 140228, that records held by the Secretary General of a Department in his capacity as a member of the Commission for Public Service Appointments were not held by that Department for the purposes of the Act.

The Supreme Court has recently considered the meaning of “held” for the purposes of the Act in the case of Minister for Health v Information Commissioner [2019] IESC 40 (the Drogheda Review case). In that case, the Department of Health refused to grant access to a transcript of an interview the requester had with an independent reviewer, a former High Court judge, who had been appointed by the Minister for Health to carry out a review in relation to certain matters at Our Lady of Lourdes Hospital, Drogheda. The review was not established on a statutory basis.

Following the completion of his work, the reviewer, who had set the terms upon which he obtained the relevant information, sealed the transcript with other records and deposited them with the Department of Health for safekeeping. The reviewer had stipulated that the boxes of records were not to be disclosed or opened in any circumstances except by court order for discovery, of which he wished to be notified. The issue before the Court was whether the records were held by the Department of Health for the purposes of the FOI Act.

In her judgment in the case, Finlay Geoghegan J. accepted that the equivalent provision of the Freedom of Information Act, 1997 (the Act of 1997) (section 6(1), which provides for the right of access to records held by public bodies), gives rise to two distinct questions for a decision maker when access to a record alleged to be held by a public body is sought; first, whether it is a record “held” by the body and secondly and separately, whether the requester has a right of access to the record. She accepted that the statutory criteria according to which each question is to be answered are distinct.

On the meaning of held, Finlay Geoghegan J. found that for a record to be held within the meaning of section 6(1) of the Act of 1997, the public body must be in lawful possession of the record in connection with, or for the purpose of, its business or functions and must also be entitled to access the information in the record.

As I have explained above, section 11(1) of the Act of 2014 is the equivalent of section 6(1) of the Act of 1997. As such, having regard to the findings of the Supreme Court in the Drogheda Review case, I accept that for the records sought in this case to be deemed to be held by the Council, the Council must be in lawful possession of the records in connection with, or for the purpose of, its business or functions and must also be entitled to access the information in the records.

Council’s position

In its submissions to this Office, the Council argued that BIDC is a separate legal entity that is not subject to the FOI Act. It noted that boards of directors of such companies are made up of businesses or their representatives and nominees of the local authority and that at least two thirds of the directors must be ratepayers or ratepayer representatives. It argued that the BID is not a business or function of the Council. It said it does not control BIDC and that each ratepayer is afforded an opportunity to vote every five years as to whether to maintain the BID or not.

The Council added that the director nominated by the Council’s Chief Executive must not act as a representative of the Council in acting as a board member. Instead, the member should promote the aims of the BID company in line with its governing document. Board members must at all times respect board confidentiality. It said the Council employee who is the director of the BID company has a fiduciary duty to the company under Section 228 of the Companies Act 2014.  The director is legally obliged not to use the company’s information for his/her own or anyone else’s benefit unless if permitted in the company’s constitution or approved by a resolution in a general meeting. The employee who is nominated as a director owes a duty of care to the BID company and must not engage in conflicts of interest.

On the matter of the specific records sought, the Council argued that it is not entitled to records of private companies. It said board minutes are documents which relate to the internal working and management of a company and are for the use of the directors of the company and that such documents are available only to currently appointed directors. It said the employee nominated as director has no authority to release minutes to the Council and the Council has no authority or entitlement to see or hold the minutes of the BID company meeting. 

Applicant’s position

The applicant argued that, in accordance with the findings of the Supreme Court in the Drogheda Review case, the Council is in lawful possession of the records in connection with, or for the purpose of, its business or functions and is also entitled to access the information in the records.

It argued that BID companies are not purely private entities as they are companies established under Part 13A of the Local Government Act 2001 (the 2001 Act) and are required as a matter of law to comply with this legislation under the supervision of a rating authority which is entitled to appoint representatives to the board. It said in particular the applicable rating authority (the Council in this case) has statutory functions in relation to BID companies in their functional areas.

The applicant argued that the board agendas and minutes of BIDC held by the Council are therefore related to the purpose or functions of the Council’s statutory functions under Part 13A of the 2001 Act. It argued that this legislation expressly states that the rating authority’s appointee represents the rating authority on the board and that any records that come into the possession of the Council through that appointee must be lawfully possessed by it in connection with or for the purpose of its business and functions, some of which are carried out by its representative.

On the question of its entitlement to access the information in the records, the applicant argued that the Council must have access to records that have come into its possession via its representative. It argued that the circumstances are entirely different to those arising in the Drogheda Review case as the records at issue are not the personal property of the representative, she did not give them to the Council for safe keeping, and there is no suggestion that they are stored in a sealed container that is inaccessible to the Council.

The applicant further argued that support for the idea that the Council actually has access to the requested records can also be found in the overall scheme of Part 13A which sets out the functions of the Council in relation to BIDC. It argued that it would be entirely inconsistent with the exercise of those functions (including powers to receive and request access to information) if a class of company records could be retained and sealed by a Council employee acting as a Council representative to the extent that even her employer who she represents on the board could not access the records. It argued that the primary purpose of the representative’s directorship is to enable the Council (which is tasked with supervising the company) to exercise its statutory functions which means it must have access to the requested board minutes and agendas.

Analysis and conclusions

It is not in dispute that for the records at issue to be deemed to be held by the Council for the purposes of the FOI Act, the Council must be in lawful possession of the records in connection with, or for the purpose of, its business or functions and must also be entitled to access the information in the records.

Having carefully considered the matter, it seems to me that none of the requirements for deeming the records at issue to be held by the Council for the purposes of the FOI Act are met in this case. In my view, the records cannot be deemed to be in the lawful possession of the Council. Rather, they are in the lawful possession of the Council’s representative in her capacity as a director of BIDC, rather than as a representative of the Council. They were supplied to her as a director of BIDC in the course of BIDC business. I accept the Council’s assertion that the director nominated by the Council’s Chief Executive must not act as a representative of the Council in acting as a board member and should instead promote the aims of the BID company in line with its governing document

I am also of the view that the records are not held in connection with, or for the purpose of, the business or functions of the Council. Rather, the Council’s representative holds them in connection with, of for the purposes of, the business and/or functions of BIDC. The fact that the Council has certain statutory functions in relation to BID companies in their functional areas pursuant to Part 13A of the 2001 Act does not, in my view, mean that the agendas and minutes of BIDC’s board meetings are held by the Council in connection with, or for the purposes of, its business of functions. The fact remains that the Company is a separate legal entity with statutory responsibility for administering and managing the BID scheme. For the same reasons, I am also of the view that the Council is not entitled to access the information in the records.

In conclusion, therefore, I find that the records sought are not records that are in the Council’s lawful possession in connection with, or for the purpose of, its business or functions and that it is not entitled to access the information in the records. I find that the Council was justified in refusing the request on the ground that it does not hold the records for the purposes of the FOI Act.

For the sake of completeness, I would add that I also considered whether section 11(9) of the Act might apply in this case, in light of my finding that the Council is not in lawful possession of the records. That section provides that a record in the possession of a service provider shall, if and in so far as it relates to the service, be deemed for the purposes of this Act to be held by the FOI body, and there shall be deemed to be included in the contract for the service a provision that the service provider shall, if so requested by the FOI body for the purposes of this Act, give the record to the FOI body for retention by it for such period as is reasonable in the particular circumstances.

For the purposes of the Act, a service provider means a person who, at the time the request was made, was not an FOI body but was providing a service for an FOI body under a contract for services, including an administrative arrangement between the parties. Having regard to the nature of BIDC and its statutory functions, I am satisfied that it cannot be deemed to be a service provider for the purpose of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Council to refuse the applicant’s request, on the ground that the Council does not hold the records sought for the purposes 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