Whether the Department was justified in refusing access to records relating to the reopening of Stepaside Garda Station on the ground that the Act does not apply to the records sought

5 May 2020

Background

In a request dated 19 September 2019, the applicant sought access to records held by the Department referring to or relating to the reopening of Stepaside Garda Station for the period 1 August 2019 to the date of his request.  On 17 October 2019, the Department refused the request under section 42(k) of the FOI Act which provides that the Act does not apply to the private papers of members of the Oireachtas.

On 22 October 2019, the applicant sought an internal review of that decision, following which the Department affirmed its refusal of the request. In its internal review decision, it referred to the fact that no relevant records were located and to a decision of the Supreme Court which considered the question of when records are deemed to be held by a public body for the purposes of the Act. On 22 November 2019, the applicant sought a review by this Office of the Department’s decision.

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 correspondence between the applicant and the Department and to the correspondence between this Office and both the applicant and the Department on the matter. I have decided to conclude the review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with whether the Department was justified in refusing the applicant’s request for records relating to the reopening of Stepaside Garda Station.

Preliminary Matters

The Department’s decision making in this case, particularly at internal review stage, fell well short of what might be expected of a public body that has been subject to the FOI Act for over 20 years. The original decision simply cited a provision of the Act under which the request was being refused without giving any indication as to what records it held or why the particular provision applied.

The internal review decision stated that no records were located but failed to identify any particular section of the Act upon which the refusal of the request was based. Instead, reference was made to the Supreme Court judgment in Minister for Health v Information Commissioner [2019] IESC 40 (the Drogheda Review case), the inference being that the refusal was in accordance with the Court’s findings in that judgment.

Amongst other things, sections 21(5)(c ) and (e) and section 13(2)(d) of the Act specifically require public bodies to provide reasons for the refusal of a request, to identify any provision of the Act pursuant to which the request is refused, and the findings on any material issues relevant to the decision. Neither decision complied with those requirements.

Furthermore, the Department took a very minimalist approach when responding to this Office’s request for submissions in support of its refusal of the request. I expect the Department to examine how it processed the request case with a view to ensuring the future processing of requests complies with the full requirements of the Act.

Analysis and Findings

Essentially, the Department’s position is that the matter of the reopening of Stepaside Garda Station is not part of its functions and, as such, having regard to the Supreme Court’s approach to determining when records are deemed to be held by a public body for the purposes of the Act, it does not hold any such records.

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.  The Supreme Court considered the meaning of “held” for the purposes of the Act in the Drogheda Review case referenced above. 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.

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 Department, the Department 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.

I should say at the outset that I do not accept that a public body can legitimately issue blanket refusals of requests for records solely on the ground that the records sought do not appear to relate to its functions, without having had due regard to the particular circumstances arising. In my view, there may well be legitimate reasons for a public body to hold records that, on their face, do not appear to relate to the public body’s functions. It seems to me that where a body receives such a request, it should first seek to establish whether any relevant records are held by it.

In this case, the Department argued that if the Minister has any relevant records coming within the scope of the applicant’s request, they would be regarded as his private papers and would be excluded from the Act. In a submission to this Office, it also said that its internal reviewer asked the Minister’s Special Adviser if s/he held any relevant records. It said the only identified records with references to Stepaside Garda Station were press cuttings/articles and correspondence with media outlets referencing personal Press Releases. It said no references or records were identified as being related to the Minister’s role as Minister for Transport, Tourism and Sport and as such were a matter for the Minister’s position as TD.

It seems to me that the Department’s argument that it does not hold any relevant records for the purposes of the Act is interdependent on its argument that any such records would be regarded as the private papers of the Minister and as such, the Act would not apply to them pursuant to section 42(k) of the Act. It seems to me, therefore, that I should appropriately consider whether the section 42(k) would apply to such records.

Section 42(k)

This section provides that the Act does not apply to a record relating to any of the private papers (within the meaning of Article 15.10 of the Constitution) of a member of either House of the Oireachtas or an official document of either or both of such Houses that is required by the rules or standing orders of either or both of such Houses to be treated as confidential.  Article 15.10 of the Constitution provides as follows:

Each House shall make its own rules and standing orders, with power to attach penalties for their infringement, and shall have power to ensure freedom of debate, to protect its official documents and the private papers of its members, and to protect itself and its members against any person or persons interfering with, molesting or attempting to corrupt its members in the exercise of their duties.

The Dáil Éireann Standing Orders relative to Public Business 2016 include Orders relating to Official Documents, Private Papers and Confidential Communications (Standing Orders 133 to 137). Order 133(4) states:

(4) A document which is an official document for the purposes of Standing Order 134 or a private paper for the purposes of Standing Order 135, must be treated as confidential, and is required by these Standing Orders to be kept confidential.

Order 135 states:

(1) This Standing Order is made for the purposes of giving effect to Article 15.10 of the Constitution in so far as it provides for the protection of the private papers of members.

(2) For the purpose of this Standing Order, the private papers of a member are all documents concerning which the member has a reasonable expectation of privacy, and:

(a) which are prepared for the purposes of, or purposes incidental to:

(i) transacting any business of the Dáil or any Committee of the Dáil; or

(ii) the member’s role as public representative; but

(b) which are not:

(i) where the member is an office-holder, documents relating to the member’s functions as office-holder (whether those documents are held by the member, by the office-holder’s Department or Office, by any of his or her special advisers, or by some other person); or

(ii) lawfully in the public domain.

In his application for review to this Office, the applicant argued that section 42(k) does not apply to a member of the Oireachtas in his/her capacity as an officeholder. He argued that correspondence between the Minister and any of his ministerial staff e.g. his Special Adviser, cannot be considered as relating to the private papers of a TD. He argued that a TD does not have a Special Adviser or other such ministerial staff and that the exemption cannot, therefore, apply to records that are demonstrably held and under the control of the Department. He argued that the records sought relate to the Minister using his status as a Minister to seek to influence government decision making. He further argued that emails emanating from employees of the Department, e.g. a Special Adviser or other member of ministerial staff cannot be considered the "private papers" of a TD.

Section 11 of the Public Service Management Act 1997 provides for the appointment of Special Advisers to Ministers or Ministers of State. It provides that a Special Adviser shall assist the Minister or the Minister of State by;

(i) providing advice,

(ii) monitoring, facilitating and securing the achievement of Government objectives that relate to the Department, as requested by the Minister or the Minister of State, as the case may be, and

(iii) performing such other functions as may be directed by the Minister or the Minister of State that are not otherwise provided for in the 1997 Act and do not involve the exercise of any specific powers conferred on the Minister or the Minister of State or any other office holder by or under any other Act.

It seems to me that the applicant is essentially arguing that any interactions the Minister had in relation to the reopening of Stepaside Garda Station were in his capacity as Minister and not as a TD and that any interactions his Special Adviser had in the matter can only have been in relation to the Minister’s role as Minister and not as TD as TDs do not have Special Advisers. I disagree. No evidence has been presented to this Office to suggest that the Department had any specific function in relation to any decisions taken relating to the reopening of Stepaside Garda Station. Indeed, the Department’s position, which I accept, is that it the matter does not form part of its functions. On the other hand, as a TD in whose constituency the Station is based, it is not surprising that the Minister would have an interest in that matter. I accept that any records that might relate to the Minister’s interactions in relation to the reopening of the Station would relate to his role as TD and are captured by the definition of private papers as set out in Order 135 of the Dáil Éireann Standing Orders. I also accept that any interactions the Minister’s Special Adviser may have had in the matter related to the Minister’s role as TD.

It is important to recall that the FOI Act provides for a right of access to records held by public bodies. That right of access obviously extends to records held by Ministers in their role as the heads of such bodies. However, if a particular Government Department has no function or part to play in a particular matter, I do not accept that the Minister of that Department should necessarily be deemed to potentially hold relevant records concerning functions relating to a different Government Department, solely as a result of that Minister being a member of Government, and where decisions concerning the functions of the other Department are taken by Government.

In all of the circumstances, I find that the records sought in this case are of a type that, if held by the Minister and/or his Special Adviser, are the Minister’s private papers and that section 42(k) applies.  This finding, of itself, is sufficient for me to find that the Department was justified in refusing the applicant’s request in this case.

Are the records held by the Department?

Nevertheless, in light of the Department’s reasons for refusing the request, I would add that I also accept that any such records cannot be deemed to be held by the Department for the purposes of the FOI Act. As I have outlined above, for the records sought in this case to be deemed to be held by the Department, the Department 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.

The applicant argued that the circumstances of the Drogheda Review Case were extremely specific and that the judgment has no relevance to the material at issue in this case. He argued it was ludicrous to suggest that the Department is not entitled to access information held on its email servers, computer devices, or mobile equipment. He also argued that the Minister, his special advisers, and his other staff are clearly in the employment of the Department who pay their salaries and expenses.

As I have explained above, the fact that a public body may have physical possession of records does not, of itself, mean that it holds those records for the purposes of the FOI Act, nor does it mean that the body is entitled to access the information.  I am satisfied that the Drogheda Review judgment is relevant to the circumstances of this case. I find that the records sought are such that they are not in its lawful possession in connection with, or for the purpose of, its business or functions. I find, therefore, that the Department was justified in refusing the request on the ground that the records sought are not held by it for the purposes 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 Department to refuse the applicant’s request for records relating to the reopening of Stepaside Garda Station on the ground that the Act does not apply to the records 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