Whether the NTMA was justified in refusing access to records containing a breakdown of the fees incurred by the State in specified litigation on the ground that the FOI Act does not apply in respect of the information sought, pursuant to Schedule 1, Part 1(w)(ii) of the Act

9 February 2021

Background

In a request dated 2 July 2020, the applicant sought access to records containing a breakdown of the fees and legal fees incurred by the State in specified litigation, including the legal firms, expert witnesses and barrister costs. On 30 July 2020, the NTMA refused the applicant’s request on the ground that the record sought falls outside the scope of the FOI Act. The applicant sought an internal review of that decision, following which the NTMA affirmed its original decision. On 10 December 2020, the applicant sought a review by this Office of the refusal of his request.

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 NTMA as outlined above and to correspondence between this Office and both parties on the matter. I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

This review is concerned solely with whether the NTMA was justified in refusing to grant access to the record sought by the applicant on the ground that the FOI Act does not apply in respect of the record sought.

Analysis and Findings

By way of background, the NTMA explained in its submissions to this Office that while performing its statutory functions regarding claims against the State, it is known as the State Claims Agency (the SCA). The functions of the SCA are set out in Part 2 of the National Treasury Management Agency (Amendment) Act 2000 (the Amendment Act). The NTMA said the SCA hosts the National Incident Management System (the NIMS), where incidents, including claims, are analysed, reported, and managed.

Section 6(2) of the FOI Act provides that an entity specified in Schedule 1, Part 1 of the Act shall, subject to the provisions of that Part, be a public body for the purposes of the Act. Schedule 1, Part 1 contains details of bodies that are partially included for the purposes of the Act and also details of the certain specified records that are excluded. If the records sought come within the descriptions of the exclusions in Part 1, then the Act does not apply and no right of access exists.

Part 1(w)(ii) of Schedule 1 provides that the NTMA is not a public body for the purposes of the Act in relation to records “concerning the performance of its functions under Part 2 of the National Treasury Management Agency (Amendment) Act 2000, other than in relation to records concerning the general administration of those functions”. In other words, the only records held by the NTMA in its role as the SCA that are subject to the FOI Act are those that relate to the general administration of the functions of the SCA.

In its submissions to this office, the NTMA said it identified one record as coming within the scope of the request, namely a report extracted from the NIMS. It noted that section 9(1) of the Amendment Act provides that “Subject to paragraph (b), the Government may, at the request of a Minister of the Government in whom functions in relation to a State authority are vested, by order delegate to the Agency the management of any claims, or classes of claims, against such an authority”. It noted that section 8 confers additional statutory functions on the SCA when performing the function delegated to it under section 9(1). It noted, in particular, that section 8(3) provides that “The Agency shall manage delegated claims and counterclaims in such manner as to ensure that the liability of the State authorities in relation to such claims, and the expenses of the Agency in relation to such management, are contained at the lowest achievable level”.

The NTME further noted that the term “manage” as used in Part 2 of the Amendment Act is expressly defined in Section 6(1) as;

(a) in relation to a claim, take the steps necessary or expedient for the purpose of disposing (whether by agreement or otherwise) of the claim and, without prejudice to the generality of the foregoing, includes

(i) perform the clerical and other administrative functions relating to the claim and the disposal of it…,”

The NTMA argued that the record at issue concerns the performance by the SCA of its functions relating to the management of the relevant claim, as interpreted by reference to Section 6(1) of the Amendment Act.

On the matter of whether the record can be said to concern the general administration of the functions of the NTMA under Part 2 of the Amendment Act, the NTMA said it considers the components of a claim (including the legal and experts’ fees payable in respect of the management of such claim) to be an intrinsic part of its statutory function to manage claims in a manner that ensures that the liability of the State authority, and the expenses of the Agency in relation to such management, are contained at the lowest achievable level.

The NTMA noted that the record relates to a single case rather than the overall management of cases. It said the fees detailed in the record are fees allocated to one claim rather than aggregate fees relating to the SCA engagement of solicitors, barristers and expert witnesses in the management of claims generally. In respect of the latter, it said the SCA publishes aggregate information in its Annual Report on Agency legal fees, plaintiff legal fees and expert witnesses’ fees. It said the SCA also publishes information on its website regarding the legal fees paid to Agency barristers during the previous year.

While the Act is silent on the meaning of general administration, this Office considers that it refers to records which have to do with the management of a public body, such as records relating to personnel, pay matters, recruitment, accounts, information technology, accommodation, internal organisation, office procedures and the like. I am satisfied that it does not refer to records relating to matters concerning the core business of such bodies.

In essence, the NTMA’s position that the record contains information relating to the management of a single claim, which it regards as an intrinsic part of its statutory function of managing claims as provided for in the Amendment Act. I agree. Accordingly, I find that the record containing the information sought does not relate to the general administration of the functions of the NTMA under Part 2 of the Amendment Act.

I find, therefore, that the NTMA was justified in its decision to refuse access to the information sought on the ground that it is specifically excluded from the scope of the FOI Act, pursuant to Schedule 1, Part(1)(w)(ii) of the Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the NTMA in this case.

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