Whether the ODCE was justified in refusing access to records of informal contacts and meetings between ODCE management (at Director, PO or PO equivalent grades) and company directors known to be in legal processes and/or involved in making or responding to Garda investigations, who are personal contacts of such senior personnel, during the year 2020 to date under Schedule 1, Part 1(g) and section 15(1)(a) of the FOI Act

19 May 2021

Background

On 17 November 2020, the applicant submitted a request anonymously to the ODCE by email seeking details of its senior management’s direct engagement with Company Directors known to be in legal processes and/or involved in making or responding to Garda investigations. The request was stated to include engagements with personal contacts known to the senior personnel involved, and a schedule of the meetings and communications with known or estimated dates involved.

Following a number of exchanges of email concerning the ODCE’s efforts to clarify the nature of the records sought, the parties agreed, on 19 November 2020, on the following wording for the request:

“Records of informal contacts and meetings between ODCE management (at Director, PO or PO equivalent grades) and company directors known to be in legal processes and or involved in making or responding to Garda investigations, who are personal contacts of such senior personnel, during the year 2020 to date”.

In a decision dated 16 December 2020, the ODCE refused the request under section 15(1)(a) on the ground that no relevant records could be found. On 15 January 2021, the applicant sought an internal review of that decision. The applicant said that s/he has some fragments of records (texts and call log information) between one of its enforcement lawyers and therefore knows that relevant records exist. The applicant outlined the types of searches that s/he believed should be undertaken.

On 4 February 2021, the ODCE affirmed the refusal of the request. It said it is not a public body for the purposes of the Act in relation to records held or created under the Companies Acts, save as regards a record concerning the general administration of the Office, pursuant to part 1(g), Schedule 1 of the Act, and that no relevant records could be found after all reasonable steps to find them had been taken.

On 9 February 2021, the applicant sought a review by this Office of the ODCE’s decision, and asked this Office to determine whether the communications records generated relating to meetings, phone calls and texts by senior staff constitute records concerning general administration of the ODCE.

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 ODCE and the applicant as outlined above and to the communications between this Office and both the ODCE and the applicant 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 the question of whether the ODCE was justified in refusing the request pursuant to Schedule 1, Part 1(g) and under section 15(1)(a) of the FOI Act.

Analysis and Findings

Section 6(2)(a) of the Act provides that an entity specified in Part 1 of Schedule 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 excluded for the purposes of the Act and details of the certain specified records that are excluded. If the records sought come within the description of the exclusions in Part 1, then the Act does not apply and no right of access exists.

Schedule 1, Part 1(g) provides that section 6 does not include a reference to the Director of Corporate Enforcement, or an officer of the Director, in relation to a record held or created under the Companies Acts (save as regards a record concerning the general administration of the Office of the Director).

While the language of the provision is quite cumbersome, I take it to mean that only records relating to the general administration of the ODCE are subject to the provisions of the Act. In other words, if the record sought is held or created under the Companies Acts, the FOI Act does not apply to the record and no right of access exists unless it concerns the general administration of the ODCE.

In its submissions to this Office, the ODCE said stated that as part of their processing of cases in the course of the discharge of the functions of the ODCE under the Companies Act, it would not be unusual for its officers to have contact with, or meet with, a range of individuals from time to time. It said this could include, for example, company directors, liquidators, accountants, solicitors or other relevant parties. It said such contacts may occur in the context of investigations or other legal processes being undertaken by the Office, including investigations of possible criminal matters (involving the members of An Garda Síochána assigned to the Office). It said such contacts would generally be formal in nature but argued that, in any event, records of such contacts or meetings, whether formal or informal, are clearly records created and held under the Companies Act and therefore are outside the scope of the FOI Act. The ODCE therefore argued that the request fell to be considered in respect of access to records within the administrative records of the ODCE and that no such records could be found.

It seems to me that this is not a case where section 15(1)(a) and the nature of the searches carried out arises. Instead, the question I must consider is whether the records sought, if they exist, could reasonably be regarded as records relating to the general administration of the ODCE. If not, then the Act does not apply and no right of access to the records sought exists.

While the term "general administration" is not defined in the Act, this Office considers that it clearly refers to matters concerning the management of the ODCE such as personnel, pay matters, recruitment, accounts, information technology, accommodation, internal organisation, office procedures and the like. It does not refer to matters concerning the core business of the ODCE such as meetings and correspondence between staff of the ODCE in their capacity as staff of the ODCE and Company Directors.

In a submission of 4 March 2021 to this Office, the applicant provided further information relating to the background to the request made. Having regard to the details provided in that submission, I am satisfied that the information sought is not information that could reasonably be regarded as information relating to the general administration of the ODCE. I should add that this Office has no role in determining the appropriateness, or otherwise, of the actions of the ODCE or its staff.

In the circumstances, I find that the FOI Act does not apply to the records sought, if they exist, and that no right of access exists under the FOI Act. I make no finding on whether or not relevant records exist as I am not required to do so.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the ODCE’s refusal of the request in this case on the ground that the Act does not apply to the records sought, if they exist.

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