Whether the Department was justified in refusing access to various records concerning the Music Industry Support Package (MISP)

30 July 2021

Background

Culture Ireland, which is part of the Department, operates a range of funding programmes to support and promote the presentation of Irish arts generally. Such programmes include the Music Industry Support Package (the MISP scheme), which is a Covid-19 Pandemic Support that was introduced in 2020. It is in the public domain that the scheme is administered on the Department’s behalf by a third party company, Company B. It is also in the public domain that Company B engaged a further third party company, Company C, which is a music distribution company, to provide certain services regarding supported album releases.

References in this decision to the Department include references to Culture Ireland. In a request dated 7 December 2020, the applicant sought access to the following:

1. A copy of all scoring sheets used in determining all applications, and copies of all associated criteria and records of all discussions with regards to criteria and scoring by Company B, associated administrators and the assembled panel of experts, before, during and after the fund allocation process. Include emails and any written records.
2. A copy of all recorded minutes for the selection process and all prior discussion with regards to the selection process.
3. All Company B documentation regarding the selection of the expert panel including eligibility and selection criteria. A copy of all correspondence with regards to members of the expert panel between Company B and the Department. A copy of all correspondence between Company B and members of the expert panel. Include emails letters and text messages before during and after the announcement of the awards.
4. A copy of all correspondence with Company C including all emails and text messages relevant to the awards.
5. Details and records relating to disclosures of interest by members of the expert panel with regards to all applicants. All discussions and details of same regarding conflict of interest. All discussions regarding means testing before, during and after the announcement of the awards.
6. Financial Statements from the MISP Grant & Company B Accounts containing; records of total funds before grantee announcements, during selection process, and after allocation and distribution of the total of €1,700,000 in funding for the MISP Grants.

There followed various correspondence between the applicant and the Department until 12 January 2021. It appears that because of confusion on the Department’s part, no decision issued to the applicant within the statutory timeframe, which effectively refused the request. The Department told the applicant that it could “restart the request” or seek an internal review. The applicant confirmed that the Department could proceed on the basis that a fresh request had been made.

On 18 January 2021, the Department told the applicant that it had identified roughly 3,000 records that might be covered by part 3 of the request. It invited the applicant to narrow the scope of this part of the request and said that otherwise it would have to refuse the request in full under section 15(1)(c) of the FOI Act (voluminous request). Following correspondence on this issue, on 27 January 2021, the applicant offered the Department two options by which it could refine part 3. It is unclear whether the parties engaged further about which option the Department was going to take. However, the Department’s decision, which I understand to have issued on 9 March 2021, referred to part 3 in terms of both its original text and as seeking “[c]orrespondence about the reasons for the judges (sic) selection/qualification to the expert panel and any correspondence dealing with someone’s disqualification from the expert panel”. In its submission to this Office, the Department explained that both versions were included in the decision in order to be as helpful as possible and to best explain the rationale behind the decision making.

The Department’s decision part-granted the request. It provided the applicant with some information generally and also referred it to various published details. It released some records in full and in part, saying that some details were being refused on data protection grounds and also that some of the requested records do not exist. The decision did not cite any relevant provisions of the FOI Act, such as section 15(1)(a) (reasonable searches/records do not exist) or section 37(personal information) and its relevant subsections. However, the attached schedule describes “Section 37” as applicable to personal information. In the case of one record, the schedule describes certain details as being withheld under section 32(1)(b) on the grounds of personal safety.

The applicant corresponded further with the Department about how to seek an internal review and ultimately sought one on 30 March 2021, including in relation to the Department’s position that various records do not exist. The Department’s internal review decision of 22 April 2021 granted full and partial access to some further records but addressed neither the adequacy of searches carried out nor why further records do not exist. It relied on section 37(1) (personal information) in relation to the redacted details. In relation to part 6 of the request, it said that the “accounts of Company B are withheld as contain confidential information, it is understood that Company B audited accounts will be published next month”. Again, however, it did not cite any provisions of the FOI Act that it considered relevant to such records.

On 23 April 2021, 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 and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges and to correspondence between this Office, the Department and the applicant. I have also had regard to the records provided to this Office by the Department and to the provisions of the FOI Act.

Scope of the Review

Firstly, I note that parts of the applicant’s request seeks “details”. For the benefit of all parties to this review, it is important to note at the outset that while the purpose of the Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from a public body must make a request for records that contain the information sought. Requests seeking information or details or asking questions are not valid requests under the FOI Act, except to the extent that they can reasonably be inferred to be requests for records containing the information sought or the answers to the questions asked.

Furthermore, the FOI Act does not require public bodies to create records if none exist, apart from a specific requirement, under section 17(4), to extract records or existing information held on electronic devices. Under section 17(4), where a request relates to data contained in more than one record held on an electronic device by the body concerned, the body must take reasonable steps to search for and extract the records to which the request relates. The reasonable steps are those that involve the use of any facility for electronic search or extraction that existed on the date of the request and was ordinarily used by the FOI body. Where these reasonable steps result in the creation of a new record, that record is, for the purposes of considering whether or not such a new record should be disclosed in response to the request, deemed to have been created on the date of receipt of the request. However, if the body does not hold a record containing the information sought and cannot search for and extract the electronically held records by taking reasonable steps, then that is the end of the matter.

Accordingly, the scope of this review is confined to whether or not the Department was justified under the provisions of the FOI Act in refusing to fully grant the applicant’s request for records, including records containing the particular details sought in the request. It does not extend to examining any other matter, including the Department’s or Company B’s performance of its functions insofar as any aspect of the MISP scheme is concerned. Neither does this review extend to examining the Department’s handling of the applicant’s FOI request.

Analysis and Findings

Section 15(1)(a) – reasonable searches/records do not exist

Section 15(1)(a) of the FOI Act provides that access to records may be refused if the records concerned do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken.

The role of the Commissioner in a case involving section 15(1)(a) is to decide whether or not the decision maker has had regard to all of the relevant evidence and, if so, whether the decision maker was justified in coming to the decision that the records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The evidence in such cases includes the steps actually taken to search for records. It also comprises miscellaneous other evidence about the record management practices of the FOI body, on the basis of which the decision maker concluded that the steps taken to search for records were reasonable. However, this Office has no remit to examine, or make findings on, whether or not further records should have been created, the level of detail in records that were created, or the relevant record management practices generally.

In this case, section 11(9) of the FOI Act is also relevant. In general, this provides that records held by service providers in relation to a service shall be deemed to be held by the FOI body, and inserts a provision into the relevant contract regarding the provision of records by the contractor to the FOI body.

The records that have been considered for release in this case are comprised of:

• final scoring sheets, an email dated 17 September 2020 regarding the draft process for the expert panel and attachments (part 1)
• records of correspondence between Company B and Company C during the set-up of the scheme (part 4). The decision says that correspondence regarding the administration and redemption of individual vouchers is ongoing and related records “can be released following the completion of the scheme if required”
• a table listing the disclosures of conflicts of interests by the expert panel and related emails (part 5) and
• a document outlining the total funds allocated to each element of the MISP scheme and the maximum amount payable to Company B to cover administration of the fund (part 6).

In essence, it is the Department’s position that it has taken reasonable steps to look for records covered by the applicant’s request and also that certain of the requested records do not exist. This Office’s Investigator asked the Department to outline the searches carried out and why it contends that particular records do not exist. She also asked it to comment on the applicant’s observations regarding how the Department was able to initially identify over 3,000 records relevant to part 3 of its request and yet none for other parts, and that it is possible for minutes to have been taken of Zoom meetings/discussions and for follow-up emails to have been sent.

The Investigator also asked the Department to comment on the argument that it would be reasonable to expect the creation of various records for evidentiary purposes, providing examples of same. She also pointed out that it was unclear whether there had been discussions about possible disqualifications from the panel, even if nobody was ultimately disqualified. She said that ongoing administration of any aspect of the MISP scheme is not of itself a reason to not identify records for release, such as those regarding the administration and redemption of vouchers, etc. Finally, she noted that the Department does not describe the extent to which it or Company B actually hold financial statements containing the details sought at the final part of the request. She said that whether such records are exempt or not is a separate matter.

The Department says that the scheme was of an exceptional nature, instigated at speed in order to be as beneficial as possible to the Music Industry in the midst of a global pandemic. I understand that, further to the arrangements entered into, Company B retains all relevant records until its administration of the MISP scheme has concluded. At that point, all records relating to the scheme are required to be transferred to the Department for filing. As matters stand, however, the scheme is not yet closed and so the scheme continues to be administered on the Department’s behalf by Company B. The Department says that, with all its own and Company B staff working from home and all discussions carried out over phone or video calls, this was by no means a “normal” situation. It says that it requested Company B to search for and extract records relevant to the applicant’s request and forward them to the Department. It says that it believes that Company B did as it was requested and that the information provided to it by Company B is correct. I comment on the more detailed aspects of the Department’s submission below.

Analysis

The Covid-19 pandemic required sudden and considerable changes to be made to the working arrangements of public and private bodies. The Government also had to take various measures to protect and support the public. Arrangements had to be made at short notice and under time pressure. These overall circumstances may well generally have impacted on the number of records created by FOI bodies and contractors in certain instances and the extent of their detail and/or formality. Nonetheless, it is still reasonable to expect that records would be created and retained for evidentiary purposes, and where this is not the case that explanations would be provided as to the process adopted. Furthermore, while restrictions have had, and continue to have, some implications for how public bodies can search their own records or engage with contractors in this regard, the FOI Act nonetheless requires bodies to take reasonable steps to search for records and to provide a basis for claiming that records do not exist.

In this context, I accept that Covid-19 restrictions limit the extent to which Department staff might, for instance, physically interact with Company B staff for the purpose of obtaining records relevant to an FOI request. Nonetheless, it seems to me that the Department could take some steps to satisfy itself that Company B had provided it with all relevant records. For instance, it could have established details of what records Company B had created and how they were or should have been stored (if these are not already known to the Department) and how Company B actually searched for particular records covered by the request.

However, the Department’s position that it was reasonable for it to accept without question that Company B provided it with all relevant records is, in my view, weakened by a particular issue that arose further to the Investigator’s comparison of the original and redacted versions of the part 1 records considered for release in this case. It appears that the Department was not aware that two fields had been deleted from the originals, and that the “judge” fields had been anonymised, before the records were sent to the Department for consideration for release. As set out in the Department’s decisions, further redactions were made to these records on data protection grounds.

A number of other issues also arise from the Department’s submission. It cites the original wording of part 3, and says that the 3,000 records that were identified further to “[a]n initial search of email boxes within Company B using the above criteria” (which criteria it did not specify in its submission) may or may not have been relevant to the FOI request. It describes its contacts with the applicant in relation to this issue, and its decision on the modified scope of part 3. i.e. that no expert was disqualified and that the panel was “selected from a network of music industry experts maintained by Company B as essential to its programming, with input from the Department over zoom and telephone calls.” However, it does not deal with the Investigator’s questions regarding whether there were discussions about the general suitability of individuals selected for/elected to the panel in the first place. Confirmation of the extent of such discussions is directly relevant to the matter of whether records relating to those discussions exist.

In relation to part 4, the Department says the setup of the MISP scheme took place between 21 September and 1 October 2020. It says that it considered the correspondence between Company B and Company C during this time “to be particularly relevant to the applicant’s request” and that it still intends to request all correspondence between Company B and Company C in relation to the redemption of vouchers when the scheme is completed. In my view, the Department took a unilaterally narrow view of the scope of part 4, which extends to more than correspondence about the set-up of the MISP scheme. As the Investigator noted, the ongoing administration of any aspect of the MISP scheme is not of itself a reason to not identify records relating to such matters and consider whether in the circumstances they are exempt under the FOI Act. Also in general, while the earliest email considered for release in relation to part 4 is dated 21 September 2020, it is not clear from the records or the submission whether the Department and/or Company B contacted Company C before this date regarding its possible role in relation to the MISP scheme. The emails considered relevant to part 4 refer to various attachments, and it is unclear if these have been considered for release.

In relation to part 6, the Department refers to the document it provided to the applicant and says that Company B will provide it with a full breakdown of all allocated funding once the fund has been expended and the scheme closed. It says that a total of the amount distributed to date can be requested from Company B. However, it is not appropriate for the Department to deal with any part of an FOI request or a review by this Office on this basis. Rather, it must make a decision under the FOI Act as to whether relevant records exist and/or are held by it for the purposes of the Act, and in turn as to whether they are exempt under the Act’s provisions. Neither the Department’s decisions, nor its submission to this Office, address these issues.

In relation to internal Departmental records, the Department says that it normally stores all records in folders on shared drives on its network and, in some cases, in paper files. It says that searches were carried out only within Culture Ireland, which has responsibility for communicating with Company B in relation to the MISP scheme. It says that all relevant records were transmitted by email and that searches were “carried out in mailboxes of relevant officials and [Company B] staff.” It says that “all relevant individuals were consulted and records were retrieved from their email files.”

It is not clear from the submission if the Department examined whether electronic records, including copies of emails sent to and received from Company B, might have been stored in its shared drives as required. It does not give details of the keywords or date ranges used to search email accounts. It does not address whether there were text communications as also sought in the request. While I accept that Department staff were working from home, under time pressure, and were required to electronically communicate both internally and externally, it is not clear if the Department considered the possibility that staff may have created and retained their own paper records, if only in basic bullet point form. It gives no details about the individuals who were asked to search for records (such as who they were, or their roles and responsibilities) to enable an assessment of whether indeed all relevant individuals were asked to search for records.

Having considered all of the above, I am not satisfied that the Department has justified its position that further records covered by the request do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. I should say that, in the normal course, I would consider seeking clarification from the Department regarding my observations in the preceding paragraph. However, the other significant issues would remain. The most appropriate decision for me to make in the circumstances is to annul the Department’s decision on the matter and to direct it to make a fresh decision in accordance with the provisions of the FOI Act. For the avoidance of doubt, should further records come to light, this direction also requires the Department to make a decision on whether or not they are exempt under the substantive provisions of the FOI Act. Furthermore, exact, full copies of all records held by Company B that are covered by the request are to be provided to the Department for its consideration under the FOI Act and it is for the Department to decide on, and make, any redactions to those records.

Redactions to records

Under sections 13(2)(d) and 21(5)(c) of the FOI Act, where an FOI body decides to refuse to grant a request whether wholly or in part, the notification of the original or internal review decision shall specify:

• the reasons for the refusal;
• any provisions of the FOI Act pursuant to which the request is refused;
• the findings on any material issues relevant to the decision; and
• particulars of any matter relating to the public interest taken into consideration for the purposes of the decision. 

As set out in the “Background” section above, the Department’s decisions do not meet the above requirements. While, as noted, the internal review decision referred to section 37(1), it did not cite any other exemption provisions that may have been relevant to its position on the request, explain why they apply, or deal with any relevant public interest tests.

In seeking the Department’s submissions on the redacted information, the Investigator referred it to the requirements of sections 13(2)(d) and 21(5)(c) of the FOI Act. However, Department’s submission makes arguments only regarding section 32(1)(b) and some of the information that was withheld under section 37 during the decision making process. It makes no arguments concerning the details redacted from the part 5 email records, for instance, which concern applicants and judges in the context of possible conflicts of interest. It does not deal with the exceptions to what may be considered to be personal information where public servants are concerned, or the public interest in the release or otherwise of any of the withheld information. In such circumstances, I am not satisfied that the Department has justified its position that the redacted information is exempt under the provisions of the FOI Act.

Furthermore, as noted earlier, certain details in the part 1 records were removed and amended prior to being sent to the Department for consideration under the FOI Act. The redacted copy of one of these records appears incomplete. The Department’s position on whether or not it has fully released the table listing the disclosures of conflicts of interests by the expert panel (part 5) is also unclear.

It is not possible for me to make a decision on the records in full in these overall circumstances. I feel that the most appropriate decision for me to make in relation to all of the redacted records is to annul the Department’s decision on them and to direct it to make a fresh decision on them in accordance with the provisions of the FOI Act. While the applicant may be of the view that I should direct the Department to grant full access to all of the records it has considered for release to date, it should be noted that the release of records under FOI is generally understood to have the same effect as publishing them to the world at large. Furthermore, the records primarily relate to third parties who are not public servants (i.e. applicants under the MISP scheme), whose interests may be affected if information disclosing their identities were to be released in full.

In directing the Department to consider the entirety of the request afresh, I note that the applicant expresses concerns over the handling of their request to date and appears to suggest that the decisions in this case should have been taken by staff of the Department without responsibility for Culture Ireland. However, it is not unusual for FOI requests for records held by particular functional areas to be decided on by staff within those areas, given their knowledge of various issues arising.

Finally, the matter of whether the Department would have been justified in relying on section 15(1)(c) in relation to the request is not before me in this case. Generally speaking, however, I will say it does not necessarily follow that it is appropriate to refuse the entirety of a request under section 15(1)(c) simply because a single, discrete part of it may be so refused.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the entirety of the Department’s decision on this request and I direct it to carry out a fresh decision making process in respect of the matter, in accordance with the provisions of the FOI Act.

Given the lapse of time since the applicant first made its request, I specify that, subject to sections 24 and 26 of the FOI Act, effect shall be given by the Department to my decision within five working days of the expiration of the 4 week period for the bringing of an appeal to the High Court from this decision as provided for at section 24(4) of the FOI Act. I will prioritise any further review that may arise in relation to the Department’s fresh decision on this request.

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.

Deirdre McGoldrick

Senior Investigator