Ms X and Department of Agriculture, Food and the Marine (Department of Agriculture, Food and the Marine) [2022] IEIC 122368 (17 August 2022)

  1. Ms X and Department of Agriculture, Food and the Marine

Case number: OIC-122368-Q1L3L8

Whether the Department was justified in refusing access, under section 15(1)(a) of the FOI Act, to records relating to Horse Sport Ireland on the basis that it does not hold the records sought by the applicant

 

17 August 2022

 

Background

This review has its background in three FOI requests the applicant made to Horse Sport Ireland (HSI) in July 2021. HSI is the national governing body for equestrian sport in Ireland and maintains the Irish Horse Register.  The majority of HSI-s income comes from state agencies, principally the Department of Agriculture, Food and the Marine, and the Department of Tourism, Culture, Arts, Gaeltacht, Sport and Media through Sport Ireland. Following receipt of those requests, HSI informed the applicant that it is not an FOI body for the purposes of the FOI Act. The applicant referred the matter concerning the status of HSI to this Office. By letter dated 21 October 2021, I informed the applicant of my finding that HSI is not an FOI body for the purposes of the Act. I also informed the applicant that records relating to services provided by HSI to the Department may be available from the Department.

Subsequently, on 29 December 2021, the applicant submitted a request to the Department, attaching the three requests she made to HSI in July 2021 and asking that it gather the records from HSI and process them in accordance with the FOI Act. The three FOI requests are as follows:

FOI request 1

All materials relating to the selection of Greenogue Equestrian as the location of a HSI HQ and Centre of Excellence including but not limited to:

  1. Terms of Reference for sub-committee setup in HSI for the purpose of selecting a location for a new HQ and Centre of Excellence
  2. Minutes of all sub-committee meetings
  3. Tender documents used to select independent consultant to conduct feasibility study
  4. Terms of Reference under which consultant conducted feasibility study
  5. List of range of potential sites considered and terms by which the list was compiled
  6. Constitution of the HSI Company including the Powers Clause and/or any other legal document which shows that the Board of HSI has the sole power to choose a site for its HQ and Centre of Excellence
  7. Method by which HSI has satisfied itself that the transaction is consistent with public procurement rules
  8. Copy of the current contract with Greenogue Equestrian
  9. Copy of the proposed long-term contract with Greenogue Equestrian

FOI request 2

Records (such as meeting minutes, emails, etc.) of all decision making processes that led to a record of all HSI tenders, both historic and current, not being published on the HSI website and/or on the eTenders procurement portal.

FOI request 3

  1. Records (such as meeting minutes, emails, etc.) of all decision making processes that led to the removal of all Freedom of Information (FOI) Act 2014 information from the HSI website, including the requestors' rights under the act and details of how to submit a request to the HSI
  2. Logs from the HSI web server which show the date that the materials were removed from the HSI website
  3. HSI Freedom of Information (FOI) Act 2014 Policy

In her request to the Department the applicant argued that, given that the Department has a Service Level Agreement with HSI, there can be no disputing that HSI is providing a service for the Department.

In its decision of 9 February 2022, the Department refused the request under section 15(1)(a) of the Act, on the ground that the records sought do not exist -in this Division-. In its decision, it said HSI is a company limited by guarantee and that it is operationally independent from the Department. It also made a vague reference to the applicability of section 36 of the FOI Act to commercially sensitive information in connection with the Greenogue project, although no specific records were identified.

The applicant sought an internal review of that decision, following which the Department affirmed its refusal of the request. On 21 April 2022, the applicant applied to this Office for a review 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 outlined above and to the submissions made by both parties. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

In its submissions to this Office, the Department said that its reference to section 36 of the Act in its decision was an error as its refusal was made on the grounds that the records did not exist. The Department stated that section 36 was referred to because even if the records did exist it considered that they would be exempt because they relate to a decision making process of a commercial nature that is still in process.

Accordingly, the scope of this review is concerned solely with whether the Department was justified, under section 15(1)(a) of the Act, in refusing access to the records sought by the applicant on the basis that the records do not exist within the Department.

Analysis and Findings

Section 15(1)(a)

Section 15(1)(a) of the Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner's role in a case such as this is to review the decision of the FOI body and to decide whether that decision was justified.  This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision and also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in -search- cases generally consists of the steps actually taken to search for the records along with miscellaneous and other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.

The Department-s position is that is does not hold the records sought as HSI is operationally independent of the Department in the matters that are the subject of the applicant-s request.

Records Held by HSI

It is not in dispute that HSI is likely to hold at least some of the records sought by the applicant. The applicant-s argument is that any relevant records held by HSI are also deemed to be held by the Department for the purposes of the FOI Act on the basis that HSI is a service provider to the Department.

Section 11(9) of the Act 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 the FOI Act to be held by the FOI body. Section 2 defines -Service Provider- as -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 and contract for services in this definition includes an administrative arrangement between an FOI body and another person.-

The effect of section 11(9) is that any records held by a service provider that relate to the service provided for the FOI body are deemed to be held by the FOI body for the purposes of the FOI Act and a right of access to such records exists unless they are otherwise exempt. This does not mean that all records held by the service provider are subject to the Act. The records must relate to the service provided for the FOI body.

While the Department accepts that HSI is a service provider, it argued in its submissions that the records sought in this case do not relate to the services provided by HSI to the Department. It said HSI provides services to the Department related to equine breeding and marketing under a service level agreement but that HSI is independent in operational matters. It said the selection of a site for the proposed new HSI Headquarters and Centre of Excellence is not a matter that falls within the services provided and is not governed by the service level agreement. It said the Department has no role in this selection process, which is entirely a matter for the Board of HSI. It said it considers that any records relating to the selection of the site do not relate to the services provided by HSI for the Department. It argued that section 11(9) of the Act is not applicable in this case.

As outlined above, the records sought in this case relate to the selection of Greenogue Equestrian as the location of HSI-s headquarters (request 1), the non-publication of HSI tenders (request 2), and HSI FOI materials (request 3).

I have examined a copy of the Service Level Agreement between the Department and HSI that the Department provided to this Office for the purpose of the review. Having done so, it seems to me that any decisions taken regarding the selection of Greenogue Equestrian as the location of a HSI HQ and Centre of Excellence would be operational matters for HSI and related records would not, as such, relate to the service HSI provides for the Department. However, in its submissions to this Office, the Department said it has since come to its attention that its Legal Services Division holds records relating to the selection of the location of the HSI HQ and Centre of Excellence. The Department said that its Legal Services Division received these records in the context of providing legal advice to the Minister. It argued that the records attract legal professional privilege, are commercially sensitive and were received in confidence and are therefore exempt from release under sections 31(1)(a), 35(1)(a) and 36(1)(b) of the FOI Act. The Department has not explained why it holds certain records relating to the selection of the location of the HSI HQ and Centre of Excellence whilst simultaneously arguing that no such records relate to the services provided by HSI. This, of itself, provides a sufficient basis for me to find that the Department has not taken all reasonable steps to ascertain the whereabouts of relevant records in this case.

Moreover, I am not satisfied that any records HSI might hold that fall within the scope of request 2 would not also be deemed to be held by Department pursuant to section 11(9). I note that the service level agreement contains the following condition:

-Horse Sport Ireland agrees to use the appropriate public tendering process and must comply with best practice principles outlined in the Department of Finance Public Procurement Guidelines, as detailed in the tendering policy document. Horse Sport Ireland must also comply with all relevant EU legislation in this area, as applicable.-

The agreement also provides that the Department may request from HSI details of certain tendering arrangements. Having regard to the requirement under section 15(1)(a) of the Act that an FOI body must have taken all reasonable steps to ascertain the whereabouts of records sought, it seems to me that the Department could reasonably have been expected to at least engage with HSI to determine whether any relevant records exist that might be deemed to be held by the Department for the purpose of section 11(9). While I understand the Department contacted HSI about the applicant-s request, it does not appear to have undertaken sufficient enquiries to establish if relevant records exist that might be captured by section 11(9). This provides yet another ground for me to find that the Department has not taken all reasonable steps to ascertain the whereabouts of relevant records in this case.

On the matter of request 3, I am satisfied that any records held by HSI cannot reasonably be regarded as relating to the service provided by HSI for the Department. I find that such records cannot reasonably be deemed to be held by the Department for the purposes of section 11(9).

Records held by the Department

As indicated above, the Department has since acknowledged that it holds relevant records. Accordingly, I am satisfied that the Department did not take all reasonable steps to ascertain the whereabouts of relevant records. However, I do not consider it appropriate to simply direct the release of the records that have since been located, in circumstances where the Department argues that those records are exempt from release. On the other hand, it is not appropriate that this Office should be a first instance decision maker to determine what information, if any, might qualify for exemption. Instead, it seems to me that the most appropriate course of action to take at this stage is to annul the decision of the Department to refuse the request under section 15(1)(a) of the Act.

Furthermore, much of focus of the Department-s submissions to this Office concerned records relating to request 1 about HSI-s headquarters. In response to a query from this Office in relation to request 3, the Department explained that although there are no relevant records held by the relevant Division which dealt with the FOI request, it cannot be sure that relevant records are not held in the wider Department offices.

In conclusion, I am not satisfied that the Department has taken all reasonable steps to ascertain the whereabouts of relevant records in this case. Accordingly, I annul the Department-s decision to refuse the request under section 15(1)(a) of the Act and direct it to consider the request afresh and make a new, first instance, decision in accordance with the provisions of the FOI Act. The applicant will have a right to an internal review and a review by this Office if necessary.

For the sake of clarity, I should explain that while I expect the Department to take all reasonable steps to ascertain what records captured by requests 1, 2, and 3 it holds within the Department, I also expect that it will consider fully whether HSI might hold relevant records captured by requests 1 and 2 that may be deemed to be held by the Department for the purposes of section 11(9) of the Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Department-s decision to refuse the applicant-s request for various categories of records relating to HSI under section 15(1)(a) of the Act. I direct it to undertake a fresh decision making process on the 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.

Stephen Rafferty
Senior Investigator