Whether the Council was justified in refusing access to records relating to the applicant, including correspondence involving a named mediator

15 September 2022

Background

In a request dated 7 September 2021, the applicant sought access to records held by the Council relating to him from 1 June 2020 to the date of the request. In his request, he said he had been corresponding with a named staff member of the Council in her capacity as a mediator for the Civil & Public Service Mediation Service (CPSMS). By way of background, the CPSMS provides mediation services across Civil and Public Service organisations. The CPSMS is run by a panel of mediators, serving civil and public servants who are professionally trained and accredited mediators under the Mediators-� Institute of Ireland. Mediators are appointed to mediate disputes across the civil and public service by the CPSMS.

On 1 October 2021, the Council informed the applicant that it had decided to extend the time period for making a decision by four weeks pursuant to section 14(1) of the Act, due to -�the amount of time required to locate and collate the records requested -� and constraints imposed by COVID 19 restrictions-�.

In a decision dated 2 November 2021, the Council refused the request under section 41(1) of the FOI Act, referencing the Mediation Act 2017. On 25 November 2021, the applicant sought an internal review of that decision. In a decision dated 16 December 2021, the Council affirmed its original decision. On 13 May 2022, the applicant applied to this Office for a review of the Council-�s decision.

On 2 August 2022, the Council notified this Office that it had released the identified records to the applicant following receipt of a subject access request under the data protection regime. This Office subsequently engaged with the applicant and referenced section 22(9)(a)(v) of the FOI Act which provides for the discontinuance of a review where there is no longer any issue requiring adjudication, as access to the records in question has been granted by the FOI body in the course of the review. The applicant-�s position is that further records exist. In communications with this Office he referenced other emails received which were not released.

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 applicant-�s comments in his application for review, to the submissions made by the FOI body in support of its decision and to subsequent communications with both parties. I have also examined the records at issue.  I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

As outlined above, during the course of the review, the Council released all records it identified as coming within the scope of the applicant-�s request. The applicant-�s position is that further records exist which have not been released.

Accordingly, this review is concerned solely with whether the Council was justified, under the provisions of the FOI Act, in refusing access to any additional records coming within the scope of the applicant-�s FOI request.

Preliminary Matters                                            

Before I address the substantive issue arising, I would like to address a number of preliminary matters. First, as per our standard procedures, at the commencement of the review this Office contacted the Council to request copies of the subject records relevant to this case. In response, the Council said a search for records had not been undertaken. Its position was that it could not release the records regardless of their content. This position was arrived at with reference to confidentiality provisions in the Mediation Act. We informed the Council that in order to proceed with the review, consideration of the relevant records would be required. The Council undertook a search for records and provided copies of same to this Office on 6 July 2022.

I would remind the Council of its obligations under the FOI Act. It is required to undertake reasonable steps to search for records to which the request relates. Applying exemptions without the full consideration of the relevant records constitutes poor practice, even in situations where it appears that an exemption will apply regardless of the content of the records. I would urge the Council to ensure that all FOI decision-makers refer to relevant guidance documents published by this Office and the FOI Central Policy Unit in the Department of Public Expenditure and Reform.  

Secondly, as noted above, on 1 October 2022, the Council applied an extension under section 14 to the consideration of the applicant-�s request under FOI Act. The applicant did not apply to this Office for a review of that decision. However, in his application to this Office, he noted that the extension led him to believe his request was being processed. Given that the Council had not undertaken a search for records until directed to, this Office sought clarification in respect of the section 14 extension.

In response, the Council-�s said the named mediator referenced in the FOI request is no longer working in the relevant section of the Council and it believed that in order to correctly identify all possible locations of the records requested it would need to engage with that individual which would take some time. It also said that the mediation in question occurred over a protracted period. It said it did not believe four weeks would be sufficient to identify the relevant records. It said that, in addition, it -�quickly became clear that the process of mediation had separate legal protections which would take time to properly assess-�. It says that section 14(1)(a) was the provision applied.

The circumstances in which an extension to the time period for processing a request are limited, as prescribed by subsections (a) and (b) of section 14(1). In order to apply the extension under section 14(1)(a), the request must relate to such number of records that compliance with the four week period is not reasonably possible. The Act provides no guidance on the number of records that might be involved before an extension can be appropriately applied. As such, each case must be considered on its merits based on the particular facts and circumstances. Nevertheless, the provision is clear that a decision to extend the period must be based on the number of records to which the request relates. It appears that the extension was applied by the Council before any search for records was undertaken. Accordingly, it does not appear that the number of records was a consideration.

In my view, the Council has provided insufficient evidence to support its claim that the request related to such number of records that compliance with the four-week period was not reasonably possible. While a decision has subsequently issued in this case, I expect the Council to ensure that its decision makers are made aware that any future application of section 14 must be in accordance with the provisions of the section.

Finally, a review by this Office is considered to be -�de novo-�, which means that it is based on the circumstances and the law as they pertain at the time of the decision. Accordingly, in light of the -�de novo-� nature of our reviews, this Office will consider new material matters arising, notwithstanding the fact that the position was not relied upon as a ground for refusing access to the records in the FOI body-�s decisions on the request. In this instance this includes the matter of whether the records sought are held by the Council for the purposes of the FOI Act.

Analysis and Findings

Section 11(1)

Section 11(1) of the FOI Act confers a general right of access to records held by a public body. While the term "held" is not defined in the FOI Act, this Office 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 FOI Act 1997 inMinister for Health v Information Commissioner[2019] IESC 40. In its judgment, the Court found that for a record to be held within the meaning of section 6(1) of the Act of 1997 (the equivalent provision of section 11 of the FOI Act 2014), 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.

While the Council identified the above-referenced 85 records as exempt from release pursuant to section 41(1) of the FOI Act, having examined these records, it seems to me that they were held by the named mediator in her capacity as a mediator for the CPSMS. However, as the Council has released these records, the matter is moot. However, in addition to the records identified and released by the Council, the applicant maintains that further records exist. He references a separate FOI request made to a different public body in support of that position.

Any additional records would also relate to the applicant-�s engagement with the named mediator, as per the scope of his request. In addition to her role as a mediator with CPSMS, the individual in question was employed in a separate capacity by the Council and communicated with the applicant using her Council email address. The Council says that it had no other involvement or connection to any actual or proposed mediation or any matters which may have been the subject of such mediation. Its position is that the subject matter of the records is not related to the business or functions of the Council as a public body.

This Office provided the applicant with an opportunity to make submissions in respect of the above new material matter. To date, no further submissions have been received. 

Regardless of the basis on which the Council decided to release records identified, this review can have regard only to whether a right of access exists by virtue of the provisions of the FOI Act. For a right of access to exist, the records sought must be held by the Council for the purposes of the FOI Act. Having considered the nature of the records in question and the fact that they relate to a named mediator and mediation arranged through the CPSMS and do not relate to the business or functions of the Council, I find that any additional records would not be held by the Council for the purposes of the Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I affirm the Council-�s effective decision to refuse access to any additional records on the basis that any such records are not held by the Council for the purposes of the FOI Act.

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