Whether the Department was justified in refusing access to further records referring or relating to the repayment of corporate donations by the Minister for Justice on the ground that it does not hold any further relevant records

5 October 2022

Background

In a request dated 29 March 2022, the applicant sought access to copies of any records held referring or relating to the repayment of corporate donations by the Justice Minister for the period 1 December 2021 to the date of receipt of his request. The applicant said searches of any mobile phones, relevant private email addresses and/or messaging services should be considered when processing the request. Following a request for an internal review on foot of a deemed refusal of the request, the Department issued an internal review decision on 27 June 2022 wherein it refused the request under section 15(1)(a) of the Act on the ground that the records sought do not relate to the business of the Department and are not held by the Department. On 28 June 2022, the applicant applied to this Office for a review of the Department-�s decision. In his application to this Office for a review of the Department-�s decision, the applicant argued that at the very least, there would be records held in the Department-�s press/communications department, by the Minister and by her special advisers.

During the course of the review, and following queries raised by this Office, the Department carried out a search of its Press Office for any records that it might hold pertaining to the applicant-�s request. It said a number of records were located relating to a press query it had received. The Department clarified that the response to the press query was not issued by the Department-�s Press Office as the subject matter was outside the Department-�s remit, but by the Minister-�s Special Advisor, as it related to the Minister-�s role as a TD. It said the Press Office was copied on the email correspondence for information. I understand the Department has now released redacted versions of those records to the applicant.

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

Scope of Review

The Department-�s position is that it holds no other relevant records coming within the scope of the applicant-�s request apart from those released during the course of the review.

Accordingly, this review is concerned solely with whether the Department was justified in refusing, under section 15(1)(a) of the Act, any other records referring or relating to the repayment of corporate donations by the Minister for Justice on the ground that it holds no further relevant records.

Analysis and Findings

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. Our 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. It is important to note that a review by this Office is not concerned with access to records that a requester believes ought to exist.

In its submissions to this Office, the Department said that the request was initially interpreted to refer to records held in the Minister-�s Private Office as the subject matter appeared to relate to the Minister directly. It said that on examination of the application for review submitted to this Office, it noted that a reference was made to press queries and consequently the Department-�s press office was asked to carry out a search for any relevant records. As I have outlined above, the records located were released during the course of the review.

On the matter of the searches undertaken, the Department said searches were conducted for relevant records by the Minister-�s Private Office on electronic databases which contain Departmental records relating to the functions of that unit. It explained that the Minister-�s Private Office is the area of the Department with responsibility for matters relating to the Minister. It said correspondence which is received by the Minister-�s Private Office is logged by the Transparency Function on the Department-�s eCorrespondence database. From that database it is assigned to the functional area of the Department with responsibility for the topics raised in the correspondence, where a response is prepared for issue. It further explained that where a submission is made for the Minister-�s attention, it is recorded by the functional area or individual making the submission on the Department-�s eSubmissions database. Once the submission has been cleared for the Minister-�s attention, it is received by the Minister-�s Private Office who bring it to the Minister-�s attention. The Department said electronic searches were conducted on the eCorrespondence and eSubmissions databases, using the keyword -�Corporate Donation-� with -�Repayment-�.

While the Department acknowledged that the Minister may hold records pertaining to the request, it said that any such records, if they exist, would relate to constituency matters of the Minister in her capacity as a TD. It said such records are not held by the Department in connection with, or for the purpose of, its business or functions, the parameters of which are defined in Section 1 of the Ministers and Secretaries Act 1924. It said it cannot speak to whether records would be held by other FOI bodies or private individuals.

Analysis

In essence, the Department-�s position in this case is that it has released all of the records it holds in relation to the applicant's request and that any relevant records held by the Minister, if they exist, cannot be searched for as they would be held, for the purposes of the FOI Act, by the Minister in her capacity as a TD and not by the Department.

Section 11(1) of the FOI Act provides for a right of access to any record held by an FOI body. While the Act does not define -�held-�, the Commissioner 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 Act inMinister for Health v Information Commissioner[2019] IESC 40 (the Drogheda Review case).

In her judgment in the case, Finlay Geoghegan J. accepted that the equivalent provision of the Freedom of Information Act, 1997 (the Act of 1997) (section 6(1), which provides for the right of access to records held by public bodies), gives rise to two distinct questions for a decision maker when access to a record alleged to be held by a public body is sought; first, whether it is a record -�held-� by the body and secondly and separately, whether the requester has a right of access to the record. She accepted that the statutory criteria according to which each question is to be answered are distinct.

On the meaning of held, Finlay Geoghegan J. found that for a record to be held within the meaning of section 6(1) of the Act of 1997, 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.

Having regard to the findings of the Supreme Court in the Drogheda Review case, I accept that in order for any further records sought in the present case to be deemed to be held by the Department, the Department must be in lawful possession of the records in connection with, or for the purpose of, its business or functions and must also be entitled to access the information in the records.

The records sought are those that refer or relate to the repayment of corporate donations by the Minister. The Department has no function in relation to such matters. As I have outlined above, the FOI Act provides for a right of access to records held by public bodies. That right of access obviously extends to records held by Ministers in their role as the heads of government departments. However, it does not extend to all records a Minister may hold, regardless of whether or not they relate to the functions of the relevant department.

I accept that any further relevant records, if they exist, would be held by the Minister in her capacity as a TD. I also accept that, for the purposes of the FOI Act, the Department cannot be regarded as being in lawful possession of the records in connection with, or for the purpose of, its business or functions, nor can it be deemed to be entitled to access the information in the records. Accordingly, I am satisfied that the Department was not required to search for any such records held by the Minister. In conclusion, therefore, I find that the Department was justified in refusing, under section 15(1)(a) of the Act, any further records referring or relating to the repayment of corporate donations by the Minister on the ground that it holds no further relevant records.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Department to refuse the applicant-�s request for further records referring or relating to the repayment of corporate donations by the Minister on the ground that it does not hold any further relevant records.

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