Case number: OIC-62336-R8J7N5
29 March 2021
The Money Advice and Budgeting Service (MABS) provides advice for people who are experiencing difficulties with personal debts. It operates from a number of offices nationwide and is currently governed by eight Regional Boards, each of which is a company limited by guarantee and a registered charity. It is funded and supported by the CIB.
On 15 August 2019, the applicant submitted a six-part request to the CIB for records relating to a specific Regional Board (the Company). Specifically, he sought access to:
On 12 September 2019, the CIB decided to part-grant the request. It redacted certain information from a number of records under section 37 of the Act on the ground that release of the information would involve the disclosure of personal information relating to third parties. It refused access, under section 15(1)(a), to emails, correspondence, memos, meetings, and minutes of meetings relating to parts 1 and 3 of his request on the ground that such records had been deleted and do not exist and records of phone calls relating to parts 1, 3, 5, and 6 on the ground that they never existed.
On 24 September 2019, the applicant sought an internal review of the CIB’s decision wherein he provided examples of additional records not received under parts 1, 3 and 5 of his request. He also queried whether the CIB had contacted the Company to determine if it holds relevant records. In its internal review decision of 15 October 2019, the CIB affirmed its decision to refuse access to further relevant records under section 15(1)(a) on the ground that no such records could be found. It noted that a number of the records sought related to the work of its Restructuring Team and, as 16 regional companies (including the eight MABS regional companies) had now been created, the CIB had no reason to hold on to those documents, emails, and correspondence.
On 18 February 2020, the applicant sought a review by this Office of the CIB’s decision. He included in his application for review a substantial list of documents he believed should exist.
During the course of the review, the CIB located and released five additional relevant records. I have now completed my review in accordance with section 22(2) of the FOI Act. In conducting my review, I have had regard to the correspondence between the CIB and the applicant as outlined above and to correspondence between this Office and both the CIB and the applicant on the matter.
During the course of this review, the CIB said that certain records were not released to the applicant on the basis that they had previously been provided to him in response to a subject access request that he had made under the Data Protection legislation. Section 15(1)(i) of the FOI Act provides for the discretionary refusal of a request where the request relates to records already released, either to the same or a previous requester where the records are available to the requester concerned. The applicant confirmed to this Office that relevant records that had previously been released to him could be excluded from the scope of this review. However, he argued that there were also further related records, which had not been released.
Moreover, during the review, the investigating officer informed the applicant that in light of the issues he referenced in his request for an internal review of the original decision, the review would focus on whether the CIB holds additional records coming within parts 1, 3, and 5 of his request other than those already released. In response, the applicant said he had no objection to the scope of the review as described.
Accordingly, this review is concerned solely with whether the CIB was justified in refusing, under section 15(1)(a) of the Act, the applicant’s request for access to additional records coming within the scope of parts 1, 3 and 5 of his request other than those already released to him on the ground that no further relevant records exist or can be found. For the sake of completeness, I should add that I have not considered whether the CIB was justified in redacting, under section 37 of the Act, certain information from a number of the records released on the ground that it is personal information relating to third parties, as the applicant has not indicated that he required a review of that part of the decision.
Before I address the substantive issues arising in terms of what records the CIB might hold that come within the scope of the applicant’s request, I wish to comment on the applicant’s argument that the Company itself is a public body. If this argument was correct, then it would be open to the applicant to submit a request directly to the Company for records and it would not be the responsibility of the CIB to consider the question of access to such records. As such, I do not consider it necessary to make a finding in respect of this argument in this decision.
Section 15(1)(a) of the FOI Act provides that a request for access to records may be refused if the records sought either do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner’s role in such cases is to review the decision of the FOI body and to decide whether the decision was justified. This Office must have regard to the evidence available to the decision maker in arriving at his/her decision. The evidence in “search” cases generally consists of the steps actually taken to search for the records along with miscellaneous other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.
I understand that when processing the request, the CIB did not seek to establish whether the Company itself held records coming within the scope of the request. This raises the question of whether it should have done so, having regard to its relationship with the Company. There are a number of ways in which records held by the Company might fall for consideration by the CIB.
Firstly, a record in the possession of a service provider shall, if and in so far as it relates to the service, be deemed to be held by the FOI body for the purposes of the Act (section 11(9) refers). Therefore, if the Company is providing a service for the CIB, then any records held by the Company relating to that service are deemed to be held by the CIB for the purpose of the Act and a potential right of access exists to such records.
Secondly, while the Act provides for a right of access to records held by an FOI body, a reference to records held by an FOI body includes a reference to records under the control of that body (section 2(5) refers). Therefore, if the Company holds records that are under the control of the CIB, then a potential right of access to those records exists.
Relationship between the CIB and the Company
In its submissions to this Office, the CIB explained that MABS services originated in the community. The Department of Social Protection (the Department) was responsible for supporting the MABS until 2009. In July 2009, responsibility for the MABS service was transferred from the Department to the CIB under the Social Welfare (Miscellaneous Provisions) Act 2008, which amended the Comhairle Act 2000, the CIB’s statutory basis, providing that the definition of a “voluntary body” included a money advice and budgeting service and that the CIB’s functions included, at section 7(1)(ca) to 7(1)(ch):
(ca) to support the provision of a service to be known, in the English language, as the Money Advice and Budgeting Service or, in the Irish language, as An tSeirbhís Buiséadaithe agus Comhairle Airgid, to provide advice to individuals for the purpose of the management, avoidance, reduction and discharge of personal debt and in relation to money management,
(cb) to promote and develop the provision of the Money Advice and Budgeting Service and to provide information in respect of such provision,
(cc) to provide, subject to the consent of the Minister, and in accordance with subsection (1A), financial assistance to a voluntary body in respect of any matter related to the functions referred to in paragraphs (ca), (cb), (cd), (ce), (cf) and (cg),
(cd) to promote and develop education in respect of money management,
(ce) to compile and publish data relating to the provision of the Money Advice and Budgeting Service,
(cf) to promote and disseminate awareness and information to the public relating to the provision of the Money Advice and Budgeting Service,
(cg) to undertake, or commission, research relating to the functions referred to in paragraphs (ca), (cb) and (cd) and on any matter, as the Minister may, from time to time, request, in relation to the functions referred to in paragraphs (ca), (cb) and (cd) to (cf),
(ch) to provide advice, information and assistance to the Minister in respect of the functions referred to in paragraphs (ca) to (cg) and such advice, information and assistance in relation to those functions as the Minister may, from time to time, request,”
Section 7(1A) provides that the CIB shall, subject to the approval of the Minister, determine the terms on which and the conditions subject to which it may …
( a ) support the provision, promotion and development of the Money Advice and Budgeting Service under subsections (1)(ca) and (1)(cb) and the functions referred to in subsections (1)(cd) to (1)(cg) …
( ba ) provide financial assistance to a voluntary body under subsection (1)(cc)
The CIB said the Company was formed in 2018 as part of a restructuring process within the CIB network of funded companies. It said the restructuring process of its funded companies including the network of MABS companies, reducing the number of MABS companies from 51 to 8 regional companies. It said the Restructuring Team within the CIB handled all matters relating to CIB restructuring business and upon establishment of the new regional companies transferred all relevant company data, including personal data of prospective directors, to the relevant MABS regional company.
The Company is a registered charity and company limited by guarantee and is run by a board of directors. The CIB does not appoint directors to the board and its staff are not public servants. The CIB provides funding to the company on the basis of a Service Level Agreement (SLA). It said it has set out a comprehensive financial control and reporting framework for those delivery services that receive an operational grant and that this framework ensures that appropriate services are provided in return for funding.
The CIB added that the SLA between CIB and each of its delivery services clearly sets out the commitments of both parties. It said the SLA covers service delivery, governance, financial controls, HR practices, data protection, reporting guidelines, evaluation and monitoring. It said it used auditing firms to conduct periodic audits of service delivery companies, particularly in relation to financial controls and governance practices. The CIB’s position is that the Company is a service provider and as such, section 11(9) applies and records relating to the service provided are subject to the provisions of the FOI Act.
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 CIB’s position is that records relating to the service provided by the Company are those records that directly relate to the provision of independent information, advice and advocacy services to the public by the Company. It argued that while some financial records would be included, the following categories of records are not included:
I have examined a copy of the CIB’s SLA with the Company, which it provided to this Office for the purposes of the review. The SLA provides that the CIB agrees to fund the Company for the provision of the services set out in Schedule 1 subject to the terms and conditions of the SLA and that the Company undertakes to apply the funding exclusively to the provision of the services. Schedule 1 essentially includes details of the nature of the money advice and budgeting service to be provided and how that service is to be provided.
The records sought at parts 1 and 3 of the request relate to the appointment and/or recruitment of directors to the Company and the applicant’s interest in appointment to the Board. In its submissions to this Office, the CIB said that the Company is run by a board of directors which is not appointed by the CIB. It said that while it sought expressions of interest for the appointment of directors to the new regional companies, all relevant company data, including personal data of prospective directors, was transferred to the new companies upon their establishment.
Having regard to the description of the services provided by the Company in return for funding as set out in the SLA, I find that records coming within the scope of parts 1 and 3 of the applicant’s request cannot be said to relate to the services provided for the purposes of section 11(9). I find, therefore, that any such records in the possession of the Company cannot be deemed to be held by the CIB for the purposes of the Act and that section 11(9) does not apply to such records.
The records sought at Part 5 of the request relate to the resource reports on MABS funding in a named county, submitted by the applicant and the Society of Saint Vincent de Paul since August 2018. The applicant argued that records of relevance to part 5 are held by the Company. Given that the subject matter at issue concerns funding of MABS, it seems to me that the records sought can reasonably be described as relating to the service provided by the Company. I find, therefore, that the CIB should have consulted with the Company in respect of that part of the request.
As I have outlined above, under section 2(5) of the Act, a reference to records held by an FOI body includes a reference to records under the control of that body. As such, the question I must consider is whether any records that may be held by the Company coming within the scope of parts 1 and 3 of the applicant’s request, and that do not relate to the service provided, can be deemed to be under the control of CIB.
The question of when records can be deemed to be under the control of a public body is not defined in the Act. In considering that question, this Office may have regard to matters such as the relationship between the parties and any legal rights that a party seeking to assert control over the rights might have. The background history of the MABS service is also of relevance, in my view. It is also important to bear in mind that that the records captured by parts 1 and 3 are concerned with the appointment of directors to the board of the Company.
I note from the Company’s Articles of Association that the directors of the Company are appointed by the Company itself and that the CIB has no role in such appointments, apart from a requirement that any proposal to reduce the number of directors below seven must be approved by the CIB. As I have also outlined above, while the CIB acknowledged that it oversaw the recruitment process for the new directors while restructuring was underway, it transferred all the relevant company data, including personal data of prospective directors, to the new companies upon their establishment.
As such, it seems to me that any records sought at parts 1 and 3 that may be held by the Company cannot reasonably be said to be under the control of the CIB. I find, therefore that it was not necessary for the CIB to consult the Company in respect parts 1 and 3 of the applicant’s request.
The CIB also provided details of its record storage practices and the searches conducted to locate the records sought by the applicant. As this Office has already provided the applicant with those details, I do not propose to repeat them in full here. In short it outlined that records are generally stored in email accounts, however they may also be stored on a shared drive. It said that searches of the email accounts of one member of the Senior Management Team, two members of the Restructuring Team, and two members of the MABS Team, including the CIB MABS Liaison to the Company, and of the shared drive were carried out. It noted that the search terms most commonly used were name, date, and key words.
In relation to the searches carried out by the CIB MABS Liaison, the CIB noted that he searched his emails in relation to the Company since April 2018, using the names of the regional manager and/or chair, the applicant’s name, and relevant subject titles. It also noted that he searched the shared drive under “regional companies” where each MABS has a company folder.
The CIB stated that some relevant records have been destroyed. It explained that following the completion of the MABS restructuring project in 2018, all relevant company data, including emails and correspondence relating to individuals who had made expressions of interest were deleted after their details were transferred to the new regional companies. The CIB stated that the Restructuring Team confirmed that the MABS restructuring email inbox had been deleted.
The CIB said that some of the Company’s board minutes are in its possession. It said these board minutes did not include any reference to the applicant or his expression of interest to join the board of the Company. It noted, however, that the board minutes did include a general reference to board recruitment, which it had excluded from the scope of its search on the basis that the board minutes related to the business of another entity, the Company.
I note from the SLA that a CIB Liaison Officer is entitled to attend the Company’s board meetings
“in order to provide support and guidance in relation to the strategy statement, action plan, and general development of the Company and to satisfy itself that this Agreement is being adhered to, and for this purpose, the nominated CIB Liaison Officer shall be included in the circulation of all documents which are being sent to Directors”.
The Supreme Court considered the meaning of records “held” for the purposes of the Act in the case of Minister for Health v Information Commissioner  IESC 40 (the Drogheda Review case). In that case, the Department of Health refused to grant access to a transcript of an interview the requester had with an independent reviewer, a former High Court judge, who had been appointed by the Minister for Health to carry out a review in relation to certain matters at Our Lady of Lourdes Hospital, Drogheda. While records relating to the review were in its possession, the Department argued that it was merely holding the records for safekeeping.
In her judgment in the case, Finlay Geoghegan J. found that for a record to be held within the meaning of the equivalent provision 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 for the records sought in this case to be deemed to be held by the CIB, the CIB 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. Given the terms of the SLA, I accept that the CIB is entitled to hold records of the Company’s board meetings, but only to the extent that such records are necessary for the purposes outlined in the SLA as described above. It seems to me that occasions will arise where information in the minutes of the Company’s board meetings may not be of relevance to the question of adherence to the terms of the SLA, nor will access be necessary to allow the CIB to provide support and guidance in relation to the strategy statement, action plan, and general development of the Company. Given that that the directors of the Company are appointed by the Company itself and that the CIB has no role in such appointments, I am of the view that the CIB was justified in excluding the information in the board minutes relating to board recruitment on the ground that it is not in possession of such information in connection with, or for the purpose of, its business or functions.
Having considered the nature of the relationship between the CIB and the Company and the details of the searches undertaken in an effort to locate relevant records, I find that the CIB has taken all reasonable steps in an effort to ascertain the whereabouts of all relevant records coming within parts 1 and 3 of the applicant’s request. However, I find that it did not take all reasonable steps to locate relevant records coming within part 5 of the request on the ground that it failed to consult with the Company in respect of that part.
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the decision of the CIB in this case. While I affirm its decision to refuse access to additional records coming within the scope of parts 1 and 3 of the applicant’s request under section 15(1)(a), I annul its decision in respect of part 5 of the request and I direct the CIB to conduct a fresh decision-making process in respect of that part.
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.