Case number: OIC-122403-Y8W4Y1
11 August 2022
Insofar as the Department is concerned, the commencement date of the FOI Act is 21 April 1998 (the effective date).
The applicant’s FOI request of 18 October 2021 sought access to the following:
Parts 3 and 4 were similarly worded. While they refer to the same individual/former politician, they are concerned with the appointment of a different Judge to the High Court on a date after the effective date.
The Department’s decision of 14 December 2021 refused the request under sections 11(4) and 15(1)(a) of the FOI Act, saying that there is no right of access to records created before the effective date, and that relevant records cannot be found. The applicant sought an internal review on 24 January 2022. The Department’s internal review decision of 2 March 2022 affirmed its decision on 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 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, to correspondence between this Office, the Department and the applicant, and to the provisions of the FOI Act.
The scope of this review is confined to two issues: (i) whether the Department is justified in refusing parts 1 and 2 of the request on the basis that the FOI Act does not apply to the relevant records; and (ii) whether the Department has taken all reasonable steps to search for records relevant to parts 3 and 4 of the request.
It is clear from the applicant’s submissions that the requested records are very important to him. However, section 13(4) of the FOI Act requires me to disregard any reasons that he has for making his FOI request. Furthermore, I cannot take account of the applicant’s views about the actions of various individuals or bodies, and my review does not extend to examining or making findings on such matters.
I have had regard to the comments of the Supreme Court’s judgment in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors,  IESC 57  (the eNet judgment). The Supreme Court said “it is the FOI body that must explain and justify a conclusion that the records are exempt by reference to the relevant provisions of the Act, and equally, it is the FOI body that must explain why the public interest does not justify release in the public interest.”
I also note that, in the Supreme Court case of Sheedy v the Information Commissioner ( 2 I.L.R.M. 374,  2 IR 272,  IESC 35) Kearns, J. made it clear that a general prediction without any supporting evidence is not sufficient to satisfy the requirement that access to the record could reasonably be expected to result in the outcome envisaged. He stated that “[a] mere assertion of an expectation of [prejudice] could never constitute sufficient evidence in this regard”.
However, while FOI bodies must justify their decisions, the eNet judgment in particular also says that a failure by an FOI body to do so does not lead to an inevitable or statutorily mandated outcome. Rather, the Commissioner must adjudicate the merits of the decision to refuse through an analysis of the records and the interests engaged, which might suggest either disclosure or refusal.
Parts 1 and 3 of the applicant’s request seek “[t]he Government nominators/appointers” of the Judges, which the applicant confirms are intended to seek records disclosing the identities of the relevant nominators/appointees.
Sections 11(4) and (5) – the right of access to pre-commencement records (parts 1 and 2) Section 11(4)(a) of the FOI Act provides for a right of access to records held by the Department that were created on or after the effective date. Section 11(4)(b) provides that the Minister for Public Expenditure and Reform (the Minister) may prescribe certain other classes of record as being subject to the Act.
Records created before the effective date, e.g. those sought at parts 1 and 2, are referred to generally as “pre-commencement records.” Further to section 11(5), a right of access to pre-commencement records arises in two circumstances i.e. where:
While the Department’s decisions do not refer to section 11(5), the Department says that it verbally advised the applicant of the provision. In any event, this Office’s Investigator invited the applicant’s comments on section 11(5) and provided him with some relevant information, including links to certain decisions on our website.
In relation to section 11(5)(a), the Investigator outlined to the applicant that the release of a pre-commencement record is justified only to the extent that such access is a suitable means to achieving the end of understanding the substance (or gist or subject matter) of a post-commencement record. She explained that, although a pre-commencement record might shed new light on a later record, or could enable a requester to analyse information in a later record, this does not mean that access to the pre-commencement record is necessary or expedient in order to understand the later record. In particular, the Investigator said that the applicant should provide copies of any post-commencement records that he contends cannot be understood without access to the requested records.
The Investigator also explained to the applicant that, while the phrase “relate[s] to” is accepted as having a broad meaning, she could not see how records concerning the relevant appointment could relate to personal information about him, for the purposes of section 11(5)(b) of the FOI Act.
I do not intend to repeat all aspects of the applicant’s submission, but I confirm that I have considered it in full. In summary, the applicant says that he has been a scapegoat, and outlines the relevant circumstances. He says that he has the right to request misinformation about him in the public domain to be corrected. He refers in particular to “current” records released by the Department, which he says he needs to understand in light of what he describes as the Department’s obstruction of justice. He does not provide copies of the records concerned.
The applicant says that he needs to establish the character and motivations of the nominators/appointers and reiterates his view that information in current records is not true. He says that, accordingly, he needs the records to establish if there was any interference in the nomination/appointment, so as to achieve a particular outcome that directly affected him.
The applicant also describes other matters that he needs to establish, including the identities of certain individuals (which he says have been withheld by the Department, and are subject to a separate appeal). He outlines matters that he says were not addressed in Court. He takes issue with the conduct of a particular matter by the Gardai and the Courts, and with the sharing of material with the Department by his legal team. He refers to a current legal case for which he wants to establish various matters. He says that this is a matter of public interest.
The applicant says also that the requested records should be prescribed as being subject to the Act, as provided for under section 11(4)(b).
I cannot disregard the fact that the Minister has not prescribed the requested records as subject to the FOI Act. It is not my role to seek to persuade him in this regard. Furthermore, as set out earlier, I cannot take account of why the applicant says he needs the records, or make any judgment on the matters that he outlines, or take his views in this regard into account. Furthermore, section 11(5) does not require the consideration of the public interest.
Although invited to, the applicant has not provided copies of any post-commencement records that he says cannot be understood without access to the requested pre-commencement records. He refers generally in this regard to what he says are current Departmental (and other) records. As set out above, it is not relevant to my consideration of section 11(4)(a) whether the requested records will demonstrate the accuracy or otherwise of records already available to the applicant, or prove other matters. Furthermore, neither the applicant’s views regarding the accuracy of records nor his allegations regarding the obstruction of justice give me a basis on which to find that section 11(5)(a) applies to the records he is seeking.
I do not accept that records concerning the relevant judicial appointment relate to personal information about the applicant, for the purposes of section 11(5)(b) of the FOI Act. In this regard, I cannot take account of the applicant’s contention that the particular appointment was made, or that it may have been made, in order to directly affect him, or his view that the record should be provided to him so that he can determine this issue.
Accordingly, I find that the Department’s refusal of parts 1 and 2 was justified on the basis that there is no right of access to the pre-commencement records concerned further to the provisions of section 11(5) of the FOI Act.
Section 15(1)(a) – whether records exist/adequacy of searches (parts 3 and 4)
Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused where the record does not exist or where it cannot be found after all reasonable steps to ascertain its whereabouts have been taken. A review of an FOI body's refusal of records under this provision assesses whether or not it is justified in claiming that it has taken all reasonable steps to locate records of relevance to a request or that the requested records do not exist.
The Department’s decision says that it searched using the name of the relevant Judge, i.e. in the format “FirstName LastName”. In seeking its submission, the Investigator expressed a view that this search was too narrow. She gave examples of other search criteria, based on the names and titles of the two parties referred to in part 4, which she said could be used on their own and also in conjunction with each other. She asked the Department why it had not carried out such searches.
The Department’s submission describes the process by which Judges are appointed to the High Court, and the kinds of record it would create accordingly. It lists the databases and the paper files that it says it has searched. In the circumstances, however, I see no need to set out the relevant details.
The Department says that the search term used is the only one likely to return relevant results. It explains why it feels that the terms suggested by the Investigator would be likely to highlight many irrelevant records, including records concerning different Judges with the same surname, and records from after the Judge’s appointment.
The Department “does not accept” that relevant records could exist without the Judge’s name being in them. It says that, if such records do exist, it could not be sure that they are relevant to the request. Finally, it says that at least some relevant records that may exist would be exempt under the provisions of the FOI Act.
At the outset, I note the Department’s view that exemptions may apply to some or all of the requested records. Although it does not appear to be making such an argument, it should be noted that such a possibility does not mean that the Department is not required to take reasonable steps to find relevant records in the first place.
The FOI Act does not require exhaustive searches to be carried out. However, I do not accept the Department’s position that its searches are reasonable for the purposes of section 15(1)(a).
It is well settled that a person does not have to be named in a record in order for that record to relate to the individual. Furthermore, it is often possible to determine the party or parties to whom a record relates, having regard to its date, subject matter, relevant context/circumstances, etc. Whether that record is exempt from release under the FOI Act is another matter. However, records of communications concerning the relevant judicial appointment but which do not refer to the Judge by name will not be located on foot of a search using that name as the sole criterion. Therefore, reasonable searches for the purposes of section 15(1)(a) in this case require the Department to take steps to find such records, and indeed any such records that may be relevant to part 3.
For instance, searches could be carried out using words or phrases relevant to the particular context of the Judge’s appointment, either separate to or with some or all of the terms suggested by the Investigator. Furthermore, the Department could also narrow the range of potential results by identifying an appropriate date range, based on the timing of the Judge’s appointment. I should stress here that it is not the role of this Office to identify all possible reasonable search parameters that the Department might use. The terms suggested by the Investigator were intended to prompt the Department to identify broader criteria than just the Judge’s name.
In addition, I am satisfied that the Department holds at least two relevant documents that do not refer to the Judge by name and which it has not considered for release. I refer here to the two records supplied to this Office by the Department along with its submission of 2 June 2022. It provided the records for information purposes and says that they are not covered by the request.
As an aside, it is unclear to me how the two records were identified. While the submission says that “the search resulted in locating two pieces of correspondence”, the Department later says that the letter described in the next paragraph “was not located during the searches conducted by this Department in response to this [FOI] request”.
In any event, one of the records is a letter from the named individual. It contains various details relating to a particular judicial appointment but does not name any individual intended to be so appointed. Having regard to its content and context, however, the Investigator asked the Department how the record could possibly relate to any other Judge.
The Department responds that, while this is likely to be the case, it cannot verify the matter due to the letter’s age and the passage of time. Its position remains that the record is outside the scope of the request. It says that, in any event, the record would be exempt from release and that scheduling it would mislead the applicant as to the content of the record and its relevance to the request.
In considering whether a record is covered by the scope of a request, it is immaterial whether the applicant would be satisfied with the record’s contents, or whether the applicant might feel misled for other reasons. Neither is it relevant whether the record might or would be exempt from release. I am satisfied from the content of the letter, and from information in the public domain about the relevant judicial appointment and other contemporaneous appointments, that it concerns the appointment of the Judge named in parts 3 and 4. I am satisfied, therefore, that the letter is covered by part 4 of the request.
Furthermore, I am satisfied that another letter from the named individual, which is contained in the other record supplied by the Department, is also covered by part 4. I am satisfied that it relates to the named Judge (and others), notwithstanding that it does not contain names.
The Department’s submission gives an overview of “various records … located with regard to the appointment” of the relevant Judge, which it does not consider relevant to the request. I do not intend to obtain copies of these records to consider whether they are covered by the request, but given the foregoing, it is possible that at least some are relevant. Furthermore, the phrase “communications from [the named individual]” has a wide meaning and is not necessarily confined to just e.g. letters and emails issued by the person concerned. Any document in which the individual expresses a view to another party regarding the relevant appointment could be seen as a relevant communication.
Having regard to the above, I have no basis to accept that the Department has carried out reasonable searches for records covered by parts 3 and 4 of the request for the purposes of section 15(1)(a) of the FOI Act. I annul this element of its decision, and I direct it to make a new decision on the matter (including on the two letters referred to above) in accordance with the provisions of the FOI Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Department’s decision. I affirm its refusal of parts 1 and 2 of the request, on the basis that no right of access arises to the requested pre-commencement records further to section 11(5) of the FOI Act. I annul its refusal of records covered by parts 3 and 4 and I direct it to make a new decision on the matter (including on the two letters referred to in my decision) in accordance with the provisions of the FOI Act.
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.