Case number: 170151
8 March 2018
On 24 February 2017, the applicant made an FOI request to the Office of the Secretary General for access to various records concerning travel and expenses of the Secretary General. The Office of the Secretary General's decision of 28 February 2017 refused the request on the basis of section 42(h), which provides that the FOI Act does not apply to a record relating to the President. The applicant sought an internal review on 3 March 2017, saying that section 42(h) does not refer to records relating to the Office of the Secretary General or members of staff of the President's office. The Office of the Secretary General did not issue an internal review decision.
On 28 March 2017, the applicant sought a review by this Office of the Office of the Secretary General's decision on the basis of the deemed refusal at internal review stage.
I have now decided to conclude my review by way of a formal, binding decision. In carrying out my review, I have had regard to the decision outlined above and to correspondence between this Office, the Office of the Secretary General, and the applicant. I have had regard also to the provisions of the FOI Act and to a determination by the Minister for Public Expenditure and Reform (the Minister) detailed below.
This review is confined to whether the Office of the Secretary General has justified its refusal to grant the applicant's request.
Section 6(1) of the FOI Act describes various entities that shall be considered to be an FOI body including, at section 6(1)(b), an entity established by or under any enactment (other than the Companies Acts). The Office of the Secretary General initially argued to the Commissioner that it was not an FOI body. This Office, having regard to sections 6 and 7 of the Presidential Act 1938 (which provide for the creation of the post of Secretary to the President and for the establishment of the Office of the Secretary General to the President) did not agree. As provided for in the FOI Act, on 12 June 2017 this Office referred the matter to the Minister for a binding determination. On 22 November 2017, the Department of Public Expenditure and Reform wrote to this Office informing it that the Minister had determined the Office of the Secretary General was an FOI body on the basis that the definition of public body extends to any entity established by or under any enactment. It said that the Office of the Secretary General was established under statute and is therefore comprehended by the definition of a public body in the FOI Act.
However, it also noted the exclusion from FOI of "records relating to the President".
On 29 November 2017, this Office invited submissions from the Office of the Secretary General and sought copies of any records held that were covered by the request. In response, on 3 January 2018 the Secretary General said that his Office "holds no records relating to the request which are amenable to the Act." On 9 January 2018, the Investigator asked the Office of the Secretary General to clarify whether it was relying on section 42(h), which provides that a record relating to the President is not subject to the FOI Act, or on section 15(1)(a), which applies where records do not exist or cannot be found after reasonable searches have been carried out. She drew attention to the requirements of section 22(12)(b) which provides that a decision to refuse to grant an FOI request shall be presumed not to have been justified unless the head of the relevant public body shows to this Office's satisfaction that its decision was justified. On 22 January 2018, the Office of the Secretary General replied that due to "significant constitutional and other implications", it was seeking legal advice and wanted further time in which to make a submission to this Office.
The Investigator informed the Office of the Secretary General that she intended to recommend that the Commissioner conclude the review by annulling its decision and remitting the matter for fresh consideration. Even though I consider that the public body in this instance has not met the burden of proof under section 22(12)(b), I do not consider it appropriate to direct that access be granted to any records that may be held but which I have not examined. Neither do I believe that it would be the correct course of action for me to consider and make findings on whether section 42(h) or any other provision or exemption applies in the absence of arguments from the Office of the Secretary General in the context of any records held that come within the scope of the request.
I find that, having regard to the determination by the Minister for Public Expenditure and Reform, the Office of the Secretary General is an FOI body within the meaning of section 6 of the Act and is therefore obliged to make and notify the applicant of a decision on the request in accordance with the requirements of the Act, including the statutory time periods. Therefore, I have decided to annul the refusal of the applicant's request and to direct the Office of the Secretary General to undertake the statutory decision making process on that request. Any refusal, whether under sections 42(h) or 15(1)(a) or any other provision of the FOI Act is subject to the statutory rights of internal and external review.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Office of the Secretary General's refusal to grant the applicant's request. I direct it to make a new decision on the request and to notify the applicant of this in accordance with the requirements of the Act.
I also specify that, subject to sections 24 and 26 of the FOI Act, effect shall be given by the Office of the Secretary General to my decision within five working days of the expiration of the four week period for the bringing of an appeal to the High Court from this decision as provided for at section 24(4) 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.