Whether the Department was justified in refusing access to correspondence between the Minister of State for European Affairs and a communications company, on the ground that the Department did not hold the records or they were exempt under section 2 of the FOI Act
22 May 2019
On 24 November 2018, the applicant made an FOI request to the Department for "copies of any correspondence between Minister McEntee (and her private office) and [named] public relations firm and/or its employees in the period 1 January 2017 to current date". By letter dated 21 December 2018, the Department refused access to the information sought on the grounds that correspondence between the Minister and the company was exempt under section 2(1) of the FOI Act and correspondence between the Minister's private office and the company did not exist, under section 15(1)(a) of the FOI Act. The applicant applied for an internal review on the same day. By letter dated 6 February 2019, the Department issued its internal review decision, in which it varied its original decision. It decided that the records were not under the control of the Department for the purposes of the FOI Act and even if they were within its control, they were exempt under section 2(1) of the FOI Act. On 16 February 2019, the applicant applied to this Office for a review of the Department’s decision.
In conducting my review, I have had regard to the correspondence between the applicant and the Department as outlined above and to the correspondence between this Office and both parties, as well as the content of the records. During the review process, the Investigator invited submissions from both parties on the relevance of section 42 of the FOI Act and I have had regard to those submissions also.
Scope of the Review
The question for me is whether the Department was justified in refusing access to the records under the FOI Act. The applicant notes in his application for review that the Department accepts that records exist. No question arises under section 15(1)(a).
Analysis and Findings
Whether the Department holds the records
Section 11 of the FOI Act confers a general right of access to records held by a public body. It provides: "Subject to this Act, every person has a right to and shall, on request therefor, be offered access to any record held by an FOI body and the right so conferred is referred to in this Act as the right of access". While the FOI Act does not define the term "held", section 2(5) of the FOI Act provides: "In this Act a reference to records held by an FOI body includes a reference to records under the control of that body".
The Department's primary argument is that it does not "hold" the records for the purposes of the FOI Act. The Minister operates a Department of Taoiseach email account and the records are held in this account. However, the Department says that as the records comprise correspondence in relation to the Minister's constituency work, they are not under the control of the Department for the purpose of the FOI Act. The relevant records are held on the Department's email servers and the Department produced the records for this Office's review, following this Office's request. In such circumstances, it is difficult for me to accept that the Department does not "hold" the records. However, given my findings below, it is not necessary for me to make a definitive finding on the point in this particular case.
Section 42 - Restriction of Act
Having regard to the content of the records, I consider it appropriate to address this section, as it concerns jurisdiction. Section 42(k) of the FOI Act provides that the FOI Act does not apply to a record relating to any of the private papers (within the meaning of Article 15.10 of the Constitution) of a member of either House of the Oireachtas or an official document of either or both of such houses that is required by the rules or standing orders of either or both Houses to be treated as confidential.
Article 15.10 of the Constitution provides: "Each House shall make its own rules and standing orders, with power to attach penalties for their infringement, and shall have power to ensure freedom of debate, to protect its official documents and the private papers of its members, and to protect itself and its members against any person or persons interfering with, molesting or attempting to corrupt its members in the exercise of their duties."
The Standing Orders of Dáil Éireann include orders relating to "Official Documents, Private Papers and Confidential Communications". Standing Order 135(1) provides: "This Standing Order is made for the purposes of giving effect to Article 15.10 of the Constitution in so far as it provides for the protection of the private papers of members."
Standing Order 135(2) provides: "For the purpose of this Standing Order, the private papers of a member are all documents concerning which the member has a reasonable expectation of privacy, and: (a) which are prepared for the purposes of, or purposes incidental to: (i) transacting any business of the Dáil or any Committee of the Dáil; or (ii) the member's role as public representative, but (b) which are not: (i) where the member is an office-holder, documents relating to the member's functions as office-holder (whether those documents are held by the member, by the office-holder's Department or Office, by any of his or her special advisers, or by some other person); or (ii) lawfully in the public domain."
The Department submits that under the relevant provisions of the FOI Act, Constitutional provisions and Dáil Standing Orders, the Minister had a reasonable expectation of privacy in relation to the papers involved, as they related to her role as a member of the Oireachtas and not as an office-holder and the FOI Act does not apply to them. The applicant says that material relating very specifically to the Minister's role as a TD would fall to be exempt under the FOI Act. He says that he is interested in the records where they relate to the Minister's role as a minister, which quite clearly could not be considered to be private papers. He says that the standing orders relating to private papers do not apply to records relating to the member's functions as an office-holder. The applicant also asked this Office to give special consideration to any records that might involve the Minister's special adviser, as he is a ministerial appointment. Given the content of the records, this last point does not arise for consideration.
The records comprise correspondence between the Minister and a communications company in relation to the Minister's constituency work. They relate to matters in the Minister's constituency such as the provision of public services and other local matters. I am satisfied that the withheld records are documents concerning which the member involved has a reasonable expectation of privacy and which were prepared for the purposes of, or purposes incidental to the Minister's role as public representative. It is worth noting here that section 2 of the FOI Act defines "exempt record" as meaning, amongst other things, a record that is created or held by an office holder and relates to the functions or activities of the office holder as a member of the Oireachtas or a political party. I find that the records relate to the private papers of a member of a House of the Oireachtas and that the Department was justified in refusing access to them under section 42(k) of the FOI Act.
I should note that the records include press releases. Insofar as any records are in the public domain, I would find them to be exempt under section 15(1)(d) of the FOI Act, on the basis that they are already in the public domain. As there is no schedule of records, if the applicant wishes to pursue access to these records, the Department should identify them for him.
Finally, I do not need to address the Department's claim under section 2(1) of the FOI Act in view of my finding above.
Having carried out a review under section 22(2) of the FOI Act, I vary the Department's decision and find that it was justified in refusing access to the records under sections 42(k) and 15(1)(d) 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.