Whether the Department was justified in refusing to release records relating to the former Minister for Justice and Equality and a company under section 15(1)(a) of the FOI Act, and on the ground that, by virtue of section 42(k), the FOI Act does not apply to certain records sought
15 May 2019
This application for review came about as a result of the decision of the Information Commissioner on case 170315
. In that decision, dated 16 August 2018, the Commissioner was not satisfied that a finding could be made that section 15(1)(a) of the FOI Act applied to the effective refusal of access to any further records held by the Department within the scope of the applicant's FOI request of 11 March 2017. The Commissioner annulled that part of the Department's decision and directed it to undertake a fresh decision making process on those records.
The applicant's original request of 11 March 2017 was for access to records of
"Copies of all correspondence - both written and electronic - between Minister Frances Fitzgerald and/or her private office and any of the following people or companies: [name of an individual and a company]. This request to cover the period from Minister's appointment to the date of receipt of this request."
For convenience, I refer to the individual and/or the company who were providing a service to the former Minister as "the company".
It is worth summarising the circumstances which give rise to this review. During the review to which decision 170315 relates, the Investigator queried the Department about whether further records existed in the former Minister's email (Ministerial and personal), messaging services (e.g. Viber, WhatsApp, Facebook Messenger) and other electronic messaging and/or social media accounts. Subsequently, the Department identified additional records which it had not previously considered.
In its new first instance decision of 17 September 2018, the Department confirmed that it had identified two sets of records (totalling 215 records) within scope of the applicant's request. It granted access to a number of those records and refused access in full and in part to others on the basis of section 15(1)(d) (information already in the public domain), section 36(1)(b) (Commercially sensitive information), section 37(1) (Personal information), and section 42(k) (relating to private papers). However, other than quoting the sections of the Act, the Department did not provide any information about the reasons for its decision, as required by section 13(2)(d)(i).
In an internal review application, the applicant queried the Department's decision relating to section 36 and section 42(k) of the Act. In addition, while not specifically referring the section 15(1)(a) of the Act, the applicant also asked whether further records existed and questioned the adequacy of searches made by the Department. The applicant did not seek an internal review of those parts of the Department's decision that relied on section 15(1)(d) and section 37 of the Act. Also, the applicant subsequently withdrew the query on that part of the Department's decision relying on section 36.
In its internal review decision of 11 October 2018, the Department granted access to additional records and affirmed its decision on the remaining records under section 42(k). The Department did not answer the applicant's query under section 15(1)(a) about other records that might be held. However, it advised that further searches were being conducted and that a separate notice would issue. On 8 November 2018, the Department advised the applicant that no additional records relevant to the request had been identified.
In conducting this review I have had regard to the submissions of the Department and the applicant, to correspondence between the applicant and the Department and to correspondence between my Office, the applicant and the Department in relation to the request.
Scope of Review
The applicant helpfully confirmed to the Investigator that the two issues in this review are (i) whether all efforts have been made to find all records within the scope of the applicant's request (section 15(1)(a)), (ii) whether the Department's refusal on the basis of section 42(k) is justified. The scope of this review is therefore concerned solely with those matters.
Analysis and Findings
Section 15(1)(a) - Refusal on administrative grounds
Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused if the record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. The role of the Commissioner in cases 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 I also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.
Adequacy of search
The evidence in "search" cases consists of the steps actually taken to search for records, along with miscellaneous other evidence about the record management practices of the FOI body, on the basis of which the FOI body concluded that the steps taken to search for records were reasonable. Having regard to the information provided, I form a view as to whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found. However, it is not normally the function of this Office to search for records that a requester believes are in existence or ought to have been held.
In the application to this Office the applicant queried whether efforts had been made by the Department to access "either text messages or other messaging services" for correspondence between the former Minister and the company. He also asked whether private email addresses of the former Minister's special advisors had been searched, including those of a named individual.
The Department stated that following this Office's decision in Case No 170315, it conducted an electronic "mailmeter" search for all electronic records sent between Ministerial office staff and the company. It said that the search specifically identified named individuals and other email accounts covering the time period as set out in the original FOI request of 11 March 2017. It said it also wrote to the former Minister informing her of the decision in 170315 and requesting her to provide any relevant records.
The Department provided details of the search parameters it said it used and which were dictated by the scope of the FOI request. The Department identified two sets of records: one of 185 records and the other of 30 records. The Department said that while phone messages were not originally included in its search, it subsequently requested its ICT division to check if further records could be identified. It said that it considered mobile devices and messaging apps at internal review stage "based on those parties identified from the mailmeter". It provided this Office with details of the individual officers, staff and former staff, including the former Minister, who had been asked whether they had had any contact via phone message or email that fell within the scope of the FOI request. According to the Department, it transpired that the only individuals who may have had such contacts were the former Minister and a named special adviser. Other individuals responded that they held no further records because they had not exchanged messages with the company. The Department stated that its ICT division confirmed that the special adviser's phone was reset, wiped of data and recirculated to another person in 2017. This apparently is standard practice when a staff member who has use of an "official" phone leaves the Department. The Department said that a phone that had been used at that time by the former Minister was returned to her for checking and that she subsequently advised that no additional records covered by the request were identified on that device.
In a note on its internal review process relating to the previous review, the Department referred to a number of recommendations to be considered in future FOI deliberations. Among the recommendations was that a standardised process of searching records including email records via mailmeter should be established. It also recommended a requirement to record text/other messages onto formal departmental systems where they relate to the business of the Department. However, it also stated "How to enforce this policy needs to be considered". I note also that since this request and the subsequent review arose, the Department of Public Expenditure and Reform (DPER) issued Circular 09/2019
in April 2019 to Government Departments setting out the requirements for the use of private email or other private messaging services to conduct official government business. It says that the FOI Act implications for official information held in "non-official systems, email accounts and devices" are set out in Central Policy Unit (CPU) Guidance 24
. Among the requirements is that any communication relating to official business issued or received through a private email account or other private messaging service must be forwarded from such account or service to an organisation issued email account or service as soon as is practicable. The circular states that failure by civil servants to adhere to the requirements set out in the circular may result in disciplinary action.
I accept the Department's account of the efforts made to locate records and its position that no further records were found. It has explained its search methodology, including the contacting of current and former officers who might, in the course of carrying out their duties, be expected to have had contact of the type covered by the request. I have no reason to dispute the assurances of those involved that they do not hold further records. I accept that the original searches in response to the applicant's request of 11 March 2017 did not, for reasons explained by the Department, find records that subsequently came to light in its further searches. However, this, of itself, does not entitle me to find that all reasonable steps have not now been taken to ascertain the whereabouts of records falling within the scope of the request.
As regards the wiping of data from official phones once a staff member leaves a public body, this seems reasonable unless, of course, the business needs of the body were such that classes of records held on the phone were specified for retention. Clearly, where email accounts or messaging on mobile devices are used to transact official business, such records should be filed as part of the records management process. I note that, while the applicant is of the view that more records may be held by the Department, he has provided no supporting evidence to suggest that other relevant records are held. In light of the above, I do not consider that I would now be justified under section 15(1)(a) in requiring the Department to take further search steps on the basis of the applicant's belief that contacts on Departmental business additional to those already identified may have taken place and that records of these ought to be held.
Having considered the submissions of both parties and the measures the Department has described in its efforts to locate the records, I am satisfied that the Department has taken all reasonable steps to locate any further records and that section 15(1)(a) of the FOI Act applies.
Section 42(k) of the FOI Act provides that the 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 of such Houses to be treated as confidential.
Article 15.10 of the Constitution provides as follows:
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 Department relied on this exemption for 30 records identified in its schedules. While I am required to give reasons under section 22(10) of the FOI Act, I am also required to take reasonable precautions to prevent disclosure of information in an exempt record, under section 25. This means that the extent to which I can describe the records and the level of detail I can discuss in my analysis are limited.
The applicant's submission seeks to distinguish between "day to day routine correspondence" and more sensitive material. However, if records are deemed to fall within the parameters of section 42(k) then no right of access exists under the FOI Act.
The Standing Orders of Dáil Éireann include orders relating to ‘Official Documents, Private Papers and Confidential Communications’. Standing Order 135 is described at 135(1) as having been 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.”
For the purpose of Standing Order 135, Order 135(2) describes private papers of a member as:
"...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."
Standing Order 133(4) provides that a document which is a private paper for the purposes of Standing Order 135, must be treated as confidential.
I have examined the records identified by the Department. I find that those records relate to private papers of a member of the Houses of the Oireachtas.
In his internal review application, the applicant questioned whether the definition of private papers applied to office holders' records. I note that a Minister continues to have a role as a public representative in tandem with that of an office holder. The applicant asserts that some of the records appear to relate to Ministerial duties; however, my close examination of the contents and context of the records did not lead me to that conclusion. 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 transacting business of the Dáil or a Dáil Committee or the member's role as a 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 officer holder as a member of the Oireachtas or a political party. I note also that the definition of "private paper" in Part 10 of the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013 includes, in the case of a holder of ministerial office, papers in relation to his or her political (including party political) role or in his or her capacity as a member of the Oireachtas. The 2013 Act is referenced in the separate provisions of Section 42(l) of the FOI Act on which I make no finding since it was neither relied upon by the Department in its decision nor raised in this review.
I find, therefore, that by virtue of section 42(k) the FOI Act does not apply to the records.
Having carried out a review under section 34(2) of the Act, I hereby affirm the Department’s decision. I affirm its decision to refuse access to further records under section 15(1)(a) of the Act on the ground that no further records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken. I find it was justified in refusing access to other records on the ground that, by virtue of section 42(k), the FOI Act does not apply to records which relate to the private papers of a member of the Oireachtas.
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.