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Whether the Department was justified, pursuant to section 2(5)(a) of the FOI Act, in refusing to release records relating to the applicant's complaints concerning his dealing with the Public Appointments Service (PAS) and the Commission for Public Service Appointments (CPSA) on the basis that the records in question are not held by it or under its control

Conducted in accordance with section 34(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

PAS advertised a recruitment campaign in 2012 for the position of Administrative Officer (AO) in the Civil Service in respect of a number of different specialties. The applicant applied for the AO competition and was short-listed for the Economics and Human Resources (HR) streams, but was not called for interview in respect of either stream. He made a number of complaints to the CPSA as a result and also brought judicial review proceedings against the CPSA in the High Court.

On 3 July 2014, the applicant made an FOI request to the Department seeking copies of records "within the control of the Department" regarding complaints concerning his dealings with PAS and the CPSA. He stated that these records were held by the Secretary General of the Department and his private secretary. On 31 July 2014 the Department replied stating that it did not hold any records relating to his request and that any records held by the Secretary General in relation to this matter were held in his capacity as a Commission member of the CPSA. It also stated that any request for these records should be directed to the CPSA.

The applicant sought an internal review of the Department's decision on 6 August 2014. On 26 August 2014 the Department upheld its original decision on internal review. The applicant applied to this Office on 27 August 2014 for a review of the Department's decision.

I note that Ms Sandra Murdiff, Investigating Officer in this Office contacted the applicant by email on 24 September 2014 and explained that, in her view, the Department was justified in its decision not to release records relating to his request as these records were not held by the Department as required by section 2(5)(a) of the Act. She stated that, in her view, the Department's refusal to release the records in question was justified on the basis that they were held by the CPSA and not the Department. The applicant did not agree with Ms Murdiff's views and made a submission to this Office on 23 September 2014 in this regard.

As the Department's and the applicant's positions fundamentally differ, I have decided to conclude this review by way of a formal binding decision.

In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997-2003, notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

In conducting this review I have had regard to the Department's decisions on the matter and its communications with this Office, to the applicant's communications with this Office and the Department, and to the provisions of the FOI Act.

Scope of Review

The scope of this review is confined to assessing whether or not the Department was justified in refusing to grant the applicant's FOI request on the basis that it does not hold or control the records sought.

Analysis and Findings

Section 6(1) and 2(5)(a)
Section 6(1) of the FOI Act confers a general right of access to records held by a public body. While the term "held" is not defined in the Act, section 2(5)(a) of the Act provides that a reference to records held by a public body includes a reference to records "under the control" of that body. It is clear that the intent of section 2(5)(a) is to ensure that records which are not physically held by a public body but are under its control are deemed to be held by it for the purposes of the FOI Act. I note that the applicant's request referred specifically to records held by the Secretary General and his private secretary within the control of the Department [emphasis added].

The CPSA is a regulatory body with a primary responsibility to establish standards of "probity, merit, equity and fairness" for the recruitment and selection of persons for positions in the Civil Service and other public bodies. It is made up of a Commission and an Office of the Commission. The Commission has five ex-officio members: the Chairperson of Dáil Éireann (the Ceann Comhairle), the Ombudsman, the Secretary General of the Department of Public Expenditure and Reform, the Secretary General to the Government, and the chairperson of the of the Standards in Public Office Commission. The Office of the Commission comprises a Director and a number of staff members as may be designated from time to time. The Director and staff assist the Commission in carrying out its statutory functions. The records under consideration in this review comprise papers and minutes of meetings of the CPSA and correspondence between the Office of the Commission and the Commission members.

The Department contends that, following a comprehensive search in the Department, no records were found within the scope of the applicant's request. It asserts that records held by the Secretary General which would fall within the scope of his request are not within the control of the Department for the purposes of the FOI Act. The Department states that the Secretary General received the papers and correspondence from the CPSA as a result of his position as Commission member. It also states that, therefore, requests for access to these records would be more appropriately directed to the CPSA.

The Department also contends that when the Secretary General receives papers for meetings of the CPSA they are held in his office and not logged on the Department's registry. It states that such records are not accessible by other officers in the Department. It states that, in the normal course of things, records are logged on the Department's registry and can then be accessed by all Department staff.

The applicant argues that the records in question were emailed to the Secretary General's private secretary at an official email address in the Department and that, therefore, there is no question that they are within the control of the Department. While I accept that the private secretary is not a member of the CPSA, it is common practice for correspondence for a Secretary General to be routed through his/her private secretary. The Secretary General is a member of a number of bodies by virtue of his position in the Department and it does not seem reasonable to me to expect correspondence relating to each of these to require separate, non-Departmental email addresses. I also do not consider that it would be reasonable, for administrative reasons, to expect such correspondence to bypass the Secretary General's private secretary, as the applicant appears to suggest would be necessary to maintain confidentiality.

It is noteworthy that in a recent High Court case, The Minister for Health and the Information Commissioner, O'Neill J. found that certain records in the possession of the Department of Health were not under its control. He stated as follows:

"I am satisfied that to hold that mere lawful possession of a document was sufficient to make that document amenable to disclosure under the 1997 Act, on the basis that the document was "held" by the public body within the meaning of s. 6(1) would give rise to absurd and wholly unintended consequences, albeit in rare circumstances."

I also note that the Department cites the Public Service Management (Recruitment and Appointments) Act 2004 (the 2004 Act) which established the CPSA and refers to section 13(2)(a), which provides that the Commission is independent in the exercise of its functions. I further note that section 11(2) of the Act provides that the Commission is a body corporate with perpetual succession and a seal and with power to sue and be sued in its corporate name. Having regard to its nature and the provisions of the 2004 Act, I am satisfied that the CPSA is an independent statutory body. It seems clear to me that correspondence between the Office of the Commission and the Commission members does not constitute disclosure outside the organisation and does not constitute submission of the records concerned to the bodies to which the Commission members belong.

While the applicant has argued that the recent High Court case Westwood Club v Information Commissioner & anor [2014] IEHC 375 (the Westwood case) significantly extended the question of when public bodies are deemed to be in control of records under the FOI Act, in my view the facts of the case in this review are very different. In the Westwood case the records requested from a Town Council were created by a board of a company whose three directors were all employees of the Town Council in question. The Council contended that the company, which it was 100% shareholder of, controlled the records in question. The Council had provided a loan in excess of €10 million to the company, which occupied a property owned by the Council, in respect of which it did not pay an open market rent. Having regard to all of these factors, Cross J. held that the records were under the control of the Council. In this review, the CPSA is a separate, independent body, separately funded by the State and with its own remit and functions, including the establishment of standards of equity and fairness in the recruitment and selection of civil and public servants. While I recognise the presumption in favour of disclosure in the FOI Act, and the public interest in ensuring the openness and accountability of public bodies, in terms of access to records under the FOI Act, this can only apply where the public body concerned holds the records in question. In this regard Cross J. clearly stated that:

"I accept that proposition that while there is a presumption in favour of disclosure there is no absolute right to disclosure."

The applicant also argues that the Secretary General is a Commission member of the CPSA solely by virtue of his post in the Department and that it has been long established in prior determinations of this Office that where an official of a Department is on a public body due to his position then papers held by him are held by the Department. Having regard to previous decisions of this Office in relation to this issue (including Case No. 98098 (Mr. Mark Henry and the Department of Tourism, Sport and Recreation)), I am satisfied that the Secretary General holds the records sought as they were supplied to him as a Commission member of the CPSA, in the course of CPSA business. In my view, he holds those records as a Commission member of the CPSA, rather than as an official of the Department. Furthermore, I am satisfied that the records are not held by the Department for the purpose of the Department's business. I consider the records to be held by the CPSA for the purposes of the FOI Act and, on that basis, access may only be granted by the CPSA.
I have had regard to the fact that the CPSA is a separate, independent body and that the records in question comprised meetings papers and correspondence between it and its Commission members. I have also had regard to the nature of the records, which as I understand it, all relate to the business and functions of the CPSA. Furthermore, I have had regard to the Department's explanation of how the records concerned are handled and stored by the Secretary General and that Department staff cannot access them. While I recognise the need for transparency, openness and accountability in the conduct of business of a public body in the circumstances of this case, I am satisfied that the records concerned are held and controlled by the CPSA and not the Department. In my view the Department was justified in its refusal to grant access to the records requested, on the basis that it did not hold or control the records concerned. I find accordingly.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the Department's refusal of the withheld records.

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator