Whether the Department was justified in its decision to refuse to release certain records relating to the division of certain lands approximately 50 years ago on the ground that the records were created prior to the effective date of the FOI Act

11 September 2018 

Background

This review arises as a result of the applicant's efforts to understand why his father was excluded from receiving land arising from the division of certain lands approximately fifty years ago. It appears that he sought and received certain information from the Department concerning his father's application, namely an extract from a Land Commission file, but that he was not satisfied with the level of information he received. 

On 8 November 2017, the applicant submitted a request to the Department for access to similar information to that already provided to him, but relating to a number of other named families. It appears that he subsequently clarified that he was seeking access to a limited amount of information relating to the named individuals and any letters originating from the TD, who he believed to be involved, that may have influenced the decision making.
 
On 15 December 2017 the Department refused the request on the ground that the records sought fall outside the scope of the FOI Act as they were created before the effective date (21 April 1998 in the case of the Department) and the records did not contain the personal information relating to the applicant. The applicant sought an internal review of that decision following which the Department decided to part grant the request. It released certain information relating to all of the applicants for the lands in question with the deletion of certain information under section 37(1) which serves to protect personal information relating to third parties. It also refused access to any TD letters under section 15(1)(a) on the ground that no such records are held on the relevant file. On 6 July 2018 the applicant sought a review by this Office of the Department's decision.

During the course of the review, Ms Whelan of this Office wrote to the applicant and informed him of her view that section 11(4) of the FOI Act was of relevance to the review as, with limited specified exceptions, there is no right of access to records that were created before the effective date. Ms Whelan invited the applicant to make a further submission and also offered him an opportunity to withdraw his application for review. 

The applicant made further submissions. I have decided to bring this case to a close by way of a formal, binding decision. In conducting the review, I have had regard to the communications between the Department and the applicant, and to the communications between this Office and both the applicant and the Department on the matter. I have also had regard to the nature and contents of the records at issue.

 
Scope of the Review

This review is solely concerned with whether the Department was justified in refusing to grant access to further information relating to third parties contained in records concerning the division of certain lands.

Preliminary Matter

The applicant is of the view that his father was discriminated against when his application to receive a share of the lands in question was rejected. In his application for review to this Office, he argued that his father should not have been excluded from receiving some lands and he argued that the reasons cited in the records at issue for that exclusion were discriminatory. In his submission to this Office, he stated that he wishes to see the full details of the information that was redacted as it may explain why his father did not receive land but other people did.

Section 13(4) of the Act provides that any reasons a requester gives for making a request must be disregarded. This means that I cannot take account of the reasons why the applicant is seeking access to the information at issue. Furthermore, this Office has no role in examining the administrative actions of the Department. I cannot examine the appropriateness, or otherwise, of the decision taken to exclude the applicant's father from receiving land. My role is limited to determining whether the Department's decision to refuse access to certain information was in accordance with the provisions of the Act.

Analysis and Findings

The records at issue in this case were created in 1969. Under section 11(4) of the FOI Act, a right of access exists to records that were created after the effective date of the Act, and to certain other records as may be prescribed by the Minister for Public Expenditure and Reform. No other such records have been prescribed by the Minister to date. In the case of the Department, the effective date is 21 April 1998. This means that no right of access exists to records created before that date unless section 11(5) applies. 

Section 11(5) provides for the release of records created before the effective date (a) where access is necessary or expedient to understand records created after the effective date or (b) where the records relate to personal information about the requester. The information sought by the applicant relates to third parties. I am satisfied, therefore, that section 11(5)(b) does not apply in this case.

On the matter of whether section 11(5)(a) might apply, this Office considers this provision to be quite limited. In order to invoke it, it is generally necessary for an applicant to be in a position to identify specific records created after the effective date where the substance (or gist or subject matter) of such records cannot be understood without reference to the older records. The applicant has not identified any record created after 21 April 1998 that cannot be understood without access to the records sought. I find therefore, that section 11(5) does not apply.

While the Department also refused access to any TD letters on the ground that no such records exist, I am also satisfied that even in if they did, no right of access would exist by virtue of the fact that they would have been created before 21 April 1998 and that section 11(5) would not apply.

In conclusion, therefore, I find that the Department was justified in refusing the applicant's request for the information sought relating to third parties on the ground that no right of access exists to such records as they were, or would have been if they existed, created before the effective date.

Decision

Having carried out a review under section 22(2) of the FOI Act, I affirm the decision of the Department to refuse the applicant's request on the basis that the records sought were created before the effective date 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 to the person bringing the appeal.

Stephen Rafferty, 
Senior Investigator