Whether the Central Bank was justified in refusing access to a letter that issued to credit institutions in February 2001 on the ground that the Act does not provide for a right of access to the record as it was created prior to the effective date of the FOI Act as it applies to the Central Bank i.e. 21 April 2008

22 October 2020

Background

Following correspondence between the parties relating to the codes of conduct for regulated entities, the applicant asked the Central Bank for a copy of a letter issued to credit institutions in February 2001 detailing certain characteristics of prudent home mortgage lending policy and practice and requesting them to confirm the consistency of their home mortgage lending policies with those characteristics. The Central Bank refused to provide the letter as it had issued to regulated entities and was not published on its website.

Accordingly, on 17 April 2020, the applicant sought a copy of the letter under the FOI Act. On 20 April 2020, the Central Bank informed the applicant that requests for records created before the effective date of the Act could not be processed under the Act. Following further correspondence between the parties, the Central Bank issued a decision on 18 May 2020, wherein it refused the request on the ground that the Act did not provide for a right of access to the record sought. The applicant sought an internal review of that decision, following which the Central Bank affirmed its original decision.  On 24 July 2020, the applicant sought a review by this Office of the Central Bank’s decision.

I have now completed my review in accordance with section 22(2) of the FOI Act.  In carrying out my review, I have had regard to the correspondence between the parties as set out above. I note that both parties were invited to make a submission to this Office on the matter and that neither party did so. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned with whether the Central Bank was justified in refusing the applicant’s request for access to a letter issued to credit institutions in February 2001 on the ground that the Act does not provide for a right of access to the record.  

Analysis and Findings

The right of access to records held by public bodies is generally limited to those that were created after the effective date of the FOI Act. In the case of the Central Bank, the effective date is 21 April 2008.

Section 11(5) provides for a right of access to records created before the effective date where (a) access is necessary or expedient to understand records created after that date (b) the records relate to personal information about the requester.

The record sought in this case was clearly created before 21 April 2008. As such, the Act does not provide for a right of access to the record unless section 11(5) applies. It has not been argued that section 11(5)(b) applies in this case and I am satisfied that it does not apply.

For section 11(5)(a) to apply, I would expect a requester to identify a record or records created after 21 April 2008 that cannot be understood without access to the earlier record. This Office considers that section 11(5)(a) is directed not at the question of whether a record can be understood in a literal sense without reference to earlier records but at whether its substance (or gist or subject matter) can be understood. However, the fact that a document does not contain all the information which a reader might wish to have does not mean that the substance of a document cannot be understood. Furthermore, the fact that an earlier record may throw fresh light on the subject discussed in a later record or that it may enable a requester to extend or analyse information contained in a later record, does not of itself mean that access to the earlier records is necessary or expedient in order to understand the later record.

This Office considers that the release of a record created before the effective date is justified only to the extent that such access is a suitable means to achieving the end of understanding the substance of the later record created after the effective date.

In his application to this Office, the applicant argued that the Central Bank regulates on a principles based concept and that the Consumer Protection codes of 2006 and 2012 are examples of this. He argued that in order to obtain a full understanding of how the Central Bank formulated these general principles, it is imperative to understand the more detailed documents that preceded and contributed towards those principles.  He argued that the records such as the record sought are the bedrock to interpreting the principles contained within the subsequent Consumer Codes including the Consumer Code 2012.  He also claimed that the record is available to all personnel who worked in regulated entities both at the time and now.

It seems to me that the applicant is, in essence, arguing that he requires access to the letter that issued in 2001 in order to enhance his understanding of how the Central Bank formulated the general principles outlined in the Consumer Code 2012 and to help him better interpret those principles. This is not an argument that access to the record is necessary or expedient to understand the Code.

Furthermore, while the letter at issue may well be available to staff of the various regulated entities, this does not mean that it is publicly available, nor does it provide a basis for finding that a right of access to the record exists under the FOI Act.  I am satisfied that the applicant has not identified a record or records created after 21 April 2008 that cannot be understood without access to the record sought. I find that section 11(5)(a) does not apply.

In conclusion, therefore, I find that the Central Bank was justified in refusing the applicant's request on the ground that the record sought was created before the effective date of the FOI Act and that the Act does not for provide a right of access to the record.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Central Bank to refuse the applicant’s request on the ground that the record sought was created before the relevant effective date of the FOI Act and that the Act does not for provide a right of access to the record.

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