Whether the Department was justified in refusing, under section 15(1)(a) of the Act, the applicant's request for copies of any tweets Minister Catherine Martin has posted on her personal Twitter account which relate to, or are about, her work as a Minister since 1 January 2023, on the basis that it does not hold the records sought for the purposes of the Act

8 November 2023

Background

In a request dated 8 February 2023, the applicant sought access to copies of any tweets Minister Catherine Martin has posted on her personal Twitter account which relate to or are about her work as a Minister since 1 January 2023. He said the Minister had blocked him from viewing her Twitter account. He said that as an Irish citizen he was entitled to copies of all tweets the Minister has posted in relation to her role as Minister. During the course of this review, the company Twitter rebranded as X. Therefore, this decision will refer to the social media platform formerly named Twitter as X.

On the same day, the Department informed the applicant that social media posts of the nature requested "do not form part of the Department's records". It said it was not, therefore, in a positon to process the request as it was not a considered to be a valid request under the FOI Act. It provided the applicant with a link to the Department's official X account.

In response, the applicant argued that he had submitted a valid FOI request which must be processed by the Department. On 15 February 2023, the Department informed the applicant that it does not retain any records regarding the Minister's activity on her X account. It said there was no possibility of any records being held by the Department or any other FOI body relating to his request. It said that as it was not possible to conduct a reasonable search for such records in the Department or in any other FOI body, the request could not be considered within the provisions of the FOI Act.

The applicant replied on 15 February 2023 wherein he again argued, among other things, that the Department was obliged to process his request. He also noted that under section 19 of the Act, the failure to issue a timely decision is regarded as a deemed refusal of the request and gives rise to a right to internal review of the deemed refusal. On 20 February 2023, the Department acknowledged the applicant's correspondence but noted that its position had not changed and indicated it considered the matter closed.

On 8 March 2023, the applicant sought an internal review of the deemed refusal of his request. On 16 March 2023, the Department informed the applicant that the matter had been reviewed "in the context of the validity of the request in accordance with the provisions of the FOI Act". It said that "as the material [he was] seeking is a private matter for the Minister, the provisions of the FOI Act cannot apply" to the request. It said it could not deem the request to be valid as we could not "conduct a search for records that are not consistent with the provisions of the Act" and that "it would not be appropriate to assign a decision maker and issue a decision letter". On 20 June 2023, the applicant applied to this Office for a review of the refusal of his request.

During the course of the review, and following engagements with this Office, the Department accepted that a valid request had been made and it indicated that as it considers that it does not hold the records sought for the purposes of the Act, it wished to rely on section 15(1)(a) of the Act as a basis for refusing the request. That section provides for the refusal of a request where the records sought do not exist or cannot be found. The Investigating Officer informed the applicant of the Department's revised position and invited him to make a submission on the matter. No such submission was received.

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 Department and the applicant as outlined above, and to communications between this Office and both the applicant and the Department on the matter. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with whether the Department was justified in refusing the applicant's request under section 15(1)(a) of the FOI Act.

Analysis and Findings

Section 15(1)(a) provides that an FOI body may refuse to grant a request where the records sought either do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner's role in such cases is to review the decision of the FOI body and to decide whether the decision is justified. This means that the Commissioner must have regard to the evidence available to the decision maker in arriving at his or her decision. The evidence in "search" cases generally consists of the steps actually taken to search for the records along with miscellaneous and other information about the record management practices of the FOI body, insofar as those practices relate to the record in question.

The Department's Submissions

In essence, it is the Department's position that it does not hold the records sought. It said that it was not possible or practical for the Department to track or maintain a record of the Minister's activity on her personal X account and that no records relating to the Minister's personal social media activity are retained within any of its systems. It said no official of the Department has log-in information for, access to, or oversight of, the Minister's personal X account and that her social media activity is managed outside of its resources. It said no Department official (including the staff of the Department's Communications Unit or the Minister's private secretary) tweets or prepares tweets on the Minister's behalf. It said the individual controlling the content in question is the Minister in her personal capacity. It said the use of the social media site concerned is carried out completely independently of the Department.

The Department added that it conducts ongoing tracking of official social media accounts in order to carry out a statistical analysis of social media activity and that the Minister's personal account is not captured by this process. It said that the social media posts sought by the applicant were not generated in the course of carrying out the functions and/or business activities of the Department. It also said that the vast majority of its officers engage in social media activity and may from time to time post or repost information in relation to the work of the Department that is already in the public domain via the Department's official social media account or within other Government online resources. It referred to its Social Media Policy which states "[w]e are all free to use personal social media accounts in our own time. However, staff are not permitted to use their personal social media accounts in any way that could be construed as being in an official capacity representing the Department. Staff should only post material in an official capacity from an official account through the Communications Unit." The Department's position is that social media activity on personal accounts cannot form part of its records.

My Analysis

Having regard to the details of the Department's submissions, I accept that the social media account that is the subject of the applicant's request is the Minister's personal account. However, that is not the end of the matter. While section 11 of the FOI Act provides for a right of access to records held by FOI bodies, section 2(5) provides that a reference to records held by an FOI body includes a reference to records under the control of that body. Accordingly, I have considered whether the posts sought might comprise records deemed to be under the control of the Department.

The Department of Public Expenditure, Reform and NDP Delivery has issued Guidance Note 24 (here) on the matter of "official information held in non-official systems, email accounts and devices". Guidance Note 24 notes that the FOI Act does not require records "˜held' by an FOI body to be held in any particular location. It notes that if the records relate to official functions and/or business activities of an FOI body, and if the FOI body has a legal right to procure the records regardless of whether they are held in official or non-official systems (including web-based email such as Gmail or Hotmail), then such records are subject to the FOI Act. It further notes that records held in non-official systems or in other electronic devices that do not relate to official functions and/or business of an FOI body will not be subject to the FOI Act.

Moreover, the Guidance Note provides that where a request is made for records held on non-official system or electronic devices, the decision maker should establish whether such records were generated in the course of carrying out the functions and/or business activities of the FOI body. It provides that if such records were generated, they are likely to fall within the scope of the particular FOI request and for the purposes of the FOI Act, the records will be deemed to be held by the individual on behalf of the FOI body.

Referencing previous decisions of this Office, the Guidance Note provides that the factors to be considered by FOI bodies when determining if records fall under their control include;

1. The nature of the entity holding the record and in particular the extent to which it is independent of the FOI body

2. Any agreement between the FOI body and the entity holding the record

3. Whether the FOI Body has a right to obtain the records from the entity holding them

4. Whether staff members of the FOI body who are involved with the entity holding the records are involved in a representative capacity or in their own right

5. The practical working arrangements for the handling of the records concerned."

It seems to me that the primary purpose of Guidance Note 24 is to clarify that official business records held on non-official systems or electronic devices that were generated in the course of carrying out the functions and/or business activities of the FOI body are subject to the FOI Act.

As I have outlined above, I accept that the social media account that contains the information sought by the applicant is the Minister's personal account. As with the Department's staff, the Minister is fully entitled to use personal social media accounts and may wish to use those accounts to promote her work as Minister, and that of the Department. The fact that she may use her X account for such purposes does not, in my view, mean that such posts comprise official business records that were generated in the course of carrying out the functions and/or business activities of the of the Department.

I accept the Department's submission that no official of the Department has access to, or oversight of, the Minister's personal X account, that her social media activity is managed outside of its resources, that the use of the social media site concerned is carried out completely independently of the Department, and that Staff should only post material in an official capacity from an official account through the Communications Unit. I am satisfied that the information sought in this case comprises information that the Minister posted on her personal X account in a private capacity, as opposed to in her capacity as the head of the Department and that the Department has no legal right to obtain the records for the purposes of the FOI Act.

Moreover, I have no reason to doubt the Department's assertion that no records relating to the Minister's personal social media activity are retained within any of its systems.  Accordingly, I am satisfied that the Department was justified in refusing, under section 15(1)(a) of the Act, the applicant's request on the ground that it does not hold the records sought for the purposes of the Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department's decision to refuse, under section 15(1)(a) of the Act, the applicant's request for copies of any tweets Minister Catherine Martin has posted on her personal Twitter account which relate to, or are about, her work as a Minister since 1 January 2023 on the basis that it does not hold the records sought for the purposes of the 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