This is the submission made by Denis O’Brien to the High Court in his case against the Clerk of Dáil Eireann, the members of the CPP, Ireland and the Attorney General.
This post is cross posted from my information rights blog.
When is a record held for the purposes of the Freedom of Information Acts 1998 and 2003? That was the question the High Court had to answer in a recent decision of O’Neill J in The Minster for Health -v- The Information Commissioner  IEHC 231.
In his interpretation of which records are held for the purposes of the FOIA O’Neill J adopted a novel definition:
41. In my opinion, for a document to be “held” within the meaning of s. 6(1) of the 1997 Act, it must be either lawfully created by the public body in question or lawfully provided to that public body or lawfully obtained by the public body, in connection with the functions or business of that public body and the document must not be subject to any prior legal prohibition affecting it’s disclosure.
The issue arose in the context of a non-statutory inquiry into practices and procedures at Our Lady of Lourdes Hospital, Drogheda during the period from 1964 to 1995 to protect patients from sexual abuse and to deal with allegations of sexual abuse against Mr Michael Shine. Non-statutory inquiries such as this are often used as a way to scope more formal statutory inquiries under, for example, the Commissions of Investigation Act 2004.
This decision is important since it reveals flaws, at least in this instance, in the way non-statutory inquiries are constituted and a lack of certainty in relation to who controls the documents generated by them. From an information rights point of view the Court adopted a surprisingly restrictive interpretation of the meaning of the word “held” for the purposes of the FOIA arguably placing a large category of records permanently outside the scope of FOI.
The inquiry, known as the Drogheda Review, was conducted by retired High Court judge Thomas C Smyth who was appointed by the Minister for Health on 18 December 2009. In the course of the inquiry Mr Smyth commissioned transcripts of interviews he conducted with a number of individuals. Upon completion of his work Mr Smyth returned several boxes of documents to the Department of Health, including six sealed boxes of documents containing the transcripts of interviews conducted during the inquiry.
These boxes were accompanied by written instructions from Mr Smyth that they should not be opened or disclosed except under a court order on the basis that the information was provided in confidence to the inquiry, Mr Smyth being satisfied that many of the individuals would not have participated in the absence of such an assurance.
In May 2012 one of the individuals who was interviewed by Mr Smyth made a request under FOIA for access to the transcript of his interview.
His request was refused on the basis that the document in question was not under the control of the Department which merely held them on behalf of Mr Smyth for safe keeping. The matter was referred to the Information Commissioner who disagreed and found that the Department held the document and ordered it to deal with the individual’s request.
Under section 6(1) FOIA the public has a right of access to any record held by a public body. Bearing in mind that public bodies may not possess all relevant records, section 2(5) explicitly states that documents controlled by a public body are held and further according to section 6(9) where a person performs a contract for service for a public body records relevant to the contract are deemed to be held by the public body with a contractual obligation implied into the contract obliging the contractor to provide the records to the public body if requested.
While the Information Commissioner argued that mere possession was sufficient to trigger the act – O Neill J adopted a rather different and somewhat novel approach to the issue which depended on the nature of Mr Smyth’s role as independent reviewer and the legal basis for his appointment.
O Neill J emphasised that Mr Smyth was entirely independent in his conduct of the inquiry and despite being paid a fee and performing tasks assigned to him he could not be said to be performing a contract for services since if he was then the FOIA would apply to the inquiry documents, a situation wholly inconsistent with his independence:
49. It is easy to say what the relationship between Mr. Justice Smyth and the Department was not, and in that respect, I am quite satisfied that whilst in a general sense, it could be said that Mr. Justice Smyth was providing a service in consideration of the payment of an agreed fee, the provision of this service cannot be considered as falling within the terms of s. 6(9) because the application of s. 6(9) in the circumstances would be wholly inconsistent with the independent nature of the function discharged by Mr. Justice Smyth.
Despite this statement the Court did not reach a conclusion on the legal basis for Mr Smyth’s appointment. Although it was conceded he was neither an employee nor an agent of the Minister nor was he acting as an office-holder he could still not be considered a contractor under a contract for services.
The decision and its rationale represent a radical departure from what has, up to now, been a liberal definition of which records are held for the purposes of FOI consistent with a general presumption in favour of access to records.
Surprisingly although much was made of analogies with Irish and English approaches to access to documents through discovery, UK information law jurisprudence was not canvassed in the judgment. This is all the more surprising given a similar set of facts arose in the case of Digby-Cameron -v- Information Commissioner (EA/2008/10) which was decided by the Information Tribunal and concerned a request by a father to access the transcript of a Coroner’s hearing into the death of his son.
The main UK case is British Union for the Abolition of Vivisection -v- The University of Newcastle  UKUT 185 (ACC) where the Upper Tribunal endorsed a common sense approach to the definition of “held” proposed by the First Tier Tribunal at paragraph 23:
‘Hold’ is an ordinary English word. In our judgment it is not used in some technical sense in the Act. We do not consider that it is appropriate to define its meaning by reference to concepts such as legal possession or bailment, or by using phrases taken from court rules concerning the obligation to give disclosure of documents in litigation. Sophisticated legal analysis of its meaning is not required or appropriate. However, it is necessary to observe that ‘holding’ is not a purely physical concept, and it has to be understood with the purpose of the Act in mind. Section 3(2)(b) illustrates this: an authority cannot evade the requirements of the Act by having its information held on its behalf by some other person who is not a public authority. Conversely, we consider that s.1 would not apply merely because information is contained in a document that happens to be physically on the authority’s premises: there must be an appropriate connection between the information and the authority, so that it can be properly said that the information is held by the authority. For example, an employee of the authority may have his own personal information on a document in his pocket while at work, or in the drawer of his office desk: that does not mean that the information is held by the authority. A Government Minister might bring some constituency papers into his departmental office: that does not mean that his department holds the information contained in his constituency papers.”
Under UK law where a record is in the possession of a public body to any extent for its purposes it is subject to the FOIA even if it is holding it for someone else. Records will only fall outside FOI where they are held solely for someone else and for no purpose connected with a public body. The UK Information Commissioner has published some useful guidance and analysis.
It now seems that the Irish Courts have diverged from the United Kingdom’s “common sense” and “non technical” approach to the definition of “held” under FOI and at least in the case of non-statutory inquiries have adopted a restrictive inverted approach to the definition which may need to be resolved at some future date by the Supreme Court.
When Minister for Public Expenditure and Reform Brendan Howlin was being asked question after question last November about the addition of a new section to the FOI Bill 2013 he attempted to diffuse the row by giving the appearance of a climbdown. He said:
I have given some consideration to the views expressed by colleagues and, with my officials, re-examined the text of amendment No. 33. On a simple, plain English reading, I am confident that it will achieve the purpose I have set out. Nevertheless, I acknowledge that there are genuine concerns that the provision might be used by some on the administrative side of the house to implement a charging system that is not intended. To that end, with the permission of the committee, I propose to withdraw the amendment and, in co-operation with my officials, devise a form of wording to take it beyond confusion, doubt or misinterpretation that what I have set out is what I intend to be achieved. We have already begun working on it with the Parliamentary Counsel; had we been able to do so, I would have brought forward the revised amendment today. I ask members to facilitate me to that end, with the objective of continuing our discussion on Report Stage.
I also acknowledge that some people hold the view that there should, on principle, be no fee regime. It is a perfectly legitimate point of view. However, I put it to the committee that if we accept that a contribution of €15 for a distinct application is reasonable, we cannot allow that provision to be circumvented by bolting entirely separate, extraneous and distinct matters onto the same FOI request.
There was no climbdown. It was merely a tactical retreat. Fees are being retained, and multi-faceted fees are still being introduced. It is now May 22, and we still haven’t seen the revised wording, or the start of the Report Stage that Howlin mentioned.
The only mention we have of the Bill since November is a speech Howlin gave in late March. It’s worth reading the whole thing for a lesson in double speak – but this was interesting:
What we had sought to do was to allow for disaggregation of multi-faceted requests by issue. The fear expressed at the time was that the amendment proposed would tilt the balance of power too much towards the responding body. There is of course an issue of scale here too. There is a difference between a request with two parts and one with ten!
I expect to bring my revised proposals to Government shortly for approval with a view to advising the Committee shortly thereafter.
What Howlin doesn’t mention here is that multi-faceted requests exist only because the €15 upfront fee exists. He actually makes light of asking for several things per request, as if that’s a bad thing. Sometimes detailed FOI requests are needed, and sometimes you want to maximise the return for your €15 – as this blog has. But the workaround of the fee is now being legislated against.
And as Conor Ryan in the Irish Examiner reported today, some councils are already trying to impose extra fees, before the law has even passed:
Another feature of the responses is the interpretation by local authorities of controversial changes to the Freedom of Information Act which have been criticised by transparency groups.
When the request regarding the Carrigtwohill underpass was initially put to the council, it considered it a multi-faceted query.
This was because it was listed alongside three other problems highlighted in the same report of the local government auditor.
The council said that even though all four queries arose from a single audit report, presented to the council at the end of 2013, they covered four separate departments and should be liable for four separate charges when the new Freedom of Information bill is passed.
A similar view was taken of queries of the annual audit done on Limerick council.
This approach brought to life the worst fears of transparency campaigners who succeeded in delaying the attempt by Public Expenditure Minister Brendan Howlin to restrict the ability of the public to submitted Freedom of Information requests that straddled different issues within public bodies.
His amendment was billed as bid to tackle “multi-faceted” requests and charge €15 for each separate theme in a query.
However, when Mr Howlin agreed to withdraw his amendment temporarily to allow him reconsider it, he denied public bodies would interpret his amendment in this way.
We still await the new wording from Brendan Howlin but fully expect the multi-faceted fee regime to be re-introduced.
He should be renamed the Minister for Secrecy.