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Case Number: 170135

Whether the Service was justified in refusing the applicant's request for access to copies of all correspondence between the Houses of the Oireachtas and/or Mazars with members with regard to repayment of expenses that had been incorrectly claimed in the period covered by the audit report on the Public Representation Allowance 2014

Conducted in accordance with section 22(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

In a request made on 13 September 2016, the applicant sought access to two categories of correspondence regarding the audit report on the Public Representation Allowance 2014. In a decision dated 8 November 2016, the Service granted access to records falling within the first category of the applicant's request, but refused access to the second part of the applicant's request on the basis that no relevant records were "held" by the Service. The Service alternatively claimed that section 42(l) applied.

On 25 January 2017, the applicant sought an internal review of the Service's decision to refuse access to the second part of his request, which concerned "copies of all correspondence between the Houses of the Oireachtas and/or Mazars with members with regard to repayment of expenses that had been incorrectly claimed in the period covered by the audit report on the Public Representation Allowance 2014". In a decision dated 6 March 2017, the Service affirmed its original decision. In an application dated 18 March 2017, the applicant applied to this Office for a review of the Service's decision in relation to the second part of his request.

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 applicant's comments in his application for review and to the submissions made by the Service in support of its decision. I have also examined the records at issue, which were forwarded to this Office despite the claim that they are not "held" by the Service. I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

As indicated above, no issue was raised by the applicant regarding the first part of his request either on internal review or in his application for review to this Office. Therefore, my review is concerned solely with the question of whether the Service was justified in refusing access to copies of all correspondence between the Houses of the Oireachtas and/or Mazars with members with regard to repayment of expenses that had been incorrectly claimed in the period covered by the audit report on the Public Representation Allowance 2014.

Question of Discontinuance under Section 22(9)(a)(iii)

In Case 150073, available at www.oic.ie, the Commissioner reviewed a decision of the Service to refuse a request made by the applicant for access to copies of all receipts/invoices held by the Oireachtas in relation to the 2013 audit of expenses conducted by Mazars. He found that the Service was justified in refusing the applicant's request under section 42(l) of the Act on the ground that the receipts and invoices sought are, or relate to, the private papers of the members within the meaning of Part 10 of the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013 (the 2013 Act). As this case involves similar such records, the question arises as to whether it is subject to discontinuance under section 22(9)(a)(iii) of the FOI Act, which provides that a review may be discontinued if the application is, has been, or will be, the subject of another review. However, the records at issue in this case consist of all correspondence, not merely receipts and/or invoices. In the circumstances, I do not consider that discontinuance under section 22(9)(a)(iii) is warranted.

Analysis and Findings

Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant access to a record "shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified." In this case, the Service continues to maintain that it does not hold the records at issue for the purposes of the FOI Act and alternatively that section 42(l) applies.

Are the records "held" by the Service?
A reference to records held by an FOI body includes a reference to records under the control of that body. Section 11(9) of the Act provides that a record in the possession of a service provider shall, if and in so far as it relates to the service, be deemed for the purposes of the FOI Act to be held by the FOI body. A service provider is defined at section 2 of the Act as a person who, at the time the request was made, was not an FOI body but was providing a service for an FOI body under a contract for services.

In this case, the records at issue are copies of correspondence that had been retained by Mazars, the company that had conducted the audit of members' expenses in 2014. The Service claims, as it did in Case 150073, that Mazars retained the records as a sample solely for the purposes of any professional audit or professional compliance test to which it might be subject in future and that this was necessary in order for it to comply with professional standards. However, whereas in Case 150073, the Service accepted that the records were held by it in accordance with section 11(9) of the FOI Act, the Service argues in this case that section 11(9) does not apply despite the fact that the records were made available to my Office for the purposes of conducting the review. It refers to the judgment of O'Neill J in The Minister for Health and the Information Commissioner[2014]IEHC 231, which is a case that arose under the 1997 FOI Act. In his judgment, 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."

The circumstances of the Minister for Health case were indeed rare. They involved a highly sensitive review carried out by a retired member of the judiciary, Mr. Justice Smyth, who had sealed the records concerned following his review and placed them with the Department for safe-keeping. As noted by O'Neill J, "the primary and essential characteristic of the review was that it was to be an exercise conducted in an entirely independent and impartial way". In considering the relationship between Mr. Justice Smyth and the Minister, O'Neill J noted that "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". However, he expressly found that the relationship was not "one of principal and agent" and he rejected the contention that Mr. Justice Smyth was a service provider within the meaning of the previous FOI Act given the "independent nature of the function discharged by Mr. Justice Smyth". The Service argues that the audit function performed by Mazars under section 6 of the Oireachtas (Allowances and Facilities) Regulations 2010, S.I. No. 84 of 2010, is akin to the function discharged by Mr. Justice Smyth. I disagree. Mazars is a private audit, tax and advisory firm which carried out the 2014 audit under what was indisputably a contract for services, and I do not accept that it is vested with independence akin to that of a retired member of the judiciary carrying out a review. The firm was appointed pursuant to a procurement process and received specified fees for the the audit performed. The records at issue may have been retained solely for the purposes of a potential professional audit or professional compliance test but, as copies of the correspondence that arose during the 2014 audit, they nevertheless relate to the service provided to an FOI body under a contract for services. I find that the records at issue in this case fall squarely within the ambit of section 11(9) of the 2014 FOI Act.

Section 42(l)
Section 42(l) of the FOI Act provides that, unless consent has lawfully been given for its disclosure, the Act does not apply to a record relating to any private paper or confidential communication, within the meaning of Part 10 of the 2013 Act, or official document, within the meaning of Part 11 of that Act. As noted above, in Case 150073, the Commissioner found that section 42(l) applied to the receipts and invoices sought in relation to the 2013 audit.

The Commissioner's decision in Case 150073 was based on the plain and unambiguous language used in section 42(l) of the FOI Act and the 2013 Act to which section 42(l) refers. The 2013 Act defines the term "private paper" to include, in relation to a member: "any paper in the possession or control of the member in relation to his or her political (including party political) role or in his or her capacity as a member". In reaching his decision, the Commissioner had regard to the concept of "private papers" in the context of Article 15.10 of the Constitution and section 46(1)(e) of the 1997 FOI Act, as discussed in an early decision of this Office in Case 99168 (Mr. Richard Oakley of The Sunday Tribune Newspaper & the Office of the House of the Oireachtas). He also had regard to the judgment of the Supreme Court in Howlin v. The Hon. Mr. Justice Morris, [2005] IESC 85, which also addressed the meaning of "private papers" for the purposes of Article 15.10 of the Constitution. However, while he accepted that it was reasonable to conclude that receipts and invoices for expenses incurred by members in the course of the performance of their functions would not ordinarily be considered to be the private papers of the members, he emphasised that the question was whether such records are private papers within the meaning of Part 10 of the 2013 Act. Having regard to the nature of the procedures that apply to the payment of the Public Representation Allowance, he found that receipts and invoices are held by the members and that the members hold such records in their capacity as members. I note that the applicant presents arguments based on the legislative history and purpose of the 2013 Act, including comments made by Minister Howlin in the Dáil, in support of his position that matters relating to members' expenses should not be regarded as exempt from public scrutiny. However, in light of the definition of "private paper" as enacted by the Oireachtas in Part 10 of the 2013 Act, I find no basis for departing from the Commissioner's conclusion in Case 150073 that section 42(l) applies to the receipts and invoices concerned.

Of course, as noted by the Commissioner, the copies of the receipts and invoices held by Mazars are not in fact held by the members but, being copies, they nevertheless relate to the receipts and invoices that are within the possession or control of the members in their capacity as members. I find that the same is true for the correspondence arising from the 2014 audit other than the receipts and invoices involved. In making this determination, I consider it appropriate to have regard to the ordinary meaning of the term "relating to" as it is used in the context of section 42 of the Act. I have also had regard to the judgment of O'Neill J in EH and the Information Commissioner [2001] IEHC 182. Thus, I accept that a record relates to private papers within the meaning of Part 10 of the 2013 where it concerns or has a sufficiently substantial connection with such private papers. The purpose of the correspondence at issue in this case, other than the receipts and invoices involved, was to address issues arising from the receipts and invoices in the possession or control of the members. I am therefore satisfied that such correspondence also relates to private papers within the meaning of Part 10 of the 2013 Act and is therefore also subject to refusal under section 42(l) of the Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Service in this case.

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.

Elizabeth Dolan
Senior Investigator