Whether the ISI was justified in refusing access to records relating to the position of Official Assignee pursuant to sections 15(1)(a) and 37 of the FOI Act

20 September 2022

Background

By way of background, the ISI was established on 1 March 2013 under the Personal Insolvency Act 2012 (the 2012 Act). The 2012 Act sets out the statutory functions of the ISI and the ISI is, subject to the 2012 Act, independent in the exercise of its functions. The Official Assignee (OA) is the officer of the High Court to whom the ownership of the property of the bankrupt person is transferred on the day the person is made bankrupt. The OA is a statutory officer, and an officer of the High Court, whose functions are set out in the Bankruptcy Act, 1988, as amended (the 1988 Act).  The OA is a member of staff of the ISI, and is appointed by the Minister for Justice under section 12 of the 2012 Act. 

The applicant submitted a six-part request to the ISI on 31 August 2021 for records relating to the position of OA, as follows:

1. The departure/retirement on 24th July 2000 of [the former OA] from the position of Official Assignee in Bankruptcy.
2. The fact that the Office of the Official Assignee is not a corporation sole, and the implications/ramifications thereof on the appointment of a successor to [the former OA].
3. The designation/appointment of [a named official] as Deputy Official Assignee as of 27th July 2020 and/or as Acting Official Assignee from that date.
4. An appointment of [the current OA] by the Minister of Justice as successor/replacement to [the former OA] in the role of Official Assignee.
5. The statutory basis of an appointment of [the current OA] to the position of Official Assignee.
6. An approval of such an appointment of [the current OA] sought by the Minister for Justice from the Minister of Public Expenditure and Reform.

As the ISI did not issue a decision on the request within the statutory time-frame, the applicant sought an internal review of the deemed refusal of his request on 12 October 2021. On 3 November 2021, the ISI granted access to five records relating to part 3 of the request and refused the remaining five parts of the request on the basis that no records were found. On 4 January 2022, the applicant applied to this Office for a review of the ISI-™s decision.

During the course of the review, the ISI informed this Office that the Department of Justice administers the employment relationship with all ISI staff members and that records of the nature sought by the applicant are not held by the ISI. The ISI also informed this Office that Schedule 1 Part 1(r) of the FOI Act applied to it. Finally, the ISI said it had identified some records relating to the annual leave entitlement of the former OA, to which it claimed section 37 of the Act applied.   

The Investigator wrote to the applicant and advised him that the ISI is a partially included agency under Schedule 1 Part 1 of the FOI Act and that the FOI Act applies only to records concerning the general administration of its functions under the 2012 Act. She also advised him of the ISI-™s position on the parts of his request for which the ISI claimed that no records could be found, and of the records for which section 37 was claimed. The applicant did not comment on the information provided, following a number of reminders, nor did he provide any further information to support his contention that further relevant records might exist.   

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 ISI in support of its decision.  I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

The refusal of a request on the ground that the records sought do not exist or cannot be found is, in essence, a refusal of the request under section 15(1)(a) of the Act. Accordingly, this review is concerned solely with whether the ISI was justified in its decision to refuse access, under Schedule 1 Part 1(r), section 15(1)(a), and section 37 of the FOI Act, to the records sought relating to the OA position.

Analysis and Findings

Section 15(1)(a)

The ISI refused parts 1, 2, 4, 5, and 6 of the request on the ground that no relevant records could be found. Section 15(1)(a) of the FOI Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. In such cases, the role of this Office is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision and I must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.

The records sought can broadly be described as personnel type records relating to retirement from, and appointment to, the position of OA. In its submissions to this Office, the ISI stated that following a comprehensive search, it found no relevant records relating to the relevant parts of the request, apart from correspondence relating to the annual leave entitlement of the former OA. It also argued that there is no evidence to suggest that records relevant to these parts ever existed within the ISI.

The ISI explained that the Department of Justice administers the employment relationship with the Director and all ISI staff members (including handling all HR and employment related matters and issues arising within the context of that relationship). It said that consequently, the Department-™s HR division documents and holds all such records relating to those HR and employment matters and issues.

Specifically, the ISI said that part 1 of the request relates to the departure/ retirement of a former OA while parts 4 to 6 relate to the appointment of the current OA by the

Department and the statutory basis for that appointment. It said the records sought relate solely to the handling of HR and employment matters regarding an ISI staff member. It said HR and employment matters such as those referenced would have been handled by the Department-™s HR Division and not by the ISI. It said records relating to the handling of HR and employment matters are not generally provided by the Department to the ISI and that in this case, records relating to the relevant parts of the request were not shared by the Department with it.

The ISI described Part 2 of the request as relating to the implications of appointing a successor to a former OA given that the Office of the OA is not a corporation sole. It said staff members of the ISI (including the OA) are employed by the Department and that any analysis conducted as to the implications of such employment would, accordingly, have been conducted by the Department. It said no records relating to Part 2 were shared by the Department with it.

In subsequent communications with this Office, in response to the Investigator-™s query as to whether the consequences of the retirement of the OA might have necessitated the generation of records, the ISI said the absences of the OA is not a major issue as there is an established procedure, provided for in the Bankruptcy Act 1988, for the deputy OA to step into the shoes of the OA. It said this would have happened when the OA went on leave, and that the same approach was taken when the OA retired.

In his application for review to this Office, the applicant provided copies of correspondence he exchanged with the ISI (including its legal representatives) as evidence of records relating to his request that he considers should have been identified in response to his request. The correspondence at issue relates to specified bankruptcy related proceedings and to the potential consequences of the retirement of the former OA on those proceedings. Having examined the records, I am not convinced that they fall within the scope of any of the relevant parts of the applicant-™s request. Even if they do, it seems to me that the question of whether the FOI Act applies to such records arises.

As the Investigator previously explained to the applicant, the ISI is a partially included agency under Schedule 1, Part 1(r) of the FOI Act. Section 6(2) of the FOI Act provides that an entity specified in Schedule 1, Part 1 of the Act shall, subject to the provisions of that Part, be a public body for the purposes of the Act. Schedule 1, Part 1 contains details of bodies that are partially included for the purposes of the Act and also details of the certain specified records that are excluded. If the records sought come within the description of the exclusions in Part 1, then the Act does not apply and no right of access exists to such records held by the body.

Schedule 1, Part 1(r) provides that ISI is not a public body for the purposes of the FOI Act, in the performance of its functions under Part 2 of the Personal Insolvency Act 2012, other than insofar as it relates to records concerning the general administration of those functions.  In other words, the only records held by the ISI that are subject to the FOI Act are those that concern the general administration of its functions. In accordance with Part 1(r), all other records held by ISI are excluded.

While the Act is silent on the meaning of general administration, this Office considers that it clearly refers to records which have to do with the management of the ISI such as records relating to personnel, pay matters, recruitment, accounts, information technology, accommodation, internal organisation, office procedures and the like. I am satisfied that it does not refer to records relating to matters concerning the core business of the ISI. 

While the records identified by the applicant reference the retirement of the former OA, they concern specified bankruptcy related proceedings and the potential consequences of the retirement of the OA on those proceedings. In my view, the records relate to the specified proceedings and cannot reasonably be said to concern the general administration of the performance of the functions of the ISI. In the circumstances, I am satisfied that the FOI Act does not apply to the records identified by the applicant.

On the matter of the records identified by the ISI relating to the annual leave entitlement of the former OA, the ISI said the communications exchanged by the Director and the former OA, and the Director and the Department-™s HR Division of the Department, are exempt under section 37(1) of the FOI Act. Having examined he records, it seems to me that while they relate to annual leave entitlements, they also relate to the retirement of the OA and as such, I find that they do, indeed, fall within part 1 of the applicant-™s request.

Accordingly, while it is highly unlikely that the records in question are of a type that the applicant was seeking, my finding that they fall within part 1 of the request is, of itself, is sufficient for me to find that the ISI was not justified in refusing part 1 of the request on the ground that it holds no relevant records. Nevertheless, those records aside, I accept the ISI-™s submissions in relation to why it does not generally hold other records relating to the retirement and appointment of the OAs.

On the matter of whether a right of access exists to the records located by the ISI, section 37(1) provides, subject to the other provisions of the section, for the mandatory refusal of a request if access to the records concerned would involve the disclosure of personal information relating to an individual other than the requester.

The Act defines personal information as information about an identifiable individual that either (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual or (b) is held by an FOI body on the understanding that it would be treated by the body as confidential. The definition also contains a list of 14 specific types of information that is personal information, without prejudice to the foregoing definition, including (i) information relating to the employment or employment history of the individual, and (v) information relating to the individual in a record falling within section 11(6)(a) (personnel records).

Certain information is excluded from the definition of personal information. Where the individual holds or held a position as a member of the staff of an FOI body, the definition does not include his or her name, or information relating to the position, the functions of the position, the terms upon and subject to which the individual holds or held that position, or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of his or her functions (Paragraph I refers). The exclusion at Paragraph I does not exclude all information relating to staff members. The exclusion is intended, in essence, to ensure that section 37 cannot be used to exempt the identity of a public servant in the context of the particular position held or any records created by the staff member while carrying out his or her official functions, or information relating to the terms, conditions and functions of positions. The exclusion does not deprive public servants of the right to privacy generally.

Having examined the records, I am satisfied that their disclosure would involve the disclosure of personal information relating to an individual other than the applicant and that section 37(1) applies.

Section 37(1) is subject to the other provisions of the section, some of which serve to disapply section 37(1). This includes section 37(5)(a), which provides that the public interest that the request should be granted outweighs, on balance, the public interest that the right to privacy of the individual to whom the information relates should be upheld. I am satisfied that there is no public interest in releasing such inherently private information relating to the individual in question to the applicant in this case and that none of the other relevant provisions serve to disapply section 37(1).

In conclusion, I find that while the ISI was not justified in refusing access, under section 15(1)(a) of the Act, to records falling within the scope of part 1 of the request, it was, however, justified in refusing access, under section 37(1), to the records located relating to the annual leave entitlements of the former OA. I also find that the ISI was justified in refusing access, under section 15(1)(a) of the Act, to records falling within the scope of parts 2, 4, 5 and 6 of the request on the grounds that it holds no relevant records.

I consider it appropriate to make one final point. Where a request is received by an FOI body and the records concerned are not held by the body but are held by one or more other FOI bodies, the FOI body must cause a copy of the request to be given to the other body within two weeks of receipt of the request and must inform the requester that it has done so (section 12(3) refers). Moreover, under section 11(2), an FOI body must give reasonable assistance to a person who is seeking a record under the Act in relation to the making of an FOI request.

Given the ISI-™s position relating to records concerning HR matters being held by the Department of Justice, it seems to me that the ISI should have, at a minimum, informed the applicant of this fact so that he could decide if he should more appropriately address his request, in whole or in part, to the Department. It remains open to the applicant to submit a fresh request to the Department for relevant records.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the ISI-™s decision to refuse part 1 of the applicant-™s request under section 37(1) of the Act and to refuse parts 2, 4, 5, and 6 under section 15(1)(a).

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