Whether the Department was justified in refusing access to a copy of a lease relating to Enfield National School on the ground that it was created before the effective date of the FOI Act for the Department, namely 21 April 1998

24 August 2023

Background

In a request dated 19 October 2022, the applicant sought access to records pertaining to the Department-�s ongoing lease of Enfield National School from the Diocese of Elphin, including the monetary value of that lease, and all correspondence from the Department with the Diocese since the closure of the school in 2009 to the present, particularly any records pertaining to the Department-�s efforts to relinquish its lease.

In a decision dated 15 December 2022, the Department identified seven records as captured by the request. It refused access to one record, namely a copy of a 99-year charging lease that was created in 1961, on the ground that it was created before the effective date of the Act and under sections 30(1)(c) and 31(1)(a). It granted partial access to two records with the redaction of information under sections 30(1)(c) and 36(1)(b) and granted access in full to the remaining four records.

The applicant sought an internal review of that decision on 12 January 2023, following which the Department affirmed its decision on the request. On 27 March 2023, the applicant applied to this Office for a review of the Department-�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 applicant-�s comments in his application for review and to the submissions made by the Department in support of its decision. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision. For convenience, when referring to the records at issue, I have adopted the numbering scheme used by the Department in the schedule or records it prepared when processing the request.

Scope of Review

During the course of the review, the applicant informed this Office that he was seeking access only to the lease. Accordingly, I have excluded the two other records to which redactions were made from the scope of the review.

Accordingly, this review is concerned solely with whether the Department was justified in its decision to refuse access to the lease on the basis that the record was created before the effective date of the Act and/or on the basis that it is exempt under sections 30(1)(c) and 36(1)(b) of the Act.

Analysis and Findings

Section 11(4) of the FOI Act provides that a right of access exists to records held by an FOI body that were created after the effective date of the Act, and to certain other records as may be prescribed by the Minister for Public Expenditure and Reform. No such other records have been prescribed to date. In the case of the Department, the effective date is 21 April 1998. This means that no right of access exists to records created before that date unless section 11(5) applies. 

Section 11(5) provides for the release of records created before the effective date (a) where access is necessary or expedient to understand records created after the effective date or (b) where the records relate to personal information about the requester. The record at issue is a copy of a 99-year charging lease that was created in 1961. As it does not relate to personal information about the applicant, I find that section 11(5)(b) does not apply.

On the matter of whether section 11(5)(a) might apply, this Office considers that the section is directed at the question of whether the substance (or gist or subject matter) of records created after the effective date cannot be understood without reference to the record created before the effective date. Moreover, 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 record 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 a record created after the effective date.

The applicant has not identified any record created after 21 April 1998 that cannot be understood without access to the record at issue. I find, therefore, that section 11(5) does not apply.

In conclusion, therefore, I find that no right of access exists to the record sought as it was created before the effective date of the Act for the Department. Accordingly, I have no need to consider whether the record would also be exempt under any other exemption.

For the benefit of the applicant, however, I would draw his attention to the Department-�s submissions concerning the nature of the record. In its submissions, the Department explained that the former national school (now closed) is in the ownership of the Diocese of Elphin. It said that traditionally, the vast majority of national schools were similarly owned by entities such as Dioceses, Religious Orders etc. It said that where funding was provided by the Department, a -�charging lease-� was put in place, as a burden on the property title, to ensure that funding would be used for educational purposes. It said these charging leases (sometimes called divesting lease) set out the value of the inputted funds and made provision for the recoupment of funding to the Department, should the property ever cease as an educational use and be sold by the property owners. It said the charging lease does not in any way confer any rights of ownership on the title, but rather grants the Department input on the future sale of the property (which cannot be legally processed unless the Minister-�s interest is agreed to be surrendered by the Department). It said that, in short, the charging lease is a legal methodology for ensuring that state funding is used appropriately and as intended - for educational purposes. It said it is not an ongoing -�rent-� type payment.

The Department added that in making the FOI request, the requestor appears to be under the impression that the Department is -�leasing-� (as in renting) the now derelict school property and thus, preventing the property from being sold for redevelopment. It said this is not the case. It said information on the terms of a rental agreement, including financial terms, do not exist.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Department to refuse access to the record sought on the ground that it was created before the effective date of the Act and that no right of access exists.

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