Decision
Mr X and the Department of Transport, Tourism and Sport
From Office of the Information Commissioner (OIC)
Case number: 090077
Published on
From Office of the Information Commissioner (OIC)
Case number: 090077
Published on
Whether the Department has justified its decision not to fully grant those elements of the applicant's 34-part request for records concerning bus routes and services, State aid, audits, inspections, statutory interpretation, advice, communications, diesel rebate and prices and other matters that are within the scope of the review in this case
Conducted in accordance with section 34(2) of the FOI Act
13 November 2014
On or around 31 July 2008, the applicant made an FOI request to the Department, which it asked him to narrow down due to its wide-ranging scope. This resulted in the applicant submitting the following request, dated on or around 29 September 2008:
The Department assigned responsibility for various aspects of the request to a number of decision makers, who were working in separate sections of the Department.
On 28 October 2008, the Department issued a decision in relation to parts 1, 2, 3, 4, 5, 10, 14, 17, 18, 19, 20, 21, 22 and 23 of the request. That decision released all records identified as relevant to parts 3, 10 and 20, granted access to some records relevant to point 18 while refusing the remainder of such records. It withheld all records relevant to parts 1, 2, 4, 5, 14, 17, 19, 21, 22, and 23 under various provisions of the FOI Act (although it provided the applicant with information relevant to parts 21-23 and deemed those elements of the request to be partially granted accordingly).
Also on 28 October 2008, a separate decision issued regarding parts 15, 30 and 31, which refused the records sought at part 15 on the basis that the Department did not hold the requested records, and released all records considered relevant to parts 30 and 31.
The third decision that issued on 28 October 2008 concerned parts 6, 7, 9, 11, 12, 13, 24, 25, 26 and 29 of the request. That decision also dealt with part 14 of the request, given that the relevant section also held records of relevance to that aspect of the request. The decision granted access to all records considered relevant to parts 6 and 9. It released some records relevant to parts 7 and 14, while refusing the remainder of such records, and all records relevant to parts 11, 12, 13, 24 (although the decision noted that one record relevant to part 24 was a publicly available record that was relevant also to part 14), 25, 26 and 29 under various provisions of the FOI Act. On 4 November 2008, the decision maker concerned, further to informal consultation with third parties, granted access to additional records relevant to part 14 and provided the applicant with a schedule of records relevant to part 29.
Two further decisions issued on 30 October 2008. One of these concerned part 34 and granted partial access to the relevant records. The other concerned parts 27, 32 and 33 and released the one record considered relevant to part 33 and some of the records relevant to parts 27 and 32, with the remainder thereof being withheld under various provisions of the FOI Act.
On 31 October 2008, a decision issued regarding parts 16 and 28 and granted access to the relevant records (although the decision noted that the records concerned were in the public domain).
Also on 31 October 2008, the applicant sought an internal review of those decisions that had issued to him by this time, noting that the Department's failure to respond to the remainder of his request amounted to a deemed refusal thereof.
On 11 November 2008, the Department issued a decision regarding part 8 of the request, and granted access to some of the relevant records.
The Department issued its internal review decision on 21 November 2008, which said that dealing with the FOI request had caused a substantial and unreasonable interference with the Department's work. It said that there were some grounds for considering the request to be vexatious or manifestly unreasonable because the applicant was simultaneously engaged in legal proceedings against the Department concerning the licensing of certain bus routes, and that the request for records relating to the change of name of one of the internal operating sections of the Department could be regarded as frivolous when considered against the scale and depth of the request generally. The internal review decision said that, notwithstanding the work the Department had already conducted on foot of the request, the voluminous nature of the request was such that it should have been refused under the relevant provision of the Act (section 10(3) was cited, although presumably what was intended was section 10(1)(c), which provides an administrative basis to refuse a request where, essentially, to process it would interfere with the normal running of a public body). Thus, the internal review decision did not have regard to the content of the records already partially or wholly refused.
The applicant sought a review by this Office on 25 March 2009. The Department released further records to the applicant in the course of the review, (including some that it had obtained in 2011, during the early stages of this Office's review, from the National Transport Authority (NTA). I will comment further on these records later in this decision).
This Office's letter to the applicant of 22 November 2011 told the applicant that parts 1 and 4 of his request were encompassed by a subsequent application for review that he had submitted to this Office (case number 110055 refers), and therefore would not be considered in the present review. That letter told the applicant that other aspects of his request required no further action on this Office's part as the relevant records had been fully released (parts 3; 6; 9; 10; 16; 20; 28; 30; 31; and 33), or were publicly available (part 26). The applicant did not object to this approach.
The details in the previous paragraph were repeated in this Office's further letter to the applicant, dated 4 June 2014. However, that letter noted that certain records relevant to part 1 of the request, specifically those dating from before 2005, were not sought in the request the subject of review in case 110055. Accordingly, the refusal of such records fell to be considered in the present review. That letter said also that there was nothing further to be reviewed in respect of the Department's decision on part 34 of the request, in light of the early 2014 full release of the remainder of the records concerned. It also said that this review would not include part 18 of the request in so far as it encompassed guidelines still held by the Department that it is now willing to release in full. The applicant's reply of 25 June 2014 did not object to the above.
In carrying out my review, I have had regard to the above; to copies of the records at issue (which were provided to this Office for the purposes of my review); to details of various contacts between this Office and the Department and various third parties, and to details of various contacts between this Office and the applicant.
In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997 -2003 notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.
The scope of this review is confined to the sole issue of whether or not the Department has justified its decision not to fully grant the applicant's request for records as set out at parts 2; 5; 7; 8; 11; 12; 13; 14; 15; 17; 18; 19; 21; 22; 23; 24; 25; 27; 29; and 32 of his request of 29 September 2008. It also includes the refusal of those pre-2005 records which are relevant to part 1 of the request and which are not encompassed by my review in case 110055. Any further reference to "part 1" of the applicant's request in this case is to be read accordingly. Likewise, my review of the Department's decision on part 18 encompasses only its refusal of documentation relating to the preparation of the two released guidelines, and any references to "part 18" in the remainder of this decision should be read in this light.
It is now some five years since the applicant made his application for review to this Office, which is very regrettable indeed. Although this is by no means excusable, the delay arose in part because this Office did not have the necessary staff resources to devote to the many broad-ranging and varied aspects of this application for review. I acknowledge that, if the review had been dealt with immediately after receipt in 2009, the resulting decision could well have encompassed records that, due to passage of time, are now no longer held by the Department. Although those records might ultimately have been found to be exempt, I nonetheless apologise unreservedly to the applicant for the consequences of the delays.
I also wish to recognise the impact that dealing with this request, and this Office's review (including the delays), has had on the Department. However, I cannot accept the Department's argument, made in late 2013, that the request of 29 September 2008 should now be refused in its entirety under section 10(1)(c) of the FOI Act, albeit this was the position taken by the internal reviewer in November 2008.
Section 10(1)(c) provides that a request for a record may be refused if granting the request would, by reason of the number or nature of the records concerned or the nature of the information concerned, require the retrieval and examination of such number of records or an examination of such kind of the records concerned as to cause a substantial and unreasonable interference with or disruption of the work of the public body concerned.
The provision recognises the extent to which the retrieval and examination of records might impact on the work of public bodies, and it can be relied upon once the body has helped, or even offered to help, a requester to amend their request so that it becomes more manageable from the body's perspective (section 10(2) refers). However, where the public body ultimately goes to the effort of retrieving and examining records of relevance to a request, as did the Department in respect of at least some aspects of this request, it implicitly accepts that to deal with the request is not a substantial and unreasonable interference with, or disruption of, its work. Accordingly, it is not appropriate for that body, no matter how extenuating the circumstances, to subsequently claim that the request should have been refused under section 10(1)(c) from the outset.
The Department's decision to deal with the FOI request was evidently in keeping with the spirit of the FOI Act. However, that is not to say that I would have rejected the Department's application of section 10(1)(c) to the applicant's request of 29 September 2008 (which purports to be narrower version of that dated on or around 31 July 2008), if it had done so from the outset and in compliance with section 10(2). In my view, the applicant's FOI request is clearly one to which section 10(1)(c) should have been applied at decision stage, in its entirety, once section 10(2) had been complied with. The request sought 34 different categories of record, all except three of which were very broadly and vaguely framed (for instance, in terms of "documentation of any kind relating to" the particular subject matter), including records dating from 1990 i.e. before the commencement of the FOI Act. Processing the request and internal review, and dealing with this Office's review, has clearly placed a burden on the Department of a kind that, in my view, was not intended by the Oireachtas when passing the FOI Act.
Notwithstanding the foregoing, I have had proper regard to the requirements of section 34(12)(b) of the Act, which places the onus on the Department to justify, to my satisfaction, its refusal to fully grant all aspects of the request. However, in a case such as this, involving third parties, it is important that such parties are given an opportunity to make whatever submissions they wish and that such submissions are taken into account in the final decision on the review. It is relevant in this regard to take account of the fact the Courts have found the release of a record under the FOI Act to be akin to its release to the world at large.
Other points of note are that section 8(4) does not allow this review to have regard to any reasons as to why the applicant is seeking the withheld records (although such reasons may be relevant to the consideration of the public interest, where required), and that section 13(1) provides for the release of a record with any exempt material therein being redacted, so long as to do so would not render the ensuing copy of the record to be misleading (section 13(2) refers).
Furthermore, as this review is conducted de novo, it takes account of all relevant facts and circumstances applying as at the date of the ensuing decision. However, while the passage of time may have implications for the application of a particular exemption, it is not necessarily the determinative factor in considering the public interest (where the public interest is required to be considered, that is).
Finally, and importantly, while the FOI Act requires me to provide reasons for decisions, section 43(3) of the FOI Act also requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. Thus, I cannot outline in detail the reasons for certain aspects of my decision in the circumstances of this case.
At no stage in the FOI process prior to the applicant's application to this Office did the Department identify any particular records as relevant to the above aspects of the request.
The records potentially relevant to parts 1, 2 and 14 of the request were withheld (as an unidentified group) at decision stage under section 23(1)(a)(iv) of the FOI Act, due to civil proceedings that the applicant had taken at that time against the Department. Also at decision stage, the Department relied on section 10(1)(c) specifically in relation to part 5 of the request. (I have explained the provisions of section 10(1)(c) earlier in this decision. However, I do not intend to set out the wording of section 23(1)(a)(iv) at this stage.) While the Department considered the release of two records (i.e. guidelines) relevant to part 18 of the request that it is now prepared to release in full, it appears also that neither at decision nor internal review stage did it consider that element of part 18 that is under review i.e. that which sought any documentation relating to the preparation of those guidelines. As noted already, the Department's internal review decision relied on section 10(1)(c) and did not have regard to the content of any records that had been partially or wholly refused at decision stage of the FOI process.
By the time this case was assigned to an Investigator in this Office in 2011, the litigation between the applicant and the Department had long concluded and section 23(1)(a)(iv) was no longer potentially relevant. Further to contacts with this Office, the Department thus proceeded to identify those records it considered to be captured by parts 2 and 14 of the request, some of which it released to the applicant. However, at this stage, the records were held by the National Transport Authority (the NTA), and it was from this body that the Department obtained the records.
The NTA
The NTA was established in 2009, and took over responsibility for Bus Licensing and related matters (such as surveys and inspections) in 2010. The Department says that it transferred all of its Bus Licensing records to the NTA accordingly (and, I understand, seconded certain former Bus Licensing unit staff to the NTA for a period of time). It is my understanding that the transferred records included those records relevant to parts 1, 2 and 14 of the request; to that element of part 18 that is under review (i.e. the Department's files regarding the preparation of guidelines) and the records, relevant to part 5 of the request, which the Department had refused specifically under section 10(1)(c).
The NTA operates independently of the Department, including for FOI purposes. I do not have the remit to direct a public body to take action in relation to the records of another public body, nor do I have any remit to include, or join, the NTA as a notice party in this case.
Accordingly, my position is that I have no jurisdiction to consider any records held by the NTA that are relevant to this request, specifically the remaining records of those identified by the Department in 2011 as relevant to parts 2 and 14, or to any records relevant to parts 1 or 18 of the request as held by the NTA. Neither have I any basis to consider whether or not the Department's refusal of the records relevant to part 5, which are now held by the NTA, is justifiable having regard to the provisions of section 10(1)(c). I find accordingly.
In this regard, the NTA website states "Under the Public Transport Regulation Act 2009, the National Transport Authority has taken over the regulation of public bus passenger services. These services were previously regulated by the Department of Transport under the Road Transport Act 1932. The Act obliges all operators to be licensed if they are providing public bus passenger services and is applied equally to both private and state companies. Public Service Obligation (PSO) services covered by Public Service Contracts (PSC) do not fall within the licensing system."
Although responsibility for the bus licensing function, and records deriving from all aspects of that function, had been transferred from the Department to the NTA before the assignment of this review to an Investigator in 2011, it seems that both the Department and the NTA considered that responsibility for the Department's former bus licensing records continued to lie with the Department. It appears also that the NTA did not consider itself to have sufficient resources to deal with matters such as this FOI request and that the Department acted in the spirit of FOI by obtaining the relevant records from the NTA, and considering them accordingly.
On 4 June 2014, the Investigator to whom this case was subsequently assigned (Ms Anne Lyons) told the applicant that, notwithstanding the Department's retrieval of records held by the NTA, it was not appropriate for this review to consider records that are now held by another public body. The applicant replied that the relevant legislation establishing and commencing the NTA does not provide for the transfer of functions from the Department. However, it is not part of my remit to consider the validity of the legislation that established the NTA, or otherwise consider if the NTA has remit to carry on the business it is evidently conducting, if this is what the applicant is suggesting. Legislation is deemed valid unless found to be otherwise by the Courts, which is not the case here, and the NTA is now responsible for bus licensing and related matters.
The applicant also said that, in any event, it would not be appropriate to transfer files that were manifestly the subject of a current FOI request. However, I must deal with the situation as it is now. The fact is that the records have been transferred. Notwithstanding, as the applicant put it, that "the Department continues to have full and unfettered access to these records", and that he says he has been told by the NTA that the records are not amenable to FOI through that body (which I do not consider to be correct), it remains that the NTA has held, and controlled, the Department's former Bus Licensing unit records since 2010.
Section 10(1)(a) - are the relevant records held by the Department?
Section 10(1)(a) provides for the refusal of a request by a public body on the basis that the relevant records do not exist or cannot be found by the body after reasonable steps have been taken to look for the records. In the case at hand, I consider that the records of relevance to the above mentioned aspects of the request no longer exist within the Department, given that the are records that are no longer held by it. Under the circumstances, I find that section 10(1)(a) is applicable to parts 1, 2, 5, 14, and 18 of the request.
Further Electronic Records
However, as outlined to the applicant in June 2014, the Department states that its network holds an "electronic file share", dating from 2001, relating to bus licensing, which is likely to contain records relevant to the above aspects of his request. It seems that this file is essentially a copy of the electronic files held by the Department in relation to the bus licensing function, up to the transfer of that function to the NTA. This "file share" is said to hold over 36,000 files on over 3,400 folders. Thus, it is likely to hold copies of the records sent to the NTA that were considered for release in 2011. However, the Department only gave consideration to this "file share" in mid-2014, in light of clarification of this Office's position on the records it had obtained from the NTA, which I consider reasonable under the circumstances.
I am not prepared to direct the release of these 36,000 records, without an examination of their contents, for the sole reason that the Department did not consider them previously. Some records could fall outside the scope of the relevant parts of the request, broadly worded and general as they are. Relevant records could well be exempt under various provisions of the FOI Act, including any of the mandatory exemptions, and are also likely to contain third party information.
The Department contends that to examine and retrieve records relevant to the above aspects of the applicant's request would have implications for the delivery of the Public Transport Regulation Division's work programme and its priority work areas. Essentially, it is claiming that section 10(1)(c) applies to such records. In this regard, although I do not consider it appropriate for the Department, at this stage, to rely on section 10(1)(c) in respect of the request as a whole, I see no reason for the Department not to rely on section 10(1)(c) in respect of records that were previously not considered by it as relevant to individual aspects of the request. However, in the case at hand, I do not intend to consider whether the Department is justified in its position that section 10(1)(c) is applicable to these electronic records for the reasons cited. This is because it is not apparent to me that the Department can have complied with section 10(2) in respect of the potential application of section 10(1)(c) to these records (as already set out, section 10(2) requires a public body to help, or offer to help, a requester to amend their request so that it becomes more manageable from the body's perspective).
The applicant considers that, because of the injustice he believes would result from the above, the Department should categorise the 36,000 records. He argues that this Office should consider these records to determine whether in fact they are relevant to his request, and mediate between him and the Department to provide for an appropriate release of relevant records.
While acknowledging the applicant's frustration, particularly in light of the part this Office's delays have played in this turn of events, his suggested approach would defeat the purpose of section 10(1)(c). I do not consider it appropriate to impose an administrative burden on the Department that might be otherwise be avoided by the application of that provision of the FOI Act.
Under such circumstances, I consider it appropriate to annul the Department's effective refusal of access to the electronic records of relevance to these aspects of the request. The Department is required to consider these particular aspects of the applicant's request afresh, in accordance with section 8 of the FOI Act. I find accordingly.
Eight unnumbered records were considered relevant to this part of the request, of which four were fully released, three fully withheld, and one (described in the Department's schedule of records as an internal Department briefing note, dated 4 August 2000) released in part.
One of the fully withheld records is a letter from the Department to the Office of the Attorney General, seeking legal advice, while the other two fully withheld records are documents created by the Office of the Attorney General, providing legal advice in response to the Department's request.
The partially released record was described in the schedule as being dated 4 August 2000, but, as the applicant is aware, the Department is unable to locate such a record. It considers that the date recorded in the schedule is a typographical error, and that an internal briefing note, discussing State Aid and dated 11 August 2000, is actually the record that was considered. I have no basis to dispute this. Although the Department was unable to locate a copy of this record dated 11 August 2000 as released to the applicant further to the original decision, it subsequently gave fresh consideration to the record, and agreed to partially release it.
Accordingly, the following excerpts of the record dated 11 August 2000 are at issue:
Section 22(1)(a) of the FOI Act provides for the withholding of a record under the FOI Act where it would be exempt from production in proceedings in a court on the ground of legal professional privilege. It does not require the consideration of the public interest. This Office accepts that legal professional privilege enables the client to maintain the confidentiality of two types of communication, one of which is confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege). It is also accepted by this Office that legal professional privilege attaches to records where they are part of a continuum of correspondence arising from an original request for legal advice (Case Number 020281 - Mr. X and the Department of Education and Science - available on www.oic.ie).
Section 46(1)(b) of the FOI Act provides that the Act does not apply to a record held or created by the Attorney General or his or her Office, other than records concerning the general administration of that Office.
I consider the letter from the Department to the Office of the Attorney General to be exempt under section 22(1)(a) of the FOI Act, in that it is clearly of the type of communication, referred to earlier, to which legal advice privilege applies. I also consider the two documents created by the Office of the Attorney General not to be subject to the FOI Act, having regard to section 46(1)(b), in that they provide legal advice and thus cannot be said to concern the Office's general administration. I find accordingly (and would note that the documents created by the Office of the Attorney General would be exempt under section 22(1)(a) even if they were subject to the FOI Act).
Having regard to the details withheld from the record dated 11 August 2000, I accept that the following disclose details of confidential legal advice sought and received from the Attorney General, which I find to be exempt under section 22(1)(a) of the FOI Act:
On 3 February 2014, this Office asked the Department to explain why it considered section 22(1)(a) to apply to the remaining details in the record dated 11 August 2000. Those details can be described as comprising the views and recommendations of the author of the record, and other comments of a more general nature. The Department's position, as set out on 14 February 2014, is that the views and recommendations attract legal professional privilege because they were "based on the legal advice obtained" (as contained elsewhere in the record). It also maintains that the details set out what it considers to be a "negotiating position" it has adopted in the European Commission's ongoing investigation into alleged illegal State Aid (see part 29), and that release now would prejudice that negotiating position.
I do not consider legal professional privilege to attach to details of the views a client ultimately arrives at, or details of the approach he or she ultimately chooses to take, regardless of whether or not those views or approach are based on legal advice received. Section 22(1)(a) is applicable only to details that would disclose the nature of a confidential communication between a client and legal advisor i.e. the nature of the legal advice sought or given. I am satisfied that release of the remaining details at issue, in the absence of details of the legal advice received as also contained in this record, would not disclose the nature of the advice received or sought in the first instance.
The Department had also been asked, on 3 February 2014, if further legal advice was sought on the views and analysis as set out in the note dated 11 August 2000. It did not respond to this query. Therefore, I have no reason to consider that this record, in its entirety, was ever part of a continuum of communications to which legal professional privilege would apply, or should have applied. I have, thus, no basis to consider that the remainder of this record is exempt under section 22(1)(a).
I do not accept that a Commission investigation could be described as a negotiation. In any event, it is a matter of fact that the complaint that triggered that investigation was received by the Commission in December 2005, and that the Commission notified Ireland of its decision to investigate the matter in July 2007. The record at issue is dated 2000. While it may pertain to State Aid provisions of the EU treaty, it cannot contain details of any "negotiating position" that Ireland may have adopted in a Commission investigation commenced some years later, regardless of the fact the investigation is ongoing. Neither, for that matter, can the record contain any information about the Commission's investigation, or about Ireland's interactions with the Commission in relation to the investigation. It is not clear if the Department intended to rely on section 21(1)(c), or some other provision such as those contained in section 24, in making its argument on this point. However, it has not specified the relevant exemptions, nor has it made any further case that might support the application thereof. Accordingly I see no need to set out the wording of sections 21 or 24 at this point in the decision.
Accordingly, I do not consider the Department to have met the requirements of section 34(12)(b) of the FOI Act in respect of its refusal of the remainder of the record dated 11 August 2000. I direct that the details concerned be released i.e.:
The Department considered 93 records to be relevant to this aspect of the request, 89 of which have been released in full, one fully withheld and the remaining three partially withheld.
Section 19
The fully withheld record has not been numbered, but has been identified on the schedule of relevant records as a record of a Government Decision. One of the partially withheld records has also not been numbered, but has been described on the schedule as a draft Memorandum for Government. Factual information has been released from this draft Memorandum.
Section 19(1)(a) provides for the mandatory refusal of a record where it has been, or is proposed to be, submitted to the Government for its consideration, by a Minister of the Government or the Attorney General, and was created for that purpose. Section 19(1)(b) of the FOI Act provides for the mandatory refusal of a record where it is a record of the Government other than a record by which a decision of the Government is published to the general public by or on behalf of the Government. Neither section 19(1)(a) nor 19(1)(b) require consideration of the public interest.
Furthermore, section 19(6) provides that the term "record" includes a "preliminary or other draft of the whole or part of the material contained in the record", while section 19(3)(a) provides for the release of factual information that is contained in a record to which section 19(1) applies, "if and in so far as it contains factual information relating to a decision of the Government that has been published to the general public".
Details of the Government Decision, to which the draft Memorandum relates, were published. I am satisfied that the Department has now released all factual information as contained in the draft Memorandum, as it is required to do by section 19(3), and that it is justified in refusing the remainder thereof under section 19(1)(a) of the FOI Act. I also consider the record of the Government Decision to be fully exempt under section 19(1)(b), in that I am satisfied it contains no factual information that is required to be released under section 19(3)(a). I find accordingly.
Section 27
The two remaining partially withheld records are numbered 7a and 12a. The relevant withheld details pertain to unsuccessful bids made to Dublin Bus, in a tender process, for fleet replacement.
Section 27(1)(b) provides for the mandatory refusal of records containing financial or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of that person in the conduct of their business. It requires consideration of the public interest (section 27(3) refers).
I accept that the details of the bids made by the unsuccessful tenderers, as contained in records 7a and 12a, could be extrapolated into current terms, which could be used by their competition to the detriment of the tenderers concerned. I am satisfied that section 27(1)(b) applies to the withheld details. The fact that these tenderers were unsuccessful means that they did not benefit from public monies on foot of that tendering process. In the circumstances of this case, I consider the public interest in ensuring that the Department is transparent, and can be held accountable for, the conduct of its functions, including decisions to fund capital investment by Dublin Bus, to be outweighed by the public interest in the protection of the information in records 7a and 12a to which section I have found 27(1)(b) to apply. I find accordingly.
Before I decide on the Department's refusal to release certain records it has considered relevant to this aspect of the request, I will deal firstly with a particular argument, made by the applicant in response to Ms Lyons' views of 4 June 2014.
Records Held by Dublin Bus
In his email of 25 June 2014, the applicant, referring to "Dublin Bus's operational records", and presumably in response to Ms Lyons' views on part 11 of the request, stated that, "in light of the fact that [this] review is to be de novo, [he] now want[ed] to explicitly state that [he] make[s] [his] request having reference to section 6(9). Although there was no explicit Public Service Contract in place at the time [of his request, the applicant contended] that there was an implied contract between Dublin Bus and the Department of Transport, which was succeeded by a written contract between Dublin and NTA.". He maintains that this latter contract is such that "all operational details of Dublin Bus's current operation of PSO routes are available under FOI, by virtue of section 6(9) of the act."
Section 6(9) provides that a record in the possession of a person, "who is or was providing a service for a public body under a contract for services shall, if and in so far as it relates to the service, be deemed for the purposes of this Act to be held by the body and there shall be deemed to be included in the contract a provision that the person shall, if so requested by the body for the purposes of this Act, give the record to the body for retention by it for such period as is reasonable in the particular circumstances".
It is in no way evident from the applicant's arguments whether he now maintains that his request to the Department encompassed, quite simply, all records held by Dublin Bus, or records held by Dublin Bus of relevance to part 11 of the request, or records held by Dublin Bus of relevance to some other, or all, aspects of the request. This alone would contravene section 7(1)(b) of the FOI Act, which provides that anyone "who wishes to exercise the right of access shall make a request ... containing sufficient particulars in relation to the information concerned to enable the record to be identified by the taking of reasonable steps". If "sufficient particulars" are not contained in the request, i.e. to enable the ready identification of the relevant records at the outset, section 10(1)(b) of the FOI Act enables a public body to refuse the request concerned. Such refusal is, however, subject to section 10(2).
However, I accept that the Department had no reason to consider that the request sought records held by Dublin Bus, and thus had no reason to consider engaging with the applicant, further to section 10(2), to determine exactly what such records were requested by him. Having considered the applicant's request - one of the broadest requests that my Office has encountered - I do not accept that it can be taken as seeking records held by Dublin Bus.
At no stage in his 34-point request does the applicant specify that he wishes to obtain any records held by Dublin Bus. Indeed, the applicant's email to this Office of June 2014 appears to acknowledges this lack of specificity by "now [emphasis added]... explicitly stat[ing] that [he makes his] request having reference to section 6(9). " Even if it was the case that the request truly, but very subtly, had intended to seek records held by Dublin Bus, the complete lack of comment in the Department's original and internal review decisions on this issue made it clear that the Department did not interpret his request accordingly. Yet the applicant did not comment on this in his internal review application or in his application to this Office. Neither did he comment on the complete lack of consideration given by this Office to this issue, at any stage between acceptance of his review in 2009 and June 2014, or otherwise claim that his request had as broad a focus as now "explicitly" claimed.
The fact that my review is de novo does not enable me to make any finding on records that were not sought by a requester in the first place. Thus, I do not intend to consider the applicant's arguments regarding the application of section 6(9) in the case at hand. In any event, even if I accepted that the Department should have interpreted the request as having an even wider focus than, on the face of it, it appeared to have, it would not be appropriate for me to make a finding on any issue that has not been considered by the Department. The applicant would presumably argue that I should, in line with section 34(12)(b), deem the Department to have failed to justify its refusal of such records accordingly and direct the release thereof. However, I would not consider it appropriate to make any finding on the application of FOI to records held by a third party such as Dublin Bus, much less direct release thereof, without giving that affected third party a right to comment. In short, therefore, even if I accepted that the Department should have interpreted the request as seeking records held by Dublin Bus, I would merely annul the Department's effective refusal of such records, and require it to conduct a fresh decision making process in respect of that aspect of the applicant's request. The first step in that process would be for the Department to engage with the applicant, further to section 10(2), to clarify the nature of records sought by him.
Although not part of my findings, I would add that any consideration of section 6(9) in the case at hand, having regard to the status of the alleged contractual relationship between the Department and Dublin Bus, would have to examine whether Dublin Bus is an organisation encompassed by subsection (5) of the First Schedule to the FOI Act, such that section 6(11)(b) of the FOI Act is relevant. Section 6(11)(b) provides that a "person" for the purposes of section 6(9) does not include certain types of body, organisation or group (as generally described in subsection (5) of the First Schedule to the FOI Act) that "does not stand prescribed for the time being for the purposes of that subparagraph." Bearing in mind that I am conducting this review under the Freedom of Information Acts 1997 & 2003, it is relevant that the Minister had not prescribed Dublin Bus as a public body for the purposes of those Acts. I also note that the Freedom of Information Act 2014 lists Dublin Bus amongst the "exempt agencies".
I would also add, though again not as part of my findings, that the relationship between the NTA and Dublin Bus would have no relevance to the nature of said relationship between the Department and Dublin Bus. Furthermore, it is not necessarily as clear-cut, as the applicant suggests, that all documentation in relation to Dublin Bus is at present "open under FOI" via the NTA, having regard to the Public Service Contracts now in place between the NTA and Dublin Bus.
The Records Considered Relevant to Part 11
Further to Memorandums of Understanding (MoUs) signed between Dublin Bus and the Department in each of the relevant years, Dublin Bus undertook to meet targets for service quantity and quality in return for public monies in the form of Public Service Obligation payments.
The records at issue contain details of "Efficiency Performance Indicators"/"Revenue Performance Indicators"/"Cost Performance Indicators", that were provided by Dublin Bus to the Department. They contain relevant details for each quarter of the years from 2003 to 2007, and for the first quarter of 2008 (the only such record concerning 2008 that the Department held at the time of the applicant's request). The MoUs themselves are not amongst the records considered by the Department as relevant to this aspect of the request, and therefore my decision makes no finding on such records.
I will deal, at the outset, with certain general arguments made by the applicant regarding the commercial sensitivity of these records today. He appears to maintain that information currently published by the NTA includes details such as those in the records at issue, in which event the age of the records at issue means that they can no longer be in any way sensitive. In this regard, I note that the NTA site states that it "has entered into a Public Service Obligation Contract with Dublin Bus for the provision of bus passenger services in Dublin. We review Dublin Bus' performance in this regard, and publish quarterly performance reports ... ".
However, I am satisfied that the NTA does not publish records of the sort requested by the applicant. While the NTA publishes the contracts it has signed with Dublin Bus (with which, according to the Department, the NTA replaced the MoUs when it took over responsibility for this area in 2009), and certain aspects of the latter's quarterly performance reports, it does not publish Schedule C of those quarterly reports. Schedule C requires Dublin Bus to provide the NTA with largely the same information as is contained in the records at issue. I have no basis, therefore, to consider that the records at issue are of a class that are now publicly available.
The Department and Dublin Bus maintain that release of the records at issue would breach a duty of confidence, arising from an agreement, which is owed to Dublin Bus by the Department, and that they are exempt under section 26(1)(b) of the FOI Act. In considering this argument, however, I must also take account of section 26(2), which provides that subsection (1) of the FOI Act shall not apply to a record which is prepared by a head, directors or staff members of a public body, or "a person who is providing a service for a public body under a contract for services" in the course of the performance of his or her functions "unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than a public body, or a head, director, or member of staff of a public body, or someone who is providing or provided a service for a public body under a contract for services. "
As already stated, I do not consider the fact that there is now a contract in place between the NTA and Dublin Bus to, of itself, mean that there was previously a contract between the Department and Dublin Bus. With regard to the MoUs, I note that the introduction states that they are "of no legal effect and [are] not binding" on the parties, who "do not intend any part of [the MoUs] to have any contractual status of any kind." It seems to me, thus, that I have no basis to find that the arrangement between the Department and Dublin Bus was enforceable as a contract (explicit or implied) in the first place, much less to consider whether any such contract was a contract for service.
While subvention payments are paid by the Department to Dublin Bus, historically Dublin Bus, not the Department or the Minister, has been responsible for the provision of bus services. It is my understanding that Dublin Bus was established in 1986 (along with Iarnród Éireann and Bus Éireann, further to the reorganisation of Córas Iompair Éireann, which had itself been established in 1945) to provide a passenger service for the city and county of Dublin and contiguous areas. In so doing, it is obliged to exercise functions in that behalf which were conferred on Córas Iompair Éireann. Accordingly, even if the MoU were to be construed as a contract, I do not consider such an arrangement to be a contract for service. The arrangement differs considerably from a situation where a public body enters into a contract for service with a third party that performs a particular service on behalf of the body.
Accordingly, I have no reason to consider Dublin Bus to have been "providing or provided a service for a public body under a contract for services". As a result, I consider that it is possible for the Department to owe Dublin Bus a duty of confidence in relation to the details at issue.
I note that, under the specific heading of "Confidentiality", the MoUs state that the information to be so provided is "considered to be commercially sensitive" and that it is "being provided by Bus Átha Cliath on a confidential basis, for the purpose of this Memorandum". It is clear that the Department and Dublin Bus have agreed that the information in the records at issue was given only for a specific, limited, purpose, and not for publication to the world at large, which is what the Courts consider to be the equivalent result of the release of material under FOI. I also understand that the annual accounts published by Dublin Bus do not contain the level of detail that is contained in the records at issue.
I consider that it is of some importance to make reference here to the unique relationship between the Department and Dublin Bus and its predecessors in the public transport sector including the history of the dependence between the parties and the subventions paid. I note that previous decisions of this Office have commented on what might be perceived as attempts by public bodies to use confidentiality clauses as a mechanism to put certain records outside of FOI especially in relation to tendering processes (see, for example, The Sunday Times and Dublin City Council - Case Number 080232 on www.oic.ie). In the circumstances of this particular case and in the context of the Department's role at the time in relation to Dublin Bus, I am prepared to accept that the MoUs were not being employed by the Department to circumvent its obligations under the FOI Act
I consider the MoUs, in the circumstances of this case, to be agreements that are encompassed by section 26(1)(b) of the FOI Act. Accordingly, it seems to me that to direct the Department to release the records at issue would result in a breach of a duty of confidence that arises further to its agreement with Dublin Bus. I find therefore that the records of relevance to this aspect of the request are exempt under section 26(1)(b) of the FOI Act.
I refer above to the fact that previous decisions by my predecessors have questioned the capacity of public bodies to enter into confidentiality agreements. However, apart from such agreements, it may well be the case that they owe duties of confidence that arise otherwise by law (i.e. equitable duties of confidence). In considering whether or not an equitable duty of confidence exists, this Office has regard to the three elements of what are generally known as the Coco tests (Coco v. A. N. Clark (Engineers) Ltd. [1969] R.P.C. 41):
"First, the information itself ... must 'have the necessary quality of confidence about it'. Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it."
The applicability of these tests, at least in a commercial setting, have been confirmed by Mr. Justice Fennelly in the case of Mahon v. Post Publications [2007] IESC 15. In this regard, Fennelly J. restated the requirements of the equitable doctrine of confidence as follows: "The information must in fact be confidential or secret ... ; [i]t must have been communicated by the possessor of the information in circumstances which impose an obligation of confidence or trust on the person receiving it; and [i]t must be wrongfully communicated by the person receiving it or by another person who is aware of the obligation of confidence.".
As set out earlier in this decision, I note that, under the specific heading of "Confidentiality", the MoUs state that the information to be so provided is "considered to be commercially sensitive" and that it is "being provided by Bus Átha Cliath on a confidential basis, for the purpose of this Memorandum". It is clear that the Department and Dublin Bus have agreed that the information in the records at issue was given only for a specific, limited, purpose, and not for publication to the world at large, which is what the Courts consider to be the equivalent result of the release of material under FOI. I also understand that the annual accounts published by Dublin Bus do not contain the level of detail that is contained in the records at issue.
It seems to me, thus, that the details in the records are confidential or secret and thus have the necessary quality of confidence and that they were communicated by Dublin Bus to the Department in circumstances which impose an obligation of confidence or trust on the Department.
I understand also that "detriment" can arise simply where the relevant information is disclosed without the consent of the party to whom the information relates. Given that Dublin Bus objects to the release of the details at issue, it seems to me that the Department's release thereof under FOI would "wrongfully communicate" the details concerned.
Having regard to the above, it seems to me that to direct the Department to release the records at issue would result in a breach of a duty of confidence that arises otherwise by law in the circumstances of this case. I find therefore that the records of relevance to this aspect of the request are exempt under section 26(1)(b) of the FOI Act.
The applicant considers that the details should nonetheless be released in the public interest, having regard to the scale of public funding made available to Dublin Bus over the years. However, the FOI Act does not explicitly provide for the consideration of the public interest in respect of a record to which section 26(1)(b) applies. Instead, I have had regard to the fact that the Courts have, in limited circumstances, considered the disclosure of details subject to a duty of confidence to have been authorised, or excused, on the basis of the public interest defence. The public interest grounds on which the Courts have found a breach of a duty of confidence to be authorised, or excused, are narrow, and include the exposure or avoidance of wrongdoing or danger to the public, and ensuring the maintenance of the principles of justice. I do not consider these grounds to have any relevance to the records at issue. I thus find that I have no basis to consider that any breach of the duty of confidence, arising from the duty of confidence that arises in this case "otherwise by law" in respect of the details in the records at issue, would be authorised or excused in this case.
The Department's decision appears to have considered 107 records as relevant to this aspect of the request, as set out in a 13-page schedule to the decision issued to the applicant. Some of these records were released to the applicant, whilst others were withheld in full or in part.
Copies of the records had not been provided to my Office when the application for review was accepted. Furthermore, while the previous Investigator to whom this review had been assigned examined the records in the Department in August 2011, prior to forming views thereon as set out in his letter to the applicant of 22 November 2011, he did not obtain copies of the records at that time. Upon reassignment of the case to her in October 2013, Ms Lyons asked the Department to justify its refusal of those details that had been previously withheld from the applicant, given the passage of time, and to provide her with copies of any records that it thus considered should be withheld.
The Department told this Office, in November 2013, that it was unable to locate the records at issue. It says it contacted the original decision maker, whom I understand no longer works in the Department, but he was unable to help identify where the records might be. The Department says that it searched relevant hard copy and electronic files that are held in the Divisions that have taken over the original decision maker's work, in the FOI unit, and in the Buildings and Services unit, and also searched its storage area in Finglas, but was unable to locate the 107 records originally considered in its decision of 30 October 2008.
The applicant, understandably, expresses "surprise" at this development. He raises various questions in this regard, none of which are relevant to a review conducted under section 34 of the FOI Act. My review in this instance is confined to whether or not the Department has justified its refusal of the records it initially considered relevant to the request. Although it is not at all satisfactory that records have been mislaid, regardless of the changes in Departmental structure and personnel in the six years since the original decision on this aspect of the request was made, I am nonetheless satisfied that the Department has taken reasonable steps to locate the records it initially considered for release. I do not expect it to search indefinitely for the records concerned and I therefore find that section 10(1)(a) applies to such records. I have set out the wording of section 10(1)(a) earlier in this letter (see the subheading "Parts 1, 2, 5, 14 and 18").
The Department has, however, located 30 records of relevance to this aspect of the request on a previously used "public transport directory" on its computer system. It is not able to say if some or all of these records were included in the records the subject of the original decision. As per its email to this Office of 7 April 2014 (and subsequent related emails), it is willing to release all of the records concerned except records 5, 7 (in part), and 24 (in part), which it considers to contain commercially sensitive information given to the Department in confidence, and elements of records 6, 10, 12, 13, 16, and 22 which it considers to fall outside the scope of the request.
Having had regard to the relevant redacted details, I am satisfied that the elements of records 6, 10, 12, 13, 16, and 22 that have been withheld do not fall within the scope of this request, in that they pertain to other, separate, projects undertaken by Dublin Bus not referred to in part 27 of the applicant's request.
In a related application for review submitted by the applicant (case number 110055 refers), he argued, by way of emails dated 3 and 6 October 2014, that he sought records rather than "information or elements of records". In this regard, he referred me to section 6(1), which provides for the general right of every person to "be offered access to any record held by a public body". He maintains that as certain records have been identified as those to which he seeks access, he has a right of access to them in whole unless they contain exempt material. He maintains that the context provided by the records as a whole will assist the requester in understanding the relevant parts of the record. He maintains that the Oireachtas did not provide for a record to be released in part subject to the redaction of material irrelevant to the request and that doing otherwise increases the discretion to be offered to decision makers in deciding what information to release.
While section 6 provides that every person has a right to request access "to any record held by a public body", it is also the case that the Long Title to the Act describes the act as enabling the public "to obtain access, to the greatest extent possible consistent with the public interest and the right to privacy, to information (emphasis added) in the possession of public bodies". In order to provide access to such "information", the Act then goes on to describe how it, "accordingly, ... provide[s] for a right of access to records held by such bodies." Section 7 requires those seeking records to provide sufficient particulars "in relation to the information concerned to enable the record [containing such information] to be identified by the taking of reasonable steps". Furthermore, section 2 of the Act defines a record as including, inter alia,"anything that is a part" of a record.
Having regard to the above, it seems to me that the Oireachtas intended that the public would be able to request specified, particular, information, as contained in any record held by a public body. To grant access to the requested information, the Oireachtas clearly considered it appropriate for the body to release any such excerpts of a record that contain the information concerned. The Act (and the Oireachtas) further provided that release of those excerpts, i.e. the requested information, amounts to release of the requested "record". Otherwise, to consider for release information that has not been looked for, simply because it happens to be included in the same record as other, requested, information, would have potential to broaden the scope of a request considerably beyond that originally submitted. This would seem to me not to be in keeping with the requirements, placed by section 7 of the Act on all persons seeking information, that they specify what information they are seeking.
Accordingly, I consider it appropriate for a public body not to release information under FOI where that information has not been looked for in a particular FOI request. Neither it is appropriate for me to consider for release, or direct the release of such information. Having regard to the foregoing, I do not intend to consider, or direct the release of, the details that have to date been withheld from records 6, 10, 12, 13, 16, and 22.
Record 5 is a note of a meeting held in 2004, between the Department and a private company that seems to have been trying to promote a Real Time Passenger Information (RTPI) system that it had developed. I understand that there was no further contact between the Department and the company, and therefore the company did not receive any public monies. I consider the details of this meeting to be subject to an equitable duty of confidence owed by the Department to the private company. The meeting discussed aspects of that company's affairs that I accept would not otherwise be in the public domain, the release of which I accept would be detrimental to that company even today. I have no basis whatsoever to find that release of those details, and breach of the duty of confidence concerned, would be permissible on the basis of the public interest defence.
Record 7 pertains to the introduction by Bus Eireann of an Automatic Vehicle Location and Communication (AVLC) system. While it contains a very general reference to the testing of this system in the Dublin area, it is not apparent to me that this record relates to the establishment of a real time passenger information system in the Dublin area, given that Bus Éireann serves parts of the country other than Dublin. Accordingly, I do not consider this record to be covered by the scope of the request, and I intend thus to make no finding on whether or not the remaining excerpts of the record should be released to the applicant.
Record 24 is a submission from Dublin Bus to its Board, seeking approval in 2007 for capital expenditure on AVLC and RTPI systems. The Department, having consulted with Dublin Bus, is willing to partially release the record except details pertaining to those who unsuccessfully tendered to Dublin Bus for the development of an AVLC system. It also considers it should withhold breakdowns of the total costs of the successful tenders (however, the Department, further to consultations with Dublin Bus, is agreeable to release of the total costs concerned).
It is reasonable to accept that the unsuccessful tenderers' competitors could calculate broadly accurate current equivalents of the financial details in the tenders concerned, which could be used to the detriment of those tenderers today. I accept, and find, that such information is exempt under section 27(1)(b), and that the public interest in openness and accountability would not require the release of commercially sensitive information about third parties that did not benefit, directly or indirectly, from public monies.
Similarly, turning to the breakdown of the total costs of the successful tenderer, I consider it reasonable that the tenderer's competitors could also calculate current equivalents from these details, which could be used to the detriment of the tenderer concerned. Thus, I accept, and find, that the details are exempt under section 27(1)(b) of the FOI Act. It could be argued that the public interest weighs in favour of release of these particular details, however, given that the tenderer concerned ultimately benefitted from tax payer monies. I accept that, in favour of release, are the public interests in ensuring the Department's openness and accountability, and in ensuring the applicant's right to seek information under FOI, which public interests have been served to a certain extent by the release of the tenderer's total costs. While they will be further served by release of the withheld breakdowns of costs, I do not consider that they would be further served to such an extent that release of those details, and the resultant likely impact on the successful tenderer, is justifiable. I find accordingly.
The Department states that there has been no investigation by the Departments of Finance or the Taoiseach, or any EU investigation except that discussed below, into public transport services in Ireland from 2000 to the date of the applicant's request. I understand that senior officials who worked in the Public Transport area during the relevant period do not recall any such investigations, nor can any files relating to such investigations be located. I find thus, that section 10(1)(a) of the FOI Act applies to the pertinent elements of the request, on the basis that the requested records do not exist.
As noted earlier in this decision, a complaint concerning public transport services was made to the European Commission in December 2005. The Commission notified Ireland of its decision to initiate a formal investigation into the complaint concerned in July 2007. In September 2007, the Commission published the text of its July 2007 decision, which I understand to have been for the purpose of canvassing comments from interested parties, and thus, an essential part of the Commission's investigation process. I understand that the Commission has not published any further material concerning the investigation.
The Department had previously withheld all 98 records it considered relevant to this aspect of the request. The records on the original schedule were not numbered, but the Department has since supplied this Office with a schedule that numbers the relevant records. The records considered by the Department in its original decision making process (as described on the original schedule), and which I have considered in light of various correspondence between this Office and the Department and the Commission, have been numbered by the Department as follows:
Legal Advice/Attorney General Communications
The following records comprise requests by the Department of the Attorney General for legal advice, or are part of a continuum of correspondence arising from an original request for legal advice, and, thus, which I find to be exempt under section 22(1)(a):
The following records comprise correspondence from the Attorney General or his or her Office, which I find thus to be outside the scope of the FOI Act, further to section 46(1)(b):
Certain other records (File 02.06a Vol 1: records 44 and 77; File 02.06a Vol 2: records 6 and 11) comprise legal advice given to CIE and Bus Éireann (the Bus Companies) by their solicitors, over which the Bus Companies would ordinarily be entitled to claim legal professional privilege. However, further to the EU Commission investigation, the Bus Companies forwarded the legal advice concerned to the Office of the Attorney General (in its capacity as the legal advisor to the Department/State) which was, ultimately, further circulated to a limited number of staff within the Department. Disclosure of a record to a third party generally amounts to a waiver of privilege, except where there is "limited disclosure for a particular purpose, or to parties with a common interest", as per the Supreme Court judgment of 4 March 2009 in the case of Redfern Limited v O'Mahony [2009] IESC 18.
The Bus Companies' disclosure to the Department of the legal advice they received was limited in nature, and for the common interest of preparing the State's best possible response(s) to queries raised by the Commission in its investigation, which, as noted below, I accept is conducted confidentially. Thus, I do not consider the Bus Companies to have waived privilege over the records having regard to the context, and limited nature, of that disclosure to the Office of the Attorney General and to certain staff within the Department. I consider section 22(1)(a) to apply to records 44 and 77 on File 02.06a Vol 1 and to records 6 and 11 on File 02.06a Vol 2 and I find accordingly.
Communications concerning the Commission investigation
Section 24(1)(c) is a discretionary exemption, which does not require consideration of the public interest, and provides for the refusal of a record that, in the opinion of the head of the body, could be reasonably expected to affect adversely the international relations of the State. Section 24(2)(e) is a mandatory exemption that, again, does not require consideration of the public interest, and is applicable to a record that "contains information communicated in confidence from, to or within ... an institution or body of the European Union ... ".
The following records comprise communications between the Department, on behalf of the State, and the Commission, in relation to the latter's investigation.
The Department, and the Commission (which was consulted by this Office in January - February 2014) argue that the communications were confidential. In this case, the Commission published certain material in 2007 for the purpose of canvassing comments from interested parties, which I understand to be an essential part of its investigation process. I understand that the Commission has published no further details of the investigation since. Furthermore, while according to the Europa website the Commission issued its decision on the complaint on 15 October 2014, it will not make that decision public until "it has been cleansed of any confidential information".
Regardless of whether the Commission has published a "cleansed" decision or made a decision on the complaint, in considering section 24(2)(e) the fundamental question is whether or not the relevant information in the records at issue was communicated in confidence. When consulted, the Commission maintained that public disclosure of the details of communications, beyond what it must necessarily publish to enable completion of its investigation, would impact on its ability to communicate freely with Member States, and vice versa. It contends that this would impede its ability to investigate, and decide on, complaints. Thus, having considered their content and the circumstances of their creation, I accept that the above communications between the Department and the Commission concerning the latter's investigation were "in confidence" and that section 24(2)(e) applies to the relevant records. I find accordingly.
The remaining records comprise drafts of, or preparatory documents concerning the records that were ultimately communicated in confidence to the Commission, and include communications between the Department and the Bus Companies:
I accept that such draft/preparatory records include the information contained in those records communicated to the Commission. Accordingly, I consider section 24(2)(e) to apply to such information, and I find accordingly. I also consider section 24(1)(c) to apply to such records. Although, in light of the recent Commission decision, release of the records would be unlikely to impact on the Commission's ability to conduct this particular investigation, it remains that the Commission has expressed concerns over the impact of release of such records on its ability to communicate with Member States generally, and, in turn, on its ability to conduct investigations generally. Therefore, I accept that release of the information in the records at issue could reasonably be expected to impact on the Commission's ability to conduct its investigations in other cases. I consider it reasonable to accept that such an outcome could reasonably be expected to affect adversely Ireland's relationship with the Commission, and thus the State's international relations, and that section 24(1)(c) applies to the records at issue. I find accordingly. In making these findings, and in the circumstances of this particular case, I do not consider it practicable or appropriate to compare the draft/preparatory records with those records that were finally communicated to the Commission, with a view to isolating any information that might not have been included in final communications to the Commission.
Furthermore, in my opinion, the content of those other records relevant to part 29, to which I have earlier found section 22(1)(a) and section 46(1)(b) to apply, would, in all likelihood, also qualify for exemption under sections 24(2)(e) or 24(1)(c) of the FOI Act.
Of the records that the Department considered should be withheld under sections 24(1)(c) and/or 24(2)(e), I do not consider records 1 and 21 on File 02.06a Vol 2 to be so exempt, given the general subject matter thereof. Also, having regard to the subject matter of those records, and the Commission's submissions to this Office, I do not consider that they are the kind of records the release of which is likely to concern the Commission. The copy of record 1 on Volume 2 as provided to this Office originally comprised a press release. As this Office's letter to the applicant of June 2014 said, such a record would be outside scope of the FOI Act by virtue of section 46(2), which provides that the Act does not apply to (a) a record that is available for inspection by members of the public whether upon payment or free of charge or (b) a record a copy of which is available for purchase or removal free of charge by members of the public. However, the Department has since confirmed that it supplied an incorrect document to this Office, and that it should have supplied copies of an email and letter from the EU, as was described on the original schedule of records. The Department provided this Office with a copy of the correct record the contents of which, as noted above, I do not consider to be of a nature that is, or may be, exempt under any provision of section 24. In order to preserve the Department's right of appeal, I am bound by section 43(3) not to describe its contents further.
As the applicant is aware, during the course of the review, the Department said it was willing to release records of a general or administrative nature, or records containing information that had already been published by the Commission. I am satisfied that the following records are of such a nature (which I am also satisfied are not of a type over the release of which the Commission is likely to have concerns) and may be released accordingly:
The Department initially considered 125 records to be relevant to this part of the request. As at November 2011, 40 of those records had been released in full, 55 had been released in part, and the remaining 30 records had been refused in full.
Further to my Office's request in late 2013 to review the relevant withheld records afresh, the Department decided that 319 records were relevant to this aspect of the request. At this stage, it has released 298 of these records, partially released two (records 14 and 150) and fully withheld 19 (records 3, 5, 11, 12, 24, 25, 90, 111, 122, 148, 200, 214, 215, 216, 249, 252, 260, 283 and 284).
Of these fully withheld records, the Department explained that a mistake in numbering the relevant records means that there is, in fact, no record 111, which I have no reason to dispute. I am satisfied that record 3, created in 2006, is outside the scope of a request for records created "since" that year. (Although in correspondence with the parties Ms Lyons referred, in error, to the record having been created in 2005, I do not consider this to have any bearing on this finding of fact on my part.) Records 249, 252, 260, 283 and 284 concern the processing of the applicant's FOI request and thus both post date the request and fall outside its scope. I am satisfied also that the subject matter of records 5 and 200 is not encompassed by the request, in that neither pertain to the removal of the Diesel rebate scheme for public transport. I find accordingly.
I also consider that the mobile phone number withheld from record 150 (the only detail I understand to have been withheld from that record) comprises the personal information of the person concerned, with the public interest in ensuring the Department's openness and accountability not being sufficiently strong to require the breach of that person's Constitutional right to privacy (sections 28(1) and 28(5)(b) of the FOI Act refer). I find accordingly.
I have already set out the provisions of sections 19(1)(a) and 19(6) under the subheading "Part 8", while the provisions of section 46(1)(b) of the FOI Act are set out under the subheading "Part 7". Section 19(1)(c) provides for the mandatory refusal of a request where the record at issue contains information (including advice) for a member of the Government, the Attorney General, a Minister of State, the Secretary to the Government or the Assistant Secretary to the Government for use by him or her primarily for the purpose of the transaction of any business of the government at a meeting of the Government. It does not require consideration of the public interest, but is subject to section 19(3).
Records 11, 12, 14 (remainder), 24, 25, 90, 122, and 214 are Memorandums for Government, or draft Memorandums. These (where appropriate, having regard to section 19(6)) are exempt from release under the mandatory section 19(1)(a). Records 215 and 216 comprise briefing notes for the Minister, which are exempt from release under the mandatory section 19(1)(c). It is the Department's position that the Government decision to which these various records relate was not published and thus that no factual information falls to be released under section 19(3)(a). I see no basis to dispute its position and I find accordingly.
Record 148 contains advice given by the Office of the Attorney General, further to a request from the Department for legal advice. I find this record, accordingly, to be outside the scope of the FOI Act by virtue of section 46(1)(b).
I would also comment that, if record 3 were under the scope of my review, it would in all likelihood be exempt from release under section 19(1)(c).
Section 10(1)(a) of the FOI Act
The Department continues to rely on section 10(1)(a) in respect of parts 12, 13, 15, 17, 19, 21, 22, 23, 24 and 25 of the request.
Ms Lyons' letter to the applicant of 4 June 2014 explained that while Dublin Bus is required to provide certain information to the Department further to the MoUs, the Department's position is that detailed sensitive information as to the performance of individual routes would neither have been sought from Dublin Bus nor provided by it. The Department supported its position by providing copies of replies to Parliamentary Questions (PQs) that had sought detailed information from the Minister for Transport regarding Dublin Bus' revenues, efficiencies and potential cutbacks. The replies say that the details sought are day to day operational matters for Dublin Bus, and in one case, asks Dublin Bus to provide the relevant details directly to the Minister who asked the PQ.
I consider it reasonable to accept that details of the financial performance and profitability of individual routes, whether operated by Dublin Bus or CIE, also concern operational matters (particularly as the profitability or otherwise of a route itself derives from revenues, efficiencies and so on). I see no reason to dispute the Department's contention that it does not hold records containing such details.
Ms Lyons' letter of 4 June 2014 also described to the applicant the searches that the Department had said it had conducted for records of relevance to these aspects of the request, in the unlikely event that such details had been provided. The Department said it had searched files concerning the MoUs, funding, state aid, statistical information, consultancy files and corporate governance/corporate affairs and that no relevant records were found. I consider such searches to have been reasonable, under the circumstances.
It is the Department's position that it does not hold any copies of minutes of Dublin Bus or CIE board meetings, and that it has not located any files that might contain such records.
The Department says that the previous Minister, Mr Varadkar, decided to seek summary reports of the Board meetings of Agencies and companies under his remit. The Department supplied copies of his requests to CIE and Dublin Bus, dating from July 2013 and December 2012, which explicitly state that the reports he is seeking do "not need to be a full account of the meeting". Therefore, even since 2012/2013, I would have no reason to expect the Department to hold full minutes of any Dublin Bus or CIE Board meetings.
As I understand also that no previous Minister had requested summary reports of Dublin Bus or CIE board meetings, I have no reason to consider that such reports would have been held by the Department as at the date of the applicant's request. For the sake of completeness, any summary reports received from Dublin Bus or CIE, on foot of Minister Varadkar's letters from 2012/2013, are not encompassed by the applicant's request, which sought records from 2005 to the date of the request in 2008.
The Department says that it was never its practice "to either put departmental nominees on the Boards or to seek copies of the records of discussions of Board meetings", given that they are commercial state companies. Under such circumstances, I accept the Department's contention that it is unlikely to receive or hold records concerning the corporate governance of the two specified companies and that it does not hold relevant records.
The Department maintains that any files it held in relation to these aspects of the request were sent to the NTA in 2010. I have no reason to dispute this.
I understand that the Department searched electronic lists of files that have been moved to storage in Finglas, in case relevant records had inadvertently been retained by the Department. Accordingly, it found (and is willing to release) a file containing nine records of relevance to part 19, which appeared to the Department to have been "the first time this file was viewed in a long time". I consider this to be a reasonable search for records relevant to part 19, particularly as such records would be likely to be more difficult to locate than those in regular or current usage.
No files were found in respect of part 17. In the event that the Department might still hold relevant records, it seems to me that they too are unlikely to be in regular or current usage. In such circumstances, I consider them most likely to be held in the Finglas storage facility, and that the Department's examination of the electronic list of files in that facility was a reasonable search for such records.
Accordingly, in the circumstances of this case, I do not consider it reasonable to expect the Department to continue to search for any further records it might hold that are relevant to parts 17 or 19 of the request, whether electronic searches, or physical searches of the files in the storage facility or elsewhere.
The Department has, as already noted, provided the applicant with certain information relevant to these aspects of the request, such as how the names of divisions and structures are arrived at; how staff were recruited and Assistant Secretaries appointed. However, the FOI Act is concerned with records. It is the Department's position that it holds no records of relevance to these aspects of the request, having regard to searches conducted for any relevant records that may exist within the Department's Human Resource function. I consider such searches to comprise reasonable steps to look for any relevant records that might exist.
The Department maintains its position that it holds no records of relevance to these of the request.
It provided this Office with a print out of consultants engaged by it from 1997-2012. Having examined the relevant excerpt of the printout (2005 to 29 September 2008), I am satisfied that the only external report referred to therein of relevance to these parts of the request is the published Deloitte and Touche Cost and Efficiency Review of Dublin Bus and Bus Eireann. I find these to be outside the scope of the FOI Act, having regard to section 46(2).
The Department also provided this Office with details of files it says were examined for relevant records, which include files concerning consultants engaged by it, and says that no further relevant records were found. I consider the above to comprise reasonable searches for any such records that might exist.
There are a number of aspects to the request at issue that have resulted in the production of very few records, or no records at all.
As set out above, I consider the Department to have made a reasonable case, where appropriate, as to why it would not expect to hold the requested records and therefore why such records can be said not to exist within the Department for the purposes of FOI. I also consider the Department, as set out above, to have taken reasonable steps to look for any relevant records that it might hold. In the latter regard, I consider it reasonable to take account of the cumulative searches, conducted by various personnel in the Department since the applicant made his request, for records of relevance to all elements of this 34 part, broad-ranging, request.
In summary, I consider the Department to have justified its refusal of any records (or further records, where appropriate) relevant to parts 12, 13, 15, 17, 19, 21, 22, 23, 24 and 25 of the applicant's request, and that it is justified in relying on section 10(1)(a) of the FOI Act. I find accordingly.
Having carried out a review under section 34(2) of the FOI Act, I hereby vary the Department's decision. I direct that the Department release the small number of records the refusal of which I do not consider it to have justified, as set out in my findings above on those aspects of the applicant's request that are under the scope of my review. I find that the hard copy (paper) records of relevance to parts 1, 2, 5, 14 and 18 of the request are no longer held by the Department and I am unable to consider such records or otherwise direct their release. However, I annul the Department's effective refusal of electronic records of potential relevance to those elements of the request, and I direct the Department to consider such records afresh, in accordance with section 8 of the FOI Act. I uphold the Department's refusal of the remaining records.
I would also ask the Department to provide to the applicant, without delay, any records that it agreed to release in the course of this review (whether in full or in part), if it has not done so already.
A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.
Peter Tyndall
Information Commissioner