Decision
Right to Know CLG and Office of Public Works
From Office of the Information Commissioner (OIC)
Case number: OIC-93056-K5Z4J3
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-93056-K5Z4J3
Published on
Whether OPW was justified in refusing access to records relating to expenditure on security at the homes of Oireachtas Members from 2014 to May 2020 on the basis of the FOI Act
27 January 2021
In a request dated 12 May 2020, the applicant sought access to details of OPW’s expenditure in relation to providing security at the homes of members of the Oireachtas from 1 January 2014 to date. He indicated that he was seeking anonymised data, without names or locations.
In a decision dated 2 June 2020, OPW refused the applicant’s request. It cited section 32(1)(a)(ix) of the FOI Act, which relates to law enforcement and public safety, although it did not explain how it applied to the records sought. On 5 June 2020, the applicant requested an internal review of OPW’s decision. OPW’s internal reviewer affirmed the decision, again citing section 32(1)(a)(ix) without any explanation. On 25 June 2020, the applicant applied to this Office for a review of OPW’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 correspondence with this Office and to the submissions made by OPW in support of its decision. I have decided to conclude this review by way of a formal, binding decision.
The scope of this review is solely concerned with whether OPW was justified in refusing access to the records sought on the basis of the FOI Act.
As noted above, OPW’s original and internal review decisions did not go beyond a reference to Section 32(1)(a)(ix) of the FOI Act. OPW's decision-making in this case fell short of what the FOI Act requires. It did not provide the applicant with a proper statement of reasons in either its original or internal review decision. I would remind FOI bodies of their obligation under section 13 of the FOI Act to provide reasoned decisions, including on the public interest balancing test, where that arises. I encourage decision-makers to use the FOI resources available to assist them in their decision-making process. This includes guidance and templates published by the Department’s own Central Policy Unit and guidance notes by this Office, which are available on www.oic.ie.
The OPW refused to grant access to the information sought on the basis of section 32(1)(a)(ix), and later sections 42(f) and 42(h) of the FOI Act. However, in the course of the investigation, an issue arose as to whether the OPW actually holds discrete records containing the information sought by the applicant. Accordingly, I will consider the applicability of section 15(1)(a) to the information at issue in the first instance.
It is important to note that while the purpose of the FOI Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from a public body must make a request for records that contain the information sought. Requests for information, as opposed to requests for records, are not valid requests under the FOI Act, except to the extent that a request for information can reasonably be inferred to be a request for a record containing the information sought.
In this case, the applicant sought access to “details of the amount of money spent by the OPW on providing security at the homes of members of the Oireachtas”.
In correspondence with this Office, OPW stated that no record schedule had been prepared and that a “total lump sum” for each of the years 2014-2020 “was made available to the Decision Maker”. It also indicated that the lump sum figures included the cost of security at various locations such as the homes of Judges, CAB officials and current and former presidents. It was of the view that sections 42(f) and 42(h) applied, on the basis that it was not possible to extract the expenditure solely relating to Oireachtas Members from the lump sum figures.
This Office’s Investigator contacted OPW on foot of its comments above and asked for details of hard copy and electronic records held containing the information sought. OPW stated that it generally received instructions from An Garda Síochana in relation to providing security at the private residence of an office holder and that such correspondence was held on a hardcopy file. It said that it would then engage a contractor to install the security measures required. OPW stated that it was invoiced separately for each installation and that the invoices were input on its accounting system. I understand that while separate project codes were assigned to each installation, the name or address of the individual was not identifiable from the invoices. It also stated that while such expenditure was coded as Private Residence Security on the system, no details of the address or name of the person concerned was recorded electronically. OPW further stated that the contractors in question also provided security for various public officials, not just Oireachtas Members, as well as for vacant buildings managed by OPW. Accordingly, a report setting out the expenditure by contractor by year would not accurately reflect the figures sought.
In essence, OPW said that in order to provide a list of Oireachtas members and security expenses (by year or otherwise), a staff member would be required to do the following:
I am satisfied that the steps as outlined above would require the creation of a new record.
I note that this Office’s Investigator contacted the applicant and provided him with details of OPW’s response as set out above. She also informed him of her view that a record containing the information as sought by him did not exist, insofar as OPW has stated that it does not collate the information sought in the way that he is seeking. She also stated that the FOI Act did not oblige OPW to create such a record. The applicant indicated that he did not agree with her view, and referred to a 2010 OIC case (Case 100065) also concerning OPW, in which records containing details of security expenditure were released. I note that the case in question was closed as settled when OPW released some records to the applicant and a decision of this Office was therefore not issued on that occasion.
This Office’s Investigator contacted OPW and asked it to comment on whether its systems and procedures in this regard had changed or not since 2010. In its response, OPW confirmed that there had been a change in how such matters were recorded on its systems. It stated that the addresses of private residences had previously been recorded electronically using a unique building code. It said that this was no longer the case, in order to limit access to what it viewed as confidential information.
As set out above, an FOI body is not required to create a record in order to grant an FOI request, except where section 17(4) is relevant. Section 17(4)(a) of the FOI Act provides that where an FOI request relates to data contained in more than one record held on an electronic device by the FOI body concerned, “the FOI body shall take reasonable steps to search for and extract the records to which the request relates, being steps that involve the use of any facility for electronic search or extraction that existed on the date of the request and was used by the FOI body in the ordinary course”.
In this case, it is not in contention that OPW holds records that contain much of the information sought, or that the information sought could be extrapolated from the information held, following additional work. This work would involve combining and cross referencing hard copy and electronic records from different sources and systems. However, where information held on a database requires further manual input in order to collate the specific information that has been requested, I would not consider this to be a 'reasonable step' of the sort set out in section 17(4).
My understanding is that OPW does not report on its expenditure on security in terms of individuals or separate categories of public official in the normal course and does not construct its financial reporting in such a way as to calculate these figures. Whether or not it should, is not a matter for this Office to address. I am satisfied that using the reporting function of its systems to run reports on payments for the installation and maintenance of private residence security systems, and manually comparing the results to hardcopy security files in order to create a list of expenditure by Oireachtas Member to be anonymised, is beyond the use of reasonable steps as set out in section 17(4) and would, in fact, require the creation of a new record.
Accordingly, I find that section 15(1)(a) of the FOI Act applies in this case. As such, OPW was justified in refusing to grant access to a record containing all of the information sought by the applicant on the basis that the record as sought does not exist, and that it was not required to create one.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm OPW’s decision. I find that OPW was justified in refusing to grant access to the records sought on the basis that they do not exist and, as such, that section 15(1)(a) of the FOI Act applies. I find that the effort required to collate the information sought would involve the creation of a new record and go beyond the taking of reasonable steps as required by section 17(4) of the FOI Act.
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.
Deirdre McGoldrick
Senior Investigator