Decision
Right to Know CLG and Department of Business, Enterprise and Innovation (FOI Act 2014)
From Office of the Information Commissioner (OIC)
Case number: 180527
Published on
From Office of the Information Commissioner (OIC)
Case number: 180527
Published on
Whether the Department was justified in refusing to grant access to records relating to a trip to Geneva by Minister Pat Breen and Department officials, on the basis that the records related to the President and section 42(h) of the FOI Act applied
17 April 2019
On 30 September 2018, the applicant sought access to copies of "actual receipts, invoices and claim forms" relating to Minister Pat Breen's trip to Geneva for an International Labour Organisation (ILO) event. He also sought access to a copy of the itinerary for the trip, a list of all those who had travelled with the Minister and records relating to their expenses, as well as a table of costs for the trip.
The Department offered to release the information outside FOI and asked if the applicant would be willing to withdraw his FOI request. He agreed to withdraw his request. However, the Department subsequently refused to grant access to the records sought outside of FOI, as "it had become evident... these records related to Minister Breen's and his officials' travel as part of the President's visit to Geneva" and that the records could not be released under section 42(h) of the FOI Act. Following further correspondence, the applicant asked the Department to issue a formal decision on his request, rather than have the Department of Foreign Affairs and Trade (DFAT) answer his queries, as suggested by the Department.
The Department's decision issued on 22 November 2018. It refused the applicant's request on the basis of section 42(h) of the FOI Act. The applicant sought an internal review on 24 November 2018. On 13 December 2018, the Department issued an internal review decision, refusing to grant access to the records on the same basis. It identified five records as relevant to the applicant's request and stated that that section 42(h) applied to the records in full.
The applicant applied to this Office on 17 December 2018 for a review of the Department's decision.
Having completed my review, I have decided to bring this case to a close by way of a formal, binding decision.
In conducting this review, I have had regard to the correspondence between the Department and the applicant as set out above. I have also had regard to the communications between this Office and both the applicant and the Department, as well as to the content of the records at issue.
This review is solely concerned with whether the Department was justified in its decision to refuse to grant access to the records sought on the basis of section 42(h) of the FOI Act.
Records not identified/considered for release
When asked what role DFAT had in the matter, the Department stated that DFAT "became the "lead" Department arranging all logistics and briefing for the Presidential visit from 6-8 June". It is, of course, open to the applicant to request access under FOI to any such records held by another FOI body..
Section 25(3)
It is important to note that although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe some of the contents of the records is limited.
The Department refused to grant access to the records sought on the basis of section 42(h) of the FOI Act. Section 42(h) provides that the FOI Act does not apply to a record relating to the President. There are no exceptions to this exclusion.
The Records
The records identified by the Department and set out in the Schedule provided to the applicant are described as follows:
1. A flight invoice for Minister Breen
2. A flight invoice for the Minister's Private Secretary
3. A print screen of Minister Breen's expenses
4. A print screen of the Private Secretary's expenses
5. The Minister's itinerary for the ILO conference
The flight invoices clearly show the Minister/Private Secretary's name and details of their flights, including dates, times and total price. The screenshots of the expenses claims show a breakdown of the various expenses claimed by both for the trip (including various subsistence rates) and the total amount paid in each case. The final record is the Minister's agenda for the trip, a one page document covering 5-7 June 2018.
During the course of this review, the Department stated that it held actual receipts relating to subsistence expenses, which I note were not mentioned in its original or internal review decision, or in correspondence between the applicant and the Department provided to this Office. Accordingly, it appears that the Department holds records which come within the scope of the applicant's request which have not been considered for release.
It would not be appropriate for this Office to make a first instance decision on records that the Department has not considered, but has effectively refused. Accordingly, I will annul the effective refusal in respect of those records and direct the Department to conduct a new decision making process on the relevant receipts, in line with the provisions of the FOI Act.
Whether the Minister and his staff were the President's delegates
The Department is of the view that the central issue in this case is whether the Minister's visit to Geneva formed part of the Presidential visit to the ILO conference, or if the Minister attended as part of the Department's delegation. In support of its view that the Minister formed part of the Presidential delegation, it stated that Minister Breen and his private secretary were listed as delegates to the Conference in the DFAT booklet produced for the President for his visit to Switzerland in June 2018. The Department did not provide a copy of the booklet with its submission to this Office. The Department also stated that the Minister was scheduled to greet the President upon his arrival at the airport in Geneva. The Department further stated that a separate delegation from the Department attended the conference, and that the members of that delegation travelled separately and stayed in different accommodation to the Minister and the President.
I note that this Office's Investigator specifically asked the Department to provide details and copies of supporting documents (where appropriate) of the information relied upon in arriving at its decision that the Minister formed part of the President's delegation, and that, therefore the records sought "relate to the President". However, the Department's submission simply restated the text of its internal review decision and did not provide any further information or argument which would assist this Office in arriving at a decision.
In correspondence with this Office, the Department stated that it had originally agreed to release the records sought outside FOI as "details of Ministerial travel expenses are made publicly available in the Department's FOI Publication Scheme in accordance with section 8 of the FOI Act". Having regard to this practice, during the review, the Investigator drew the Department's attention to Minister Breen's expenses, which at the time had been published in respect of travel taken up to and including May 2018. She noted that his expenses for June 2018 (which would include the trip to Geneva) had not been published. She also noted that details of the relevant Minister's expenses relating to trips where Ministers accompanied the President to Laos/Vietnam and Australia (including what was described as a state visit) were published on the Department's website.
The Investigator asked the Department to explain its view that the records at issue are exempt under section 42(h) in light of the Department's publication of these earlier records. In its submission to this Office in response, the Department merely stated that details of the Minister's diary, including the Geneva visit, and his expenses for the period of June-October 2018 were now available on its website.
I note that the newly-published June expenses describe the trip as "Presidential visit to ILO International Labour Conference Switzerland". However, as this record appears to have been created and uploaded after the applicant's FOI request, I do not consider that this description of the trip assists in this review.
I am not privy to the arrangements made by the President's Office, or the Department or DFAT on its behalf, when planning the visit to the ILO conference, or what was involved in arranging for Minister Breen to attend the Conference as part of the President's delegation or otherwise. Neither has any such information been put before me in this case. However, having regard to the particular records at issue, I do not necessarily agree with the Department that the issue of whether or not the Minister was present as part of the President's delegation to the conference is determinative of whether the records "relate to the President".
Relates to the President
The applicant has stated that he does not accept that the records at issue relate to the President. He is of the view that "they relate to Minister Breen and their release has no bearing on either the President or the Office of the President".
In its submission to this Office, the Department stated that the Minister travelled separately to the President. The Department also stated that it held hotel receipts which had been provided by DFAT in December 2018 to recoup accommodation costs paid by DFAT relating to the Geneva trip. However, these records postdate the applicant's request which was made on 30 September 2018 and are not within the scope of this review.
In the course of this review, this Office's Investigator informed the Department that it was not clear to her how the records at issue could be said to "relate to the President" and drew the Department's attention to the High Court decision in the case of EH and the Information Commissioner (1999 No 96 MCA). She was of the view that determining whether a record "relates to" the President would involve examining whether there is a sufficiently substantial link between the record and the purpose of section 42. She also stated that it appeared to her that the purpose of section 42(h) is to protect records which directly relate to the President and that the records in this case were too remote from "the President" to fall within this exemption. She invited the Department to make its submission bearing all of the above in mind and also asked it to answer specific key questions relating to the case. I note that while the Department's submission responded to each of the key questions, to a greater or lesser extent, it does not appear to have considered the Investigator's comments set out above.
The EH judgment dealt with personal information when finding that that there should be a sufficiently substantial link between a requester's personal information and the record at issue. However, I am happy to adopt the same reasoning in the case of section 42, given the use of the phrase "relating to".
In relation to section 42(h) of the FOI Act, Professor Maeve McDonagh, in her book Freedom of Information Law (para 4-131, Chapter 4 - Records Excluded from the Scope of the Act, 3rd Ed, 2015) states as follows:
"Documents relating to the President, on the other hand, are entirely excluded. The complete exclusion from the Act of records relating to the President was challenged during the passage of the FOI Bill 2013 through the Seanad. The sponsoring Minister responded to a suggestion that the Office of the President and the financial functions thereof be brought within the scope of the Act in the following manner:
“It has always been the tradition, and accepted in both Houses, that the President is above politics. It has been a firm and rooted tradition since the foundation of the State, and accepted in the Dáil and Seanad, that we do not discuss the President. In keeping with this independence I felt it would not be appropriate to cover the Office of the President under freedom of information.”"
When examining whether there is a sufficient link between the President and the records concerned, I must have regard to the contents of the relevant records. In relation to Records 1-4 in full and Record 5 in part, I am satisfied that the flight receipts and screenshots of expenses claims relate directly to the Minister and his Private Secretary. As stated above, both travelled separately to the President, and as I understand it, on different dates. I am not satisfied that there is a sufficient link between the records at issue and the President. It seems to me that the individual expense claims of the Minister and his private secretary are too remote from the President and what section 42(h) seeks to protect, to come under the exclusion set out in Part 5 of the FOI Act.
The Oireachtas clearly stated its intention to exclude the Office of the President from FOI. However, I am of the view that records concerning officials from government departments cannot automatically come under this exclusion simply because they concern expenses that were incurred when attending the same event as the President, or even when accompanying him to the event. I am not satisfied that the Department has established that the Minster travelled as part of the President's delegation in this case. Perhaps more importantly, the Department has not adequately demonstrated how section 42(h) applies to the majority of information in the records at issue.
I accept that references to certain details in Record 5 could be considered to relate to the President. As noted above, I am precluded from revealing details of information which is exempt from release.
Accordingly, I find that the Department has not demonstrated how the majority of the information in the records at issue relate to the President and that section 42(h) does not apply. I direct the release of Records 1-5, subject to the redaction of certain specified details in Record 5. In the interests of clarity, I shall set these out to the Department separately.
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the decision of the Department. I direct the release of Records 1-4 in full and Record 5 in part to the applicant. I also direct the Department to undertake a fresh decision making process in relation to the actual receipts and invoices submitted relating to the Geneva trip as sought by the applicant in his request.
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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.
Elizabeth Dolan
Senior Investigator