Decision
Mr Y and Department of Culture, Communications and Sport
From Office of the Information Commissioner (OIC)
Case number: OIC-200130-A0A0J7
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-200130-A0A0J7
Published on
Whether the Department was justified in refusing access to records containing all information regarding the “lease” dated 10 July 1985 in favour of An Post for the GPO Dublin
5 May 2026
On 9 October 2025, the applicant made a request to the OPW for all information in relation to a lease dated 10 July 1985 in favour of An Post for the GPO Dublin. On 15 October, the Department received a notice of a request for transfer of the FOI request from the OPW to the Department. The Department accepted the applicant’s request on the same day.
On 13 November, the Department refused the applicant’s request on the basis that the relevant records were created before the effective date of 21 April 1998 and that the circumstances outlined in section 11(5) of the Act do not apply. Specifically, the Department noted that the records do not relate to the personal information of the applicant and that there is no statement in the request that any of the records are necessary or expedient to understand records created after the effective date.
On 19 November, the applicant asked for an internal review of the Department’s original decision. The Department advised the applicant that the internal review process would not be initiated until the fee was received, which occurred on 9 January 2026.
On 30 January 2026, the Department affirmed its original decision, repeating the same arguments it had made in that decision.
On 2 February 2026, the applicant applied to this Office for a review of the Department’s decision.
I have now completed my review in accordance with section 22(2) of the FOI Act. During the course of this review, the Investigating Officer asked the Department to provide submissions on its interpretation of the scope of the applicant’s request. While I do not propose to reproduce these submissions in full in this decision, I can confirm that I have had regard to them. I have decided to conclude this review by way of a formal, binding decision.
This review is solely concerned with whether the Department was justified in refusing the applicant’s request for records concerning the “lease” in favour of An Post for the GPO Dublin dated 10 July 1985 on the ground that the Act does not provide for a right of access to the records.
I would like to address a preliminary matter before proceeding to the substantive issues of this review.
It is important to note that the FOI Act provides for a right of access to records held by an FOI body. Requests for information or for answers to questions, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information or for an answer to a question can reasonably be inferred to be a request for a record containing the information or answer sought.
The right of access to records held by public bodies is generally limited to those that were created after the effective date of the FOI Act. In the case of the Department, the effective date is 21 April 1998.
Section 11(5) provides for a right of access to records created before the effective date where (a) access is necessary or expedient to understand records created after that date or (b) the records relate to personal information about the requester.
As outlined above, the applicant’s request was for all information in relation to the 1985 “lease”. As set out above, the Investigating Officer sought submissions from the Department in this matter. As it seemed that the Department had not considered the possibility of the existence of records related to the 1985 “lease” that may have been created after the effective date, the Investigating Officer asked the Department for clarification. The Department explained that what the applicant refers to as a “lease” is in actual fact a Licencing Agreement permitting An Post to use the GPO. The Department further confirmed that it had understood the request as being for the agreement itself as well as for any records or information in relation to it created at the time of the agreement, and that it had processed the request accordingly. The Department said that it holds two records from the date on which the agreement was signed (10 July 1985), which are a copy of the agreement and a letter confirming that this copy is a “true copy”.
The Department went on to say that the relevant business unit had carried out an initial search for records created after the effective date and which reference the 1985 Licence Agreement. The Department said that this search had located various records, including ministerial briefing notes dating from 2024 and 2025. According to the Department, references to the Licence Agreement in these are included as part of a wider briefing note and merely state that the GPO is occupied by An Post under licence from the Minister but contain no further information or details in relation to the agreement itself. The Department clarified that there were no such records in 2021, 2022 or 2023. The Department also said that it had found records in relation to several instances of legal advice which once again reference the existence of the Licence Agreement but contain no further information relating to it. The Department specified that the legal advice is not related to the Licence Agreement itself. Finally, the Department explained that there is an ongoing process between it and the OPW in relation to the transfer of ownership of the GPO and that, while this process does not relate to the Licence Agreement, its existence would be referenced among these records.
For an FOI body to refuse a request on the basis of section 11(5), it must first be satisfied that the records requested have been created before the effective date, in this instance 21 April 1998. The Department has said that it holds two relevant records dating from 10 July 1985 but has also outlined that it holds other records referencing the 1985 Licencing Agreement which post-date 21 April 1998. Bearing in mind the specific wording of the applicant’s request, which sought access toall information relating to the specific ‘’lease’’ (my emphasis), it appears to me that the latter records fall within the scope of the applicant’s request. As the Department has indicated that these records post-date the effective date, I am also satisfied that the Department was not justified in refusing access to them on the basis of section 11(5) of the Act.
It seems to me that the most appropriate course of action to take at this stage is to annul the Department’s decision to refuse access to the requested records under section 11(5) of the Act. The effect of this is that the Department must consider the applicant’s request afresh and make a new, first instance decision in accordance with the provisions of the FOI Act. The applicant will have a right to an internal review and a review by this Office if he is not satisfied with the Department’s decision.
In light of my decision to remit the matter for further consideration by the Department, and without sight of the relevant records, I do not consider it appropriate at this juncture to consider whether the provisions of section 11(5)(a) may be of relevance with respect to the two records which pre-date 21 April 1998. However, I would encourage the Department to consider this matter as part of its further consideration of the applicant’s request.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Department’s decision to refuse the applicant’s request under section 11(5) of the Act. I find that the Department was not justified in refusing access to records relevant to the applicant’s request under section 11(5) of the Act and direct it to undertake a fresh decision with respect to this matter, in accordance with the provisions 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.
Mary Connery
Investigator