Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-153203-F9K8V2
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Board was justified in refusing access to records concerning a particular professional appointment
5 September 2025
References to the applicant may also be taken as references to his firm generally, or to their client, as appropriate.
On 17 January 2024, the applicant made an FOI request to the Board for records “referring to and including the professional appointment (to include, but not limited to, the schedules to the appointment)” of the Employer’s Representative (ER) appointed in relation to the New Children’s Hospital. The request said that commercially sensitive information could be redacted, with a suitable explanation.
The Board’s decision of 19 March 2024 refused the request. It relied on section 15(1)(d) of the FOI Act on the basis that parts of the requested records were already in the public domain. It referred here to its decision of 7 February 2020 (the 2020 decision) which part-granted a different, albeit overlapping, FOI request, which had been made by the applicant’s firm on behalf of the same client. It appears that this request was made towards the end of 2019.
The Board’s 2020 decision partially released records relating to the appointment of architectural services (the Lot 1 Contract Documentation), which it said included records and schedules relating to the appointment of the ER. Its decision on the request of 19 March 2024 said that the “refusals previously noted remain in place”. It referred the applicant to the schedule to the 2020 decision, which indicated that redactions had been made to the Lot 1 Contract Documentation under various provisions of sections 30 (functions and negotiations of FOI bodies), 35 (confidential information), 36 (commercially sensitive information) and 37 (personal information) of the FOI Act. I note the limited nature of the schedule to the 2020 decision, and also that the page numbers therein appear to relate to only the documents that were fully or partially released.
On 15 April 2024, the applicant sought an internal review of the Board’s decision.
The Board’s internal review decision of 15 May 2024 affirmed its refusal of the request, on the basis that the records were exempt from release on the same grounds set out in the 2020 decision.
On 29 October 2024, the applicant applied to this Office for a review of the Board’s decision. He subsequently said that he wanted the review to examine whether the Board holds further relevant records.
On 18 November 2024, the Board informed this Office that it had provided the applicant with the Lot 1 Contract Documentation (including any documents that had been redacted previously) in a discovery process on 11 October 2024. On 2 May 2025, it informed me that it had identified a collateral warranty, which it said had been provided to it further to a particular sub-consultant agreement. It said that both documents had been provided to the applicant during High Court proceedings. It subsequently raised the relevance of section 31(1)(b) of the FOI Act (contempt of court).
I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges, and correspondence between this Office, the Board and the applicant, as well as the provisions of the FOI Act.
Since the applicant made his request, the withheld material appears to have been provided to him under discovery procedures. On 12 May 2025, I asked the applicant whether he was seeking a review of the Board’s decision on those records, or a review of whether the Board holds further relevant records, which I noted he had not raised at any previous point.
The applicant says that he wants the review to examine how the Board administered and decided on his FOI request. He wants it to examine his entitlement to the records that have been withheld under FOI as well as the adequacy of the Board’s searches. He explains why he was unable to raise search issues any sooner. While I will set out the relevant details later in my decision, I am satisfied that the applicant has appropriately raised concerns about the steps taken by the Board to search for the requested records. The case therefore involves a search issue such that it is appropriate for my review to consider section 15(1)(a) of the FOI Act (reasonable searches/records do not exist).
Further to the above, the scope of this review is confined to the sole issue of whether the Board’s decision on the applicant’s request was justified under the FOI Act, including under section 15(1)(a) (reasonable searches/records do not exist). A review carried out under section 22 cannot extend to any other matter, including the Board’s administration of the current or previous FOI requests.
While, as set out above, I cannot examine or have regard to the Board’s administration of the FOI request, I will say that its handling thereof is disappointing. The Board did not comply with the timeframes set out in the Act, or with the requirements of sections 13(2)(d) and 21(5)(c) regarding the content of decisions. These provisions require that refusal decisions shall specify:
• the reasons for the refusal;
• any provisions of the FOI Act pursuant to which the request is refused;
• the findings on any material issues relevant to the decision; and
• particulars of any matter relating to the public interest taken into consideration for the purposes of the decision.
As noted already, the Board’s decisions on the present request largely refer the applicant to excerpts of the 2020 decision and related schedule. The excerpts of the 2020 decision quote the wording of various provisions of the FOI Act and give only very general, high level, reasons as to why they apply. I have already described the content of the decisions on the 2024 request. They do not explain how exemption provisions that were relied on in 2020 apply in 2024, particularly where the passage of time could have affected the basis for at least some of the exemptions claimed. Neither do they deal with the various public interest tests. They give no explanation of why further relevant records may not have been created between 2020 and 2024.
I have already drawn the Board’s attention to the above matters. It may also wish to have regard to the guidance for FOI bodies that is available on the website of the Department for Public Expenditure, NDP Delivery and Reform's Central Policy Unit (CPU) at foi.gov.ie. In addition, the Minister for Public Expenditure, NDP Delivery and Reform has published a Code of Practice (the Code) for public bodies pursuant to section 48 of the Act, which is also available on the CPU's website. The Code includes key details relevant to the processing of requests and the contents of decisions. Under section 48(3) of the FOI Act, public bodies must have regard to the Code in the performance of their functions under the Act.
The applicant argues that both he and this Office should be given a schedule of records, similar to a “Vaughn type index”, to facilitate the examination of the Board’s decision. He notes that this Office asks public bodies to provide schedules for the purpose of our reviews, and that we specify various details that such schedules should contain. He says that any failure to provide him with a schedule is a breach of his Constitutional rights.
I agree with the applicant that it is good practice for FOI bodies to provide the parties to a review with a schedule of the records at issue. However, as I have informed him, the FOI Act does not require the production of schedules. This means that this Office cannot compel the Board to either provide a schedule, whether generally or in a particular format, and that we have no powers of review in relation to the matter.
The applicant says that the standard of justice administered by this Office cannot be lower than the standard of justice administered by the courts under Article 34 of the Constitution. He refers to the Supreme Court’s judgment inZalewski v Adjudication Office & ors [2021] IESC 24 (the Zalewski case), which concerned the exercise of powers by adjudication officers of the Workplace Relations Commission (WRC). He says that the principles set out in the Zalewski case are as applicable to a review by this Office as they are to an adjudicator in the WRC.
In essence, the applicant contends that the function/power being performed/exercised by this Office must comply with the fundamental components of independence, impartiality, dispassionate application of the law, openness, and fairness, which the Supreme Court said in the Zalewski case are understood to be the essence of the administration of justice. The Supreme Court also said that “if it is desired to have legal disputes, sometimes involving complexity of fact and law, resolved satisfactorily outside the court system, it is necessary to respect the essence of the fact-finding processes and capacity for legal analysis that can be found in courtrooms. Wherever they are decided or by whom, it is not possible to have claims fairly determined in accordance with law in the absence of law and fair procedures.”
The applicant also highlights paragraph 146 of the Zalewski judgment where the Supreme Court said that “[c]ross-examination and any other procedure should be allowed because they contribute to a fair hearing, and not merely because refusal may lead to challenge. It is, however, the case that it is to be presumed that an Act will be operated consistently with the Constitution, and any procedures carried out under it will comply with constitutional requirements.”
In addition, the applicant says that it is his Constitutional right to be provided with copies of any responses, further information or submissions received by this Office from the Board, and to be given an opportunity to reply and/or make further submissions in response to same. He says that any failure on this Office’s part to do so is procedurally unfair and a breach of his Constitutional rights.
Under section 45(6) of the FOI Act, the Commissioner has discretion to adopt such procedures as are appropriate in all the circumstances of a case. In all circumstances, this Office aims to ensure that the approach adopted is fair, and seen to be fair, to all the parties concerned. Furthermore, reviews undertaken by this Office are inquisitorial, as opposed to adversarial, in nature. While it is not the practice of this Office to exchange submissions between parties to a review, we take care to ensure that the parties are notified of material issues arising for consideration.
I would also note that the High Court has previously considered the fairness of our procedures in the context of our treatment of submissions. Specifically, Quirke J made the following comments inThe National Maternity Hospital v the Information Commissioner [2007] IEHC 113:
'I know of no principle of natural or constitutional law or justice which confers upon parties who make submissions to a decision-making body the right to respond to the submissions made by every other party who participates in the process. The review undertaken by the Commissioner was a statutory process which expressly envisaged and permitted the adoption of informal procedures.'
It is also important to note that under section 25(3) of the Act, the Commissioner is required to take all reasonable precautions to prevent the disclosure of information contained in an exempt record or matter that, if it were included in a record, would cause the record to be an exempt record. As submissions made by parties to a review may contain sensitive information that may not be appropriate for disclosure to others, submissions are not exchanged as a general rule.
As I have stated, we notify the relevant parties to a review of new material issues arising for consideration insofar as they affect the interests of the parties concerned. Material issues are issues that are relevant to the outcome of the review. Such issues involve information of significance that is likely to influence the decision the Commissioner will make. Any new matter of which a party to a review is unaware and which is likely to cause the Commissioner to make a decision adverse to the interests of that party is communicated to the party concerned. Such matters would generally include applicable exemptions not previously raised, pertinent search details not previously disclosed to the applicant, and any new facts and new legal developments which are likely to have a significant bearing on the outcome of the review.
I have not informed the applicant of the matters that I will set out later in my decision. However, and as acknowledged in the OIC application, one of the options open to me following a review is to annul the body’s decision and refer the matter back for further consideration. This is the decision I am making in this case due to, in short, the Board’s poor decision making and its raising of issues that would essentially require me to act as a first instance decision maker rather than as a reviewer. The applicant has the usual rights of review in relation to the body’s fresh decision-making. In such circumstances, I do not consider myself to be making a decision that is adverse to the applicant’s interests and so I do not consider it necessary to seek his comments before proceeding to a decision in this case.
The applicant comments on the Board’s appointment of the ER, on its disclosure of information and records in the litigation proceedings, and on its treatment of the current and previous FOI requests. As noted already, a review carried out under section 22 of the FOI Act does not extend to such matters. Neither can it take account of the applicant’s views on these issues.
A review by this Office under section 22 of the FOI Act is considered to be “de novo", which means that it is based on the circumstances and the law as they pertain at the time of the decision.
Release of records under FOI is generally understood to have the same effect as publishing them to the world at large, given that the Act places no constraints on the uses to which the information contained in those records may be put.
I also wish to highlight section 22(12)(b) of the FOI Act which, as the Board is aware, provides that a decision to refuse to grant an FOI request shall be presumed not to have been justified unless the FOI body satisfies the Information Commissioner that the decision was justified. This means that the onus is on the Board of satisfying this Office that its decision to refuse the request was justified in this case. In the case ofThe Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57, the Supreme Court found that the head of the FOI body dealing with the request must be conscious at all stages of the process that the overriding presumption is one of disclosure, with the result that any refusal to disclose must be fully reasoned and sufficiently coherent, fact specific, and logically connected to the document or record such that the justification is sufficient.
Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused where the record does not exist or where it cannot be found after all reasonable steps to ascertain its whereabouts have been taken.
A review of an FOI body's refusal of records under section 15(1)(a) assesses whether the body is justified in claiming that it has taken all reasonable steps to locate records of relevance to a request or that the requested records do not exist. It is important to note that this Office does not carry out searches for records. Rather, in cases involving section 15(1)(a), our role is to review the decision of the FOI body and to decide whether the decision was justified. This Office must have regard to the evidence available to the decision maker in arriving at his/her decision, which generally consists of the steps actually taken to search for the records along with miscellaneous other information about the FOI body’s record management practices insofar as those practices relate to the records in question.
The applicant says that the 2019 request encompassed records concerning the provision of architectural services. He says that this is separate and distinct from the ER role, and that the material released further to that request did not include anything relating to the ER’s appointment.
The applicant describes communications with the Board about the lack of documents relating to the ER appointment within material that he says he received under discovery procedures in October 2024. In essence, he says that the Board told him that the “scope of service of the [ER] forms part of the architectural appointment, which is very common in the industry”, and gave him the date and production number of the relevant discovered documents. He says that it referred him to parts of a Technical Requirements document therein, and told him also that “there are other references to the scope in the appointment.” The applicant says that the records released under FOI do not include the Technical Requirements document.
In essence, the applicant says that he was unable to raise the adequacy of the Board’s searches until he was provided with certain documents during litigation, which I understand was on or around 29 April 2025. He says that the exhibits to a particular affidavit lodged by the Board included a collateral warranty and a sub-consultancy agreement. He says that the sub-consultancy agreement was only executed in August 2023 and could not have been considered further to the 2019 request. He says also that these records were relevant to both the October 2024 discovery process and the present FOI request, and that the Board has given no credible explanation as to why they were not disclosed.
In addition, the applicant says that his request “relates and refers to any records relating to, and including the appointment of the ER”. He says that it goes far beyond the disclosure of the specific document appointing the ER, to all records referring to the ER’s appointment. He does not accept that there cannot be further such documents, given the critical role of the ER in a project the size of the National Children’s Hospital. He says that, at the very least, there must exist correspondence relating to the signing of the sub-consultant agreement in August 2023.
I asked the Board for various details regarding its understanding of the scope of the request and its searches for relevant records. I noted the request’s broad scope, including that it seeks all records “referring to” the appointment. I queried how no relevant records appear to have been created between 2019 and 17 January 2024, and mentioned the applicant’s position that records concerning the signing of the Sub-Consultancy Agreement would have been created during this timeframe.
As I understand it, the collateral warranty that the Board identified during this review was not part of the original contract documents and was therefore not considered on foot of the 2019 request. I noted to the Board that its decision-making on the present request had not covered this record. I also noted that it did not appear to have queried with any relevant service providers whether they hold records relevant to the request, or to have considered such records for release. I said that, in all of the circumstances, I found it hard to accept that the Board could have taken reasonable steps to search for records covered by the applicant’s request.
In response, the Board asked me to clarify my understanding of the scope of the request. It said that the request’s imprecise language is open to different potential interpretations, and that clarity on its exact parameters was needed in order to answer my queries.
I told the Board that it is the FOI body’s responsibility to clarify the scope of a vague or broad FOI request in the first instance. I said to it that, in any event, the request covers any records “referring to” the employment/appointment, and would therefore seem to cover any records mentioning the matter, such as emails, correspondence, draft documents, etc. I said that such records did not appear to be amongst the material provided to this Office, which I said I understood to concern the actual appointment of the ER.
Otherwise, I reiterated aspects of my request for submissions, including my view that the Board could not have taken reasonable steps to search for records covered by the request, particularly when the scope thereof appears unclear. I said that I felt the most appropriate way to deal with the matter would be for me to annul the Board’s effective reliance on section 15(1)(a) of the FOI Act and to direct it to consider the request afresh.
In response, and while the Board maintained that its interpretation of the request was reasonable, it noted my differing view. It said that it would be agreeable to the annulment of its decision on the applicant’s request and for me to direct it to consider the matter afresh.
For all of the reasons set out above, I am not satisfied that the Board has justified its effective reliance on section 15(1)(a) of the FOI Act. I find that section 15(1)(a) does not apply.
I will not make any direction to the Board in relation to the matter of fresh searches at this point in my decision. Rather, I will conclude by making a composite direction in relation to all aspects of this review.
As set out above, during my review the Board identified a relevant record that it did not consider in its decision-making (the collateral warranty). Effectively, the Board has refused access to the record concerned. However, it has not been subject to any decision-making by the Board. In the circumstances, examining the applicant’s right of access to the collateral warranty would require me to act as a first-instance decision maker, rather than as a reviewer. I consider that the most appropriate course of action is to annul the Board’s effective refusal of access to the record concerned.
The Board’s decisions on the present request relied on section 15(1)(d) of the FOI Act and on various provisions of sections 30, 35, 36 and 37. However, it now raises the relevance of section 31(1)(b) of the FOI Act, arising from developments in Court that it says will require discovery processes to be reopened.
The mere fact that at some future date a court may make an order or give directions regarding the production or release of a record does not mean that such a record is exempt under section 31(1)(b). However, given the de novo nature of this review, I cannot disregard the potential relevance of the mandatory section 31(1)(b) to the Lot 1 Contract Documentation, notwithstanding that it is unclear whether the Board considers the exemption to apply. The question of whether section 31(1)(b) applies also determines whether I would need to consider the other provisions of the FOI Act that the Board relied on in its decisions.
Section 31(1)(b) of the FOI Act provides that a head shall refuse to grant a request if the record concerned is such that the head knows or ought reasonably to have known that its disclosure would constitute contempt of court.
Documents disclosed on discovery in the context of court proceedings are subject to an implied undertaking, given to the Court and to the other party by the party to whom the documents are produced, that the documents disclosed shall not be used otherwise than within and for the purpose of the action in which they were disclosed. Breach of an undertaking given to the court (whether express or implied) is a contempt of court.
Where an FOI body furnishes documents to a party to proceedings on foot of discovery in a case involving only the usual, implied undertaking, the waiver or modification of that undertaking is a matter wholly within the power of the FOI body. The undertakings given to the FOI body and the court can be discharged by waiver of the FOI body. Thus, the question of whether or not disclosure of the documents would constitute contempt of court is a matter within the control of the FOI body. It is possible for the FOI body to waive or modify the undertaking in relation to certain, specified documents and to leave it in place in relation to others.
Where an FOI body or this Office is aware that there is in existence an undertaking to a court pursuant to a discovery order in regard to certain documents, section 31(1)(b) requires disclosure of those documents under FOI to be refused, on the basis that such disclosure would constitute a contempt of court.
Speaking generally, it is open to FOI bodies to seek to rely on new exemptions during a review by this Office. However, section 31(1)(b) requires the consideration of very particular facts and circumstances that were not relevant during the Board’s initial decision-making processes. Essentially, examining whether disclosure of the Lot 1 Contract Documentation would amount to a contempt of court would again require me to act as a first-instance decision maker on the matter, rather than as a reviewer.
Such an exercise would also require extensive further engagement between this Office and the Board. The records at issue amount to more than 870 pages and were sent to this Office in a pdf that is not searchable. Their contents are not scheduled, and a small number of pages are not legible. Aside from dealing with these issues, the Board would have to demonstrate that the records have indeed been supplied to the applicant under discovery procedures. It would also have to give details as to the nature of the undertaking further to which the relevant documents were provided and whether it is willing to or has already waived the relevant undertaking in relation to some or all of the documents. Considerable engagement with the applicant would also be required arising from the above.
I sought information from the Board, on the lines set out above, to assess whether considering section 31(1)(b) in this review might be relatively straightforward. However, the Board has not provided the details concerned. As noted earlier, it said that it is agreeable for its entire decision to be annulled and remitted back to it for fresh consideration.
The applicant may be of the view that I should compel the Board to provide me with all information that would enable me to consider whether section 31(1)(b) applies to the Lot 1 Contract Documentation. However, for the reasons already set out, I am satisfied that this would require extensive further engagement between this Office and the parties to the review. Depending on the outcome of this exercise, I may also need to consider the basis for the other provisions relied on by the Board in its decisions. Given the lack of argument in those decisions, I would need to invite and obtain detailed submissions on the relevant matters, possibly consult with third parties, and again put relevant arguments to the applicant for comment. The allocation of such an amount of resources to one review would also impact on the OIC’s other work.
In all of the circumstances, I cannot be satisfied that disclosure of the Lot 1 Contract Documentation would amount to a contempt of court such that I can find that they are exempt under section 31(1)(b) of the FOI Act. Neither can I be satisfied that they are exempt under the other provisions relied on by the Board in its decisions. Therefore, I have decided to annul the Board’s refusal of access to the Lot 1 Contract Documentation.
To summarise my findings, I have annulled the Department’s effective reliance on section 15(1)(a) of the FOI Act, its effective refusal of access to the collateral warranty and its refusal of access to the Lot 1 Contract Documentation.
However, I do not consider it appropriate to direct the Board to grant access to either the Lot 1 Contract Documentation, or any other records, particularly given the mandatory nature of section 31(1)(b). Rather, I direct it to make a fresh decision on the entirety of the request in accordance with the provisions of the FOI Act.
In light of the apparent uncertainty surrounding the precise scope of the request, I would strongly urge both parties to seek to agree the precise nature of the records sought before any fresh decision is made. In any such engagements, I would urge both parties to ensure that the agreed request is both manageable and contains sufficient particulars to enable the records sought to be identified by the taking of reasonable steps. I also draw the Board’s attention to the importance of adequate schedules.
I appreciate that the applicant may be frustrated with this outcome. The OIC will endeavour to prioritise any application for review that he may make to us in relation to the Board’s fresh decision.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Board’s decision on the applicant’s request of 17 January 2024. I direct it to make a fresh decision on the 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.
Anne Lyons
Investigator