Cinneadh
Mr A and Insolvency Service of Ireland
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-152815-T6S7X4
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-152815-T6S7X4
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the ISI was justified in refusing access, under section 15(1)(a) and 37(1) of the FOI Act, to records relating to the appointment of two named Official Assignees
15 September 2025
The Official Assignee (OA) is a court officer of the Insolvency Service of Ireland (ISI) who is responsible for managing the assets of a bankrupt individual after a Bankruptcy Order has been made. In a request dated 21 August 2024, the applicant sought access to all records regarding the appointment of the Official Assignee (OA) in bankruptcy and employment contracts (with personal information redacted other than the name and date) of [the first named OA] and [the second named OA]. In a decision dated 17 September 2024 the ISI refused the request under section 15(1)(a) of the FOI Act on the grounds that no records could be found. It said the OA is a member of staff of the ISI and is appointed by the Minister for Justice under section 12 of the 2012 Act. It said staff of the ISI are employees of the Department of Justice and the Department administers the employment relationship with the Director and all ISI staff members (including handling all HR and employment related matters and issues arising within the context of that relationship). It said the Department's HR division documents and holds all such records relating to those HR and employment matters and issues. It said the Department does not generally share records relating to employment matters and, in this case, records regarding the appointments of the named individuals to the Office of OA and their employment contracts were not shared by the Department.
The applicant sought an Internal Review of that decision on 18 September 2024. He provided certain details that he believed to support his view that relevant records should exist within the ISI. Among other things, he argued that section 12 of the Personal Insolvency Act 2012 (the 2012 Act) expressly provides that staff of the ISI are to be hired by the Director of the ISI in consultation with the Minister for Justice with the authority to appoint its staff, and he provided a copy of a letter dated 23 November 2020 which he described as purportedly confirming the appointment of the second named OA under section 12 of the Personal Insolvency Act 2012 and which he considered to underscore his argument.
On 10 October 2024, the ISI varied its decision. It said it had determined that there were three records relevant to the request. It granted access to record 1, comprising six parts (1A to 1F), with certain information redacted from record 1A under section 37(1) of the FOI Act. It refused access to record 2 (the letter of 23 November 2020 referenced above) under section 15(1)(i)(i) on the ground that it was already released to another requester and was available to him. It granted access to record 3 in full. On 12 October 2024, the applicant applied to this Office for a review of the ISI’s decision as he had not, at that stage, received the ISI’s internal review decision. Among other things, he argued that;
• The Personal Insolvency Act 2012 clearly establishes the ISI as an independent statutory body with its own staff and the ISI’s suggestion that ISI staff are employees of the Department of Justice is an inaccurate characterisation;
• He finds it hard to accept the assertion that no records exist regarding the appointment of the second OA, particularly since he obtained a letter independently of the ISI, which confirmed his appointment on ISI notepaper signed by the Director. He said the existence of this letter indicates that there should be other relevant records; and
• the audited financial statements of the ISI clearly show that the ISI manages and controls its own staff, including salary payments. He said this further supports his belief that employment-related records should be held by the ISI, and not exclusively by the Department of Justice.
In its submissions to this Office during the course of the review, the ISI informed this Office of its position that the FOI Act does not apply to record 2 pursuant to Schedule 1 Part 1(r) of the Act. The Investigating Officer informed the applicant of the ISI’s assertion and he also provided details of the ISI’s submissions wherein it explained why it was of the view that it did not hold any further relevant records and the searches it undertook in an effort to locate relevant records. To date, no further submissions have been received from the applicant on the matter.
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 to the submissions made by the ISI in support of its decision. I have also had regard to the contents of the records identified by the ISI as coming within the scope of the applicant’s request. I have decided to conclude this review by way of a formal, binding decision.
While the ISI initially refused access to record 2 under section 15(1(i) and subsequently argued that the Act did not apply to the record, I note that the applicant did not raise any concerns about the withholding of the record in his application for review. In any event, it is apparent that he already has a copy of the record. Therefore, I will give no further consideration to that record.
Accordingly, this review is concerned solely with whether the ISI was justified in its decision to refuse access, under section 15(1)(a) of the FOI Act, to any further relevant records and to redact certain information from record 1A under section 37(1).
Section 15(1)(a) of the FOI Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. In such cases, the role of this Office is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision and I must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.
In its submissions, the ISI said records that one would usually expect to exist in an employment context are held by the Department’s Human Resources Division as employer of all ISI staff. It said the applicant correctly identifies the ISI as an independent statutory body, established under the 2012 Act. It said section 8(1) of the 2012 Act formally established the ISI as an independent statutory body. It said that while the ISI operates independently in the exercise of its functions, it is subject to oversight by the Minister for Justice, who has certain responsibilities, as outlined in sections 14 and 15 of the Act. It said this places the ISI within the broader administrative structure of the Department. It said that while the ISI is an independent body, its statutory foundation and operational oversight are closely linked to the Department. It said that all staff of the ISI, including the OA, are employees of the Department.
The ISI said that section 12 of the 2012 Act provides that the Minister for Justice may, after consultation with the ISI, appoint such number of persons to be members of staff of the ISI and as such, the ISI does not hold a recruitment licence and all recruitment is carried out by the Department either externally or through the Public Appointments Service. It said the employment contract is therefore between the Department and the individual staff member, who is assigned to a role within the ISI by the Department. It said the Department’s HR division documents and holds all records relating to employment matters and issues and these records never existed in the ISI within the context of the application of the FOI Act on ISI records. It said further detail is contained in section 3.2 of the Performance Delivery Agreement 2024 between the ISI and the Department which sets out the supports provided to the ISI by the Department, including the provision of HR services.
While the question of access to record 2 is not at issue in this decision, the ISI said it was drafted in the context of the administration of a bankruptcy estate and thus the FOI Act does not apply to the record, pursuant to Schedule 1, Part 1(r) of the FOI Act. It drew attention to a previous decision of this Office in Case OIC-117737. That decision was concerned with a request for certain records relating to, among other things, the retirement and appointment of named OAs. We found that while certain of the records sought referenced the retirement of a former OA, they concerned specified bankruptcy related proceedings and the potential consequences of the retirement of the OA on those proceedings. We found such records to relate to the specified proceedings and not to the general administration of the performance of the functions of the ISI. We found that the FOI Act did not apply to the records. In this case, the ISI said that while the applicant is of the view that other relevant records exist, it is satisfied that any such records are not held by the ISI in the context of the general administration of the ISI’s functions.
The ISI added that its FOI Officer had contact with the Department by phone to discuss the possible transfer of the request and the Department confirmed it has already received the same request. It said the FOI Officer advised the applicant that the Department’s HR division held such records.
The ISI further said that the first named OA was appointed by the Courts Service. It said that with the enactment of the 2012 Act came the establishment of the ISI. It said section 41 of the Courts and Civil Law (Miscellaneous) Provisions Act, 2013 (the “2013 Act”), amended schedule 8 of the Courts (Supplemental Provisions) Act, 1961 by deleting OA in Bankruptcy from the list of principal officers. It said that as such, the OA in Bankruptcy could no longer be appointed by the Courts Service. It said section 60A(7) of the Bankruptcy Act 1988 (as amended) (the “Bankruptcy Act”), as amended by section 29 of the 2013 Act , expressly provides that the OA, who held the role immediately before the coming into operation of the section, continued to hold the office of OA. It said Section 60A(1) of the Bankruptcy Act provides that the staff of the office of the OA, including the OA, was transferred to the staff of the ISI. It said section 27 of the 2013 Act amended section 3 of the Bankruptcy Act to define the OA as a person standing appointed for the time being (i) to the position of OA in Bankruptcy in the Office of the OA in Bankruptcy on the day before the coming into operation of section 29 of 2013 Act; or (ii) to the position of OA pursuant to section 12 of the 2012 Act. It said section 12 of the 2012 Act provides that the Minister may, after consultation with the ISI, appoint such number of persons to be members of staff of the ISI. It said section 60(2) provides that the OA shall be a member of staff of the ISI. It said the OA, being a member of staff of the ISI pursuant to section 60(2) of the Bankruptcy Act, may be appointed by the Minister.
The ISI further said that it has no guidelines, practices, procedures and arrangements in relation to the storage, filing, archiving, retention and destruction of the type of records sought in this request given that it does not hold such records in the context of the application of the FOI Act on ISI records. On the matter of the searches undertaken for relevant records, it said that, as a similar request was considered in Case OIC-117737, the same records were also considered as part of the applicant’s request. It said the decision maker also sought records created since 31 August 2021 that came within the scope of the request. It said the Director, the OA and the Head of Legal Services were requested to carry out a comprehensive search for both electronic and non-electronic records (including e-mails, spreadsheets etc.) and for records held on formal files, temporary folders or in any other manner. It said they were also requested to inform the decision maker if they were aware of records that were not held within their area but which came within the scope of this request and provide details of where they might be located. It said records were received from the Director (record 1) and the OA (record 3). It said the decision maker determined that these records did not come within scope of the request but were subsequently released/partially released to the applicant following the internal review.
The ISI said the internal reviewer requested details from the decision maker of all records considered as part of the FOI request and was provided with same. It said that following a review of all records the internal reviewer took the decision to release certain records that the decision maker had identified as a result of the request for records created since 31 August 2021. It said no records that were identified and determined to be outside the scope of the 2021 FOI request were released. It again referred to the findings of this Office in Case OIC-117737, namely that certain records“records relate to the specified proceedings and cannot reasonably be said to concern the general administration of the performance of the functions of the ISI”.
This Office sought further clarification of the nature of the records examined. In response, the ISI said many of the records considered were not relevant to the request because they centred around the appointment of the interim Director or the retirement of an OA. It said the records included emails between various parties discussing a letter of confirmation of appointment in respect of the second OA subsequent to his appointment as OA. It said these records were generated by the ISI while carrying out one of its core functions of managing bankruptcy estates rather than general administration. It said record 2 was one written by the Director, stating that a particular person has been appointed as OA, as evidence for the Property Registration Authority of Ireland to allow the OAs interest in property be registered in the Property Registration Authority.
For section 15(1)(a) to apply in any case, the FOI body must have taken all reasonable steps to ascertain the whereabouts of the records sought. It is important to note that it is open to this Office to find that an FOI body has satisfied the requirements of section 15(1)(a), even where records that an applicant believes ought to exist have not been located. A review by this Office is not concerned with the question of what records should exist. If a record does not exist, that is the end of the matter, regardless of the applicant’s views as to the existence of certain records. We do not generally expect FOI bodies to carry out extensive or indefinite general searches for records simply because an applicant asserts that records should or might exist.
The records sought in this case concern the appointments of two named OAs. I would generally expect that such records would be held by the Human Resources division of the body that appointed the individuals. The applicant’s arguments in support of his view that the ISI should hold relevant employment-related records are based on the fact that the ISI is an independent statutory body with its own staff and that the financial records clearly show that the ISI manages and controls its own staff, including salary payments.
I fully accept that the ISI is an independent body in the context of the performance of its statutory functions and that it controls its own staff. However, the relevant statutory provisions make it clear that the Minister for Justice is responsible for the appointment of OAs. Having considered the ISI’s submissions and the details of the relevant legislation, I am satisfied that the Department of Justice would hold relevant employment-related records. Section 60(2) of the Bankruptcy Act provides that the OA shall be a member of the staff of the ISI. Section 12 of the 2012 Act provides that the Minister may, after consultation with the ISI, appoint such number of persons to be members of the staff of the ISI as may be approved by the Minister for Public Expenditure and Reform. I also note that record 1, the majority of which was released, clearly indicates that the Department of Justice was responsible for the appointment of the second named OA.
Moreover, I note the contents of a letter dated 29 September 2020 that the applicant forwarded to the ISI with his application for internal review. That letter was a letter from the Department’s Head of Human Resources Division to the second named OA which indicated that he had been successful in the role of OA and that he was being offered a contract to the position of OA having been assigned to the Department. I also note section 3.2 of the Performance Delivery Agreement 2024 between the ISI and the Department which sets out the supports provided to the ISI by the Department, including the provision of HR services. It also provides that the Department will provide a Human Resource Management service including, but not limited to, recruitment, employee relations, workforce development and performance management and that it will provide the ISI with sufficient staff in accordance with its Work Force Planning.
On the matter of the possible existence of other records within the ISI that may contain relevant information concerning the appointment of the named OAs and that were created in the course of the performance by the ISI of its core functions, I am satisfied that the FOI Act would not apply to such records, pursuant to Schedule 1, Part 1(r) of the FOI Act. Section 6(2) of the FOI Act provides that an entity specified in Schedule 1, Part 1 of the Act shall, subject to the provisions of that Part, be a public body for the purposes of the Act. Schedule 1, Part 1 contains details of bodies that are partially included for the purposes of the Act and also details of the certain specified records that are excluded. If the records sought come within the description of the exclusions in Part 1, then the Act does not apply and no right of access exists to such records held by the body.
Schedule 1, Part 1(r) provides that ISI is not a public body for the purposes of the FOI Act, in the performance of its functions under Part 2 of the Personal Insolvency Act 2012, other than insofar as it relates to records concerning the general administration of those functions. In other words, the only records held by the ISI that are subject to the FOI Act are those that concern the general administration of its functions. In accordance with Part 1(r), all other records held by ISI are excluded.
While the Act is silent on the meaning of general administration, this Office considers that it clearly refers to records which have to do with the management of the ISI such as records relating to personnel, pay matters, recruitment, accounts, information technology, accommodation, internal organisation, office procedures and the like. I am satisfied that it does not refer to records relating to matters concerning the core business of the ISI.
On the matter of the searches actually undertaken by the ISI in this case to locate relevant records, it is apparent that such searches would be limited by virtue of the fact that the appointment of OAs is carried out by the Department and that the FOI Act does not apply to records relating to the performance by the ISI of its functions under Part 2 of the Personal Insolvency Act 2012. Having regard to the details of the searches undertaken, and in the absence of evidence to suggest that further specified searches might be warranted, I am satisfied that the ISI has taken all reasonable steps to ascertain the whereabouts of relevant records. I find, therefore, that it was justified in refusing access to any further relevant records under section 15(1)(a) of the FOI Act.
On the matter of whether a right of access exists to the information redacted from record 1A, section 37(1) provides, subject to the other provisions of the section, for the mandatory refusal of a request if access to the records concerned would involve the disclosure of third party personal information. The Act defines personal information as information about an identifiable individual that either (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual or (b) is held by an FOI body on the understanding that it would be treated by the body as confidential. The definition also contains a list of 14 specific types of information that is personal information, without prejudice to the foregoing definition, including (iii) information relating to the employment or employment history of the individual, and (v) information relating to the individual in a record falling within section 11(6)(a) (personnel records).
Certain information is excluded from the definition of personal information. Where the individual holds or held a position as a member of the staff of an FOI body, the definition does not include his or her name, or information relating to the position, the functions of the position, the terms upon and subject to which the individual holds or held that position, or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of his or her functions (Paragraph I refers).
The redacted information comprises the placement on a panel for the position of OA of a third party. I am satisfied that such information is of a type than can reasonably be described as information relating to the individual in a record falling within section 11(6)(a). I am also satisfied that the exclusion in paragraph I does not apply. I find, therefore, that section 37(1) applies to the redacted information.
Section 37(1) is subject to the other provisions of the section, some of which serve to disapply section 37(1). Section 37(2) provides for a number of circumstances in which section 37(1) will not apply. No argument has been made that any of the provisions of section 37(2) apply in this case and I am satisfied that they do not. Section 37(5) provides for the grant of a request where (a) the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld, or (b) the grant of the request would benefit the individual to whom the information relates. I am satisfied that there is no public interest in releasing such inherently private information relating to the individual in question to the applicant in this case and that release would not benefit the individual to whom the information relates. I find, therefore, that the ISI was justified in redacting, under section 37(1), certain information from record 1A.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the ISI’s decision. I find that it was justified in refusing access, under section 15(1)(a) of the FOI Act, to further records relating to the appointment of named OAs, and that it was justified in redacting, under section 37(1), certain information from one of the records released.
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.
Stephen Rafferty
Senior Investigator