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High Court JudgmentCase 010147. Note: The Commissioner's decision in this case was appealed to the High Court. The in the case issued on 25 January 2006.

Request for records compiled and presented by Waterford City Enterprise Board to its evaluation committee concerning the requester's application for grant assistance - whether the records are held by or under the control of the Department - section 2(5)(a)

Case Summary

Facts

The requester sought from the Department of Enterprise Trade and Employment a copy of the internal documentation which was compiled and presented by Waterford City Enterprise Board to its evaluation committee concerning his application for grant assistance in respect of his small business. The Department refused access on the ground that the records sought were created and held by the Board and were not held by the Department. The requester applied to the Commissioner for a review of that decision.

Decision

The issue arising in this case was whether records in the possession of the Board could be regarded as being "under the control" of the Department. If they were, then the records would be deemed to be "held" by the Department as provided for under section 2(5)(a) of the FOI Act and would thus be potentially accessible under section 6 of the Act.

The Commissioner noted that City and County Enterprise Boards, which are companies limited by guarantee, operate under their Memorandum and Articles of Association and a contract, or operating agreement, between the Department and the Boards. She noted that the operating agreement between the Waterford City Enterprise Board and the Department provides for a right of access to all of the records of the Board by the Minister for Enterprise, Trade and Employment and for the Board to furnish the Minister with copies of any relevant documentation requested. She further noted that the Board's Articles of Association contained a similar disclosure provision.

The Department argued, inter alia, that the fact that the Minister may have access to, and power to obtain copies of, certain documents does not mean that the documents are under his control. The Commissioner did not accept the Department's argument having regard to the circumstances of the particular case. The Department also argued that a finding that the records held by the Board are under its control would, in effect, extend the FOI Act to the records of City and County Enterprise Boards, bodies which, of themselves, are capable of being prescribes as public bodies for the purposes of the FOI Act. the Commissioner found that the wording of section 2(5)(a) was clear and unambiguous, viz. that a reference to records held by a public body includes a reference to records under the control of the body. She found that the Board's records were under the control of the Department. She directed that, subject to any exemptions that the Department may claim and such exemptions being the subject of review by her, access should be granted to all records in the possession of the Waterford City Enterprise Board coming within the scope of the FOI request.

Date of Decision: 18.10.2004

Our Reference: 010147

18.10.2004

Mr. X

Dear Mr. X,

I refer to your application under the Freedom of Information ("FOI") Act, 1997 for a review of the decision of the Department of Enterprise, Trade & Employment ("the Department") to refuse your request for a copy of the internal documentation which was compiled and presented by Waterford City Enterprise Board ("the Board") to its evaluation committee concerning your grant application. I must apologise at the outset for the delay which has arisen in dealing with your application. Unfortunately due to pressure of work, it has not been possible to finalise your case until now.

Background

I have now completed my review of the Department's decision. In doing so, I have had regard to your correspondence with the Department and to correspondence between my Office and the Department.

Scope of Review

Section 10(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. The Department refused your request pursuant to the provisions of section 10(1)(a) on the ground that the records sought are not held by the Department but rather are held by the Board which is not a public body for the purposes of the FOI Act. Accordingly, my review is concerned solely with the question of whether the Department was justified in deciding to refuse access to the records sought.

Findings

As the Department explained in its decision letter of 31 January, 2001, 35 City and County Enterprise Boards were established in 1993 as companies limited by guarantee and section 10 of the IDA Act 1995 gave them formal statutory recognition and requires that their accounts are audited by the Comptroller and Auditor General. It also explained that the Boards operate under their Memorandum and Articles of Association and under a contract (Operating Agreement) between the Department and the Boards. The Department added that it does not hold the records you are seeking as they relate to day-to-day operational matters of the Board. It further explained that the Board is not a public body for the purposes of the FOI Act.

I accept that the records sought in this case relate to the day-to-day operations of the Board and that they are not physically held by the Department. However, while section 6(1) confers a right of access to records held by a public body, section 2(5)(a) also provides that a reference to records held by a public body includes a reference to records under the control of the body. Therefore, the question I must consider in the first instance is whether records held by the Board are under the control of the Department.

Mr Rafferty of my Office advised the Department of his preliminary view that all records held by the Board are under the control of the Department having regard to the Board's obligations under the Operating Agreement between the Minister and the Board and under its Articles of Association. He noted the following

"Article 21 of the Operating Agreement, under the heading of "Reporting and Monitoring Provisions" provides that "...The Minister and the European Union, their officers and agents, shall, at all reasonable times, have access to all and the Company shall ensure that recipients of aid from the Company, including persons or bodies undertaking projects, provide similar access to the Minister and the EU, their officers and agents. The Company agrees to furnish the Minister with copies of any relevant documentation requested by the Minister" [my emphasis]. I further note that Article 17 of the Board's Articles of Association provides that "Save as is necessary to carry out their functions and with the exception of disclosure to meet the information needs of the Oireachtas, the Minister, the Comptroller and Auditor General, a Court of Law and the European Commission, to whom the Board shall disclose all relevant information in their possession when requested ... the Directors undertake to keep confidential and not disclose to a third party any information relating to specific projects in respect of which support or assistance ... is sought" [my emphasis]." the records of the Company

In response, the Department has put forward a number of arguments as to why it believes that records held by County Enterprise Boards are not under its control. Firstly, the Department argues that the fact that the Minister may have access to (and power to obtain copies of) certain documents does not mean that the documents are under his control. In support of this argument, it cites McKenna J. in Readymix Concrete (South East) Ltd. -v- Minister of Pensions and National Insurance [1968] 1A11 ER 433 at 440:

"Control includes the power of deciding the thing to be done, the way in which it shall be done, the means to be employed in doing it, the time when and the place where it shall be done".

The Department argues that access to documents does not mean that the Minister may determine what documents are to be produced, when they are to be produced, where they are to be kept etc. It argues that "access" simply means that the Minister must be able to have sight of those documents relevant to his functions under the agreement and may, for the purposes of monitoring, and as an adjunct to his right of access, obtain copies.

It is not clear to me that the case cited by the Department is relevant to the circumstances of this review. The question of whether the Minister may determine what documents are to be produced, when they are to be produced, where they are to be kept etc. is not at issue. What is at issue is whether records which are held by the Board can be deemed to be under his control. Clause 21 of the Operating Agreement clearly provides the Minister with a right of access to all the records of the Board and a right to obtain copies of any records requested. I do not accept the Department's argument that the fact that the Minister may have access to and power to obtain copies of documents does not mean that they are under his control.

The Department also argues that that the Minister would not be entitled to seek access or copies of any documents save for the purposes of verifying compliance with the funding requirements as set out in the Operating Agreement. It argues that this is reflected in Article 17 of the Board's Articles of Association. It further argues that the Minister would be acting ultra vires if he sought to have access to the records of the Board for purposes other than verifying compliance with the funding requirements as set out in the Operating Agreement. While it may well be that the Minister's right of access to the records of the Board was included in the Operating Agreement for the purpose stated, there is no restriction in the Agreement itself as to the purposes for which access may be sought nor does Article 17 restrict the Minister's right of access other than "to meet the information needs of ... the Minister". It seems to me that the requirement of the Minister to access records to address a request made under the Freedom of Information Act is not inconsistent with meeting his information needs.

Finally, the Department argues that a finding that the records held by the Board are under its control would, in effect, extend the FOI Act to the records of City and County Enterprise Boards which, in itself, would undermine the role of, among others, the Minister for Finance and, ultimately, the Oireachtas who are responsible for deciding which bodies are subject to the provisions of the Act. It argues that no right of access exists in relation to the records of the Board under FOI until such time as it is included in the first schedule to the FOI Act. While I hold no view as to the intentions of the Oireachtas when framing section 2(5)(a), the wording of that section is quite clear and unambiguous- a reference to records held by a public body includes a reference to records under the control of the body. If the records are under the control of the public body and that body is subject to the provisions of the FOI Act, then a right of access to such records exists.

In the circumstances, I find that the Board's records are under the control of the Department and that a right of access to such records exist. I have decided that the Department must assemble all relevant records held by the Board and must decide whether any such records can be released to you having regard to the provisions of the FOI act. In the event that the Department wishes to claim an exemption in respect of any such records, it must send copies of the records in question to my Office and I will then make a supplementary decision as regards any further exemptions claimed.

I should add, for the sake of completeness, that the Department made it very clear to me that it has no statutory function in determining whether to grant or refuse individual grant aid applications submitted to a City or County Enterprise Board or in any appeal process that may be initiated. It explained that the requesting of records relating to the actual examination by the Evaluation Committee or the Board of an individual grant application would be contrary to normal practice as such records are not ordinarily requested or held by the Department. It requested that this day-to-day practice be taken into consideration in this review. I find that the day-to-day practice in question has no relevance to the question of whether the records can be deemed to be under the control of the Department for the purposes of the FOI Act.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act, 1997, I hereby annul the decision of the Department of Enterprise, Trade & Employment in this case. I direct that, subject to any exemptions that the Department may claim and such exemptions being the subject of review by me, access should be granted to all records coming within the scope of your request which are in the possession of the Waterford City Enterprise Board.

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date of this letter.

Yours sincerely

Emily O'Reilly
Information Commissioner