The Information Commissioner (IC) has upheld a decision of the Data Protection Commissioner (ODPC) to refuse a request for records of lobbying by major companies and organisations including Yahoo!, IBEC, Microsoft and the American Chamber of Commerce Ireland.
Freedom of Information (FOI) Background
The ODPC is subject to the Freedom of Information Act, 2014 (“FOI Act”) but only as it relates to records concerning the “general administration” of the ODPC.
The ODPC received a request from journalists from the Right to Know transparency blog (“Requesters”) for access to records relating to eight specific entries in the lobbying register concerning the ODPC. The records sought related to the specific lobbying activities registered by the various lobbyists (Yahoo!, IBEC etc.).
The ODPC refused the request on the basis that the records did not constitute or concern the “general administration” of the office. The Requesters appealed the ODPC’s decision to the IC.
The IC had to consider two issues:
1. Whether the IC has jurisdiction under the FOI Act to review the ODPC’s refusal.
2. Whether the refusal of the records was justified on the basis that the records do not concern the ‘general administration’ of the ODPC.
The ODPC maintained that the IC has no jurisdiction to review the decision to refuse a request on the grounds that the records sought concern matters for which the ODPC is not a public body for the purposes of the FOI Act.
In reaching a decision that his office did have jurisdiction, the IC stated that if it agreed with the ODPC’s view it would essentially be throwing a “blanket over all of its records without external independent oversight” which would result in the “possible withholding of information that the Oireachtas clearly intended should be released under the Act”.
To Release or to Refuse?
The ODPC maintained that the requested records were not disclosable as they did not fall under the “general administration” of the office.
The FOI Act is silent on the meaning of general administration but the IC had in a previous case (Mr X and the Office of the Attorney General) stated that general administration “clearly refers to records which have to do with the management of the AG’s office 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 office, such as advising on legislation or litigation”.
The Requesters argued that the records did not fall within the statutory functions of the ODPC as they related to lobbying activities and were outside of what could reasonably be considered the ODPC’s core functions and as such they must therefore be regarded as records concerning the general administration of the ODPC.
The IC rejected this argument as it considered that the argument was based on a misinterpretation of a previous decision by the IC (Case No. 090315).
The IC found that the records did not concern the general administration of the ODPC and therefore were not discloseable and confirmed the decision of the DPC to refuse access for the requested records.
On behalf of the Requesters, Gavin Sheridan noted that they were disappointed with the decision and are considering the decision.
Under FOI legislation the requester has four weeks to appeal the decision to the High Court.
The decision is a reminder to all FOI bodies to scrutinise the legislation in advance of disclosing any documents to ensure that disclosable documents are disclosed but that documents that are subject to an exemption are not disclosed.
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