Mr Y and the Houses of the Oireachtas Service

• Judge: Peter Tyndall Information Commissioner
• Judgment Date: 09 July 2015
• Case Outcome: The Commissioner found that the Service was not justified in refusing access to parts of the records at issue. He varied the Service's decision, directing the release of certain records, in part.
• Court: Information Commission
• Record Number: 140158
• Respondent: Houses of the Oireachtas Commission

Whether the Service was justified in its decision to refuse to grant access to records sought by the applicant, relating to access arrangements for the Houses of the Oireachtas, under sections 23, 26 and 28 of the FOI Act.


Conducted in accordance with section 34(2) of the FOI Act by the Information Commissioner


The decision in this case was subsequently appealed to the High Court by the Service. It was agreed between the parties that the decision be remitted to the Office of the Information Commissioner for fresh determination. A fresh decision issued on 8 December 2016 - see Case 160039

Background

On 14 April 2014, the applicant submitted a request to the Service for access to four categories of records, including two categories of records relating to access arrangements for the Houses of the Oireachtas (the Houses). The two categories in question were;

Details of all Oireachtas access pass holders, not including Oireachtas staff but including those who have passes from political parties. (Category A)

A list of everyone signed in as a visitor by a TD or Senator for the first three months of 2014 (Category B)

On 9 May 2014, the Service issued its decision in relation to the request for records in categories A and B, refusing the request under section 28 of the FOI Act. On 21 May 2014, the applicant sought an internal review of this decision. The internal reviewer issued his decision on 11 June 2014, upholding the initial decision, but additionally finding that sections 23 and 26 of the FOI Act applied to some of the records at issue. On 19 June 2014, the applicant sought a review by my Office of the Service's decision.

The Service has furnished comprehensive, detailed legal submissions to my Office relating to the matters at issue. Accordingly, I consider that the review should now be brought to a close by the issue of a formal, binding decision. On a number of occasions during the course of the review, Mr Mulligan of my Office informed the Service of his initial views in relation to the arguments put forward by the Service with a view to exploring whether a settlement of the review might be possible. In its submissions to my Office, the Service has referred to those views as the Commissioner's preliminary findings. The views expressed were those of Mr Mulligan in the context of exploring a possible settlement and I am clearly not bound by them. In conducting my review, I have had regard to the Service's decisions on the matter and its communications with my Office. I have also had regard to the applicant's communications with my Office and the Service and to the contents of the records at issue.

In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997-2003, notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Scope of the Review

The Service identified four records as coming within scope of the applicant's request in respect of Category A, consisting of lists of party political access pass holders, departmental staff access pass holders, press access pass holders, and holders of "letters of access". The records identified as coming within scope of Category B consist of five extracts from visitor registers maintained at entrances to the Houses for the purpose of recording details of individuals who had been granted an access pass.

During the course of the review, the applicant agreed to reduce the scope of the review to a single week, between 24 and 28 March 2014. He also agreed to exclude from its scope groups on official tours of the Houses, or cleaners and external contractors performing support and operations functions in the Houses.

As the applicant's request for records in category B relates specifically to individuals who had been signed in to the Houses by a TD or Senator, the Service correctly submits that entries relating to individuals who were not signed in by a member of the Houses are outside scope of the applicant's request and should not be released. Three of the five records identified by the Service as falling within this category relate entirely to public servants entering the Houses without being signed in by a TD or Senator. The records in category B remaining at issue, therefore, are those marked "LH 2000 Visitors Badge (Blue)" and "Enquiries Reception Visitors Badge (Blue)", dated from 24 March to 28 March 2014.

Accordingly, this review is concerned solely with the question of whether the Service was justified in refusing access to the records in Categories A and the two remaining records in category B under sections 23, 26 and 28 of the FOI Act.

Analysis and Findings

Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013 (the 2013 Act)
The Service made wide ranging submissions in this case that I will address in this decision, insofar as they are relevant. It argued that section 127 of the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013 (the 2013 Act) operates so as to exclude the records at issue from the scope of the FOI Act. The section provides as follows:

(1) Without prejudice to the exemption for official documents and private papers, the Freedom of Information Acts 1997 and 2003 shall not apply to a record relating to a Part 2 inquiry or other committee business unless-

(a) the record was created before the inquiry or other committee business, as the case may be, commenced, or
(b) the record relates to the expenses of the committee or other matters concerning the general administration of the committee.

"Other committee business" is defined at section 2 of the 2013 Act as meaning "any business, other than a Part 2 inquiry, conducted or to be conducted by a committee".

The relevant Oireachtas Committee is the Joint sub-Committee on Administration, which is established as a sub-Committee of the Committee on Procedure and Privileges. Its function is set out at paragraph 4A of Oireachtas Standing Order 99 as follows:

(d) The Joint sub-Committee shall represent the views of members on the provision of services for and by the Houses generally, and may make recommendations thereon to the Commission.
...

(f) Without prejudice to the generality of sub-paragraph (d), the Joint sub-Committee may advise, and make recommendations by way of report to, the Commission, on-...

(i) Accommodation and facilities, including...

(III) security and access."

While I fully accept that the sub-Committee has a function in representing the views of members and making recommendations in relation to security and access arrangements for the Houses, the question I must consider is whether the records at issue in this case relate to "business ... conducted or to be conducted by the committee". While the records relate to specific access arrangements, the fact that it is open to the sub-Committee to represent the views of members and make recommendations to the Service on such matters does not, of itself, mean that the records in question relate to business conducted by the sub-Committee or that any and all records relating to such matters relate to business conducted by the sub-Committee.

It seems to me that records relating to business conducted by the sub-Committee would include records such as minutes of Sub-Committee meetings where security and access matters were discussed and records containing details of any recommendations made by the sub-Committee on the matter of security and access. In other words, the records relate to business conducted by the sub-Committee and not solely to matters on which the sub-Committee may represent the views of members and make recommendations. Having regard to the nature of the records at issue in this case, I find that they do not relate to business conducted or to be conducted by the sub-Committee and that they are not captured by the exclusion from the scope of the FOI Act as set out in section 127 of the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013.

Data Protection Act 1988
The Service's submission also refers to the Data Protection Act as justifying a refusal to release certain records under the FOI Act. However, section 1(5)(a) of the Data Protection Act 1988 (as amended) provides that:-

"A right conferred by this Act shall not prejudice the exercise of a right conferred by the Freedom of Information Act 1997."

Accordingly, I find that the Service is not entitled to refuse to the records at issue solely on the ground that release of the information at issue may otherwise constitute a breach of the Data Protection Act.

Article 15.10 of the Constitution
The Service argues that the FOI Act does not apply to the records at issue as a result of the operation of Article 15.10 of the Constitution. Article 15.10 provides as follows:

''Each House shall make its own rules and standing orders, with power to attach penalties for their infringement, and shall have power to ensure freedom of debate, to protect its official documents and the private papers of its members, and to protect itself and its members against any person or persons interfering with, molesting or attempting to corrupt its members in the exercise of their duties.''

Section 46(1)(e) of the FOI Act provides that the Act does not apply to "a record relating to any of the private papers (within the meaning of Article 15.10 of the Constitution) of a member of either House of the Oireachtas or an official document of either or both of such Houses that is required by the rules or standing orders of either or both of such Houses to be treated as confidential".

The Service...