Mr David Yip and the Houses of the Oireachtas Service

• Judge: Peter Tyndall Information Commissioner
• Judgment Date: 03 November 2015
• Case Outcome: The Commissioner varied the decision of the Service. He found that it was entitled to refuse access to certain records under section 31(1)(c)(ii), but that it was not entitled to refuse access to other records and directed their release.
• Court: Information Commission
• Record Number: 150142
• Respondent: the Houses of the Oireachtas Service

Whether the Service was justified in refusing access to records concerning communications to and from the Ceann Comhairle on the grounds that they are exempt under section 31(1)(c)(ii), section 41 and section 42 of the FOI Act

Conducted in accordance with section 22(2) of the FOI Act by the Information Commissioner

Background

On 27 February 2015, the applicant made a request to the Service for access to the following records:

"1. Any communications to and from the Ceann Comhairle and his office in relation to Standing Order 40A for the years 2014 and 2015.

2. Details about each of the submissions sent to Standing Order 40A which should include the identification number of the question the submission is referring to, date of submission, who asked the question, status of submission and also any final amendments made to the Dáil record as a result of queries involving the Standing Order 40A rule.

3. Any correspondence to and from the Ceann Comhairle and his staff, including all communications, reports or other documentation held, which mention Standing Order 40A (or the idea for this new parliamentary procedure/rule before it was drafted and/or put into effect since the last general election)."

On 23 March 2015, the Service refused the request on the grounds that the records were exempt pursuant to section 31(1)(c)(ii) and section 42(k) of the Act. On 13 April 2015, the applicant sought an internal review of the refusal. On 27 April 2015, the Service upheld its original decision, and relied upon section 42(l), section 42(k), and section 31(1)(c)(ii) of the Act. On 8 May 2015, the applicant sought a review by this Office of the Service's decision.

I have decided to conclude this review by way of a formal binding decision. In conducting this review, I have had regard to the contents of the relevant records, to the submissions of the parties, and to the provisions of the FOI Act.

Scope of the Review

The scope of this review is concerned solely with whether the Service was justified in refusing to release the requested records to the applicant.

Analysis and Findings

Preliminary matters
It should be noted that the courts have taken the view that, under FOI, records are released without any restriction as to how they may be used and, thus, FOI release is regarded, in effect, as release to the world at large. Additionally, while I am required by section 22(10) of the FOI Act to give reasons for decisions, this is subject to the requirement of section 25(3) that I take all reasonable precautions during the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the records at issue is limited.

Standing Order 40A

Standing Order 40A ('SO 40A') of Dáil Éireann's Standing Orders provides for a procedure whereby a member of the Dáil may request the Ceann Comhairle to seek further information from a member of the Government, if the member is of the opinion that the member of the Government (i.e. the Minister) did not fully address a request for information contained within a parliamentary question. If the Ceann Comhairle agrees with the member's opinion, SO 40A provides that he shall communicate this to the Minister, who is obliged to furnish additional information. According to the Service, this measure was proposed and adopted by the Dáil in 2011 as part of a series of reform measures.

The Service has identified 48 records as being relevant to the request. The majority of these concern individual applications under SO 40A. There are also records of proposals/consultations regarding amendment of the Dáil's standing orders.

In his submissions to this Office, the applicant argued that there is a strong public interest in ensuring transparency in the working of the Houses of the Oireachtas. He contended that the Service has incorrectly applied the exemptions/restrictions claimed, and that "The fact that the Ceann Comhairle is a member of the majority government party gives rise to risk or [sic] bias or perception of bias in the application of his duties and of such rules governing the access to information made available under the rules of the House to TDs and other members of parliament. It is incumbent on FOI officers and the Information Commissioner to prevent the abuse or misinterpretation of the FOI Act to prevent access to how the Ceann Comhairle and his office administer such significant procedures of the House."

It is important to note that it is the role of this Office is to review decisions for access to records under the provisions of the FOI Act. The Commissioner has no jurisdiction to investigate or make findings upon how the Ceann Comhairle or the Service conducts its business.

In its internal review decision letter of 27 April 2015, the Service refused access on the following grounds:

• Correspondence to the Ceann Comhairle is exempt pursuant to section 42(l).
• Correspondence from the Ceann Comhairle is exempt pursuant to section 42(k).
• 'Reports or other documentation held' are exempt pursuant to section 31(1)(c)(ii)(I) and (II).
• Records sought at point 2 of the request are exempt pursuant to section 42(k).

In additional submissions to this Office of 7 July 2015, the Service contended that access to the relevant records falls to be refused on the basis of section 31(1)(c)(ii) and section 42(k) of the FOI Act, and Part 10 of the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013.

Section 31(1)(c)(ii)
I will consider this exemption first. Section 31 is a mandatory exemption that obliges refusal of a request if the record concerned, inter alia,

"(c) consists of...

(ii) opinions, advice, recommendations, or the results of consultations, considered by --

(I) either House of the Oireachtas or the Chairman or Deputy Chairman or any other member of either such House or a member of the staff of the Houses of the Oireachtas Service for the purposes of the proceedings at a sitting of either such House, or

(II) a committee appointed by either such House or jointly by both such Houses and consisting of members of either or both of such Houses or a member of such a committee or a member of the staff of the Houses of the Oireachtas Service for the purposes of the proceedings at a meeting of such a committee."

In order to fall within the scope of section 31(1)(c)(ii), the record must fulfil three conditions:

• It must constitute opinions, advice, recommendations or results of consultations.
• It must have been considered by inter alia the chairman of either House, a committee appointed by either House, or a staff member of the Office of the Houses of the Oireachtas.
• Such consideration must have been for the purposes of the proceedings at a sitting of either House, or a meeting of a committee.

It is important to note that there is no public interest balancing test applicable to this exemption; if a record meets the three conditions above it is automatically exempt from release.

I agree with the Service that the following records, containing recommendations to the Ceann Comhairle from certain staff members of the Office of Dáil Éireann, fulfil the above conditions and are exempt from release:

Record 4(d); 6(a)(ii); 7(a); 7(c); 21(b), 24(a); 30(b) (incorrectly stated as being 30(e) on schedule of records); 31(d); 42(i).

In addition, I consider that records 44-48, which relate to amendments to Dáil Éireann Standing Orders and procedures, qualify for exemption under section 31(1)(c)(ii). In my opinion, record 44 contains the results of consultations considered by members of the Dáil for the purposes of proceedings of that House; record 45 contains the results of consultations considered by members of staff of the Service for the purposes of proceedings of the Dáil; and records 46 to 48 contain recommendations considered by members of staff of the Service for the purposes of proceedings of the Dáil.

Section 42

The bulk of the records have not been released on the basis that they come within the provisions of section 42 and therefore the FOI Act does not apply. No discretion arises in respect of this provision, which has a "stand alone independent existence" from the rest of the Act (Deely v. Information Commissioner ...