Mr Ken Foxe of Right to Know CLG and Office of Public Works

• Jurisdiction: Ireland
• Judge: Senior Investigator
• Judgment Date: 14 September 2021
• Case Outcome: The Senior Investigator annulled the decision of the OPW. He directed the release of the aggregate amount of expenditure on the installation of security measures at private residences for each of the years sought.
• Court: Information Commission
• Respondent: Office of Public Works
• Record Number: OIC-107794-C1C4K4

Whether the OPW was justified in refusing access, under sections 32(1)(a)(ix), 32(1)(b), 32(1)(c) and 42(h) of the Act, to details of expenditure in specified years on security at private residences including the homes of members of the Oireachtas, Judges, CAB officials, the President and/or former President(s)

14 September 2021

Background

This case has its background in an earlier OIC decision issued on 27 January 2021 (Case OIC-93056). In that case, the Senior Investigator found that the OPW was justified in refusing to grant a request for details of the amount of money spent on providing security at the homes of members of the Oireachtas during a specified period on the ground that no record containing the specific information sought existed and that the OPW was not obliged to create a new record to grant the request.

In essence, while the OPW indicated that it held information in relation to security at private residences, that information included details relating to various parties, including members of the Oireachtas, judges, CAB officials, the President and/or former Presidents. Having considered the OPW‘s description of its records management practices in respect of the information at issue, this Office accepted that the work involved in providing the specific information sought was such that it would involve the creation of a new record and that the OPW was not required to do so.

On 26 March 2021, the applicant submitted a request for the information the OPW indicated it holds “in relation to ‘security at private residences’ which includes members of the Oireachtas, Judges, CAB officials, the President and/or former President(s)”. He later clarified that the request covered the years 2018, 2019, 2020, and 2021 to date. In a decision dated 16 April 2021, the OPW refused the request under sections 15(1)(a), 32(1)(a)(ix), 32(1)(b), 32(1)(c) and 37(1) of the FOI Act.

The applicant sought an internal review of that decision. He referred back to his previous correspondence with the OPW and reiterated that he was seeking aggregated total costs associated with the provision of security at private residences by the OPW, and was not seeking any names or addresses associated with that expenditure. The OPW issued its internal appeal decision on 12 May 2021, affirming the original decision. On 18 May 2021, the applicant sought a review by this Office of the OPW’s decision.

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 submissions made by the applicant and by the OPW and to the correspondence between the parties. I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

During the review process, the OPW also sought to rely on section 42(h) as a ground for refusing the request. This review is therefore concerned with whether the OPW was justified in refusing access, under sections 15(1)(a), 32(1)(a)(ix), 32(1)(b), 32(1)(c), and 42(h) of the FOI Act, to details of the amount spent on security at private residences in each of the years 2018, 2019, 2020, and 2021 to the date of the request.

Preliminary Matter

Section 22(12)(b) of the FOI Act provides that when the Commissioner reviews a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore, in this case, the onus is on the OPW to satisfy the Commissioner that its decision to refuse access to certain records, either in whole or in part, was justified.

Analysis and Findings

Section 15(1)(a) – Do the records sought exist?

Section 15(1)(a) of the Act provides for the refusal of a request where the records sought do not exist or cannot be found. In its submissions to this Office, the OPW drew a distinction between how it records expenditure on the installation of security measures at private residences and how it records expenditure on the ongoing maintenance of these security measures. It stated that while reports can be generated electronically on the yearly cost of installing security at private residences, ongoing maintenance costs are recorded on the accounting system in a different way and would require extensive cross-checking against paper files which, it...