Mr X and Dublin West Education Centre

• Jurisdiction: Ireland
• Judge: Stephen Rafferty Senior Investigator
• Judgment Date: 10 July 2020
• Case Outcome: The Senior Investigator affirmed the decision of the DWEC to refuse the request on the ground that it does not hold the records for the purposes of the FOI Act.
• Respondent: Dublin West Education Centre
• Record Number: OIC-57745-Q4K7Y3
• Court: Information Commission

Whether DWEC was justified in refusing the applicant’s request for records relating to the Professional Development Service for Teachers (PDST) on the ground that it does not hold the records for the purposes of the Act

10 July 2020

Background

In the particular circumstances of this case, it is first necessary to provide some background information of the efforts made by the applicant to obtain access to records concerning the Professional Development Service for Teachers (PDST) which led to the request that is the subject of this review.

According to its website, PDST is funded by the Teacher Education Section (TES) of the Department of Education and Skills (the Department) and is managed by DWEC. It describes itself as the country’s largest single support service offering professional learning opportunities to teachers and school leaders in a range of pedagogical, curricular and educational areas.

The question of access to records relating to PDST under the FOI Act has proven to be quite complex and has not been helped by the different positions taken by the relevant bodies in the course of their engagements with this Office.

The applicant first submitted a request directly to PDST on 1 January 2018 for certain records. PDST argued that it was not a public body for the purposes of the Act and the applicant sought a review by this Office of that decision (Case OIC-59187 refers).

On 21 August 2018 I notified the applicant of my finding that PDST was not a public body for the purposes of the Act. I noted PDST’s position that it was a service provider under the aegis of the TES of the Department. I found that PDST was, in essence, a programme or service for the delivery of certain support services to teachers and was not a separate legal entity in its own right.

I also noted that the Act provides for a right of access to records held by FOI bodies and that for the purposes of the Act, a reference to records held by an FOI body includes a reference to records under the control of that body (section 2(5) refers). While I made no finding on whether or not records held by PDST might be under the control of the Department for the purposes of the Act, I suggested that it might be open to the applicant to pursue the possibility that the records he was seeking may be deemed to be held by the Department.

On 14 December 2018 the applicant submitted the same request to the Department. The Department refused the request under section 15(1)(a) on the ground that it did not hold any relevant records. The applicant sought a review by this Office of that decision (Case OIC-53305 refers).

In its submissions to this Office, the Department said DWEC, an independent statutory body recognised by the Minister for Education and Skills under section 37 of the Education Act 1998, “hosts” PDST. It said all funding for PDST from the Department is routed through DWEC and that FOI requests for information held by DWEC including that relating to PDST must be made directly to DWEC.

I issued my decision on the matter on 21 August 2019 wherein I found, having regard to the Department’s explanation of the nature of its relationship with DWEC and of the nature of the relationship between DWEC and PDST, that records held by PDST were not under the control of the Department and were not, therefore, deemed to be held by the Department for the purposes of the FOI Act.

On 22 August 2019 the applicant submitted the same request to DWEC that is now the subject of this review. The request was for the following:

1. All correspondence between PDST and representatives of the Catholic Church (including emails and written correspondence) during calendar year 2016. This is to include Diocesan Advisors working with schools on behalf of the Catholic Church.
2. All minutes from meetings, policy documents or other agreements between PDST and representatives of the Catholic Church that were applied during the calendar year 2016, which relate to in-service days for religion teachers. This is to include agreements and discussions relating to the content to be presented at such in-service days; arrangements for physical premises to be used; how costs should be covered and the management of any fees paid; how such in-service days should be advertised towards schools; and what commercial products would be promoted at such in-service days (for example, from suppliers such as Veritas).
3. Any minutes from meetings, policy documents or other agreements between PDST and representatives of the Catholic Church during calendar year 2016, which relate to how religion should be taught or how teachers should be instructed in the teaching of religion.
4. All written correspondence and all emails between PDST and the Department of Education and Skills during calendar year 2016, relating to the teaching of religion. All written correspondence and all emails between PDST and the National Council for Curriculum and Assessment (NCCA) during calendar year 2016, relating to the teaching of religion.
5. A list of all in-service days for religion teachers during the calendar year 2016, which were attended both by representatives of the Catholic Church and representatives of PDST, or which were arranged by both the Catholic Church and PDST.
6. Details of any payments made by PDST to the Catholic Church or Diocesan Advisors acting on behalf of the Catholic Church.

On 19 September 2019, DWEC issued a decision in which it refused the applicant’s request on the grounds that it did not directly or indirectly control PDST for the purposes of section 2(5) of the FOI Act. The applicant sought an internal review of that decision on the same day. On 10 October 2019, DWEC issued its internal review decision in which it affirmed its original decision to refuse the request. On 24 October 2019, the applicant sought a review by this Office of the decision of DWEC.

During the course of the review, this Office sought submissions from both DWEC and the Department regarding the relationship between the parties and with PDST and regarding the question of access to PDST records. Submissions were also received from the applicant.

I have now decided to conclude this review by way of a formal, binding decision. In carrying out my review, I have had regard to the correspondence between the Department and the applicant as set out above. I have also had regard to the communications between this Office and the applicant, DWEC, and the Department on the matter. I have also had regard to a previous submission of PDST in case OIC-59187, which I consider to be relevant to the issues arising in this related review.

Scope of the Review

Section 15(1)(a) of the FOI Act provides for the refusal by a public body of a request where the records sought do not exist or cannot be found. This would include requests where the records sought do not exist within the body to which the request was made, i.e. the records sought are not held by that body for the purposes of the Act. Under section 2(5) of the Act, a reference to records held by an FOI body includes a reference to records under the control of that body. As such, even if a body does not physically hold certain records, it will be deemed to hold them for the purposes of the Act if the records sought are...