Mr X and the Department of Education and Skills

• Judge: Peter Tyndall Information Commissioner
• Judgment Date: 02 October 2015
• Case Outcome: The Commissioner, having accepted that the Department did not physically hold the requested records, upheld the Department's refusal thereof under section 10(1)(a) of the FOI Act. He also upheld the Department's effective refusal of the records on the basis that section 6(9) of the FOI Act did not apply. However, he annulled the Department's effective refusal of the records under section 2(5)(a) of the FOI Act, having been satisfied that the Department controls Bus Éireann's operation of, and records relating to, the scheme. He directed the Department to undertake a fresh decision making process.
• Court: Information Commission
• Record Number: 150067
• Respondent: Department of Education and Skills

Whether the Department was justified in refusing the applicant's request for access to records concerning the School Transport Scheme (the scheme) on the basis that: it does not physically hold the requested records so that section 10(1)(a) of the FOI Act applies; it does not control any such relevant records as may be held by Bus Éireann such that it may be deemed to hold the records further to section 2(5)(a) of the FOI Act; and that there does not exist a contract for services between the Department and Bus Éireann such that a right of access to any such relevant Bus Éireann records arises further to the operation of section 6(9) of the FOI Act

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

Background

The background to this case is complex and procedurally difficult to follow. It is necessary to set out the sequence of events since this is relevant to the subsequent analysis and findings.

In a letter dated both 9 July 2011 and 9 August 2013, received by the Department on 12 August 2013, the applicant made the following FOI request to the Department:

"We request under the Freedom of Information Act the following.

The Department of Education and Skills or BE (sic) engaged contractors for "Visual Inspection Contract (sic) and IT Contractors for school transport hereinafter called contractors.

Part 1. Please give the contracts for the contractors and any amendments or extensions for all periods or all parts of periods for all or any part of school year 2011/2012 and 2012/2013, 2013/2014.

Part 2. Records of Patricia O'Connor's correspondence with Bus Éireann about these contracts and or the proposed or planned contract relating to the said periods.

Part 3. Record of the bills for the said contracts for the said periods."

The Department's decision, dated 5 September 2013, refused the request "under [s]section 10(1)(a) of the FOI Act: - 'The record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken'." It did not say whether or not any of the requested records might exist in the first place. Neither did it give any explanation of steps taken to look for any records.

The applicant sought an internal review of this decision on 11 September 2013. He referred in part to a decision issued by this Office on 26 September 2013 (Case Number 110143) on foot of a previous request he had made to the Department for access to school transport records, including records that were held by Bus Éireann. The applicant drew attention to the direction in the 2013 decision that the Department undertake a fresh decision making process in respect of the potential application of section 2(5)(a) of the FOI Act in that case. Section 2(5)(a) provides that a "reference to records held by a public body includes a reference to records under the control of the body". He also expressed dissatisfaction with the Department's procedures for handling the request. He argued that the requested records exist.

The Department's internal review decision of 4 October 2013 broke the applicant's three part request into 42 parts. It cited the wording of section 10(1)(a) of the FOI Act 42 times. It gave no explanation of why it was relying on the provision concerned, and made no mention of section 2(5)(a) of the FOI Act.

The applicant sought a review by this Office of the Department's refusal of his request on 14 October 2013. He again argued that records must exist, and that the Department controls relevant records as held by Bus Éireann.

Reference number 130254 was assigned to the review concerned. Initial submissions were sought from Department in relation to section 10(1)(a) of the FOI Act; these were received on 25 November 2013.

The case was assigned to Ms Anne Lyons, Investigator in this Office on 2 October 2014. She wrote to the Department on 9 October 2014, asking it why it had not considered section 2(5)(a) in this case, given this Office's direction to that effect in Case Number 110143. Having regard to comments in the judgment of McGovern J. (dated 23 October 2012 in the High Court case Student Transport Scheme Ltd v Minister for Education and Skills & Anor [2012] IEHC 425 which concerned the nature of the relationship between the Department and Bus Éireann), and to comments in certain documents provided by the applicant with his OIC application, Ms Lyons asked the Department to justify its contention that it does not control, and thus hold, the requested records. She also asked the Department to further justify its position that it does not physically hold the records concerned. Furthermore, she drew attention to section 8(2)(d) of the FOI Act, which provides that a public body refusing a request "shall specify the reasons for the refusal", and asked the Department to explain why reasons for the refusal of records under section 10(1)(a) were not given in the Department's original or internal review decision even though it had quoted section 10(1)(a) 42 times in the latter.

The Department, having consulted with the Chief State Solicitor, responded on 7 November 2014. On 7 January 2015, Ms Lyons invited comment from Bus Éireann, which replied on 26 January 2015. Neither the Department nor Bus Éireann accepted that the former controls the latter.

Given the complexity of the matters that I would be required to consider and the resource implications involved, , Ms Lyons wrote to the applicant on 2 February 2015, asking for confirmation by email within a week that the review was to proceed. No reply was received and Ms Lyons wrote again on 10 February 2015, saying that if she did not hear from him by email by close of business on 17 February, she would take it that he did not wish for the review to proceed. Again, no reply was received. Ms Lyons closed the file on case 130254 on 23 February 2015, and informed the applicant who then sent three emails on 25 February 2015 (with copies of this Office's letters of 2, 10 and 23 February) saying that he wished the review to proceed. He also wrote on 2 March about the substantive matter of the review, "not[ing] that [the Office] will be soon considering the appeal."

Ms Lyons and the applicant discussed the potential reopening of the case on 2 March. She said she considered it reasonable to expect that an applicant would confirm interest in a review when it is clear that no reply by a certain date would result in its closure. The applicant acknowledged he had received her letters and said he had overlooked them because of new staff in his office and because he had been dealing with a High Court case involving the Department. Although the view could reasonably have been taken that a legal professional should have procedures in place to ensure that post is properly dealt with, my Office agreed to reactivate the review and this was done, under Case Number 150067, on 4 March 2015.

Also on that date, Ms Lyons sought further explanation from the Department on its contention that it holds none of the requested records in its own right. The Department replied on 16 March 2015 and gave further clarifications on 20 March 2015.

On 10 July 2015, Ms Lyons wrote to the applicant to outline why she considered the Department to have justified its refusal of the requested records on the basis that it did not physically hold them, and that section 10(1)(a) of the FOI Act therefore applied. She also outlined her views on the application of sections 2(5)(a) and 6(9) and invited the applicant to reply by 31 July 2015. She said that if he did not reply by this time she would proceed to make a recommendation to me. No response was received from the applicant.

Ms Lyons also gave her views to the Department on 13 July 2015, largely concentrating on section 2(5)(a) of the FOI Act. She sent a copy of this correspondence to Bus Éireann at the email address she had successfully used in January 2015. While the Department replied on 6 August 2015, no response (or email failure message) has been received from Bus Éireann.

I have now decided to conclude this review by way of a binding decision. In carrying out this review, I have had regard to the above correspondence, to relevant Court judgments, to relevant historic documents that set out the arrangements between the Department and Bus Éireann (and formerly, Córas Iompair Éireann (CIE)) in relation to the provision of school transport, to the provisions of the FOI Act and to legal advice received by my Office.

This review is being 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

A review such as this cannot assess the adequacy of the practices and procedures in place in a public body for the purposes of compliance with the FOI Act. Such an assessment, if it were deemed necessary, would have to be carried out pursuant to section 36 of the FOI Act. This review, conducted pursuant to section 34 of the FOI Act, is confined to whether the Department has justified its refusal to release the requested records (specifically records that existed at the date of the FOI request, which I take to be 9 August 2013).

Findings

Section 34(12)(b) places the onus on the Department to justify its refusal of the requested records.

Section 10(1)(a)
The Department said how it dealt with this provision in its internal review decision was intended "to bring clarity to each part of the request in response to the applicant". I fail to see how any clarity was achieved by quoting the wording of section 10(1)(a) over 40 times, without any explanation as...