Organisation X and Office of the Director of Corporate Enforcement

• Jurisdiction: Ireland
• Judge: Senior Investigator
• Judgment Date: 19 May 2021
• Case Outcome: The Senior Investigator affirmed the ODCE's decision on the ground that the Act does not apply to any relevant records, if they exist, pursuant to Schedule 1, Part 1(g) of the Act.
• Court: Information Commission
• Respondent: Office of the Director of Corporate Enforcement
• Record Number: OIC-103501-B2K5Z9

Whether the ODCE was justified in refusing access to records of informal contacts and meetings between ODCE management (at Director, PO or PO equivalent grades) and company directors known to be in legal processes and/or involved in making or responding to Garda investigations, who are personal contacts of such senior personnel, during the year 2020 to date under Schedule 1, Part 1(g) and section 15(1)(a) of the FOI Act

19 May 2021

Background

On 17 November 2020, the applicant submitted a request anonymously to the ODCE by email seeking details of its senior management’s direct engagement with Company Directors known to be in legal processes and/or involved in making or responding to Garda investigations. The request was stated to include engagements with personal contacts known to the senior personnel involved, and a schedule of the meetings and communications with known or estimated dates involved.

Following a number of exchanges of email concerning the ODCE’s efforts to clarify the nature of the records sought, the parties agreed, on 19 November 2020, on the following wording for the request:

“Records of informal contacts and meetings between ODCE management (at Director, PO or PO equivalent grades) and company directors known to be in legal processes and or involved in making or responding to Garda investigations, who are personal contacts of such senior personnel, during the year 2020 to date”.

In a decision dated 16 December 2020, the ODCE refused the request under section 15(1)(a) on the ground that no relevant records could be found. On 15 January 2021, the applicant sought an internal review of that decision. The applicant said that s/he has some fragments of records (texts and call log information) between one of its enforcement lawyers and therefore knows that relevant records exist. The applicant outlined the types of searches that s/he believed should be undertaken.

On 4 February 2021, the ODCE affirmed the refusal of the request. It said it is not a public body for the purposes of the Act in relation to records held or created under the Companies Acts, save as regards a record concerning the general administration of the Office, pursuant to part 1(g), Schedule 1 of the Act, and that no relevant records could be found after all reasonable steps to find them had been taken.

On 9 February 2021, the applicant sought a review by this Office of the ODCE’s decision, and asked this Office to determine whether the communications...