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Whether the Service was justified in refusing the applicant-�s request for further records relating to an Oireachtas Print Facility job under section 15(1)(a) and/or section 42(k) of the Act

24 October 2022

Background

This review has its background in a previous FOI request by the applicant to the Houses of the Oireachtas Service (the Service) for records of print jobs that were recycled following non collection from the Oireachtas Print Facility by TDs or Senators. In a subsequent request to the Service dated 14 March 2022, the applicant sought access to all correspondence between a named TD and/or his Office and the Oireachtas Print Facility and graphic designers in relation to a specified print job, and copies of all other records held in relation to the print job. In its decision dated 8 April 2022, the Service granted the applicant-�s request and provided the applicant with a schedule of two records and copies of those records.

The applicant sought an internal review of that decision. He said that he had sought all records relating to the print job and not merely correspondence. He argued, for example, that the PDF file of the print job should have been released. He also argued that correspondence between the TD and the graphic designer should have been released, and that no records regarding the status of the print job, such as a reminder that the print job was ready for collection, or a notification of the job having been recycled, were released.

In its internal review decision of 28 April 2022, the Service released one further record to the applicant, namely, the PDF file of the print job. It said correspondence regarding the design and layout of the print job and the approval of proofs is between the Deputy or Senator and the graphic designer. It said graphic designers are not employed by the Service, and thus records which they create or receive are not held by the Service. It refused the applicant-�s request in respect of such records under section 15(1)(a) of the Act. It said that even if the records were held by it, they would arguably constitute -�personal papers-� of a member of the Oireachtas and be exempt from release under the Act. In relation to reminders, it said that the only relevant record, the initial notification that the job was ready for collection which was sent automatically from the print system, was released with the original decision. It said no other automatic notification was sent from the Print Scheduling System nor was any other reminder sent.

On 21 July 2022, the applicant applied to this Office for a review of the Service-�s decision. In response to our request for submissions during the course of the review, the Service provided a detailed explanation of its Print Scheduling System to which graphic designers employed by political parties and elected members have access. It explained that two additional relevant records that were created in transmitting the PDF file of the print job to the Print Facility were located and I understand that the two records were subsequently released to the applicant.

Following receipt of the Service-�s submissions, this Office provided the applicant with details of the searches undertaken by the Service and of its explanation as to why it holds no further relevant records. While we invited him to make a further submission on the matter, no such submission has been received.

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 correspondence between the applicant and the Service as outlined above, and to communications between this Office and both the applicant and the Service on the matter. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

The Service-�s position is that it holds no other relevant records coming within the scope of the applicant-�s request apart from those already released, and that section 15(1)(a) of the act applies, as no further relevant records exist or can be found.

Accordingly, this review is concerned solely with whether the Service was justified in refusing, under section 15(1)(a) of the Act, the applicant-�s request for records relating to a specified print job on the ground that it holds no further relevant records.

Analysis and Findings

Section 15(1)(a)

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 after all reasonable steps to ascertain their whereabouts have been taken. Our role in a case such as this is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision and also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in -�search-� cases generally consists of the steps actually taken to search for the records along with miscellaneous and other information about the record management practices of the FOI body, insofar as those practices relate to the records in question. It is important to note that a review by this Office is not concerned with access to records that a requester believes ought to exist.

As I have outlined above, the Service provided this Office with details of searches it undertook in an effort to locate relevant records and of its reasons for concluding that it holds no further relevant records. While I do not propose to repeat those details in full here, I confirm that I have had regard to them for the purpose of this review.

In summary, the Service said the request was for a narrow range of records held by the Print Facility. It said a search was undertaken of the Print Facility and that personal email accounts and shared email accounts/shared drives were searched for relevant records. It said records matching some of the steps the applicant suggested as being part of a print job do not exist as they were not normal steps in the process and that other steps suggested did not form part of the print procedure in this case. It said it would be most unusual for the Print Facility to receive correspondence passing between the Member and the graphic designer, as it normally receives only the -�print-ready-� version of the job, after all design matters have been settled. It said while reminders are sent from time to time where Members have not collected print jobs, in circumstances where the General Election was called on 14 January 2020 [being the date the TD in this case was notified the requested print job was completed] the guidelines under s. 4(4A) of the Houses of the Oireachtas Commission Act 2003 as amended required that print jobs be collected no later than the evening of the day after dissolution. It said the Print Manager believes that the print job was recycled once that evening passed without the job being collected, and as such, no occasion for sending a reminder arose.

In his application for review to this Office, the applicant argued that correspondence between graphic designers and the Oireachtas Print Facility would fall within the scope of the Act, notwithstanding the Service-�s contention that graphic designers are not employees of, or service providers to, the Service. He further argued that correspondence between graphic designers and TDs would fall within the scope of the Act and requested an adjudication by this Office in respect of both points.

On the matter of correspondence between graphic designers and the Oireachtas Print Facility, the position of the Service is that no such records exist other than the records released. As it explained in its review decision, -�Correspondence regarding the design and layout of the print job and the approval of proofs is between the Deputy or Senator and the graphic designer-�. In its submissions to this Office it said that the first point at which the Service is entitled to access records for the purpose of this review is the point at which the Member or graphic designer contacts the Print Facility with a proposed print job. No evidence has been presented to this Office to suggest that further records comprising correspondence between the Service and the graphic designer exist in this case. Accordingly, I accept the evidence of the Service on this point.

On the matter of whether correspondence between the TD in question and the graphic designers fall within the scope of the Act, the following provisions of the Act are relevant:

• Section 11(1) of the FOI Act provides for a right of access to any recordheldby an FOI body.
• Section 2(5) provides that a reference to records held by an FOI body includes a reference to records under its control.
• Section 11(9) provides that a record in the possession of a service provider shall, if and in so far as it relates to the service, be deemed for the purposes of this Act to be held by the FOI body
• Section 2(1) defines a service provider as -�a person who, at the time the request was made, was not an FOI body but was providing a service for an FOI body under a contract for services and contract for services in this definition includes an administrative arrangement between an FOI body and another person-�

Accordingly, the question I must consider is whether any relevant correspondence between the TD and the graphic designer are deemed to be held by, or under the control of, the Service for the purpose of the FOI Act. In doing so, it seems to me that I must consider (i) the question of access to any relevant records that may be physically held by the TD and/or the graphic designer and (ii) the question of access to any such records that may be in the possession of the Service by virtue of the fact that they are held on an Oireachtas email account.

In relation to the first point, the position of the Service is that any correspondence between the TD and the graphic designer is a matter for those parties. In its submissions to this Office, it explained that graphic design services are provided under a contract of employment between the graphic designer and the relevant Member. It said the services are provided pursuant to such a contract of employment as stipulated in the Regulations. It said the Regulations delimit the terms on which statutory support by way of secretarial facilities in connection with a Member-�s parliamentary duties is provided as one of the facilities for Members envisaged by the Constitution. It said the Service provides a payroll function for Members in respect of the graphic designers but is not their employer, nor do the graphic designers provide a service to the Service pursuant to a contract for services or otherwise.

The Service said the constitutional underpinning of allowances legislation is Article 15.15 of the Constitution, which provides:

-�The Oireachtas may make provision by law for the payment of allowances to the members of each House thereof in respect of their duties as public representatives and for the grant to them of free travelling and such other facilities (if any) in connection with those duties as the Oireachtas may determine.-�

It said the funding of the graphic designer is governed by section 2(1)(c) of the Oireachtas (Allowances to Members) Act 1962, as amended, which provides:

-�The following facilities shall, subject to such exceptions, restrictions and conditions as may be provided for by regulations, be granted to a member of Dáil Éireann or Seanad Éireann-�secretarial facilities solely in connection with the member's parliamentary duties.-�

It said the Regulations referred to in section 2(1) of the 1962 Act are currently the Oireachtas (Ministerial and Parliamentary Offices) (Secretarial Facilities) Regulations 2021 (the 2021 Regulations), and Regulation 15 provides for graphic design. In particular, Regulations 15(2) and 15(3) provide as follows:

2. Other qualifying parties and independent members are entitled to share the services of one graphic designer at administrative assistant level.

3. A person providing graphic design services under this Regulation is the employee of the qualifying party, qualifying parties, or independent member or members, or the relevant combination of them, to which or to whom the facility is provided under a contract of employment made between the party, parties, person, or persons in question.

The Service said the graphic designer provided for in the 2021 Regulations is not providing a service to an FOI body, but to the Members in question, and does not have a contract of service with, nor are they an employee of, the Houses of the Oireachtas Commission or Service. It said the graphic designer is employed to assist in preparing promotional material for Members and parties and it would be quite inappropriate for an independent statutory entity such as the Commission or Service to retain a person for that purpose, as the Houses of the Oireachtas Commission Act 2003 provides at section 3(5): -�Subject to this Act, the Commission is independent in the performance of its functions.-�

Having regard to the explanation of the position as outlined by the Service in its submissions, I am satisfied that any relevant records that may be held by the TD in question cannot be deemed to be under the control of the Service for the purpose of the FOI Act. Moreover, I am satisfied that the graphic designer in this case cannot be deemed to be a service provider for the purposes of the Act and that section 11(9) does not apply.

On the matter of whether a right of access exists to any relevant records that may be in the possession of the Service by virtue of the fact that they are held on an Oireachtas email account, the Service said it would not be entitled to search emails on the Oireachtas network for the purpose of complying with an FOI request. It said the only way in which the Houses of the Oireachtas Commission or Service engages with communications between a Member and his or her graphic designer is that under Regulation 6 of, and Schedule 1, Part 1 to, the 2021 Regulations and their predecessors, the Member is provided with -�an e-mail account on the Houses of the Oireachtas network.-� It said that in respect of this facility, the Member is expected to sign a data processing agreement naming the Commission as data processor. It said the Commission has no access to Members-� data other than as required by law or court order. It said the need to provide for these exceptions is stipulated by Article 28(3)(a) of the GDPR.

As I have outlined above, section 11(1) of the FOI Act provides for a right of access to any record held by an FOI body. While the Act does not define -�held-�, the Commissioner accepts that mere physical possession of a record does not, of itself, mean that the record is held for the purposes of the Act. The Supreme Court considered the meaning of -�held-� for the purposes of the Act in Minister for Health v Information Commissioner [2019] IESC 40 (the Drogheda Review case).

In her judgment in the case, Finlay Geoghegan J. accepted that the equivalent provision of the Freedom of Information Act, 1997 (the Act of 1997) (section 6(1), which provides for the right of access to records held by public bodies), gives rise to two distinct questions for a decision maker when access to a record alleged to be held by a public body is sought; first, whether it is a record -�held-� by the body and secondly and separately, whether the requester has a right of access to the record. She accepted that the statutory criteria according to which each question is to be answered are distinct.

On the meaning of held, Finlay Geoghegan J. found that for a record to be held within the meaning of section 6(1) of the Act of 1997, the public body must be in lawful possession of the record in connection with, or for the purpose of, its business or functions and must also be entitled to access the information in the record.

Having regard to the findings of the Supreme Court in the Drogheda Review case, I accept that in order for any relevant records that may be held in the TD-�s Oireachtas email account to be deemed to be held by the Service, the Service must be in lawful possession of the records in connection with, or for the purpose of, its business or functions and must also be entitled to access the information in the records. The records sought relate to communications between the TD and the graphic designer in relation to a specified print job. The service provided by the graphic designer is for the TD, and not for the Service. I am satisfied that any such records, if they exist on the TD-�s Oireachtas account, cannot be deemed to be in the lawful possession of the Service in connection with, or for the purpose of, its business or functions, nor do I accept that the Service is entitled to access the information in any such records.

In conclusion, therefore, I am satisfied that the Service was not required to seek copies of relevant records from the TD or from the graphic designer, nor was it entitled to search the TD-�s Oireachtas email account, when searching for relevant records. Having regard to the searches actually undertaken and having regard to the explanation provided by the Service of the job print process, I find that the Service has taken all reasonable steps to ascertain the whereabouts of relevant records, and that it was justified in refusing access, under section 15(1)(a) of the Act, to any further relevant records other than those already released.

Having found that it was justified in refusing access to any additional records under section 15(1)(a), it is not strictly necessary for me to consider whether the Service was also justified in refusing access to any relevant records held by the TD under section 42(k) of the Act. Nevertheless, I will do so in this case for the benefit of the parties.

Section 42(k) provides that the Act does not apply to a record relating to any of the private papers (within the meaning of Article 15.10 of the Constitution) of a member of either House of the Oireachtas or an official document of either or both of such Houses that is required by the rules or standing orders of either or both of such Houses to be treated as confidential.  Article 15.10 of the Constitution provides as follows:

Each House shall make its own rules and standing orders, with power to attach penalties for their infringement, and shall have power to ensure freedom of debate, to protect its official documents and the private papers of its members, and to protect itself and its members against any person or persons interfering with, molesting or attempting to corrupt its members in the exercise of their duties.

In its submissions, the Service argued that should correspondence between a Member and his or her graphic designer come to be -�held-� by the Houses of the Oireachtas Service, the terms of Dáil Standing Orders 152 and 154 demonstrate that they would be exempt from the application of the 2014 Act pursuant to s. 42(k) of the Act. In his application to this Office, the applicant argued the public interest in transparency surrounding a process in which taxpayers' money is used by Oireachtas Members to produce printed materials for the public using an in-house service outweighs any ill-conceived contention that the records ought to be exempt as private papers. 

The Dáil Éireann Standing Orders relative to Public Business 2020 include Orders relating to Official Documents, Private Papers and Confidential Communications (Standing Orders 152 to 156). Order 152(4) states:

(4) A document which is an official document for the purposes of Standing Order 153 or a private paper for the purposes of Standing Order 154, must be treated as confidential, and is required by these Standing Orders to be kept confidential.

Order 154 states:

1. This Standing Order is made for the purposes of giving effect to Article 15.10 of the Constitution in so far as it provides for the protection of the private papers of members.
2. For the purpose of this Standing Order, the private papers of a member are all documents concerning which the member has a reasonable expectation of privacy, and:

(a) which are prepared for the purposes of, or purposes incidental to:

(i) transacting any business of the Dáil or any Committee of the Dáil; or

(ii) the member-�s role as public representative; but

(b) which are not:

(i) where the member is an office-holder, documents relating to the member-�s functions as office-holder (whether those documents are held by the member, by the office-holder-�s Department or Office, by any of his or her special advisers, or by some other person); or

(ii) lawfully in the public domain.

The Service said communications regarding a Member-�s political promotion of his or her work or profile between the Member and his or her graphic designer relate to his or her role as public representative, and are ones regarding which (s)he has a reasonable expectation of privacy in that, in the preparation of that material, (s)he is in competition with other Members and other potential candidates. I accept that the records sought, if I had found them to be held by the Service, would relate to the Member-�s role as a public representative and would be captured by the definition of private papers as set out in Order 154 of the Dáil Éireann Standing Orders. As such, I find that section 42(k) of the Act would apply in those circumstances. 

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Service to refuse, under section 15(1)(a) of the act, the applicant-�s request for records relating to an Oireachtas Print Facility job other than those already released.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.
 

Stephen Rafferty
Senior Investigator