Data Protection Commissioner not required to disclose lobbying communications

The Information Commissioner (IC) has made a formal binding decision that records of lobbying communications with the Data Protection Commissioner (ODPC) are not accessible under the Freedom of Information (FOI) Act 2014. In Right to Know CLG v ODPC (Case No. 160447), the IC concluded that the ODPC was justified in refusing the applicant’s request on the ground that the records sought fell outside the scope of the FOI Act, as they did not concern the general administration of the ODPC’s office.

Background

The Regulation of Lobbying Act 2015 is designed to provide information to the public about who is lobbying whom about what. The Public Office Commission maintains a Register of Lobbying on its website (www.lobbying.ie).  The register provides details of the subject matter of each lobbying activity, the intended results, and a description of the activities that occurred for the specific subject matter area. The applicant made an FOI request seeking access to eight specific entries in the lobbying register concerning the ODPC. The records sought related to the specific activities registered by the various lobbyists. The ODPC refused the applicant’s request on the basis that the records sought fell outside the scope of its obligations under the FOI Act in relation to access to records, because they did not concern the general administration of the ODPC.

The applicant sought an internal review of that decision. The ODPC responded that no right of internal review arose as the records sought concerned matters for which it is not a public body for the purposes of the FOI Act, and it affirmed the original decision to refuse the request.  However, without prejudice to that position, it went on to provide a detailed explanation of why it considered that records relating to each of the eight specific lobbying register entries engaged the Commissioner’s statutory functions and the core business of the ODPC and did not concern the general administration of its Office.

The applicant subsequently sought a review of the ODPC’s decision by the IC.  The ODPC contended that the IC had no jurisdiction to review its decision on the ground that the records sought concerned matters for which the ODPC is not a public body for the purposes of the FOI Act.

Jurisdiction of the IC

The IC’s Office found that accepting the ODPC’s position would essentially allow it to throw a blanket over all of its records without external independent oversight by the IC, which would result in the possible withholding of information that the Oireachtas clearly intended should be released under the FOI Act. The attention of the ODPC was drawn to the Guidance Note issued by the Central Policy Unit (CPU) of the Department of Public Expenditure and Reform which clearly states that where access to records is refused on the basis that the body is not a public body for the purposes of records covered by Schedule 1 Part 1, the internal and external review provisions clearly apply. Its attention was also drawn to the fact that the approach adopted by the ODPC runs contrary to the legal advice that the Office of the Attorney General provided to CPU on the matter, and to the IC’s decision in Case 150195 (available on www.oic.ie), where the IC considered and rejected similar arguments made by the Central Bank of Ireland.  Accordingly, the IC concluded that he had jurisdiction to review the ODPC’s decision to refuse the applicant’s request.

Decision

The IC affirmed the decision of the ODPC to refuse the applicant’s request for access to records relating to eight specific entries in the lobbying register.  In coming to his decision, the IC noted that the term “general administration” is not defined in the FOI Act.  However, the IC’s office had previously considered what types of records are captured by the term. In Case 160055 (Mr. X and the Office of the Attorney General), Stephen Rafferty of the IC’s Office stated:

“While the Act is silent on the meaning of general administration, this Office considers that it clearly refers to records which have to do with the management of the AG’s Office such as records relating to personnel, pay matters, recruitment, accounts, information technology, accommodation, internal organisation, office procedures and the like. I am satisfied that it does not refer to records relating to matters concerning the core business of the Office, such as advising on legislation or litigation.”

In this case, the records sought concerned discussions held between various entities and the ODPC which were included on the register of lobbying. The IC was satisfied, having regard to the ODPC’s explanation of the nature and subject matter of the relevant lobbying activities, that the records sought did not concern the general administration of the ODPC.

This article was first published on the Ireland IP & Technology Law Blog on 13 March 2017.

For further information please contact Davinia Brennan.