Justice rebuked after files uncovered

The Department of Justice has been rebuked after 68 files, which it said didn’t exist, between ex-tánaiste Frances Fitzgerald and a PR firm were discovered following an investigation.

The department had initially claimed, in a response to a request for information last year, that no records existed. They emerged on foot of a scope by the information commissioner.

In a judgement by commissioner Peter Tyndall, the department was found to have utterly failed to fulfil its legal duty to release the requested documents.

The department has been embroiled in controversy since 2014, with one report describing it as suffering from a “closed, secretive, and silo-driven culture”.

The judgement was made after the commissioner reviewed a freedom of information (FoI) request made by journalist Ken Foxe, from the transparency group Right to Know, to the department while Ms Fitzgerald was still minister.

In March 2017, Mr Foxe sought the release of communications between Ms Fitzgerald and Terry Prone’s Communications Clinic. Ms Prone is a columnist with the Irish Examiner.

The request was made in the wake of reports that An Garda Síochána had paid the Communications Clinic over €90,000 for media training.

The department said it was not aware of any interaction between the then minister and Ms Prone’s firm. It subsequently came to light that its archive records did contain a substantial number of relevant records.

The commissioner quashed the refusal to release the documents and ordered the department to ask Ms Fitzgerald if she personally holds any additional information that is relevant and make a fresh decision about releasing the files.

In total, 74 records were uncovered, which the department had not previously considered.

It seems that in late January 2018, following concerns expressed by my investigative staff that further records could be held, the department searched archived email accounts,” states the information commissioner’s judgment.

“My office identified 68 records that fall within the scope of the applicant’s request and advised the department of this.”

The other six documents fell outside the terms of the FoI request.

The department claimed it would have been inappropriate to ask Ms Fitzgerald about emails in her Gmail account. “The department stated that it would not be appropriate to ask the former minister whether she has records in her personal email accounts ‘that might fall within the scope of the request’ and that the department ‘does not feel it is in a position to go outside of the scope of the FoI Act and seek such information from [the former minister] in an attempt to respond to an FoI request.”

Mr Tyndall rejected this defence. “I cannot accept the department’s position that asking the former minister whether any relevant records may exist in her personal accounts or devices is going outside the scope of the FoI Act.

“I consider that it is reasonable and necessary for the department to enquire of the former minister whether she holds relevant records not filed or stored in ‘official systems’ but relating to the functions and business of the Department of Justice and Equality.”

Mr Tyndall found that “it appears from the records retrieved by the department and dealt with above that the former minister and some of her staff used Gmail addresses in correspondence with the company about official functions and activities of the department.

“I do not accept that such content could reasonably be characterised as private. I do not believe that it is particularly relevant that the former minister is no longer working in the department.”

Speaking to the Irish Examiner, Mr Foxe said: “FoI is not something that departments can treat as an optional extra to manage what information they want in the public domain. It’s a legal obligation.

“If I’d taken them at face value, nobody would ever have known about this.

“It is depressing that the department responsible for law and order would have such a cavalier attitude when it comes to their own legal responsibilities.”

The Department of Justice said it co-operated fully and promptly with the Office of the Information Commissioner, including taking steps that led to the location of some relevant records.

“The department received notification of the information commissioner’s decision yesterday and the content of that decision will now be considered. Appropriate steps will be taken in response, including the release to the requester of any non-exempt documents falling within the scope of his request.”