This week, an important body of our State, the Department of Justice, has been caught with its pants down.
The Information Commissioner has utterly rejected in the strongest possible terms the department’s decision to refuse to release documents to the tenacious journalist Ken Foxe.
In a nutshell, Foxe, last year sought the release of documents (which includes memos, emails et al) between then tánaiste and justice minister Frances Fitzgerald and communications specialist Terry Prone, who is a columnist for this newspaper.
Foxe sought the release of the documents by way of the Freedom of Information Act.
Initially, the Department of Justice claimed there were zero records of communication between Fitzgerald and Prone.
But following a review by the Information Commissioner Peter Tyndall, it turns out, in fact, there were at least 68. That’s 68!
A reading of the seven-page judgement is a damning indictment of how major Government departments and agencies feel about releasing important documents to the public. That is you and me.
Unsurprisingly, departments do not like having to be transparent. But what this judgement shows is the culture of secrecy and ignoring the rules over transparency is alive and well.
Let’s walk through what happened to Ken Foxe.
On March 11, 2017, he requested the release of “all correspondence, both written and electronic, between Frances Fitzgerald and/or her private office and any of the following people”. The names of the parties sought were given.
The willingness of the department was to co-operate was illustrated by the fact it did not “issue a decision on the initial request”.
Foxe, not getting a response, took it his request was declined and requested an internal review.
The department wrote to Foxe seeking a time extension as is allowed but as Tyndall pointed out “gave no reason for its decision to extend the time”.
Tyndall said the FOI act “does not provide for an extension on the basis that the department is experiencing an increase in FOI requests generally”.
On the matter being referred to the Information Commissioner, Tyndall pointed out to the department that the onus was on it, not Foxe, that the decision to refuse the release of the documents was justified.
Foxe, on being refused, then questioned whether a “full and thorough search” had been undertaken.
He said he found it difficult to believe that within the department there are not records, including records relating to professional and personal email addresses and messaging services like WhatsApp.
The Department eventually identified 74 records which it 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,” Tyndall concluded.
“My office identified 68 records that fall within the scope of the request. The other six were created after the FOI request was made,” he said.
Tyndall made the point, rather sharply, that it is not normally the function of his office to search for records that a requester believed to be in existence, but had to on this occasion.
Then the issue of the use of private email addresses like Gmail and other messaging services was addressed.
Tyndall found that official information may be transmitted by such means and that public bodies are required to take reasonable steps to search for and extract the required records.
“If the public body has a legal right to procure the records regardless of whether they are held in official or non-official systems (like Gmail or Hotmail) these records are subject to the FOI act,” he concluded.
Then it gets interesting.
In its submission, the department said searches were conducted of the departmental account for the former minister and also the email accounts of past and current private secretaries.
The department said at that stage (August 11, 2017) it is not aware of any interaction between the former minister and the particular service provider individual and her company during the period under review.
It also said that personal email accounts are not administered by any Government department.
The department referred to section 11 of the FOI Act and said that “private email accounts of the now former Minister...could not be said to be under the control of the Department...”.
The department confirmed that it has not checked whether any records relating to official functions and/or business activities of the department are held in “non-official” systems.
While the department originally stated that it was not aware of any interaction between the former minister and the company, it subsequently came to light that its archive records did contain a substantial number of relevant records.
Then amazingly, the department said this.
“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’ [Tyndall’s emphasis], 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.”
Tyndall spanked the department hard on this.
“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.
“It seems to me that the fact that a Minister forwarded some exchanges to staff and others within the Department’s ‘official’ systems does not mean that other official records held in personal accounts are not under the control of the Department,” he found.
“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.”
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,” he said.
Ultimately, having roasted the officials in Justice, he quashed their decision to refuse and ordered them to release the documents.
The department has the right to appeal to the High Court.
Why is this important?
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.
“Also sad to think the only reason that the existence of records is known about is because I didn’t trust the dept of justice to make a proper decision. 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,” Foxe said.
Take a bow, Mr Foxe.