The High Court discharged the Information Commissioner’s decision that the Department of Enterprise, Trade and Employment had control of records relating to a grant application to Waterford City Enterprise Board Limited. It also declared that the requester was not entitled under the Freedom of Information Acts to access those records held by the Board.
The case concerned internal documents that the Board had compiled and presented to its Evaluation Committee about a grant application made by Michael Freyne in March 2000. Freyne requested copies from the Department in January 2001. The Department refused, saying the records did not exist or could not be found after reasonable steps, and that they concerned the Board’s day-to-day operations rather than records held by the Department.
The Information Commissioner reviewed that refusal and, in October 2004, found the records were under the Department’s control because an operating agreement gave the Minister access to the Board’s records and allowed him to request copies. The Department appealed to the High Court on a point of law under section 42(1) of the Acts.
The court found that the Minister’s role was to finance and supervise the financing of the Board, while decisions on individual grant applications rested with the Board. The reporting and monitoring provisions did not give the Department control over the Board’s business or the requested evaluation documents. The court interpreted the agreement’s reference to “relevant” documentation as limiting what the Minister could request to material needed for overall monitoring. It also noted that the Board’s articles required confidentiality for information about specific projects.
The judge said the Department’s original refusal under section 10(1)(a) was not appropriate in the circumstances. However, the court concluded that the records were not under the Department’s control, and that the Commissioner’s contrary finding extended the meaning of control beyond what the agreement and articles supported.
The court discharged the Commissioner’s decision and the direction to provide access. It declared that the records were not held by, or under the control of, the Department for the purposes of the Acts; that Freyne was not entitled to access to the records in the Board’s possession; and that a right of access to documents did not itself amount to control over them.