THE INFORMATION COMMISSIONER has discovered dozens of emails between Frances Fitzgerald and a PR firm which the Department of Justice claimed did not exist.
The discovery of 68 emails was made after the commissioner reviewed a Freedom of Information request by transparency group Right to Know to the Department of Justice while Fitzgerald was still Minister.
The request, originally made in March 2017 by Ken Foxe of Right to Know, sought the release of communications between Fitzgerald and Terry Prone’s Communications Clinic.
It was made days after news emerged that An Garda Síochána had paid the Communications Clinic over €90,000 for media training in 2014.
In its request, Right to Know asked for copies of any written or electronic correspondence between Fitzgerald and her office and the firm, from the time Fitzgerald was appointed Minister in 2014.
However, the Department refused the request under Section 15(1)(a) of the Freedom of Information Act, which states that a request can be refused if records do not exist or can’t be found after “all reasonable steps” to find them have been taken.
Right to Know then requested an internal review of the decision by the Department, which is permitted under the Act, but the original finding that no records existed was upheld.
The group made a subsequent appeal to the Office of the Information Commissioner, who began to conduct a review of the Department’s decision under the assumption that the records did exist.
In July 2017, investigative staff at the commissioner’s office invited the Department to explain its decision to refuse the records on the basis that they did not exist.
An investigator specifically asked whether the Department had checked Fitzgerald’s Ministerial and personal email accounts, messaging services such as Viber, WhatsApp, and Facebook Messenger, and other messaging and social media accounts.
The Department was also asked to identify any access it had to communications held by the former Minister, her private secretary, or other staff to or from the Communications Clinic.
In its submission, the Department contended that it was only responsible for the management of staff email accounts, databases and related IT infrastructure.
It explained that following Right to Know’s FOI request, it had searched the former Minister’s account, and the email accounts of past and current private secretaries.
The Department added that, at the time, it was not aware of any interaction between Fitzgerald and the Communications Clinic during the period that fell under the scope of the request.
However, the commissioner was not satisfied that the Department had provided sufficient information about how it had undertaken its searches and could justify refusing the request under Section 15(1)(a) of the Act.
Investigative staff expressed concerns that the records sought by Right to Know did in fact exist, and wrote to the Department to ask if it had considered whether the information may have existed on the personal email accounts of its staff.
In response, the Department said that it had “no access to or control over” personal email accounts, particularly those that belonged to staff who no longer worked there.
The Department also claimed that it would not have been appropriate to ask Fitzgerald for records which may have been contained in her personal email accounts.
According to the commissioner, the Department did “not feel it [was] in a position to go outside of the scope of the FOI Act and seek such information” from the former Minister.
While the commissioner accepted that Fitzgerald’s personal email account was not under the Department’s control, he felt it was necessary for the Department to ask if any records relevant to the request were held outside of its “official” channels and systems.
In January 2018, the Department identified 74 items relevant to Right to Know’s request, which it had not previously considered, in archived email accounts.
Of these, 68 items were found to fall under the scope of the original FOI request.
The other six records were created after the request, and the commissioner therefore ruled that these were not available to the group.
In his decision, the Information Commissioner annulled the Department’s original decision to refuse access to the records requested by Right to Know.
He ordered the Department to conduct a new decision-making process on the records, and to ask Fitzgerald whether she held any records which may fall under the scope of the group’s FOI request.
However, the commissioner noted that, under Section 42(k) of the Freedom of Information Act, he was unable to demand the release of the 68 records identified.
He explained that Fitzgerald’s personal emails could be considered “private papers”, which Section 42(k) would exempt the records from being released.
The Department was given four weeks to make another decision based on Right to Know’s request.
Meanwhile, the commissioner also criticised a move by the Department to initially extend the period within which it could make a decision, under Section 14 of the Act, without explanation.
This came after the Department contacted Right to Know two days after the request was originally made, to say it would provide the group with a decision four weeks later than the statutory four-week period set out in the Act.
The commissioner’s office questioned the basis on which the Department relied on section 14, but said its overall review only covered the records requested by the transparency group.
In a statement, the Department of Justice said it has cooperated “fully and promptly” with the Office of the Information Commissioner throughout the process.
A spokesman added: “The Department received notification of the Information Commissioner’s decision yesterday and the content of that decision will now be considered.”