Attorney General advised Department of Justice it did not have to search private email address for correspondence between ex-minister Frances Fitzgerald and PR advisor Terry Prone

THE Information Commissioner threatened to use his legal powers to force the Department of Justice to have searches carried out on private emails between former minister Frances Fitzgerald and PR advisor Terry Prone.

The request was made as part of the handling of a Right to Know request for correspondence between Ms Fitzgerald and Ms Prone over a three year period.

Internal emails reveal that the Department believed the Information Commissioner were “pushing the boundaries” in asking them to contact Ms Fitzgerald to search her private email account for relevant records.

“The attitude they’re taking to this is unbelievable,” wrote one official.

Separately, the Department of Justice sought legal advice from the Attorney General on whether they should contact Ms Fitzgerald and ask her to search her Gmail account, which she occasionally used for official business.

In an email to Deputy Secretary General Oonagh McPhillips, a senior official said: “I have advice from the AGO [Attorney General’s Office] supporting the position that it would not be appropriate for us to contact her in relation to this matter.”

A formal email to the Information Commissioner repeated that point of view.

A senior official wrote: “These advices support the Department’s view that this would not be an appropriate step for the Department to take.

“I wish therefore to reconfirm the Department’s position that it does not feel in a position to go outside the scope of the FOI Act and seek such information from Deputy Fitzgerald in an attempt to respond to an FOI request.”

Despite the emails, the Department of Justice did end up contacting Ms Fitzgerald seeking additional records. It is unclear what prompted this change of mind (will update if I find out more).

The former justice minister sent back a number of relevant emails, many of which had already been discovered during departmental searches of official email accounts.

Records released in response to an FOI request also reveal that when the original request was made in March 2017, two special advisers to Minister Fitzgerald told colleagues handling the request they did not have any relevant records.

An internal email said: “You will wish to note that I spoke to [Special Adviser 1] prior to the MinMac meeting this afternoon – who indicated a nil obs return and [Special Adviser 2] after the meeting who also indicated that she did not have material in relation to this request.”

Special Adviser 2 was in regular contact with Ms Prone over an extended period of time seeking strategic advice and speech-writing tips on behalf of the justice minister.

In emails to the Information Commissioner, the Department of Justice described the additional steps they had taken to discover more than 70 relevant records, which in their original decision said did not exist.

“A decision was recently taken to search the archived email accounts of the former minister and her political advisers,” they said.

“A search of the archived accounts has now been completed and despite previous assurances, a number of relevant records have now been located and the Department has retrieved material which we believe falls within the scope of this request.”

You can read the Information Commissioner decision in this important case here.

You can also see some of the records quoted here in this Twitter thread. Unfortunately, the records have not been provided in a format that makes them straightforward to scan.

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