Case 98040

Record of government - section 19(1) - deliberations of public body - section 20(1) - opinions or advice considered by a committee of a House of the Oireachtas - section 22(1)(c)(ii)(I) - international relations of the State - section 24(1)(c).

Case Summary

Facts

The requester sought copies of all e-mail received or sent by the Taoiseach and two named officials of his Department on certain dates. The requester was granted access to all of the records sought with the exception of five. The five records were: an agenda for a meeting of the Cabinet, a provisional time table of Government meetings, a record relating to a possible visit to Ireland of the President of the European Commission, and two records relating to visits abroad by the Taoiseach. The Department refused access to these records claiming exemption under section 19(1) for the first two records, section 20(1) and 22(1)(c)(ii)(I) for the third record and sections 20(1) and 24(1)(c) for the fourth and fifth records.

Decision

The Commissioner found that the agenda for the Cabinet meeting was exempt under section 19(1)(c). He decided that this record did not fall to be disclosed.

He decided that access should be granted to the remaining four records. He decided that disclosure of the list of provisional dates for Cabinet Meetings, which had been prepared for the Taoiseach's diary, did not amount to a disclosure of a Government record, within the meaning of section 19(1)(b), nor was the record prepared for the transaction of business of the Government at a meeting of the Government and that section 19(1)(c) did not apply. He found that the record did not relate to the deliberative process of the Department (section 20). The record concerning the European Commission President's visit to Ireland contained a reference to advice from the Department of Foreign Affairs to the Clerk of the Seanad. The Commissioner found that the advice for the Clerk was not for the purposes of the proceedings at a sitting of either House of the Oireachtas and that the reference in the record was not exempt under section 22(1)(c)(ii)(I). He found that section 20(1) did not apply.

The Commissioner found that the records relating to the Taoiseach's visits abroad did not, for the most part, contain matter of a deliberative nature. He found that one record contained a brief discussion which might relate to the deliberative processes of the Department but that it would not be contrary to the public interest to release the record under section 20(1). He found that there must be real and substantial grounds for any claim under section 24(1)(c) that release of the record could reasonably be expected to affect adversely the international relations of the State. No evidence had been produced of how such release would adversely affect international relations and the Commissioner held that section 24 did not apply to the record. He also found that possible misinterpretation of a record was insufficient reason to refuse to grant access.

Date of Decision: 13.11.1998

DECISION

Background:

On 29 April 1998 Mr Mark Henry of Policywatch applied under the Freedom of Information Act, 1997, to the Department of the Taoiseach to be sent copies of all the email received or sent by the Taoiseach, his Private Secretary, and his Programme Manager between the dates of Tuesday April 21 and Thursday 23 April inclusive. He also sought any email sent or received by those three individuals on 29 April 1998. He requested that he receive them by email so as to avoid any copying charges. On 29 May 1998 the Department decided to make a partial release of the records. The Department decided not to release six records stating that two records were exempted under Section 19(1)(c), one record was exempt under Section 20(1), one record was exempt under Section 22(1)(c)(ii) and two records were exempt under Section 24(1)(c). Apart from these six records, a considerable number of records was released.

Mr Henry made an application for internal review of that decision. He asked the Department to review any situation in which Section 19(5) or its equivalent had been deemed to apply to ensure that such a decision was warranted. He sought greater detail of the decision for refusal citing Section 8(2)(d) of the Act. Following its internal review of 19 June 1998, the Department gave a more detailed decision. Mr Henry was informed that two records concerned a Government agenda and a provisional time table of Government meetings which were prepared by the Cabinet secretariat and were Government records other than a published government decision. The Department claimed that these two records were exempt under Section 19(1)(b) and (c) of the Act. The third record referred to a possible forthcoming visit to Ireland by the President of the European Commission and contained advice for the Clerk of the Seanad. Exemption for this record was claimed pursuant to Section 20(1)(a) and (b) and Section 22(1)(c)(ii)(I) of the Act. The fourth and fifth documents related to the preparation of a schedule of the Taoiseach's visits abroad. Exemption was claimed for these records pursuant to Section 20(1) and Section 24(1)(c) of the Act. The sixth record which had been withheld was a draft speech for the Taoiseach which had been delivered by the time of the internal review. This record was authorised to be released on internal review.

The Department relied on its decision on internal review of this case as its submission to me. Mr Henry did not make a submission. In his letter of application for review he sought full access to the records. He asked that the use of Section 19(5) be examined. Further clarification was sought from the Department in relation to a number of the records.

Record No.1

This document is the email of the Agenda for the Cabinet meeting of 28 April 1998. The decision of the Department is that the record was prepared by the Cabinet Secretariat and was a Government record other than a published Government decision. Exemption was claimed pursuant to Section 19(1)(b) and (c) of the Act. The relevant parts of that Section are as follows: "(1) A head may refuse to grant a request under Section 7 if the record concerned - ......

(b) is a record of the Government other than a record by which a decision of the Government is published to the general public by or on behalf of the Government, or (c) contains information (including advice) for a member of the Government, the Attorney General, a Minister of State, the Secretary to the Government or the Assistant Secretary to the Government for use by him or her solely for the purpose of the transaction of any business of the Government at a meeting of the Government." Section 19(1) must be read subject to the provisions of Section 19(3) which states that Section 19(1) does not apply where the record contains -

" (a) ...factual information relating to a decision of the Government that has been published to the general public, or (b) ....a decision of the Government that was made more than 5 years before the receipt by the head concerned of the request ...."

Section 19(4) allows for the release of Government decisions before the 5 year period where leaders of the political parties who were members of the government and any other members of the Government who were not members of a political party are consulted. The Department argues that the record falls within Section 19(1)(c). This exempts a record containing information for a member of the Government for use solely for the purpose of the transaction of Government business at a meeting of the Government. The exemption is subject to the provisions of Section 19(3) referred to above. The Agenda was clearly prepared solely for the purpose of the transaction of the business of the Government at a meeting of the Government. It is clearly prepared to assist the Government in the conduct of the meeting. I find that the record falls within Section 19(1)(c) of the Act as it contains information for use solely for the transaction of Government business at a meeting of the Government and the exemption may be claimed. Section 19(3) does not apply (it does not contain factual information relating to a decision of the Government that has been published or relating to a decision made more than 5 years previously) and therefore I find that the requester does not have a right of access to this record. Section 19 does not contain a sub-section relating to possible release of records on public interest grounds. Accordingly the record does not fall to be disclosed.

In the light of my decision that Section 19(1)(c) applies it is unnecessary for me to consider further the possible application of Section 19(1)(b) and the argument advanced by the Department of the Taoiseach that the Government Agenda is a "record of the Government" as it is prepared by the Cabinet Secretariat. Record No. 2 This record is the list of provisional dates for Cabinet Meetings. It was prepared to allow meetings to be pencilled in in advance and was sent to the Taoiseach so that it could be checked against his diary. It contains dates for the year through to the end of December 1998. The Department argues that this record falls within Section 19(1)(b), being a record prepared by the Cabinet Secretariat and being a Government record other than a published Government decision. I have some difficulty accepting that every record prepared by the Cabinet Secretariat is a Government record. This record is a list of provisional dates for Cabinet meetings. Disclosure of the date upon which a meeting of the Government is, or may be, held does not amount to a disclosure of a Government record. I have decided that the record cannot be withheld pursuant to Section 19(1)(b).

The next issue is whether the record would fall within Section 19(1)(c). There is no suggestion that this record was prepared for a member of Government or other specified person for use solely for the purpose of the transaction of business of the Government at a meeting of the Government. The only way it could fall within Section 19(1)(c) would be if it were to be put before Cabinet for information, approval or decision. I have decided that this record does not fall within Section 19(1)(c).

The Department has argued in subsequent discussions that, to the extent that it includes a reference to meetings proposed but which have not yet taken place and to meetings proposed but not held, it relates to the deliberative process within the meaning of Section 20. I find however that this record does not contain matter relating to the deliberative process of the Department. It is quite clear that the record is nothing more than a list of dates on which the Cabinet may meet. Further, there is no indication that even if it did relate to deliberative process, its release would be contrary to the public interest as is required under Section 20(1)(b) and the Department has not so argued. I have decided, therefore, that access should be granted to this record. Record No. 3 This record is an email to the Assistant Private Secretary regarding a discussion with a person in the Department of Foreign Affairs about the proposed visit by President Santer of the EU Commission during which he might address the Seanad. It also includes a reference to advice from the Department of Foreign Affairs to the Clerk of the Senate. On internal review the decision was to exempt the record under Section 20(1)(a) and (b) and, in relation to the advice for the Clerk of the Seanad, exemption was claimed under Section 22(1)(c)(ii)(I). At initial decision stage, the Department took into account as an argument in favour of disclosure that, as President Santer's address was a public event, the release of the information prior to it should not be seen as detrimental. However, the Department also took into account that the question of an address to the Seanad had not been finalised. It also regarded security as an issue and that disclosure of his itinerary might impede his security. Further, the release of the information could cause embarrassment to the President or Senate members if the address did not take place.

I will deal firstly with the exemption claimed in respect of that part of the record which refers to the Clerk of the Seanad. Section 22(1)(c)(ii)(I) provides as follows: " 22 (1) A head shall refuse to grant a request under Section 7 if the record concerned- (c) consists of - .... (ii) opinions, advice, recommendations, or the results of consultations, considered by - (I) either House of the Oireachtas or the Chairman or Deputy Chairman or any other member of either such House or a member of the staff of the Office of the Houses of the Oireachtas for the purposes of the proceedings at a sitting of either such House, ..."

Having examined the record, I am satisfied that it does not constitute advice or recommendations for the Clerk for the purposes of the proceedings at a sitting of either such House. The portion of the record concerned consists of the report of advice given to a member of staff of the Seanad concerning a possible date for the sitting of the House. It is not for the purpose of the proceedings at a sitting of the House. On this basis, I do not find that the portion of the record at issue falls within Section 22(1)(c)(ii)(I). The other exemption claimed in respect of the record is Section 20(1)(a) and (b). Section 20(1) reads as follows: "20(1) A head may refuse to grant a request under Section 7 - (a) if the record concerned contains matter relating to the deliberative processes of the public body concerned (including opinions, advice, recommendations, and the results of consultations, considered by the body, the head of the body, or a member of the body or of the staff of the body for the purpose of those processes), and (b) the granting of the request would, in the opinion of the head, be contrary to the public interest and, without prejudice to the generality of paragraph (b), the head shall, in determining whether to grant or refuse to grant the request consider whether the grant thereof would be contrary to the public interest by reason of the fact that the requester concerned would thereby become aware of a significant decision that the body proposes to make."

The argument of the Department is that the record sought refers to a possible forthcoming visit. The Department has confirmed that the date of the visit has not yet officially been made public. It must be assumed therefore that the visit was, at the time the Department refused access, unconfirmed. The Department argued that, in making protocol arrangements in respect of such visits, it is required to liaise with a large number of organisations before a final programme is agreed and release of records at that stage would interfere with the ongoing process. The Department indicated that they have no difficulty in making the programme available when finalised.

Having examined the record, I have decided that it is not a record containing matters relating to the deliberative processes of the Department. It contains no discussions, opinions or advice on the merits or otherwise of the proposed visit or proposed itinerary. It is concerned solely with the making of administrative arrangements in relation to the visit of President Santer.

Even if I were to accept that this record contains matters relating to the deliberative processes of the public body, I would still have to direct the release of the record unless I could be satisfied that its release would be contrary to the public interest. I can envisage that it might sometimes be against the public interest to release all the details of a proposed visit by a foreign dignitary - for example, if disclosure might endanger the security of the person concerned or if a foreign government would find disclosure objectionable. No such considerations have been advanced in this case and I am satisfied that the Department has not justified its refusal to release the record under Section 20(1)(b).

I recognise that, when various public meetings with and visits from dignitaries from abroad are finalised, there still remains the question of when and how the forthcoming events should be put into the public domain. There will be occasions when courtesy alone will require simultaneous announcements at home and abroad. There will also be occasions when, for security reasons, any public disclosure may be deferred until the event is imminent. There are a number of sections in the Act, quite apart from the exemption in relation to security, defence and international relations in Section 24 - Section 10(1)(d), Section 11(1)(c) and Section 31(1)(b) being examples - which provide for deferral of access to records. None of these have been relied on by the Department and, in any event, they may not be particularly appropriate to this individual case. I am conscious that, in their correspondence with the requester, the Department did not feel in any way inhibited in revealing that the record related to a forthcoming visit by the President of the European Commission and that an event involving a sitting of the Seanad was envisaged. I have, therefore, not felt inhibited in discussing this record openly in this decision. I have concluded that, having regard to Section 34(12)(b) of the Act, the continuing decision of the Department to refuse access to this record based on the arguments that have been furnished, has not been shown to my satisfaction to be justified. I have therefore decided that the record should be released.

Record No. 4.

This record is an email regarding the Taoiseach's (then) proposed visit to China. The date of the email is 21 April 1998 at which time the visit had not taken place. This visit has since taken place. The Department has declined to agree to its release.

Exemption was claimed under Section 20(1) and Section 24(1)(c) of the Act. The Department argues that an important part of its brief is to arrange international visits and it needs to gain the agreement of other Governments in relation to individual proposals. Premature release of the information while proposals are at development stage would adversely affect the conduct of international relations.

The issue arising here is similar in some respects to the issue arising in relation to Record No. 3 and my comments above about the manner and timing of release are relevant. In this case an argument might be made that the record contains matters relating to the deliberative processes of the public body in that it contains a very brief discussion of the relative merits of using the Government jet or using commercial transport for the proposed visit. Even allowing this point, the question of the public interest still has to be considered. The Department has not offered any specific arguments in support of the view that it would be contrary to the public interest to release this record. In the absence of any such argument, and having carefully examined the particular record, I conclude that it would not be contrary to the public interest to release it.

The Department has also argued that Section 24(1)(c) applies. Section 24(1)(c) provides as follows: "24.(1) A head may refuse to grant a request under Section 7 in relation to a record (and, in particular, but without prejudice to the generality otherwise of this subsection, to a record to which subsection (2) applies) if, in the opinion of the head, access to it could reasonably be expected to affect adversely - ... (c) the international relations of the State, ...."

Section 24(2) lists a number of categories of records and the Department argues that the record in question in this case falls within one of those categories. But the record must still be considered in the light of Section 24(1); the release of the record must reasonably be expected to affect adversely the international relations of the State. Under Section 24 there is no public interest test to be applied.

The key issue here is whether access "could reasonably be expected to affect adversely ... the international relations of the State". In my view, there must be real and substantial grounds for any such expectation, at the time the decision to refuse access is made. The mere possibility of some adverse effect on international relations is not sufficient. The Department has not made any supporting arguments that the release of the record, even when it was originally requested would have created any difficulty with the authorities in China or in any other foreign State.

Under Section 34(12) of the Freedom of Information Act, 1997 a decision to refuse to grant a request shall be presumed not to have been justified unless the public body concerned shows to the satisfaction of the Commissioner that the decision was justified. The Department has, in the approach it adopted, failed to satisfy me that the decision to refuse access was justified either by virtue of Section 20(1) or Section 24. I should also observe that even if I accepted that the Department's original decision was justified on the grounds of Section 24, it seems clear to me that the basis for claiming that exemption has now disappeared since the visit has taken place.

As a separate matter, the Department has argued that disclosure of the contents of the second last paragraph could result in misinterpretation of a sensitive issue. In my view the mere fact that information in a record which is sought under the Freedom of Information Act, may be misinterpreted by someone is insufficient reason to refuse to grant access. I have decided, therefore, that the record should be released in its entirety.

Record No. 5.

This is an email containing the Taoiseach's programme of foreign engagements for 1998. The Department relied on the same grounds for withholding this record as it did for record No. 4. It relied on Section 20(1) and Section 24(1)(c) and the same considerations were taken into account by the Department in making its decision. It would appear that the Department did not consider partial release of the record. The Department now states that five of these visits did not take place and one visit was a personal visit of the Taoiseach. I have dealt separately with visits which have taken place, visits confirmed but which have not taken place, visits that are still provisional and visits that were due to take place and which did not take place. Having examined the record, I am not satisfied that it contains matter relating to the deliberative processes of the Department. Nevertheless, for the guidance of the Department I have indicated the scope of Section 20 and Section 24(1)(c) in relation to each part of the record.

I find that the Section 20(1) exemption does not apply where the visits/meetings have taken place. There are no ongoing deliberations that could be affected by the release of the information. I do not find that it would be contrary to the public interest to release this information. I can envisage no adverse effect on the international relations of the State under Section 24 (1)(c) occurring as a result of releasing the information where the visits/meetings have occurred.

I find that Section 20(1) does not apply where future visits/meetings listed in the programme have not yet taken place but have been confirmed. Again, the deliberations have ended and the decision has been made. An argument against release, perhaps under Section 24, might arise where there is a need to keep the visit secret or where there is a likelihood that by disclosing the information the visit could be adversely affected or where security issues might arise. I do not see that release of such information in this case could reasonably be expected to cause an adverse effect on international relations. The onus is on the Department to show me how international relations could reasonably be expected to be adversely affected and it has not done so or even attempted to do so.

Where visits/meetings which were due to take place did not occur, I find that Section 20 does not apply as the decision/deliberations have already finished. However, where there may be sensitive issues involved in the reasons why the visit or meeting did not take place, I would accept that the application of Section 24(1) might be possible. It is conceivable that the release of such information could adversely affect the international relations of the State. However, the Department has not produced or attempted to produce any evidence of how release of the information concerning the visits in this case could adversely affect international relations and, in the circumstances, I must hold that Section 24 does not apply.

In relation to visits/meeting which are provisional and have not yet been confirmed, I would accept that a deliberative process of some kind may be ongoing, but I find no matter of a deliberative nature is contained in this record. It is possible under Section 24(1)(c) to argue that there is a need to gain the agreement of other Governments to proposals at developmental stage and that premature release of the information would adversely affect the conduct of international relations. However, no evidence was produced to me of the possible damage which would be caused to international relations, by release. Again by reference to Section 34(12), I find that the Department has not justified its decision in relation to this part of the record.

In relation to the visit of the Taoiseach which the Department states was a personal visit, I do not accept that this is personal information within the meaning of the Freedom of Information Act, 1997, viz. that the information is of a kind which would normally be known only to the Taoiseach or members of his family or friends. I have not found any evidence that the information in relation to the visit was held by the Department on the understanding that it would be treated as confidential. I fail to see how disclosure of the visit could adversely affect the international relations of the State. I find that it does not fall within Section 20 of the Act.

For the reasons set out above, I have decided that record no. 5 in its entirety should be released.

Use of Section 19(5) - Disclosure of the existence or non-existence of a record

Mr Henry requested in his application to me for review that the release of records which were being withheld under Section 19(5) be examined. The issue of withholding records pursuant to Section 19(5) has been examined and I am satisfied in relation to the matter in this case.

Submissions

Findings

Decision

I have carried out a full review of the decision of the Department of the Taoiseach in this case. I have decided to vary the decision of the Department as follows. I direct that record No. 1, the Agenda for the Cabinet meeting, be withheld. However, I direct that access be granted to record No. 2 (the list of provisional dates for Government Meetings), to record No. 3 (the email which relates to the proposed visit by President Santer), to record No. 4 (which relates to the Taoiseach's visit to China) and to record No. 5 (the programme of foreign engagements).

I have reviewed the use/non-use of Section 19(5) in this matter and I am satisfied in relation to same.

Information Commissioner

13 November 1998