Case 98125 and 99056. Records of a party political nature - section 2 - whether section 13 could apply

Case Summary

Facts

The requesters applied to the Department of the Taoiseach for copies of all correspondence between the Department's communications unit and the Taoiseach. The Department released a number of documents. It refused to release fourteen others on the basis that the records contained matters relating to the deliberative processes of the Department and that release would be contrary to the public interest and that, therefore, the exemption in section 20 of the Act applied. Following discussions with the Commissioner's staff a further three records were released and the Department indicated that that it sought to rely solely on a claim for exemption under section 2 on the grounds that the records had been created for the Taoiseach and related to his functions or activities as a member of a political party.

Decision

The Commissioner decided to affirm the decision of the Department of the Taoiseach to refuse to release the records which were the subject of the review. Having examined the contents of the records he decided that they had been created for the Taoiseach in his capacity as a member of a political party rather than in his capacity as head of Government. He found that in addition to party political matters other records also contained references to policy matters. He considered whether portions of those records should be released in accordance with section 13 but found them exempt on the basis that they were not concerned with policy matters as such but rather with the public's perception of members of the Government in their party political role.

Date of Decision: 22.03.1999

DECISION

Background:

On 16 June 1998, Mr Phil Hogan TD made an application, under the Freedom of Information (FOI) Act, 1997 to the Department of the Taoiseach, for "copies of all correspondence (including memoranda, notes, letters, etc.) between the communications unit in the Department and the Taoiseach." On 1 July 1998 the Department released a number of documents to Deputy Hogan but indicated that other documents were being withheld on the basis of a claim for exemption under section 20 of the FOI Act. In its decision to refuse access the Department stated "These records are part of the on-going consultative process that is necessary for the day to day running of the Government. They are communicated to the Taoiseach and are an important and integral process to ensure effective running of Government." It was also indicated that the Department considered it "... essential to the public interest that details of these records are not released as they would interfere and hinder the business of the Department and the Taoiseach and thereby likely to cause significant harm to the workings of Government." The Department also considered that release of the information would contravene the Act and would not convey any benefit to the public.

Deputy Hogan replied to the Department on 23 July 1998, seeking an internal review of the decision to refuse access. In his response the Deputy stated "Since this Unit is funded by the taxpayer, I believe that it is in the public interest that documents relating to its activities be made available." The Department replied to Deputy Hogan on 14 August 1998 stating that the original decision had been upheld on internal review. It stated:

"I affirm the decision conveyed to you in relation to the non-release, pursuant to section 20, of approximately 14 records on the basis that they contain matters, including opinions, advice and recommendations, relating to the deliberative processes of the public body concerned, with particular reference to the constitutional role of the Taoiseach as the head of the Government and his responsibility, as set out in the Department's Statement of Strategy, for the leadership, the setting of the strategic direction, the driving of the overall policy processes and the coherent implementation of Government policy.

In making my decision I have had regard to the requirements of the public interest, which in this instance are addressed in the balance struck in the legislation between providing for access to records and prescribing grounds on which access may be withheld. I am not aware of any additional public interest factors which would have a bearing on this request."

On 21 July 1998, Mr McManus a journalist with the Sunday Times newspaper, made an application under the FOI Act, to the Department, for "any correspondence, including e-mail, between the Taoiseach and Marty Whelan of the Media Monitoring Unit". On 24 August 1998 the Department released a number of documents to Mr McManus but indicated that fourteen other documents were being withheld on the basis of a claim for exemption under section 20 of the FOI Act. The Department stated that the withheld records were the subject of another FOI request which had already been through the internal review process and quoted the above extract from the letter to Deputy Hogan conveying the outcome of that review.

Mr McManus wrote to the Department on 16 September 1998 seeking an internal review of this decision together with clarification of the deliberative processes referred to in the decision. The Department replied on 9 October 1998 affirming the decision of 24 August. It stated that the refused records contained matters which fell within the definition of the deliberative process and that the balance of public interest considerations argued against disclosure. In considering the public interest, the Department stated that it had regard to "the need to avoid serious damage to the proper working of Government at the highest levels and the need to preserve confidentiality, having regard to the subject matter and the circumstances of the communications" and that "the release of the records would impair the integrity of the advisory process without commensurate benefit to the public." Mr McManus wrote to this Office on 27 October 1998 seeking a review of that decision and, having considered the matter, I decided to grant his application for a review.

On 11 February 1999, Deputy Hogan wrote to this Office seeking a review of the Department's final decision, dated 14 August 1998, in relation to his request for records. I could have rejected this application under section 34(9)(a)(iii) of the FOI Act on the grounds that it relates to a matter which is the subject of another review, that is to say, my review of the decision made by the Department on foot of Mr McManus' application for the same records. Having considered the matter, however, I decided to accept Deputy Hogan's application for a review and to deal with both applications in this decision. Deputy Hogan subsequently indicated that in view of the fact that my review of the decision in Mr McManus' case had reached an advanced stage, he did not wish to make any further submission.

In reviewing this case, I have examined the records to which both Mr McManus and Deputy Hogan were refused access together with the correspondence which passed between both applicants and the Department in relation to their FOI requests. The Department numbered those records 1 to 14 and during the course of my review of Mr McManus' case, agreed to release record numbers 1, 2 and 3 to him without further objection. For the purposes of this decision the remaining records, all of which are communications from Mr Whelan to the Taoiseach, will be referred to as record numbers 4 to 14. The records can broadly be described as follows :

Record number 4 - Note in relation to the use of radio by certain politicians Record number 5 - Update of interviews by politicians on news programmes Record number 6 - Note re independent radio stations and Broadcasting Bill Record number 7 - Note re Government commitments to independent radio stations Record number 8 - Synopsis of media issues associated with commitments given in election manifesto / Programme for Government Record number 9 - Update of interviews by politicians on news programmes Record number 10 - Note of interviews by politicians on radio news programmes Record number 11 - Note on use of radio by Government and Opposition politicians Record number 12 - Update of interviews by politicians on news programmes Record number 13 - Update of interviews by politicians on news programmes Record number 14 - Update of interviews by Ministers on news programmes.

Submissions

In his application to this Office for a review of the Department's decision, Mr McManus made the point that he considered the Department's refusal to be "an extreme interpretation of the legislation." In a further submission dated 27 January 1999 he stated that "....the communications unit in the Department of the Taoiseach is funded out of public money and this must support the case that there is a strong public interest in making public its activities." In relation to the Department's reliance on the section 20 exemption he went on to state "It would seem to imply that any actions taken by the Government that can in some way be deemed part of the 'deliberative process' could be protected from the Freedom of Information Act by the use of section 20. Taken to its extreme this interpretation of section 20 could be used to refuse access to all records and is clearly contrary to the spirit of the Freedom of Information Act." He also suggested that there "...would be a great deal of public interest in seeing how important Government decisions are affected by the results of media monitoring" and drew my attention to a report printed in one of the national daily newspapers which dealt with various aspects of the communications unit, including its staffing and costs.

In a submission dated 23 November 1998, the Department repeated its original objections to the release of the records and went on to state that, on further reflection, it considered that the refused records were also exempt by virtue of section 2 of the FOI Act on the basis that the records concerned ".....contain opinions, assessments and advice prepared for the Taoiseach in his capacity as a member of a political party and come within the definition of exempt records as set out in section 2(1).....". The Department argued that it is clear from the records that they were created for the Taoiseach in his capacity as head of a political party and that this was best illustrated by the use of the phrases such as "...our commitments...." , "...we had promised..." and "...election manifesto...." contained in the records. It was also argued that much of the material concerns issues relating to a particular political party, rather than the generality of members of Government and that the overall content of the records confirms its party political nature. In subsequent discussions with my officials the Department indicated that it had reconsidered the matter of its claim for exemption under section 20 of the Act and would, for the purposes of my review, seek to rely solely on a claim for exemption under section 2.

Findings

Section 2(1) of the FOI Act defines an "exempt record" as including, inter alia,

(b) a record that is created for or held by an office holder and relates to the functions or activities of - (i) the office holder as a member of the Oireachtas or a political party, or (ii) a political party.

Section 2 also defines "office holder" as

(a) a person who is a Minister of the Government or a Minister of State, or (b) a member of either House of the Oireachtas who hold the office of Attorney General.

As all of the records which are the subject of my review were prepared specifically for the attention of the Taoiseach and the Department has claimed that the records are exempt from release under section 2, the only question which arises is whether the records were prepared for the purpose of providing information to the Taoiseach in his role as head of Government or in his role as the head of a political party. It seems to me that if a particular communication from Mr Whelan to the Taoiseach is concerned with the conduct of the business of Government it cannot fall within the scope of section 2 because the conduct of Government business is a matter for the Taoiseach as head of the Government. If on the other hand a communication relates to a political party in terms of the promotion of its own political message or philosophy or its potential for election to Government, then it must fall within the scope of that section. I accept that there may be times when making this distinction may be a matter of fine judgement. However for the purposes of this decision, I must consider whether the purpose of each of the records to which access was refused was to communicate information to the Taoiseach in relation to matters which concern him as head of the Government or as a member of the political party of which he is the head.

In the light of section 43 of the Act, which requires me in the course of a review to take all reasonable precautions not to disclose the information contained in an exempt record, I need to exercise a degree of circumspection in describing the exempt records in this case and in explaining my decision. However, I can say that it is clear to me that the subject matter of the records is not concerned with policy matters but with the public's perception of the Government and its members. This, in turn, is linked to a concern for the future electoral fortunes of the members of the Government. In my view, such matters are not the concern of the Taoiseach in his constitutional role as head of the Government. They concern him in his party political role.

Having examined the records to which access has been refused, I am satisfied that records numbers 4, 5, 9, 10, 11, 12, 13 and 14 clearly contain information of a party political nature and that they were created for the Taoiseach in his capacity of a member of a political party. Under these circumstances, I must find that the Department's claim that these particular records are exempt was justified.

Slightly different considerations apply in the case of record numbers 6, 7 and 8. As I have said, making the distinction between a record relating to the conduct of the business of Government and a record relating to party political matters is a matter of judgement. In the present case records numbers, 6, 7 and 8 contain references to certain policy matters. I have considered whether at least portions of such records should be released on the grounds that it could be argued that references to policy matters relate to the functions of the Taoiseach as head of Government. In considering this point, I took account of the possible application of section 13 which provides that partial access may be granted to a record by excising exempt material.

Having examined the records I am satisfied that they are not concerned as such with the policy matters referred to but with the public's perception of members of the Government in their party political role. As the Department has pointed out, much of the language used is indicative of a party political approach. In the circumstances I have concluded that the whole of each of the record numbers 6, 7 and 8 is exempt.

Mr McManus pointed out that the Communications Unit is funded out of public money and he suggested that this meant that there was a public interest in making its activities public. He made his argument in the context of the Department's original claim for exemption under section 20. In the event, there is no need for me to consider the question of where the public interest lies since the Department has dropped its claim to exemption under section 20. However, I have considered whether the fact that the record was created by someone paid out of public money is relevant in deciding whether the exemption in section 2 applies. In my view it is one factor, but only one, which needs to be taken into account. It may suggest that the record was prepared for the office holder in his capacity as office holder. I think that such a suggestion must, however, be viewed against the very significant changes which have taken place in the legislation governing the appointment of civil servants. Section 19 of the Public Office Act, 1995 and section 11 of the Public Service Management Act, 1997 have now regulated the position of Special Advisors to Ministers and Ministers of State. In performing their functions, they are not excluded, as are civil servants, from providing advice to an office holder in his or her role as a member of the Oireachtas or a political party. The creator of the records under review is a Special Advisor to the Taoiseach. In making a judgement as to whether the records relate to the functions or activities of the office holder as a member of a political party rather than as an office holder, I must have regard to the contents of the records and, having done so, I am satisfied that they are exempt.

Decision

Having carried out a review of the decision of the Department of the Taoiseach and having considered the arguments put to me by the Department and the requesters, I am satisfied that records numbers 4 to 14 inclusive were created for the Taoiseach in his capacity as the head of a political party and the Department's claim that the records are exempt by virtue of section 2 is justified.

Therefore I affirm the decisions of the Department of the Taoiseach of 14 August 1998 and 9 October 1998 to the extent that they relate to these records.

Information Commissioner

22 March 1999