Case 98060 - Mr Phelim McAleer of the Sunday Times newspaper and the Department of Justice, Equality and Law Reform

Records relating to the signature of the Brussels II convention on the recognition of matrimonial proceedings in EU states - records received from the Council of the European Union - whether access to such records could reasonably be expected to affect adversely the international relations of the State - section 24(1)(c) - whether Department entitled to refuse access to a memorandum to the Government - section 19(1)(a) - whether Department entitled to refuse access to memos relating to the circulation of the memorandum - section 19 - records of the Government - section 19(1)(b) - records containing factual information relating to a decision of the Government that has been published to the general public - section 19(3)

Case Summary

Facts

The requester sought records relating to the signature of the Brussels II convention on the recognition of matrimonial proceedings in EU states. The records at issue consisted of records received by the Department from the EU and related records created by Irish civil servants; a memorandum to the Government, internal correspondence about the memorandum and the actual Government decision.

Decision

The Commissioner decided that the EU Code of Conduct did not purport to override the laws of the various member states relating to access to records held by Government agencies in those states and he did not accept that its provisions prevented the release of documents received from the Council of the European Union in the hands of Irish public bodies. He found that some of the records met the requirements of section 24(2)(e) but that these records were not exempt by virtue of section 24(1)(c) because the Department did not clearly establish how the international relations of the State could be adversely affected by their release.

Because the Department did not clearly explain how it arrived at the conclusion that the release of the records created by Irish civil servants would affect adversely the international relations of the State, the Commissioner decided that it had not discharged the onus of proof imposed on it by section 34(12) and that the exemption in section 24(1)(c) did not apply to these records.

The Commissioner decided that the Department was entitled to refuse access to the non-factual elements of the memorandum to the Government under section 19(1)(a) but was not entitled to refuse access to the factual elements under section 19(3)(a). He decided that the Department was entitled to refuse access to the non-factual elements of a note for the Minister which contained information for a member of the Government (the Minister) for use by him solely for the purpose of the transaction of business of the Government at a meeting of the Government under section 19(1)(c) but was not entitled to refuse access to the other internal correspondence about the memorandum under section 19.

He decided that the Government decision contained factual information relating to a decision of the Government that has been published to the general public and that the Department was not entitled to refuse access under section 19(1).

Date of Decision: 22.06.2000

Background:

Mr Phelim McAleer of the Sunday Times newspaper made a request on 4 June 1998 under the Freedom of Information Act for "all files and correspondence relating to the decision to recognise matrimonial proceedings in other EU countries in Ireland- the Brussels II Convention". The request was for records created after the commencement of the FOI Act on 21 April 1998.

The Brussels II Convention, referred to by the requester, was drawn up on the basis of Article K.3 of the Treaty on European Union and concerns jurisdiction and the recognition and enforcement of judgements in matrimonial matters. Article 1 provides that the convention shall apply to

"(a) civil proceedings relating to divorce, legal separation or marriage annulment;

(b) civil proceedings relating to parental responsibility for the children of both spouses on the occasion of the matrimonial proceedings referred to in (a)."

The Department of Justice, Equality and Law Reform decided on 26 June 1998 to release some records but decided not to release other records on the grounds that they contain information relating to meetings of the Government (section 19) and that they concern discussions within an organ of the EU (section 24). The Department informed the requester that the Government, at its meeting on 20 May 1998 authorised the signature of the Brussels II Convention and the Protocol on the interpretation of that Convention by the Court of Justice.

Mr McAleer sought an internal review of this decision on 30 June 1998. He gave no reasons for seeking the review. On 21 July 1998, the internal review affirmed the initial decision. Mr McAleer sought a review by this Office in a letter dated 4 August 1998 which was received on 5 August 1998.

Having considered the matter, I accepted this application for review.

In reviewing this decision, I examined the files submitted by the Department. The records are all contained on files reference LR 6.4.4 (Parts X and XI) and can be divided into three groups

- records to which the Department refused access under section 24 of the Act. (Group 1, record numbers 1, 4-6, 11-18, 20-23, 29, 32-36, the cover sheet of record 37, 39-44, part of 45, 50, 52, 57-69, 74-80, 84)

- records to which the Department refused access under section 19 ( Group 2, record numbers 2, 3, 7-10, 24-28, 30-31, part of 45, 46-49, 51)

- records to which the Department granted access (Group 3, record numbers 19, 37 (excluding the cover sheet) 38, part of 45, 53-56, 70-73, 81-83, 85-88)

I also invited submissions from the Department and Mr McAleer. Officials of my Office researched the rules governing access to EU documents and contacted the General Secretariat of the Council of the European Union. In a letter dated 8 March 1999, the General Secretariat confirmed that a number of records to which the Department had refused access had already been released by the Council on foot of requests to the Council. It also confirmed that "the Council Secretariat cannot interfere with national procedures." My officials also met with officials of the Department.

It should be noted that only parts of many of the documents referred to above come within the scope of the request since many of the documents received from the EU deal with other items as well as the Brussels II Convention. This review is concerned with only those parts of the records which come within the scope of Mr McAleer's request and to which access has been refused.

Submissions

The Department's submission stated that Mr McAleer would be able to utilise the procedures in EU instruments on public access to seek access to EU Council documentation. It put forward the view that the internal briefing material relating to discussions at EU level, which were not released, were covered by the exemption provided by section 24(2)(e) of the Freedom of Information Act, covering information relating to negotiations being undertaken by the State within the European Union.

At the meeting with officials of my Office, the Department accepted that there was little controversial material in the records at issue. However, it suggested that there was a principle that access to Council documents can only be granted in accordance with Council decisions and that this principle cannot be disregarded. It also stated that the threat of possible release under national access rules could affect international relations. Subsequent to the meeting, the Department highlighted the parts of particular documents it considered most sensitive, without prejudice to its general view that the release of Council documentation is governed by EU decisions on access.

Mr McAleer did not make a submission.

Findings

Records in Group 1

These records can be further divided into two sub-categories:

(a) records received by the Department from the EU (Record numbers 5, 6, 11-17, 29, 32, 35, 36, the cover sheet of record 37, 41-43, part of 45, 50, 57-67, 74-80, 84)

(b) records created within the Department or within the Permanent Representation of Ireland in Brussels i.e. records created by Irish civil servants (Record numbers 1, 4, 18, 20-23, 33, 34, 39, 40, 44, part of 45, 52, 68, 69)

(a) Records received by the Department from the EU

EU Procedures concerning access to documents

The Department has put forward the view that access to Council documents can only be granted in accordance with Council decisions. It referred me to the Code of Conduct concerning public access to Council and Commission documents, approved by the Council and the Commission on 6 December 1993 (93/730/EC), the Council Decision on public access to Council documents of 20 December 1993 (93/731/EC) and the Council Decision (96/705/EC) amending Decision 93/731/EC on public access to Council documents.

The Code of Conduct provides, as a general principle, that the public "will have the widest possible access to documents held by the Commission and the Council." The term "document" is defined as meaning "any written text, whatever its medium, which contains existing data and is held by the Council or the Commission." The code provides for a number of exceptions to this general principle and provides that these institutions will refuse access to any document whose disclosure could undermine a number of different interests which include "the protection of the public interest (public security, international relations, monetary stability, court proceedings, inspections and investigations)". The institutions may also refuse access in order to protect the institution's interest in the confidentiality of its proceedings.

The Code of Conduct also provides that "[w]here the document held by an institution was written by a natural or legal person, a Member State, another Community institution or body or any national or international body, the application (for access) must be sent direct to the author."

The Council decision of 20 December 1993 applies this Code of Conduct to documents held by the Council. Council Decision 96/705/EC makes a number of minor amendments to the earlier decision, which I do not consider relevant for the purposes of this review. It is clear from the Code of Conduct and the decisions referred to above that there is a general right of access to documents held by the Council but that this right is subject to a number of exemptions.

The Department suggested that account must be taken of a principle that access to Council documents can only be granted in accordance with Council decisions. Having examined these decisions I can discern no such principle. The decisions are concerned with the rules which the Council applies in determining applications to it for access to documents held by it. The decisions do not purport to override the laws of the various Member States of the EU, relating to access to records held by Government agencies in those states.

Therefore, I do not accept that these provisions prevent the release of documents in the hands of Irish public bodies. The Department did not refer me to any provisions of European administrative law which prohibited access to documents in the hands of Irish public bodies. In the circumstances, I am unable to accept its view that access to these documents can only be granted in accordance with the Code of Conduct and Council decisions.

As a general principle, I do not accept that the existence of an alternative means of obtaining access to certain records eliminates the right of access enjoyed by members of the public to records held by public bodies. One exception to this is section 46(2) of the FOI Act which provides that the Act does not apply to a record that is available for inspection by members of the public or available for purchase or removal free of charge. However, it is clear that section 46(2) has no application in this case.

Section 24

The Department also claimed that 'internal material' relating to discussions at EU level were exempt. It said that the threat of possible release under national legislation could affect international relations. In making these arguments it relied on section 24 of the Act which provides that

"(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

(a) the security of the State,

(b) the defence of the State,

(c) the international relations of the State, or

(d) matters relating to Northern Ireland."

The Department referred specifically to section 24(2)(e) which provides that subsection (2) applies to a record that

"contains information communicated in confidence from, to or within an international organisation of states or a subsidiary organ of such an organisation or an institution or body of the European Union or relates to negotiations between the State and such an organisation, organ, institution or body or within or in relation to such an organisation, organ, institution or body, ........."

Before dealing with the application of the exemption in section 24, it may be useful to give some background on the records in respect of which this exemption is claimed. Essentially, the records contain details of discussions between national experts working together to finalise the drafting of the Brussels II Convention and Protocol. I note that the Council had already reached political agreement on the Convention in December 1997. Without wishing to appear to minimise the importance of the work undertaken by the national experts, it is clear that their work after 1997 was not concerned with matters which were then the subject of controversy at a political level. Nor can it be said that the discussions in themselves were particularly contentious.

In the light of the above, I had some hesitation in accepting the Department's view that these records relate to negotiations within the EU. However, on balance, I have decided that the Department is correct in its contention that these records relate to such negotiations - albeit not at a very senior level and, in relation to the part of the negotiations disclosed by these records, not particularly contentious. Accordingly, I find that the records in Group 1(a) are records to which section 24(2) applies.

The fact that section 24(2) applies to these records does not conclude the matter. This is because for the Department to be entitled to refuse access to these records, it must show to my satisfaction that, in the opinion of the head, access to these records could reasonably be expected to affect adversely the international relations of the State. In Case Number 98104, 98130 and 99024, (albeit in relation to exemption claimed under section 21), I explained how a decision maker should approach the question of whether release could reasonably be expected to have an adverse effect. I indicated that

"a decision maker must firstly identify the potential harm ... covered by the exemption that might arise from disclosure and having identified that harm, consider the reasonableness of any expectation that the harm will occur."

In this case, the decision maker must identify the potential adverse effect on the international relations of the State and having identified that adverse effect, and how it might occur, consider the reasonableness of any expectation that that adverse affect will occur.

It is not necessary or desirable for me to attempt to give an exhaustive explanation of how the international relations of the State could be affected adversely. As a broad proposition, I accept that the release of records containing sensitive or embarrassing material or material which another State has expressly requested be kept confidential or material the release of which could be detrimental to the interests of another State could reasonably be expected to affect adversely the international relations of the State. A case could also be made that the release of records which are specifically prohibited from release by an international organisation of which Ireland is a member could reasonably be expected to have a similar adverse effect.

In the present case it does not seem to me that the Department has clearly established how the international relations of the State could be affected adversely by release of these records.

Apart from its view on the Code of Conduct and decisions (which I have already dealt with), the only other evidence offered by the Department in support of its decision was a note of an informal consultation by telephone with a Council official. This note stated that the Council official agreed with the view of the Department official that other member countries "would not be happy with their negotiating positions, as highlighted in the various Working Documents, being made available outside the four walls of the Council chamber."

There are a number of problems with this note. The first is that the note is concerned only with documents which might reveal the negotiating positions of the various parties to the negotiations. However, not all of the documents in Group 1(a) do reveal negotiating positions, so that any argument along the lines of the contents of this note could not apply to all of the documents. The second problem and, perhaps, the more fundamental one is that the note gives no insight into the reasons for concluding that certain Member States of the EU would be unhappy at release. I find that the contents of the note are insufficient reason for concluding that release in this case could be expected to adversely affect the international relations of the State. It will be clear from what I have said that the documents at issue in Group 1(a) are not in any way sensitive. Neither do they contain any indication that their release would be the subject of a specific objection by another State. Indeed, it is noteworthy that the Council itself granted access to copies of some of these documents in its possession.

It may be that the author of the note and the Council official were of the view that some Member State would find it objectionable, in principle, that documents of this kind might be released by a Member State even though the documents did not contain any sensitive material. It might then be argued that there was a common understanding between the Member States that Council documents would not be released on foot of a request at national level and that any breach of such an understanding would adversely affect Ireland's international relations with other Member States. All I can say on this point is that no evidence in support of any such understanding was made available to me. Indeed, the correspondence between my Office and the EU Council Secretariat would seem to suggest that there is no such understanding. The Secretariat did not express any concern about possible release, for example, that protecting the confidentiality of the Council's proceedings outweighed, in its view, the public right of access. It simply put forward the view that it cannot interfere with national procedures. I understand this to be an acceptance that individual Member States of the EU have their own access to information laws which may overlap with the access rules of the EU in the sense that documents held by the Council may become the subject of access requests made under the rules of the EU, while copies of such documents held in a Member State may become the subject of access requests under the laws of the relevant State. Presumably civil servants from individual Member States who contribute to the work of the Council are aware of this position and know that there is always the possibility of release of such documents under national laws. In the light of this I am unable to accept that there is some common understanding between the Member States which forbids release of these records and the breach of which would adversely affect the international relations of the State. Obviously, if the Council or some other institution of the Union were to express strong opposition to the release of certain records, I would need to take its views into account in my assessment of the possible harm that release might bring about.

I am not satisfied that the Department was justified in concluding that release of the records in Group 1(a) could reasonably be expected to affect adversely the international relations of the State. Accordingly, I find that the records are not exempt by virtue of section 24(1)(c) of the Act.

(b) Records created by Irish civil servants The Department submitted that these records were also covered by the exemption provided by section 24(2)(e) of the FOI Act. It appears to me that this submission is based on a mistaken interpretation of the FOI Act. In line with my comments on this point in relation to the records in Group 1(a), I accept that the records in Group 1(b) are records to which section 24(2) applies. However, as I explained above, this does not conclude the matter because for a record to be exempt under section 24, the Department must show that access to it could reasonably be expected to affect adversely one of the interests listed in section 24(1). The Department did not explain how it arrived at the conclusion that the release of these records could be expected to affect adversely the international relations of the State. In the circumstances, I find that the Department has not discharged the onus of proof imposed on it by section 34(12)(b). That section provides that a decision to refuse access must be presumed not to be justified unless the public body concerned shows to my satisfaction, as Commissioner, that the decision was justified. Accordingly, I find that the exemption in section 24 does not apply to the records in Group 1(b).

Records in Group 2

These records may be further sub-divided into the following sub-categories:

(a) the actual memorandum and earlier drafts (Record numbers 2, 7, 9, part of 24, part of 25, 26, 30, part of 45, and 46)

(b) internal memos relating to the circulation of the memorandum for Government (Record numbers 3, 8, 28, first two pages of record number 45 and 48) and the cover sheets which accompanied copies of the memorandum as they were sent to and from government officials (Record numbers 10, remainder of 24, remainder of 25, 27, 31, page 3 of the record number 45 and 47) and

(c) the actual government decision (Record Numbers 49 and 51)

Access to these records was refused under section 19.

Section 19(1) provides that access to records may be refused if the record

"(a) has been, or is proposed to be, submitted to the Government for their consideration by a Minister of the Government or the Attorney General and was created for that purpose,

(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.

(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 also provides that

"'record' includes a preliminary or other draft of the whole or part of the material contained in the record"

The exemption in section 19 is restricted by section 19 (3) which provides that section 19(1) does not apply to a record

"(a) if and in so far as it contains factual information relating to a decision of the Government that has been published to the general public..."

(a) Memorandum and earlier drafts The memorandum and the earlier drafts in the present case contain a mixture of fact, opinion, interpretation and recommendations. The Department has taken the view that the whole of each of these records is exempt. In the circumstances, I find it necessary to examine each of the records to determine if they contain factual information. I do this with some reluctance because much of the factual information contained in these documents is already in the public domain. Indeed, much of the other material contained in these drafts, such as the Department's explanation of the purpose and main features of the Bill, is also publicly known.

This being so, I take the view that the analysis which I am forced to make below is somewhat academic. There is little, if anything, which the requester can learn from the material which I have decided must be released which could not be obtained from other sources. As I have pointed out in Decision Number 98058, I believe that an exercise like this could be avoided by more discussion with the requester, by a better explanation of what material is and is not protected by section 19 and by a willingness to point requesters to published sources which contain factual and other information which has been included in a memorandum to Government.

The contents of the memorandum varied as changes and additions were made to earlier drafts but for the purposes of the analysis set out below I have adopted the paragraph numbers and titles of the final version of the memorandum - record number 46. That record is divided into sixteen numbered paragraphs. I can summarise my findings in relation to each numbered paragraph as follows:

By way of explanation I should say that item 1 is the expression of a request rather than a statement of fact. I am satisfied that paragraph 2 is factual information, that the exception in section 19(3) applies, and that the Department is not entitled to rely on section 19 to refuse to release this information. Paragraphs 3, 4 and 5 are expressions of opinion as opposed to statements of fact and the Department is entitled to refuse to release this information. Paragraph 6 is factual information and the Department is not entitled to refuse to release this information. Paragraph 7 contains opinions as opposed to statements of fact and the Department is entitled to refuse to release this information. Paragraph 8 consists of factual information and the Department is not entitled to refuse to release this information. Paragraphs 9 and 10 contain opinions and recommendations rather than factual information and the Department is entitled to refuse to release this information. Paragraph 11 is not factual information because it is an interpretation of the protocol and the Department is entitled to refuse to release this information. Paragraph 12 is the opinion of the Department on the financial and staffing implications and it is entitled to refuse to release this information. Paragraph 13 is also an opinion as opposed to a statement of fact and the Department is entitled to refuse to release this information. Paragraph 14 is factual information and the Department is not entitled to refuse to release this information. Paragraph 15 contains the opinions of another Department as opposed to factual information and the Department is entitled to refuse to release this information. Paragraph 16 is factual information and the Department is not entitled to refuse to release this information.

I do not propose to repeat the above analysis in detail in relation to each of the earlier drafts of the Memorandum. I think that is sufficient for me to indicate that the various paragraphs in all earlier drafts fall to be treated in the same way as their corresponding paragraphs in the final memorandum. Accordingly, I find that the Department is entitled to claim exemption in respect of paragraphs 1, 3, 4, 5, 7, 9, 10, 11, 12, 13 and 15 of the Memorandum and the earlier drafts of these paragraphs. I find that it is not entitled to claim exemption of the remaining paragraphs and earlier drafts thereof.

(b) Internal Memos, Cover notes etc.

The second category of records are the internal memos and cover notes etc. which accompanied the memorandum and earlier drafts. They consist of letters regarding the circulation of the memorandum, cover sheets for faxes, a note regarding the time limits for observations from other Departments, proposals for the scheduling of this matter at a Government meeting and a letter accompanying the memorandum to another Department. Some of these records include the memorandum itself but, since I have dealt with access to the memorandum above, I confine this part of my decision to the remaining part of these records.

With the exception of record numbers 45 and 48 considered separately below, these records were not submitted nor proposed to be submitted to Government and do not contain information for a member of the Government for use solely for the purpose of transacting Government business at a meeting of the Government. Neither do these records contain the whole or part of a statement made at a meeting of the Government or information that reveals, or from which may be inferred, the substance of the whole or part of such a statement. Accordingly, I find that the Department is not entitled to refuse access under section 19.

Record number 45 consists of a number of documents including a draft memorandum for Government on the proposed signature of the convention and protocol. The record consists of the following: a memo to Assistant Principals seeking observations, with hand-written comments, a memo to Heads of Divisions, a letter from the Department of Foreign Affairs about the draft memorandum, the draft memorandum itself, including a copy of the Convention and the Protocol. The protocol has been released. The Department refused to grant access to this record under both sections 24 and 19. I have already found above that the Department is not entitled to refuse access under section 24. The two memos (to Assistant Principals and Heads of Divisions) and the letter from the Department of Foreign Affairs were not submitted nor proposed to be submitted to Government and were not prepared solely for the purpose of transacting Government business at a meeting of the Government. Neither does the record contain the whole or part of a statement made at a meeting of the Government or information that reveals, or from which may be inferred, the substance of the whole or part of such a statement. Accordingly, I find that the Department is not entitled to refuse access to that part of the record which does not consist of the draft memorandum under section 19. I have already dealt with the draft memorandum itself.

Record number 48 is a cover note and a note for the Minister's information. The cover note was written for submission to two people but was not addressed to the Minister, nor apparently intended for the Minister. The Department is not entitled to refuse access under section 19(1). The note for the Minister's information clearly contains information (including advice) for a member of the Government, (the Minister), for use by him solely for the purpose of the transaction of business of the Government at a meeting of the Government. The Department is entitled to refuse to release this record under section 19(1)(c), but subject to provisions of section 19(3) which I have explained above. In broad terms this note follows the structure of and overlaps in content with the Government Memorandum set out above. As might be expected given its purpose, the note is primarily concerned with advice, recommendations and interpretation. Of the 9 paragraphs which it contains, I find that only paragraphs 2, 6 and the first sentence of paragraph 9 constitute factual information for the purposes of section 19(3). As the information in these paragraphs is identical to parts of the Memorandum for Government which I have already decided are not exempt, the requester will learn nothing new from its release. Nevertheless, as I am obliged to decide the matter, I find that these paragraphs are not exempt by virtue of section 19

(c) Government decision

Record number 49 (and record 51 which is a copy) is a letter from the Secretary to the Government to the private secretary to the Minister for Foreign Affairs which was copied to the private secretary to the Minister for Justice, Equality and Law Reform for information. It informs them of the decision taken at the Government meeting. After consultation with Government Secretariat, the Department informed Mr McAleer of the contents of the record but refused access to the record itself. The contents of this record are purely factual and the restriction of section 19(3) becomes relevant. This record contains factual information relating to a decision of the Government that has been published to the general public in the sense that the general public has been made aware that the decision has been taken. Although no specific publication of the decision was brought to my attention, the fact that the Minister signed the convention and protocol made the general public aware that he had been authorised by the Government to do so. Therefore the Department is not entitled to refuse to release the record under section 19(1).

Section 19(2)(a) provides that the head shall refuse to grant access if the record concerned "contains the whole of part of a statement made at a meeting of the Government or information that reveals, or from which may be inferred, the substance of the whole or part of such a statement." I am satisfied that this record does not contain such information. Therefore the restriction at section 19(2)(b) is not relevant. The Department is not entitled to refuse access under section 19(2).

Essentially what is at issue here is whether the requester has a right to a copy of this record since he has already been informed of its contents. Concerns raised by the Government Secretariat with the Department that the release of the record might prompt a request for other records relating to the decision are not relevant to the decision on access, since section 8(4) provides that

"In deciding whether to grant or refuse to grant a request under section 7

(a) any reason that the requester gives for the request, and

(b) any belief or opinion of the head as to what are the reasons of the requester for the request,

shall be disregarded."

Decision

I have decided to vary the decision of the Department and to grant access in full to the following records: 1, 3 - 6, 8, 10 -18, 20-23, 27 - 29, 31-36, cover sheet of 37, 39 - 44, 47, 49 - 52, 57 - 69, 74 - 80 and 84.

In addition, I have also decided to grant access to the following records with the exception of the non factual elements of the draft memorandum as described above: 2, 7, 9, 24, 25, 26, 30, 45 and 46.

I have also decided to grant access to the cover note of record number 48, and to the factual information in remainder of the record, as described above.

Information Commissioner

22 June 2000