Request for access to records relating to the Government decision to relocate the Legal Aid Board to Cahirciveen - whether a draft memorandum for Government is a draft of a record submitted by a Minister to Government for its consideration and was created for that purpose - whether 'observations' of a Minister on a draft memorandum for Government constitute a draft of part of the material contained in the memorandum for Government - section 19(1)(a)

Case Summary

Facts

Mr X sought access to records relating to the Government decision to relocate the Legal Aid Board to Cahirciveen. The records sought included drafts of a memorandum for Government, and the draft and final observations of the Minister for Finance.

Decision

The Commissioner accepted that the drafts of the memorandum for Government satisfied the provisions of section 19(1)(a) which also provides that a "record" includes a preliminary or other draft of the whole or part of the material contained in the record".

More significantly, the Commissioner found that the draft and final version of the Minister for Finance's observations on the draft memorandum also met the provisions of section 19(1)(a). In doing so the Commissioner attached a considerable importance to the fact that these were the Minister's views or at least a draft of what the Minister's views would possibly be. The Commissioner was satisfied that the purpose of both records was to have the draft memorandum re-drafted to reflect the views of the Minister for Finance. In explaining his decision the Minister referred to paragraph 3 of the Cabinet Handbook which contains instructions for the preparation and submission of memoranda for Government.

Date of Decision: 21.11.2000

Our Reference: 99450

21.11.2000

Mr X

Dear Mr X

I refer to your application for a review of the decision of the Department of Justice, Equality and Law Reform ("the Department") to refuse you access to a number of records relating to the decision to relocate the Legal Aid Board to Cahirciveen. I apologise for the delay in dealing with your application.

Background

I have now completed my review of the Department's decision. In carrying out that review I have had regard to your correspondence with this Office and the Department's submissions and I have examined the records and parts of records to which you were refused access.

Scope of Review

In response to your request the Department decided to release all correspondence between the Legal Aid Board and the Department, apart from one letter dated 23 July 1999. The Department also refused you access to a number of records relating to the Government decision. During the course of my review the Department agreed to release further records including the letter of 23 July 1999 from the Legal Aid Board to the Department, the final Government memorandum dated 16 July 1999, a report dated 14 July 1999 from the OPW and a fax cover sheet dated 15 July 1999. The Department has indicated that the report of the OPW contains a site map which is covered by copyright. Accordingly it does not propose to give you a copy of the site map but to allow you to inspect it, should you so wish. I assume this form of access is acceptable to you. My review therefore is concerned solely with the question of whether the decision of the Department to refuse you access to the remaining records listed below, was correct: Record 5 & 6 : Draft memorandum for Government - partly refused Record 11 & 12: Draft memorandum for Government - partly refused Record 8: Draft observations from the Department of Finance - refused Record 10: Final observations from the Department of Finance - refused

Findings

The Department has refused you access to the records or parts of records listed above under section 19(1)(a) of the Freedom of Information Act which states that access may be refused:

"if the record concerned -(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, Section 19 also provides that: ''record" includes a preliminary or other draft of the whole or part of the material contained in the record".Draft Memoranda I will deal first with the two draft memoranda for Government, the pages of which the Department has numbered, 5, 6, 11 and 12 for the purposes of this review. The Department has refused access to one line under the heading 'Decision Sought' and three lines under the heading 'Financial Implications' in relation to both draft memoranda. I am satisfied that these records are earlier drafts of the final memorandum for Government dated 16 July 1999. I accept that that memorandum was submitted by the Minister to the Government for its consideration and that the record was created for that purpose. Therefore I find that section 19(1)(a) applies to both draft memoranda.

However, section 19(3) 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..."

I note that the Department accepts that the decision on the decentralisation of the Legal Aid Board to Cahirciveen was made known to the general public by virtue of a press release issued by the Department. I have examined the deleted material in question and I am satisfied that it does not contain any factual material. Rather, it is a mixture of proposal and opinion. Accordingly I am satisfied that the Department is entitled to refuse access to the deleted parts of these records.

Observations of the Minister for Finance

I turn now to the "draft observations" and the final version of the observations received from Department of Finance, numbered 8 and 10 respectively by the Department for the purposes of this review.

The "draft observations" were provided in response to a request from the Department of Justice, Equality & Law Reform for comments on the draft of the memorandum for Government. The "draft observations" were faxed to the Department on the 15 July 1999, the day before the memorandum was finalised. The final version of the observations of the Minister for Finance was sent to the Department on the 16 July 1999.

I have already stated that I accept that the drafts of the memorandum for Government satisfy the provisions of section 19(1)(a). The Department claims that the material in the "draft observations" and final observations is a draft of material ultimately submitted to the Government for its consideration by a Minister of the Government and was created for that purpose. In considering whether section 19(1)(a) applies I must therefore consider whether the "draft observations" and final observations constitute "a preliminary or other draft of the whole or part of the material" contained in the final memorandum for Government.

To enable you to understand my decision in relation to these two records, it is necessary for me to refer to the Cabinet Handbook which contains, among other things, instructions for the preparation and submission of memoranda for Government. The Handbook provides, at paragraph 3.1, that memoranda should "incorporate the observations of other Ministers supplied on foot of the circulated draft." I should also refer to paragraph 3.14 of the Handbook, which provides that "if, for any reason, the Minister has not been able to approve Departmental views either specifically, or by way of general directions, in time for their incorporation in the memorandum, the views should be clearly identified as being those of the Department." It follows that part of the material in any memorandum for Government is the observations supplied by other Ministers or Departments. I note that the Cabinet Handbook, at paragraph 3.8, states that where the views of a Minister are not accepted, then that Minister's views:

"...should be set out (in full, if requested) in the memorandum.....with the promoting Minister's comments."

It is clear from this that where the views of a Minister are not accepted, then the observations of that Minister will be stated explicitly in the memorandum. Where the views of another Minister are accepted there is no requirement to state them explicitly in the memorandum. All the Cabinet Handbook requires is that they be "incorporated" in the memorandum. I note that neither the draft nor the final observations of the Minister for Finance were stated explicitly in the final memorandum. However, in my view this does not mean that they were not drafts of material contained in the memorandum. In this case, it appears that given the tight deadlines involved for preparing memoranda for Government a draft of the Minister's observations was supplied. The following day the final observations of the Minister were supplied. I am satisfied that the purpose of both records was to have the draft memorandum re-drafted to reflect the views of the Minister for Finance or in the absence of his approval, the views of his Department. I am satisfied that section 19(1)(a) applies to both versions in that they constitute a draft of part of the material contained in the memorandum for Government which was submitted to the Government for its consideration by a Minister of the Government and was created for that purpose.

For the avoidance of doubt I should make it clear that not every comment from one Department to another is likely to meet the provisions of section 19(1)(a). In this case I attach considerable importance to the fact that these were the Minister's views or at least a draft of what the Minister's view would possibly be. I also note that the draft observations were supplied prior to clearance by the Minister the day before the memorandum was finalised and presumably in an effort to meet the tight deadlines involved.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, I hereby affirm the decision of the Department of Justice, Equality & Law Reform to refuse access to the records and parts of records which are the subject of this review.

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than four weeks from the date of this letter.

Yours sincerely

Information Commissioner