Case 000257. Request for access to the Irish response to the European Commission's reasoned opinion on the Gaming and Lotteries Act, 1956 - whether the response in question constituted a negotiation - section 21(1)(c)

Case Summary

Facts

Mr X sought access to the Irish response to the European Commission's reasoned opinion on the Gaming and Lotteries Act, 1956. The Department refused access to part of the Irish response claiming that it disclosed the positions taken by the Department for the purposes of negotiations.

Decision

The Commissioner decided that the Irish response did not set out or contain the position taken or to be taken by the Irish Government for the purpose of any negotiations and directed release.

In coming to his decision the Commissioner explained that the Irish response was, in effect, a rebuttal of the arguments advanced by the Commission, at which stage it was open to the Commission to refer the matter to the European Court of Justice. Taking the definition of "negotiation" as the discussion of a matter with a view to some settlement or compromise, the Commissioner found that the material did not contain any proposals for settlement or compromise.

Date of Decision: 14.11.2001

Our Reference: 000257

14.11.2001

Mr X

Dear Mr X

I refer to your application on behalf of ABC Limited for a review of the decision of the Department of Justice, Equality and Law Reform ("the Department") to refuse you access to records relating to the European Commission's infringement proceedings against Ireland in relation to Ireland's lottery legislation.

Please accept my apologies for the delay which has arisen in dealing with your case. Due to staff shortages and the number of applications before me, I have been unable to deal with cases as expeditiously as I would wish.

I have now completed my review of the Department's decision. In carrying out that review I have had regard to the Department's' decision of 23 March 2000 and its submission of 25 September 2001. I have also had regard to your application for review of 6 June 2000 and your letter to this Office of 11 October 2001.

Background

The Commission held in its reasoned opinion that certain sections of the Gaming and Lotteries Act, 1956 were incompatible with Articles 59 to 66 of the EC Treaty. The reasoned opinion was addressed by the Commission to Ireland pursuant to Article 169 of the EC Treaty.

I believe it is useful to explain the procedure involved under Article 169 particularly in the context of considering the Department's claim for exemption under section 21(1)(c) which is examined below. An Article 169 (now Article 226) action comprises a number of stages, increasing in formality, which offer Member States an opportunity to terminate the alleged infringement or risk an action before the European Court of Justice. The procedure commences when the Commission sends to the Member State in question a letter of formal notice outlining its complaint and inviting the comments of the Member State. The initiation of this procedure can result in the Member State terminating the infringement or convincing the Commission that no infringement has taken place. Should this not occur , however, the Commission then proceeds to issue a reasoned opinion and requires the Member State to comply with its obligations within a specified period, usually two months.

If the Member State still fails to satisfy the Commission, the Commission is free to institute proceedings before the Court of Justice to have the infringement established. If the case does proceed to a hearing before the Court and if the Commission succeeds in its allegation, the Member State is required to take the necessary measures to comply with the judgement of the Court.

In this case the Irish response was, in effect, a rebuttal of the arguments advanced by the Commission and a declinature of the request by the Commission for amendments of the 1956 Act. The next step open to the Commission is to refer the matter to the Court of Justice.

Scope of Review

I note that your original request was for all records relating the European Commission's infringement proceedings against Ireland in relation to Ireland's lottery legislation. Following discussions with my Office you have agreed to confine your request to access to the original European Commission 'opinion' of 3 February 1998 (not 3 March 1998 as indicated by the Department), Irelands 'response' to that opinion and to any letters or documentation mentioned in Ireland's 'response'. I also note that following a meeting with the Department you have received a copy of all but five paragraphs of Ireland's 'response'.

My review, therefore, is concerned with the question of whether the Department's decision to refuse access to the records or parts of records listed below is justified:

• the European Commission's reasoned opinion concerning the Gaming and Lotteries Act, 1956 (dated 3 February 1998)
• any letters referred to in Ireland's response to the European Commission (i.e., letters dated 30 March 1995, 16 November 1995 and 30 March 1998 from the Irish Permanent Representation to the European Commission).
• Paragraphs 1.3, 2.1, 3.4, 3.5 and 4.3 of Ireland's response to the European Commission opinion (undated but issued in May 1998)

Findings

Pre-commencement records

The European Commission's opinion and the letters referred to in the Irish response were all created before the 21 April 1998, the date the Freedom of Information (FOI) Act commenced. The FOI Act provides a right of access to these records only if access is necessary or expedient in order to understand records created after commencement (section 6(5)(a)) or if the records relate to personal information about the person seeking access to them (section 6(5)(b)).

It is clear that the records, concerned as they are with the Department's position on the compatibility of the Gaming and Lotteries Act, 1956 with certain provisions of the EC Treaty, do not relate to personal information about you, so the only matter at issue is whether access to the records is necessary or expedient in order to understand records created after 21 April 1998. You have stated in your correspondence that you need access to these pre-commencement records in order to understand the Irish response to the Commission's opinion.

In Mr. ABE and the Department of the Marine and Natural Resources, Case Number 98117, 2 OIC Dec. 73 (1999), I explained my approach to interpreting the phrase "necessary or expedient in order to understand". I stated that the section is directed not at the question of whether a record can be understood in a literal sense without reference to earlier records but at whether its substance (or gist or subject matter) can be understood. I made it clear that the fact that a document does not contain all the information that a reader might wish to have does not mean that the substance of a document cannot be understood. I also defined the word "expedient" as "fit, proper or suitable to the circumstances of the case". I concluded that the release of a pre-commencement record is justified only to the extent that such access is a suitable means to achieving the end of understanding the substance of the post-commencement record, or in this case the Irish response to the Commission's opinion.

While the Irish response makes a number of references to earlier letters I believe that the substance of the response itself can be understood without having access to these letters. Indeed, I note that even where a letter is mentioned, the Irish response goes on to give the main thrust of the letter concerned. The response, in dealing with a number of the points raised in the Commission's opinion also summarises some of these points. The response itself is a self-contained document that was clearly prepared as a comprehensive response to the Commission opinion. Having examined the response and in light of my interpretation of section 6(5)(a) as explained above I find that section 6(5)(a) does not apply and that no right of access exists to these pre-commencement records in this case. However, in the light of my findings in relation to the Irish response to the European Commission's opinion, I am drawing the Departments attention to section 6(8) of the FOI Act.

Irish Response

The Department refused access to five paragraphs of the Irish response under section 21(1)(c) of the FOI Act.

Section 21(1)(c) provides that a public body may refuse to grant a request if access to the record concerned could, in the opinion of the head, reasonably be expected to

"(c) disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations carried on or being, or to be, carried on by or on behalf of the Government or a public body."

Generally speaking paragraph (c) is designed to protect negotiation positions or plans etc. from being disclosed directly or indirectly to other parties. I would also accept that, generally speaking, proposal-type information relating to a public body's negotiations would also be exempt under section 21(1)(c).

I have considered whether access to the material in this case could accurately be described as disclosing positions taken, etc. for the purpose of any negotiations involving the Department.

The Oxford English Dictionary defines "negotiation" as "the action or business of negotiating or making terms with others". It goes on to define the verb "negotiate" as "to hold communication or conference (with another) for the purpose of arranging some matter by mutual agreement; to discuss a matter with a view to some settlement or compromise".

The Department contends that the process of persuading the Commission not to proceed in taking proceedings against the State could be understood to be covered by the term "negotiating". I would agree with this contention if the Department was trying to reach some compromise or some mutual agreement in this particular document. However this is not the case in that :

(i) the first two of the five paragraphs in question contain factual background to the issue and a summary of public policy in relation to lotteries and,

(ii) the remaining paragraphs contain a mix of opinion, interpretation, contention and conclusions in response to the European Commission's opinion.

Furthermore, the document does not contain any proposal for settlement or compromise. It does not contain any indications of 'fall-back' positions or other information created for the purpose of negotiations. The document does not indicate the Department's negotiating strategy, rather it was prepared as the Irish position in response to an opinion from the Commission and was forwarded to the Commission on that basis.

The Department has indicated that one of its concerns centres around the fact that the Commission has never indicated that they would not pursue the issues which were the subject of the reasoned opinion and any renewal of interest by the Commission "would require renewed negotiations". This argument would have some validity if the Irish response was in effect drafted as the State's opening position with a view to further negotiation. I have no evidence that this is so. The document was prepared as the Irish position in response to a final opinion of the Commission and forwarded to the Commission. The net issue involved is whether or not the relevant sections of the 1956 Act are incompatible with Articles 59 to 66 of the EC Treaty. There seems to me to be no room for negotiation on that issue, although there is clearly room for argument. Of course, if the Irish Government accepted some element of incompatibility, there might be room for negotiation on the extent to which and the manner in which the 1956 Act might be amended but the Irish position as stated is unequivocal that there is no incompatibility. Legal obligations can hardly be said to be negotiable although, once established, the manner in which they are to be met may allow room for negotiation.

I find therefore, that the Irish response is not a record setting out or containing the position taken or to be taken by the Irish Government for the purpose of any negotiations carried on or being, or to be, carried on by it or on behalf of it. Neither does the record contain plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations.

Public Interest

Even if I were to accept that section 21(1)(c) applies, I must consider section 21(2) which provides that the exemption does not apply where the public interest would on balance, be better served by granting than by refusing to grant the request. In considering the public interest I must take account of the fact that section 21(1)(c) does not contain a harm test (unlike section 21(1)(a) and 21(1)(b)). A record is capable of qualifying for exemption under section 21(1)(c) despite the fact that any negotiating positions, plans etc. which it might disclose relate to past negotiations and even if such positions, plans etc. are of no conceivable relevance to any current or future negotiations.

In decision 98166 - involving the Department of Enterprise, Trade and Employment - I said:

"While section 21(1)(c) makes no distinction between disclosures which have the potential to prejudice current or future negotiations in some way or to cause some other harm and disclosures which do not, it seems to me that such a distinction should be made in applying the public interest test in section 21(2) to records which disclose positions taken etc. for the purposes of negotiations. Put simply, if release of such records cannot harm current or future negotiations or cause any other harm, then the public interest in openness in the workings of Government means that, in the absence of any other applicable exemption, the records should be released. On the other hand, if access to records which disclose positions taken etc. for the purposes of past negotiations could reasonably be expected to prejudice current or future negotiations or cause some other harm, then this is a matter which must weigh heavily in the application of the public interest balancing test."

In the present case, the Department has expressed concern that by disclosing the details of its policy to "interested parties", its ability to continue to make the case for a continued restriction of gambling in the interests of social policy and its ability to implement this policy could be harmed. The Department said:

"The making public of the Department's policy thinking in this area by the full disclosure of this document could harm the successful implementation of such policy by:

(a) making such information available to those whose legitimate business is to increase the level of funding available from lotteries; and

(b) putting into the public domain information which might be used by such parties to either bring proceedings directly or to intervene in any future proceedings brought by the EU Commission in relation to the State's restrictive legislation in the areas in question."

I find this argument quite unconvincing. It may be that charitable organisations which are regulated by the legislation will be encouraged by the release of the information in the record to pursue certain actions which may make it more difficult for the Department to sustain the present policy. But why should such actions be seen to be against the public interest? Indeed the Department's position is capable of being extended to all situations where there is disagreement between it and other interests about the merits of a particular policy. For me to accept the argument in this case would be to accept the principle that policies which are not robust enough to withstand public scrutiny should be protected from such scrutiny. I would contrast the position take by the Department with that of the Department of Agriculture, Food and Rural Development in a recent case when, in defence of their decision to release certain records on public interest grounds, they said:

"The availability in the public domain of all information which has a bearing on the outcome of policies to be implemented for the general good, is essential to the formulation of fair policy decisions."

The information contained in the five paragraphs concerned reveal very little about the Department's social policy in relation to lotteries. As mentioned earlier it consists mainly of factual information and the Department's opinion and interpretation of the relevant legislation. It is concerned with arguing its case that the provisions of the Gaming and Lotteries Act 1956 do not conflict with the provisions of the EC Treaty. Even if the information did contain detailed information on the Department's policy I fail to see how making public such policy could cause the harm envisaged by the Department and, even if it made life more difficult for the Department, how that of itself would not be in the public interest.

On the other hand I consider that there is a public interest in knowing what the Department's policy is in this area and its justification for any restrictions arising from that policy. There is also the public interest in the openness of Government in general. If I had had to consider section 21(2) I would have found that, on balance, the public interest in favour of release would outweigh any public interest against release and that access to the five paragraphs should be granted.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act, I have decided to vary the decision of the Department and direct that access be granted to all of the record containing the Irish response to the European Commission's reasoned opinion of 3 February 1998.

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 that decision. Such an appeal must be initiated not later than four weeks from the date of this letter.

Yours sincerely

Information Commissioner