Request for records relating to the decision to participate in the Partnership for Peace (PfP) - records submitted by a Minister to the Government for its consideration - section 19(1)(a) - whether release of records relating to the deliberative processes of the Government regarding the question of participation in the PfP is contrary to the public interest - section 20(1) - whether records contain "opinions, advice, recommendations or the results of such consultations considered by either House of the Oireachtas ... for the purposes of the proceedings at a sitting of either such House.." - section 22(1)(c)(ii)(I) - whether release of such records could reasonably be expected to affect adversely international relations of the State - section 24(1)(c)

Case Summary

Facts

The requester sought access to records relating to Ireland's decision to participate in the PfP. He was given access to a number of records and the Department refused access to the remainder on the grounds listed above.

Decision

The Commissioner found that those records, in respect of which the Department was claiming section 22(1)(c)(ii) and which contained background notes on PfP, were factual in nature and did not consist of "opinions, advice, recommendations, or the results of consultations" and were not exempt from release under this provision of the FOI Act.

He found that another two records (an Aide Memoire for Government and a supplement that was also prepared for Government) had been submitted by the Minister for Foreign Affairs to the Government for its consideration, and had been created for that purpose. To the extent that portions of the records contained a mixture of opinion, interpretation and proposal, he found that such portions were exempt under section 19(1)(a). However, he found that the portions of these records containing factual information were not precluded from release, according to section 19(3)(a). The Commissioner then considered whether the factual elements of these records were exempt under section 24(1)(c) and found that they were not.

In considering a number of internal departmental memoranda relating to PfP participation, the Commissioner found that some of the information therein related to the deliberative processes of the Department, i.e. the decision of the Department to review its position on the question of participation in the PfP with a view to submitting a proposal in favour of participation to Government. However, he noted that the proposal had been submitted, and apparently agreed to, by the Government on 29 October 1998, and that the deliberative process to which these records relate had ended. Given the passage of time, and given that the Department had not put forward any specific arguments to substantiate its claim that the release of such records would be contrary to the public interest, the Commissioner found that these elements of the records were not exempt under section 20(1). He commented that, while the release of such records could give rise to further debate on the issue of Irish participation in the PfP, he did not accept this as an argument against the public interest.

The Commissioner considered the application of section 24(1) to the factual elements of these records, which he had not found to be exempt under section 20(1), and also to a record setting out the arguments for and against Irish participation in PfP. In so doing, he commented that the fact that a public body may have substantial expertise in a particular field does not relieve it of its obligation of satisfying him that its decision to refuse access to a record is justified. The Department argued that the release of records relating to the PfP debate could reasonably be expected to result in such effects on international relations as a loss of confidence, a weakening of reciprocal bonds, or a diminution in a level of trust. The Commissioner accepted, as a general proposition, that official acknowledgement of even a commonly known fact could, in certain circumstances, have an adverse effect on international relations. In this case, however, the Commissioner found that the Department had not explained how the release of the records concerned could result in any of the adverse effects it had identified.

The Commissioner observed that other records at issue candidly and descriptively discussed developments in Europe which, in the Departments view, favoured participation in the PfP. He accepted that adequate grounds existed for concluding that, if released, certain parts of these records could have adverse effects on the international relations of the State. He found that section 24(1)(c) applied accordingly.

The Department had argued that section 22(1)(c)(ii)(I) applied to a letter from the Office of the Taoiseach to the Private Secretary of the Minister for Foreign Affairs, containing advice and recommendations for the Minister in connection with the preparation of a reply to a parliamentary question, in that it contended that the letter was considered by the Minister (as a member of the Dáil) for the purposes of Dáil business. The Commissioner commented that answering questions in the Dáil, guiding legislation through the Dáil and Seanad, and generally responding to motions and debates all relate to official functions as a Minister, rather than as a Deputy. He found that the records in question were not exempt under section 22(1)(c)(ii)(I) of the Act. He noted that this record would have been covered by section 20(1), but, as the Dáil question had long been answered, he found no basis for concluding that the record's release now would be contrary to the public interest.

The Commissioner found that section 24(1)(c) applied to a record which purported to describe the view of certain other European countries of their position within the European Union (EU), because it was reasonable to expect that its release could result in a reluctance to share information with the Department about EU matters. Two other records consisted of reports of high-level, face-to-face talks between the Taoiseach and, respectively, the former United States Secretary of State and the Prime Minister of the Netherlands. The Commissioner was satisfied that the talks were held on the understanding of confidentiality and he accepted that the international community expects communications of this nature to remain confidential. He was satisfied that these records were also exempt under section 24(1)(c) of the FOI Act, in that their release could reasonably be expected to have a deterrent effect on diplomatic communications of this nature and thus to impair the conduct of international relations.

The Commissioner considered the application of section 24(1)(c) to a letter from the Irish Vice-Consul in Edinburgh to the Department, in which a report was given of discussions held at the Annual Conference of the Scottish Council for the European Movement. He found that, while the report included comments that the Department viewed as critical of Ireland's non-participation on the PfP, there was nothing to indicate that these comments were made in confidence. He further noted that, even assuming that the individuals making the comments were capable of influencing international relations, there was no basis for considering their criticism to be sensitive or embarrassing in nature, given that Ireland had since joined the PfP. He concluded that section 24(1)(c) did not apply to these records. Finally, the Commissioner was satisfied that section 24(1)(c) applied to a record which had implications for the physical security of a particular premises, in that such release could reasonably be expected to result in a loss of trust or confidence in Ireland and thus be damaging to the international relations of the State.

Date of Decision: 22.03.2002

Our Reference: 99279

22.03.2002

Mr. X

Dear Mr. X

I refer to the application filed on behalf of The Sunday Times for a review of the decision of the Department of Foreign Affairs to refuse access to records relating to the decision to participate in the Partnership for Peace (PfP). Please accept my apologies for the delay which has arisen in dealing with this application

Background

I have now completed my review of the Department's decision in accordance with section 34(2) of the FOI Act. In carrying out that review, I have had regard to submissions from you and the Department, as well as to the minutes of a meeting held on 5 September 2000 between my staff and the Department in relation to this case. I have also examined the records at issue.

Scope of Review

In a letter dated 18 December 2001, Ms. Melanie Campbell, Investigator, enclosed a cumulative schedule of the full file ultimately forwarded to this Office by the Department for review. In this decision, I will continue to refer to the records under review according to the numbering system adopted in the cumulative schedule. As noted in Ms. Campbell's letter, the Department's full file includes some records which only partly relate to the issue of Irish participation in the PfP. Those parts of the records which do not relate to the issue of Irish participation in the PfP are beyond the scope of the FOI request underlying this review. Accordingly, my review in this case is concerned solely with the question of whether the Department's decision to refuse access to the records, or parts thereof, that you seek which relate to the issue of Irish participation in the PfP is justified.

In your written submission dated 2 January 2002, you stated that only the following records remain of interest to you: 69, 77, 82, 83, 90-92, 94, 95, 97, 101, 114, 146, 150, 153, 155, 157, 184, and 186. (In a telephone conversation held on 19 December 2001, you had also expressed an interest in two pre-commencement records, 56 and 59, but in light of your subsequent written submission, I take it that you are no longer pursuing your request for access to these records.) In its recent submissions, the Department raises no objection to the release of records 77, 90, 146, 184, and 186, provided that they fall within the scope of the FOI request underlying this review. I therefore need not make a decision in relation to these records.

I have categorised the other records, or parts thereof, that remain under review as follows:

• Parliamentary matters: 69, 82
• Legal privilege: 153
• Aide Memoire and supplement: 94, 95
• Internal Departmental memoranda relating to PfP participation: 83, 91, 92
• Interdepartmental correspondence relating to PfP participation: 97
• European security and defence matters: 114 (conclusion 4, page 5)
• Inter-governmental communications: 150 (paragraphs 8 and 9), 157 (paragraphs 20 and 21)
• Correspondence between Irish Diplomatic Missions and the Department: 101, 155

Findings

Preliminary Matters

Before dealing with the relevant exemptions, I wish to make two points. The first is that, while I am required by section 34(10) of the FOI Act to give reasons for my decisions, this is subject to the requirement of section 43 that I take all reasonable precautions to prevent disclosure of information contained in an exempt record during the course of a review. I also have to refrain from disclosing information which a public body contends is contained in an exempt record so as to preserve that party's right of further appeal to the High Court. These constraints mean that, in the present case, the extent of the reasons that I can give is limited. The second point that I wish to make is that, where a public body refuses access to records under the FOI Act, then in any subsequent review by me that refusal is presumed not to have been justified unless the public body satisfies me to the contrary (section 34(12)(b) of the FOI Act).

Parliamentary Matters

Section 22(1)(c)(ii) of the FOI Act is a mandatory exemption that applies to any record which consists of:

"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, or (II) a committee appointed by either such House or jointly by both such Houses and consisting of members of either or both of such Houses or a member of such a committee or a member of the staff of the Office of the Houses of the Oireachtas for the purposes of the proceedings at a meeting of such a committee."

The Department has no objection to the release of records number 69 and 82, which contain background notes on PfP, unless they are subject to this provision. I note that record number 69 appears to have been faxed to the Ceann Comhairle's Office for the purposes of a Dáil debate. I also note that a manuscript on record number 82 and other records on file indicate that the background note was considered by the Joint Committee on Foreign Affairs. However, both records are factual in nature and do not consist of "opinions, advice, recommendations, or the results of consultations." Accordingly, I find that these records are not exempt under section 22(1)(c)(ii).

Legal Privilege

Record 153 is a memorandum from James Hamilton, Director General of the Office of the Attorney General, responding to a request for legal advice from the Department on the question of whether Irish participation in the PfP required a referendum. As this is a record created by the Office of the Attorney General which does not concern the general administration of the Office, I am satisfied that it falls outside of the scope of the FOI Act by virtue of section 46(1)(b). I further note that, if the FOI Act were to apply, this record would be exempt on the basis of section 22(1)(a), which protects confidential communications between lawyer and client for the purpose of obtaining and/or giving legal advice.

Aide Memoire and Supplement

The Department invokes sections 19(1)(a) and 24(1)(c) of the FOI Act in relation to records number 94 and 95, which consist of an Aide Memoire for Government and a supplement that was also prepared for Government. Having examined these records in conjunction with record number 92, which includes advice to the Minister for Foreign Affairs on how to proceed on the issue of PfP participation, I am satisfied that they were in fact submitted to the Government by the Minister for its consideration and were created for that purpose. I therefore accept that records 94 and 95 fall within the ambit of section 19(1)(a), except in so far as they contain factual information relating to the decision of the Government to participate in the PfP, which has now been published, or made known, to the general public (section 19(3)(a) refers). I find that the following parts of the records consist of factual information and are thus excluded from exemption under section 19(1):

• Record 94: paragraphs 1 and 7 in full; paragraph 2, "All of our EU partners . . . crisis management tasks."; paragraph 3, "PfP is not . . . participate in PfP.";
• Record 95: paragraphs 1, 2, and 5 in full.

I am satisfied that the remainder of these records consist of a mixture of opinion, interpretation, and proposal, and the Department is therefore entitled to refuse access to this information under section 19(1)(a). The question I must now determine is whether any of the factual information is exempt under section 24(1)(c). I conclude that it is not for reasons that will be elaborated upon in the section below dealing with the internal Departmental memoranda relating to PfP participation.

Internal Departmental Memoranda Relating to PfP Participation

The Department claims that records number 83, 91, and 92 are exempt under section 24(1). For records number 91 and 92, the Department also invokes section 20(1) of the FOI Act. I first will address the claim under section 20(1).

Section 20(1)

Section 20(1) of the FOI Act allows a public body to refuse to grant a request if the contents of the record concerned relate to the deliberative processes of the public body concerned and the granting of the request would be contrary to the public interest. Deliberative processes involve the consideration of various matters with a view to making a decision on a particular matter. Section 20(2)(b) of the FOI Act excludes from exemption under section 20(1) factual information or analyses thereof. I note that both records 91 and 92 contain some factual information to which section 20(1) does not apply by virtue of section 20(2)(b). Having examined records 91 and 92 in the context of the Department's full file, I accept that the non-factual information therein relates to the deliberative processes of the Department, namely, the decision of the Department to review its position on the question of participation in the PfP with a view to submitting a proposal in favour of participation to the Government. Such a proposal was submitted and apparently agreed to by the Government on 29 October 1998, and Ireland has now been a participant in the PfP since December 1999. The deliberative process to which these specific records relate is, therefore, at an end. As I have observed in previous decisions, the Act clearly envisions that there will be cases in which disclosure of the details of a public body's deliberations - whether before or, in some cases, after a decision based on these deliberations has been made - would be against the public interest. However, that is not to say that such disclosure is always, as a matter of principle, against the public interest. In this case, the Department has not put forward any specific arguments to substantiate its claim that the release of records 91 and 92 would be contrary to the public interest, which is a stronger public interest test than the test in other sections of the Act that merely requires that on balance the public interest would be better served by granting than by refusing the release. In the absence of any such arguments, and given the passage of time, I conclude that the Department has failed to establish a basis for exemption under section 20(1). While the release of these and other records under review could give rise to further debate on the issue of Irish participation in the PfP, I do not accept this as an argument against the public interest.

Section 24(1)

General Comments Section 24(1) provides that a public body may refuse access to a record if it considers that access 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. Under section 24, there is no public interest test to be applied. However, a public body claiming exemption under section 24 must identify the potential adverse effect on one of the interests covered by the exemption, and having identified the adverse effect, and how it might occur, consider the reasonableness of any expectation of that adverse effect occurring. The Department argues that, given the complex nature of international relations, its judgement on the application of section 24(1) should be accorded considerable weight. The Department maintains that, once I am satisfied that the decision makers in this case had duly formed the opinion that there was a reasonable expectation of harm, I should affirm the decision, even if I reach a contrary view. I confirm that in each and every review before me, I give serious consideration to any arguments put forward by a public body as to why any particular record, or records, should not be released. In doing so, however, I must have regard to the provisions of the FOI Act and, in particular, section 34(12). In determining whether access "could reasonably be expected to affect adversely" one of the interests outlined in section 24(1), I take the view that there must be adequate grounds for any such expectation at the time the decision to refuse access is made. The mere possibility of some adverse effect is not sufficient. Furthermore, the fact that a public body may have substantial expertise in a particular field does not relieve it of its obligation of satisfying me that its decision to refuse access to a record is justified. The Department also argues that any adverse effects that may arise from misinterpretations or misconstructions are relevant in relation to section 24(1), because it may not be possible to undo such adverse effects simply by clarifying or correcting the misinterpretations. However, as a general matter, I do not accept that the mere fact that information in a record which is sought under the FOI Act may be misinterpreted by someone is a sufficient basis for refusing to grant access.

Record 83 and Factual Information Generally As you are aware from the schedule provided to you, record 83 is a document that sets out a list of arguments "pro and con" Irish participation in PfP. The Department asserts that this document, particularly its "con" arguments, could be viewed negatively by Ireland's international partners and is therefore exempt under section 24(1)(c). More generally, the Department argues in its submission of 8 October 2001 that the release of records relating to the PfP debate could reasonably be expected to result in such effects on international relations as a loss of confidence, a weakening of reciprocal bonds, or a diminution in a level of trust. From my examination of record 83, it appears that the document simply reflects concerns that existed among the Irish public, some of which were addressed in the Department's publication, Ireland and the Partnership for Peace: An Explanatory Guide. As a general proposition, I accept that official acknowledgement of even a commonly known fact could, in certain circumstances, have an adverse effect on international relations. However, unless it is readily apparent how or why such harm could occur, I would expect a public body making this claim to provide a specific and coherent explanation in support of its position. In this case, no such explanation has been provided, and it is not otherwise apparent to me how or why the Department's acknowledgement of the concerns that existed in relation to the question of Irish participation in the PfP, or of the factual information in records 94 and 95, could result in any of the adverse effects it has identified. I therefore find that section 24(1)(c) does not apply. Records 91 & 92 I have already addressed the Department's claim for exemption of records 91 and 92 under section 20(1). As noted, these records relate to the decision of the Department to review its position on the question of participation in the PfP with a view to submitting a proposal in favour of participation to the Government. While I do not accept that their release would be contrary to the public interest within the meaning of section 20(1)(b), I am satisfied that parts of these records could reasonably be expected to have an adverse effect on the international relations of the State. Although I am limited in what I may say about these records, I do not believe that I would be revealing exempt matter in violation of section 43 by stating that they candidly and descriptively discuss developments in Europe, which, in the Department's view, favoured participation in the PfP. Many of these developments are touched upon in the Department's Explanatory Guide, but in a more general manner. I accept that adequate grounds exist for concluding that some of the material, if released, could have adverse effects on the international relations of the State. Accordingly, I find that section 24(1)(c) applies to the fifth factor listed in record 91 and to the following parts of record 92:

• Paragraph 3, second sentence: "but . . . NATO membership)."
• Paragraph 7, second sentence: "and the WEU . . . NATO."
• Paragraph 9, except for the last sentence
• The subheading at (e) and paragraph 13 in full.

I note that the Department has also invoked section 24(1)(d) in relation to record 91. As I have found that the only part of record 91 that relates to Northern Ireland is exempt under section 24(1)(c), it is unnecessary for me to consider whether section 24(1)(d) is also applicable. In Annex 2 of its submission of 8 October 2001, the Department identifies additional comments in records 91 and 92 as being of particular concern to it. However, in my view, the comments merely state the obvious and are now entirely historic given the fact that Ireland has become a participant in the PfP. I see no reason to expect that the release of records 91 and 92 with the deletion of the excerpts outlined above could cause any controversy on an international level or otherwise be harmful to the international relations of the State. I conclude that section 24(1) does not apply to the remainder of these records.

Interdepartmental Correspondence Relating to PfP Participation

Record number 97 is a letter from the Office of the Taoiseach to the Private Secretary of the Minister for Foreign Affairs containing advice and recommendations for the Minister in connection with the preparation of a reply to a parliamentary question. The Department argues that the letter is exempt under section 22(1)(c)(ii)(I) of the FOI Act.

The Department's argument is based on the premise that the letter was considered by the Minister ( as a member of the Dáil) for the purposes of Dáil business. I do not accept this premise. The Dáil question is a mechanism to enable the Dáil to hold Ministers accountable. In answering questions, Ministers are performing their functions as Ministers, not as members of the Dáil. The Houses of the Oireachtas are not public bodies for the purposes of the FOI Act. The Office of the Houses of the Oireachtas is, and the primary (but not exclusive) purpose of section 22(1)(c)(ii)(I) is to exempt advice from the Office to the Ceann Comhairle, the Leas-Cheann Comhairle, the Cathaoirleach, the Leas Cathaoirleach, and individual members of the House regarding procedural matters. Indeed, section 2 provides that " a record that is created for or held by an Office holder and related to the functions or activities of the office holder as a member of the Oireachtas" is an exempt record. Answering questions in the Dáil, guiding legislation through the Dáil and Seanad, and generally responding to motions and debates all relate to official functions as a Minister rather than as a Deputy. It is not credible to argue that all material prepared for a Minister for use in proceedings in either House is exempt under section 22.

I would accept, however, that record 97 is potentially covered by the exemption in section 20(1), as the record concerned relates to the deliberative process of the Department. But given that the Dáil question has long since been answered, I can find no basis on which to conclude that the record's release now would be contrary to the public interest.

European Security and Defence Matters

As noted above in relation to record number 114, only conclusion 4 on page 5 of this record falls within the scope of this review. The Department refuses access to conclusion 4 under section 24(1)(c) and also tentatively under section 20(1)(a). Conclusion 4 consists of two paragraphs. Conclusion 4(a) includes the type of comments referred to above in relation to records 91 and 92 that I have found not to be exempt under section 24(1). I likewise find no reason for concluding that the release of conclusion 4(a) could be expected to have any adverse effects on the international relations of the State.

The comment made in conclusion 4(b), however, is of a different nature than the others. It purports to describe the view of certain other European countries of their position within the European Union (EU). It is reasonable to expect that its release could result in a reluctance to share information with the Department about EU matters. I am satisfied that section 24(1)(c) applies to conclusion 4(b) of record 114, but I find that conclusion 4(a) should be released. While the Department has also tentatively invoked section 20(1)(a), it has made no attempt to meet its burden under section 20(1)(b) of showing that disclosure would be contrary to the public interest.

Inter-governmental Communications

Like record 114, records number 150 and 157 only partly come within the scope of this review. They consist of reports of high-level, face-to face talks between the Taoiseach and the former United States Secretary of State, Madeleine Albright, and his counterpart in the Netherlands, Prime Minister Wim Kok, respectively. Section 24(2) of the FOI Act provides a non-exhaustive list of categories of information that may qualify for exemption, provided that the test in section 24(1) is met, i.e. that access to the record concerned could reasonably be expected to affect adversely the security of the State, the defence of the State, the international relations of the State, or matters relating to Northern Ireland. Diplomatic communications are included at section 24(2)(b), which states that the subsection applies to a record that "contains a communication between a Minister of the Government and a diplomatic mission or consular post in the State or a communication between the Government or a person acting on behalf of the Government and another government or person acting on behalf of another government." I am satisfied that section 24(2)(b) applies to records number 150 and 157. It is apparent from the frank and candid nature of the talks that they were held on an understanding of confidentiality. Moreover, I accept that the international community expects communications of this nature to remain confidential. I am satisfied that the release of these records could reasonably be expected to have a deterrent effect on diplomatic communications of this nature and thus to impair the conduct of international relations. Accordingly, I find that records 150 and 157 are exempt under section 24(1)(c).

Correspondence Between Irish Diplomatic Missions and the Department

Record 101

Record number 101 is a letter from the Irish Vice-Consul in Edinburgh to the Department in which a report is given of discussions held at the Annual Conference of the Scottish Council for the European Movement. The Department seeks exemption under section 24(1)(c) because of the potential damage to the international relations of the State arising from the release of a consular report on how Ireland is viewed by opinion-formers abroad. I find the Department's claim to be entirely speculative. It seems to me that since the Vice-Consul apparently was in attendance at the conference in his official capacity, it was only to be expected by the other attendees that he would make a report of what occurred. While the report includes comments that the Department views as critical of Ireland's non-participation in the PfP, there is nothing to indicate that these comments were made in confidence. Moreover, even assuming that the individuals making the comments are capable of influencing international relations, there is no basis for considering their criticism to be sensitive or embarrassing in nature given that Ireland has since joined the PfP. I conclude that section 24(1)(c) does not apply. However, the name of the student mentioned in the final paragraph of the letter should be deleted under section 28(1) of the FOI Act, as it is personal information and there is no public interest in release.

Records 155

Record number 155, on the other hand, includes a report of a confidential conversation between an Embassy official and an official at NATO Headquarters that gives details about the office configurations at the Manfred Woerner Building in Brussels. I am satisfied that this record has implications for the physical security of these premises and that its release could reasonably be expected to result in a loss of trust or confidence in Ireland and thus be damaging to the international relations of the State. I find that section 24(1)(c) applies to record 155.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of the Department in relation to records 150, 153, 155, and 157.

I vary the decision of the Department in relation to records 91, 92, 94, 95, 101, and 114 and direct that access be granted to the following:

• all of record 91 except for the fifth factor;
• all of record 92 except for: