Case 030714. Request for records relating to the appointment of Ms Emily O'Reilly to the position of Ombudsman/Information Commissioner - whether records have been, or were proposed to be submitted to Government for their consideration - section 19(1)(a) - whether factual information can be released - section 19(3)(a) - definition of "factual information".

Case Summary

Facts

The request applied for access to all records held by the Department of Finance relating to the appointment of Ms Emily O'Reilly to the position of Ombudsman/Information Commissioner. The Department refused access in part to one record and refused access in full to six records pursuant to the provisions of section 19 of the FOI Act. The requester applied to the Commissioner for a review of that decision.

Decision

One of the six records refused in full was a draft Memorandum for Government relating to Ms O'Reilly's appointment as Ombudsman/Information Commissioner, one was an Aide Memoire relating to the appointment and two others were drafts of the Aide Memoire. The Department refused access to all four records pursuant to the provisions of section 19(1)(a) of the FOI Act on the ground that they were, or were proposed to be, submitted to the Government for their consideration by a Minister of the Government or the Attorney General and were created for that purpose. While the Commissioner's authorised official accepted that the records were of a type covered by section 19(1)(a), he considered whether those parts of the records containing factual information could be released pursuant to the provisions of section 19(3)(a).

The Department argued that it was not open to the Commissioner to examine a memorandum relating to Cabinet to seek to classify parts of it as factual. The Commissioner's authorised official rejected this argument. He also considered the question of what constitutes factual information for the purposes of the FOI Act. According to the Act, factual information "includes information of a statistical, econometric or empirical nature, together with any analysis thereof". He considered that the use of the word "includes" in the definition means that while information of a statistical, econometric or empirical nature should be regarded as factual, regard must also be had to the ordinary meaning of the term when considering its scope. Taking this approach, he found that certain factual information contained in the four records was not exempt.

Of the two remaining records which were refused in full, one was the Government decision concerning the proposal to nominate Ms O'Reilly for nomination by the Houses of the Oireachtas to be appointed as Ombudsman/Information Commissioner while the second was a revised version of that decision. The Department refused access to both records pursuant to the provisions of section 19(1)(b) of the FOI Act on the ground that the records were records of the Government other than records by which a decision of the Government was published to the general public by or on behalf of the Government. The Commissioner's authorised official found that section 19(1)(b) applied in full to one record and to those parts of the second record which did not constitute factual information.

The record refused in part contained two deletions. The Commissioner's authorised official found that the first deletion revealed the substance of the whole or part of a statement made at a meeting of the Government and that section 19(2) applied. He found that sections 19(1)(a) and 19(2) did not apply to the second deletion and he directed that this part of the record be released.

Date of Decision: 08.10.2003

Our Reference: 030714

08.10.2003

Mr X

Dear Mr X

I refer to your application under the Freedom of Information ("FOI") Act 1997 for a review of the decision of the Department of Finance ("the Department") in connection with your request for records relating to the appointment of Ms Emily O'Reilly to the position of Ombudsman/Information Commissioner.

Background

Given the nature of your request, I have been authorised by the Information Commissioner to carry out this review on her behalf. The review has been conducted in accordance with the provisions of the FOI Act as amended by the Freedom of Information (Amendment) Act, 2003. Accordingly, all references in this letter to particular sections of the FOI Act, except where otherwise stated, refer to the 1997 FOI Act as amended. In carrying out my review, I have had regard to your correspondence with the Department and with this Office, to correspondence between this Office and the Department and to the provisions of the FOI Act generally. I have also examined the records at issue. The Department enclosed with its internal review decision a schedule of 25 records which it identified as coming within the scope of your request. For ease of reference I have adopted the numbering system used in that schedule in referring to the records at issue.

Scope of Review

The Department decided to grant partial access to one record (number 3) and to refuse access to six others (numbers 2, 4, 5, 6, 11 and 12) pursuant to the provisions of section 19 of the FOI Act. Furthermore, during the course of the review, the Department advised that, apart from the 25 records located, no other records coming within the scope of your request exist or can be found. Accordingly my review is concerned with (i) whether the Department's decision to grant only partial access to record 3 and to refuse access to records 2, 4, 5, 6, 11 and 12 is justified and (ii) whether the Department is justified in deciding that no other records coming with the scope of your request exist.

Findings

Records 2, 4, 5 and 6

Record 2 is a draft Memorandum for Government relating to Ms O'Reilly's appointment as Ombudsman/Information Commissioner. Record 6 is an Aide Memoire relating to the appointment while records 4 and 5 are drafts of the Aide Memoire. The Department has refused access to these records pursuant to the provisions of section 19(1)(a) of the FOI Act. Section 19(1)(a) provides that a head shall refuse to grant a request if the record concerned 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(6) provides that the term "record" in section 19 includes a preliminary or other draft of the whole or part of the material contained in the record. Having examined the four records, I am satisfied that they are of a type which are covered by section 19(1)(a). However, that is not the end of the matter as section 19(3)(a) provides that section 19(1) does not apply to a record "if and so far as it contains factual information relating to a decision of the Government that has been published to the general public".

Mr Rafferty of this Office advised the Department of his preliminary view that records 2, 4, 5 and 6 relate to the decision of the Government to propose Ms O'Reilly for nomination by the Houses of the Oireachtas to be appointed as Ombudsman/Information Commissioner, that this decision was published to the general public and that certain parts of the records containing factual information relating to that decision should be released pursuant to the provisions of section 19(3)(a). In response, the Department argued that it is not open to the Information Commissioner to examine a memorandum relating to Cabinet to seek to classify parts of it as factual. The Department referred to the High Court judgement of Ms Justice Carroll in the case of Irish Press v Minister for Enterprise [2002] 41R 110. It argued that Carroll J. found in that case that any document such as a memorandum or report submitted to the Government on which the Government based its discussions is protected by Cabinet confidentiality. The Department's argument is that it would be inconsistent if records could be released under section 19 when the High Court will not order the release of such documents on discovery on the ground that they are protected by Government confidentiality and that this Office's interpretation of section 19(3)(a) cannot, therefore, be correct.

I have examined the High Court case cited by the Department. The High Court considered, inter alia, whether the Minister was required to produce, on discovery, a draft Government decision with hand written annotations, a memo for Government and a draft and summary of that memo. Cabinet privilege was claimed in respect of the documents. Carroll J. found that the production of the draft Government decision submitted by the Minister with notations when compared with the actual Government decision would disclose elements of Cabinet discussion and that the memo and summary formed the basis for such discussion. She noted that the case of Murphy v Dublin Corporation (1972 IR 215) and Ambiorex limited v Minister for Environment (1992 1 IR 277) were concerned with the exercise by the judiciary of judicial power to decide "whether the production of any particular document for which a privilege derived from the public interest was claimed was more likely to do greater damage to the public interest consisting of the interest of the executive by its production or to the public interest consisting of the administration of justice by its concealment...". She found that the administration of justice would not be compromised in any way by upholding the Minister's claim to privilege on the ground of Cabinet confidentiality and that the Plaintiffs would not be unjustly disadvantaged by allowing the claim of privilege.

While the High Court judgement is concerned with the question of whether documents which disclose details of Cabinet discussions should be released on discovery, the question of whether factual information contained in such documents could or should be released did not arise, unlike as in section 19 of the FOI Act. In my view, the judgement would be of greater relevance to the review before me if the applicability of section 19(2) were at issue. Section 19(2), which is concerned with the protection of Cabinet discussions, provides for the protection of records containing 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 and is not a record by which a decision of the Government is published to the general public by or on behalf of the Government. It is noteworthy that the provisions of section 19(3)(a) do not apply to records coming within the scope of section 19(2).

Section 19(3)(a) clearly does not require the disclosure of Government deliberations. Rather, it is concerned with the release of factual information relating to Government decisions. In my view, had the Oireachtas intended that all information contained in records coming within the scope of 19(1) should be protected, then section 19(3)(a) would not have been included in the first instance. I think it is of some significance that the exception in section 19(3)(a) applies "if and in so far as" it contains factual information. This suggests to me that it was envisaged that exempt material could be withheld from a document without also withholding factual information. In the circumstances, I am satisfied that it is appropriate for me to examine records which are covered by section 19(1)(a) to determine whether they contain factual information which should be released in accordance with the provisions of section 19(3)(a).

As for the question of what constitutes "factual information", the Freedom of Information (Amendment) Act, 2003 provided for the inclusion, in the 1997 Act, of a definition of this term as follows: "factual information includes information of a statistical, econometric or empirical nature, together with any analysis thereof". In my view, the use of the word "includes" in the definition means that while information of a statistical, econometric or empirical nature should be regarded as factual, regard must also be had to the ordinary meaning of the term when considering its scope. On this point, I note that the word "include" has been held to be a word of extension when used in a statutory definition in the case of Attorney General (McGrath) v Healy [1972] IR 393. In that case, Pringle J. referred to the following comments of Davitt P. in Bolger v. Doherty [1970] IR 233;

"... and the first principle in the construction of statutes is that a word should where possible be given its ordinary meaning. No doubt there are cases where the word 'includes', as used in a definition section, has been held to be equivalent to 'means and includes'; but that is not its ordinary meaning. When a definition section in a statute provides that a word shall 'include' something, it implies usually that that something would be outside the ordinary meaning of the word and that it is necessary, therefore, to include it in the meaning of the word for the purpose of the statute."

Section 2 of the FOI Act defines certain words and phrases which are contained in the Act. A number of the words or phrases in question are defined by stating that they "mean" something whereas "factual information" is defined by stating that it "includes information of a statistical, econometric or empirical nature, together with any analysis thereof" [my emphasis]. It seems to me that had it been intended that only information of a statistical, econometric or empirical nature, together with any analysis thereof, should be deemed to be factual information for the purposes of the Act, then the term could have been defined by stating that that is what it means as opposed to what it includes. In the circumstances, I am satisfied that it is appropriate for me to have regard to the ordinary meaning of the term "factual information" when considering its scope.

The Oxford English Dictionary defines factual as "pertaining to or concerned with facts of the nature of fact, actual, real", while fact is defined as "Something that has really occurred or is actually the case; something certainly known to be of this character; hence, a particular truth known by actual observation or authentic testimony, as opposed to what is merely inferred, or to a conjecture or fiction; a datum of experience, as distinguished from the conclusions that may be based upon it". Having regard to those definitions, I am satisfied that factual information would generally include, for example, material presented to provide a factual background to the central topic in a record. Furthermore, factual information is, in my view, distinguishable from information in the form of proposal, opinion or recommendation.

On the question of what constitutes factual matter, the Queensland Commissioner, in the case of Hudson (on behalf of Fencray Pty Limited) and Department of the Premier, Economic and Trade Development (1993) 1 Q.A.R. 123 at 134, commented that

".. a commonsense approach should be taken to the task of characterising matter as factual matter or otherwise, according to its substance (i.e. its substantive nature or character) rather than merely to semantics (i.e. merely by reference to the particular terms in which it is couched). Material which contains elements of judgement or opinion concerning purely factual matters may still be capable, depending on its context and its purpose in that context, of properly being characterised as merely factual matter."

In determining which parts of the matter contained in a Cabinet submission comprised merely factual matter, the Commissioner went on to say that

"Factual matter which merely provides the factual background, or informs Cabinet of relevant facts, so as to assist its deliberations on policy issues, will generally constitute "merely factual matter".

I consider the approach taken by the Queensland Commissioner as to what constitutes factual matter or information to be a reasonable approach and it is one which I have adopted in this case. Having examined records 2, 4, 5 and 6, I find that section 19(1)(a) does not apply, by virtue of the provisions of section 19(3)(a), to the following factual information relating to a decision of the Government that has been published to the general public:

Record 2: Paragraphs 2 and 3 in full, paragraph 4 from "There have been ..." to "...retirement age", paragraph 5 in full and paragraph 6 from "However, unlike the Ombudsman Act..." to "...the Minister for Finance".

Record 4: Paragraphs 2 and 3 in full, paragraph 4 from "There have been ..." to "...retirement age", paragraph 5 in full and paragraph 6 from "However, unlike the Ombudsman Act..." to "...the Minister for Finance".

Record 5: Paragraphs 2 and 3 in full, paragraph 4 from "The second appointee..." to "...April 2004" and paragraph 5 in full.

Record 6: Paragraphs 2 and 3 in full, paragraph 4 from "The second appointee..." to "...April 2004" and paragraph 5 in full.

Records 11 and 12

Record 11 is the Government decision concerning the proposal to nominate Ms O'Reilly for nomination by the Houses of the Oireachtas to be appointed as Ombudsman/Information Commissioner. Record 12 is a revised version of that decision. The Department has refused access to both records pursuant to the provisions of section 19(1)(b) of the FOI Act. Section 19 (1)(b) provides that a head shall refuse a request if the record concerned 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. Having examined both records, I am satisfied that they are covered by section 19(1)(b). However, as with section 19(1)(a), section 19(3)(a) provides that section 19(1)(b) does not apply to a record if and so far as it contains factual information relating to a decision of the Government that has been published to the general public.

The Department has drawn comparisons between the wording of section 19(1)(b) and the wording of section 19(2)(b) and argues that section 19(3)(a) is not intended to and cannot be used to set aside the explicit protection afforded by those sections to a Government decision as a record of the Government unless the Government decision to which it relates has been published. It argues that the substance of part of the Government decision was published in a press release but not the Government decision itself.

There is a similarity between sections 19(1)(b) and 19(2)(b) in so far as they are concerned with records other than a record by which a decision of the Government is published to the general public by or on behalf of the Government. However, that is where the similarity ends. Section 19(2)(b) contains only one of the conditions necessary for the exemption in 19(2) to apply. While it is true to say that section 19(3)(a) cannot apply to section 19(2), the same cannot be said of section 19(1)(a). As I have indicated above, I accept that records 11 and 12 are of a type covered by section 19(1)(b). However section 19(3)(a) provides that section 19(1)(b) cannot apply to those parts of the records containing factual information relating to a decision of the Government that has been published to the general public.

Having examined records 11 and 12, I am satisfied that the information contained in those records relates to a decision of the Government which was published to the general public. The information at issue in record 11, however, is proposal type information as opposed to being factual information. I find, therefore, that section 19(1)(b) applies in full to record 11. I also find that section 19(1)(b) applies to points 1(i) to 1(v) in record 12 but that the remainder of the record, being factual information, should be released pursuant to the provisions of section 19(3)(a).

Record 3The Department deleted two pieces of information from record 3 which is a copy of an internal e-mail. Having examined the first deletion, I am satisfied that it reveals the substance of the whole or part of a statement made at a meeting of the Government and I find that section 19(2) applies.

The Department is of the view that the second deletion relates to a past discussion at Cabinet and that it is descriptive of the preparation and the content of the Aide Memoire on Ms O'Reilly's nomination. It argues that sections 19(1)(a) and 19(2) apply. As I have indicated above, section 19(1)(a) provides for the protection of a record which "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". It is clear that record 3, a copy of an internal e-mail, is not such a record. I find, therefore, that section 19(1)(a) does not apply.

Section 19(2) provides for the refusal of a request where the record "contains 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 and is not a record by which a decision of the Government is published to the general public by or on behalf of the Government". The Department's argument is that the second deletion relates to a past discussion at Cabinet. However, the content of the deleted text does not support such an argument. I find, therefore, that section 19(2) does not apply. In summary, while I find that the first deletion in record 3 is exempt pursuant to the provisions of section 19(2), I find that the second deletion is not exempt and should be released.

Existence of Other Records?As you are aware, section 10(1)(a) of the FOI Act provides for the refusal of a request where the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. This Office sees its role in such cases as one of reviewing the decision of the public body and deciding whether that decision, to refuse access on the grounds that the record requested does not exist or cannot be found, was justified. This means that, as in any other review, we must have regard to the evidence available to the decision maker and the reasoning used by him or her in arriving at the decision. The evidence in such cases consists of the steps actually taken to search for the records, along with miscellaneous other evidence about the record management practices of the public body, which formed the basis on which the decision maker has concluded that the steps taken to search for the records were reasonable. You may care to note that the Commissioner's understanding of her role in such cases was approved by Mr Justice Quirke in the recent High Court case of Matthew Ryan and Kathleen Ryan and the Information Commissioner (2002 No. 18 M.C.A.).

In this case the Department says that in the original search for records, the section of the Department handling the Administrative Budget for the Office of the Ombudsman was searched. The file E149/10/80 was found to be the only file associated with the process of appointing the Ombudsman/Information Commissioner. There are three parts to the file, the most recent of which was retrieved from Mr P. Howard who processed the papers in relation to Ms O'Reilly's appointment. The papers concerning her appointment commence in part 3 of the file on 10 February 2003 when Mr E. Sullivan submitted a note for information to the Minister for Finance.

The Department adds that a search for records relevant to the request which might be located in other sections was also conducted. Records were sought from Mr Sullivan, who had the February note and the final Aide Memoire (records 1 and 6) and Mr C. Gallagher, who had no records relevant to the request. The Minister's Office and the Press Office were also consulted. The Press Office had no records apart from the Press Release (record 10). The Minister's Office had the decision and the revised decision (records 11 and 12). Other Officers working in the section dealing with the appointment of the Ombudsman/Information Commissioner were also consulted in case they held records not on file but none were located. All of the relevant officials checked the electronic mail-boxes and confirmed that they held no further records. At internal review stage, the Principal Officer assigned to research the case on behalf of the reviewing Officer conducted an independent search for records consulting again with the relevant officials during which three additional records were located and which were released to you.

Having regard to the explanation provided by the Department as to the searches it carried out to locate all relevant records coming within the scope of your request and as no evidence has been presented to me to suggest that other records should exist, I find that the Department is justified in deciding that no further records exist or can be found.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, I hereby vary the decision of the Department of Finance in this case. I direct that access be granted to the factual elements of records 2, 4, 5, 6 and 12 as described above and that access be granted to the second of the deletions in record 3.

A party to a review, or any other person affected by a decision of the 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 eight weeks from the date of this letter.

Yours sincerely

Senior Investigator