Case 020614.TheMinister forEducation and Science -v- The Information Commissioner. Note: The Department appealed this decision to the High Court. The judgment of Mr. Justice Brian McGovern was delivered on 31 July 2008 -

Records relating to negotiations on the Agreement in June 2002 between the State and religious congregations on their contribution to redress scheme for victims of abuse in residential institutions - whether records were submitted to or relate to meetings of Government - section 19 - whether records relate to the deliberative process of a public body - section 20(1) - whether release would disclose positions taken for the purpose of negotiations carried on on behalf of the government or a public body- section 21(1)(c) - whether records qualify for legal professional privilege - section 22(1)(a) - whether records relate to the business of an inquiry - section 22(1A) - whether the information was provided to a public body in confidence - section 26 - whether release could prejudice the conduct or outcome of contractual or other negotiations - section 27(1)(c) - whether release would involve disclosure of personal information - section 28 - whether premature disclosure of information contained in records could result in undue disturbance of business in the State - section 31(1)(b) - whether section 46(1)(b) applies - whether the public interest would be better served by release of certain records - section 20(3), section 21(2), section 26(3), section 27(3), Section 28(5).

Case Summary

Facts

The requester sought from the Department access to records relating to the State's agreement with the Conference of Religious in Ireland (CORI) which involved contributions of €128 million to the compensation scheme established under the Residential Institutions Redress Act, 2002 and the granting by the Government of an indemnity against certain claims arising from past abuse. The Department released some records and refused access to the remainder on some or all of the grounds listed above. In the course of the review, the Department also argued that some of the records relate to the business of the Commission to Inquire into Child Abuse and that the Commissioner should exercise her discretion to refuse access under section 22(1A).

The requester applied to the Commissioner for a review of that decision. During the review process, the Department released some further records leaving a total of 88 records within the scope of the review.

Decision

The Commissioner's authorised officer pointed out that section 34(12)(b) of the FOI Act places the onus on the Department to show that its decision was justified. Submissions from CORI and from the Commission to Inquire into Child Abuse were sought and were taken into account in relation to certain records.

The decision found that one of the records comes potentially within the scope of section 22(1A) in that it relates to the uncompleted business or proceedings of a tribunal, body or individual appointed by the Government and chaired by a Judge. Section 22(1A) is a discretionary exemption and the Commissioner is satisfied and has been legally advised that decisions to refuse under this section may be reviewed by her Office. Among the considerations were the limited information in the record at issue, the fact that personal or confidential information is not disclosed and that the material in the record discloses little or nothing about the business of the Commission to Inquire into Child Abuse. The conclusion was that its release would not be so detrimental to the functions of the Commission, to the interests of the Department, the congregations or others, that the Commissioner was bound to exercise discretion to apply the non-mandatory provisions of section 22(1A) to it. The decision was that the record should be released subject to the deletion of the Commission's case reference numbers.

It was held that, under section 46(1)b), the FOI Act did not apply to drafts of the Indemnity and other documents prepared by the Attorney General's Office and that a number of records were exempt under section 22(1)(a) because they qualified for legal professional privilege. The decision also refers to records marked "Without Prejudice" or "Privileged" insofar as it finds that the privilege (if any) applying to records so marked is a separate category from that of legal professional privilege.

In the case of certain "Government" records, the section 19 exemption applied was upheld. However, it was considered that the Department was not entitled to rely on this exemption where the records and the circumstances of their creation did not comply with the specific requirements of section 19.

In relation to sections 20 and 21 of the FOI Act, the finding was that, even if the information at issue qualified for exemption under section 20(1) or section 21(1)(c), the public interest would be better served in this instance by the release of the information. The authorised officer was satisfied that those records which related to deliberations and negotiations concerned the scope and extent of the Agreement prior to its signing and not subsequent advice and recommendations in relation to the implementation of the terms. Thus, the "harms" envisaged by the Department if the records were to be released were less likely to occur and would be outweighed by the public interest in optimising the openness and transparency of public bodies.

In relation to section 26(1), the finding was that the records failed to meet the tests for exemption under section 26(1)(a) which was relied upon by the Department. Even if section 26(1)(a) was found to apply, release of the records was considered to be justified in the public interest. It was held that, as a general principle, it is in the public interest that the facts and representations which influence the negotiation process should be open to public scrutiny especially where that process culminates in a legally binding agreement which involves the State taking on an unspecified financial burden.

In the context of the exemption under section 27(1)(c), the authorised officer examined those records containing valuations and other details of properties proposed for transfer. He accepted that the process of identifying and transferring properties which qualify under the terms of the Agreement is ongoing. However, given the nature and age of the information in the records, he was not wholly convinced that prejudice to the conduct or outcome of future negotiations might occur. His finding was that the public interest arguments in favour of release outweighed those put forward against release. He took the view that the public interest does not lie in disclosure of the value or extent of properties held by the congregations but in facilitating the public and the taxpayer in scrutinising what was proposed in the negotiations and what was a central consideration in the Agreement and in the calculation of the contribution to be made.

Dealing with the Department's arguments that section 31(1) applied to exempt some of the records, the finding was that the Department had failed to justify its reliance on this exemption and that its expectations that undue disturbance to business in the State would result from release of information in the records were not reasonable in the circumstances.

In summary, this decision varies the Department's decision and directs that, with the exception of some exempt material, the remainder of the records be released to the requester. Similar decisions issued in a number of other reviews involving the same records.

Date of Decision: 22.12.2005

Our Reference: 020614

22.12.2005

The Sunday Tribune

Dear Sirs

I refer to an application made under the Freedom of Information (FOI) Act, 1997 on behalf of your newspaper and received by this Office on 2 December 2002. The newspaper sought a review of the decision of the Department of Education and Science (the Department) on its FOI request of 25 June 2002. The request was for records relating to the negotiations and the Agreement between the Government and the religious orders on their contribution to the redress scheme for victims of abuse in residential institutions.

I have been authorised by the Commissioner to conduct this review on her behalf and I have now completed my review of the Department's decision. I regret the delay in finalising the review in this case. I have had regard to your submissions on the matter, to your correspondence with the Department, to the Department's decisions and its submissions to this Office and to the records themselves. I have carried out this review in accordance with the provisions of the Freedom of Information Acts, 1997 and 2003. Accordingly, all references in this letter to particular sections of the FOI Act, except where otherwise stated, refer to the FOI Act, 1997 as amended by the FOI Act, 2003. This Office invited the Conference of Religious in Ireland (CORI) - a body which would be affected by the decision in that it gave information to the Department and some of the records relate to it - to make submissions on exemptions relied upon by the Department in respect of certain records the subject of this review. I have had regard to CORI's submissions of 16 June 2003. This Office also sought the views of the Commission to Inquire into Child Abuse on one record which related to its business.

Background

By way of background, I should state that the records at issue cover the negotiations which led to the signing, on 5 June 2002, of an Agreement between the State and eighteen religious congregations which had responsibility for the operation and management of reformatory and industrial schools and orphanages. Under the Agreement, the congregations are to contribute €128 million, made up of cash payments, counselling costs and property transfers to the compensation scheme established under the Residential Institutions Redress Act, 2002. For its part, the Government agreed to grant an indemnity to the congregations against claims arising from past abuse covered by that Act but not dealt with under the redress scheme and in respect of which litigation is commenced within six years of the date of the Agreement.

In its initial decision of 30 January 2003, (which was made after you had submitted your application for review to this Office), the Department decided to release some of the records covered by your request. In a subsequent decision by its internal reviewer on 5 March 2003, the Department granted access to a total of 63 records out of the 151 records identified as being within the scope of your FOI request. I note that neither the original decision maker nor the decision maker at internal review made any reference in their notices of decision (as required by section 8(2)(d) of the Act) to findings on any material issues relevant to the decision or to particulars of any matter relating to the public interest taken into account in the context of some of the exemptions applied. I regard this as a significant omission and a defect in the decision making process in this particular case. However, in its submission of 23 June 2003 to this Office, the Department states that it was decided to release the additional 56 records at internal review stage on the basis that "the public interest would be better served".

Scope of Review

My review is concerned solely with the question of whether the Department was justified in concluding that access to the remaining 88 records covered by your request should be refused in reliance upon the provisions of the FOI Act. The Department claims that sections 19, 20(1)(a), 21(1)(c), 22(1)(a), 26, 27(1)(c), 28, 31(1)(b) and 46 apply in varying combinations to each of the records. In this regard, I note that section 34(12)(b) of the FOI Act places the onus on the public body concerned to show to the satisfaction of the Commissioner that the decision was justified. For the purposes of the review, I intend to examine the various records under the headings of the exemptions claimed. The Department's schedule puts the records in chronological order rather than in groups based on subject or origin; however, I have identified the following seven categories of records:

1. Records held or created by the Attorney General's Office.

2. Records for which legal professional privilege is claimed.

3. Memoranda for Government and information for use for the transaction of Government business at a meeting of the Government.

4. Memoranda created by officials within the Department.

5. Correspondence between the Department and CORI and its representatives.

6. Records covering property transfers and valuations.

7. Names and particulars of individuals pursuing legal action or complaints against the State or religious congregations.

There are two records (51 and 139) scheduled by the Department which were not among the copies of records forwarded to this Office. When staff of the Office queried this with the Department, its response was that while these records were obviously on the file when the schedule was prepared, they had not been seen since by the decision makers or others involved. The Department said that it had conducted a search of its Residential Institutions Redress unit and Legal section where the records were held but that the records had not been found. The Department's schedule describes record 51 as a fax cover sheet forwarding a copy of record 50 (letter dated 31 January 2002 from Mr Tom Boland to Mr Liam Daly of the Attorney General's Office). According to the Department, record 139 is a cover letter forwarding a copy of the letter identified as record 72 (letter from the Minister for Education and Science to the Attorney General dated 13 April 2002). While this situation is clearly unsatisfactory, I find that I cannot issue any directions in relation to records 51 and 139 since I have not examined them. Records 50 and 72 are dealt with in the section on legal professional privilege below.

Findings

Records of the Attorney General - Section 46(1)(b)

The Department claims that section 46(1)(b) of the FOI Act applies to some of the records. Section 46(1)(b) provides that the Act does not apply to a record held or created by the Attorney General or by the Office of the Attorney General other than a record concerning the general administration of that Office. I am satisfied that the following records were all created by the Office of the Attorney General and that they relate to matters other than the general administration of that Office. It appears that various drafts of the indemnity itself and other documents for the "State Party side" were prepared by the Attorney General's Office and so would come within this group. I find that section 46(1)(b) applies to the following records and that you do not have a right of access to them since they are not within the scope of the Act:

Records 49, 52, 53, 60, 87-89, 99-101, 104-106, 110, 117, 119 - 120, 144 - 145, 147, 148.

Legal Professional Privilege - Section 22(1)(a)

The Department refers to section 22(1)(a) of the FOI Act in relation to almost all of the withheld records on the grounds that it considers them to be exempt on the basis of legal professional privilege. Section 22(1)(a) of the FOI Act provides that:

"A head shall refuse to grant a request under section 7 if the record concerned ­

(a) would be exempt from production in proceedings in a court on

the ground of legal professional privilege,"

Unlike several other of the exemptions in the FOI Act, the provision at section 22(1)(a) does not provide for the setting aside of that exemption where to do so would serve the public interest.

Legal professional privilege enables the client to maintain the confidentiality of two types of communication:

• communications made between a client and professional legal adviser for the purpose of obtaining and/or giving legal advice; and
• communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated or pending litigation.

In considering whether particular records would be exempt from production in a court, I have to bear in mind that legal professional privilege resides with the client and ignore the likelihood or otherwise of court proceedings taking place. The question comes down to whether the client would succeed in withholding the document on the ground of legal professional privilege in court proceedings.

The Department has made no argument that the dominant purpose in preparing these records was the preparation for litigation and I do not find that the second limb of legal professional privilege would apply to the records at issue. I am advised that the first limb of the rule of legal professional covers confidential communications between lawyer and client (which would include the seeking and giving of legal advice). I have examined the records in the context of whether they constitute confidential communications between professional legal advisers and their clients giving or seeking legal advice. In relation to the records which comprise correspondence from the Department to the Attorney General's Office, I consider that these would be exempt from production in proceedings in a court on the ground of legal professional privilege only insofar as the content can be construed as a request for legal advice in the context of that Office's role as legal adviser to the State.

I note that, apart from the correspondence with the Attorney General's Office, some records were prepared by the Department's professional legal adviser who was involved in the discussions with the religious orders. the Commissioner has been advised and has found in other cases (see, for example, Mr X and the Department of Education and Science - Case number 020281 on www.oic.gov.ie) that if the ingredients of the relevant limb of the legal professional privilege rule are present in any given case, the fact that the professional legal adviser concerned is employed as an in-house legal adviser does not operate to prevent the client from being able to assert the privilege over the communications at issue. However, having examined the relevant records, I consider that not all of the material drafted by the professional legal adviser comprises confidential communications seeking or giving legal advice.

Whilst record 57 does not contain any reference to the nature of the legal advice previously sought by the Department (the client) or given by its professional legal adviser (the Attorney General), it forms part of a continuum of correspondence that resulted from the request of the Department for legal advice. I find that, as an element in a series of communications concerned in this case, record 57 satisfies the criteria for the attraction of privilege, bearing in mind the decision of the Court of Appeal in the 'Balabel v. Air India' to which is referred to in the decision on Case Number 020281 mentioned above.

In addition, parts of a small number of other records which I identify and deal with later in this decision in the context of other exemptions may also qualify for legal professional privilege. In its submission of 23 June 2003, the Department says that it took the view " that correspondence received from the legal representatives of CORI should also be viewed as exempt under section 22." The Department did not elaborate on this claim. In certain circumstances, legal advice obtained by a third party and forwarded to the Department could also attract legal professional privilege (the previous Commissioner's decision in Case Number 98058 - Mr Phelim Mc Aleer of the Sunday Times and the Department of Justice, Equality and Law Reform refers). However, while there is a number of records created by legal advisers acting on behalf of CORI and sent to the Department on its behalf, I am satisfied that, with one exception (record 108), none of these contain or refer to legal advice given to CORI as the client or to any of its member congregations.

I do not accept that the remainder of the records in respect of which the Department claims exemption under section 22(1)(a) are confidential communications between lawyer or client; they do not contain legal advice prepared by a lawyer acting in a legal capacity or a request for such advice.

"Without Prejudice" Records

Among the records are some which are marked "Without Prejudice" or "Privileged". Although the parties have not raised this as a specific issue, I have, in the interests of clarity, examined whether this is relevant to the section 22(1)(a) exemption. According to Murdoch's Irish Legal Companion:

"Letters written and oral communications made during a dispute between parties, which are made or written for the purpose of settling the dispute, and which are expressed or otherwise proved to have been made "without prejudice", cannot generally be admitted in evidence. Where the privilege is challenged, the court is entitled to examine the communications to determine whether they are of such a nature as to attract privilege: Ryan v Connolly [2001 SC] 2 ILRM 174 and 1 IR 627."

Murdoch goes on to comment that this rule is founded on the public policy that parties are to be encouraged as far as possible to settle their disputes without recourse to litigation.

I understand that there is a distinction between legal professional privilege and that privilege which attaches to statements made without prejudice as part of an attempt to settle a dispute. I am satisfied that the privilege (if any) applying to records so marked is a separate category from that of legal professional privilege and that, accordingly, section 22(1)(a) is not applicable to them.

My finding is that only the following ten records qualify for exemption under section 22(1)(a):

Records 21, 22, 50, 57,63, 66, 72, 95, 108 and 118.

Records 13, 33, 34, 36, 107 and 122 which I have found do not qualify for exemption under either section 22(1)(a) or section 46(1)(b) and in respect of which the Department applied no other exemption now fall to be released. Apart from those listed above, I must examine the remaining records in the context of the other exemptions claimed under the Act.

Government Records - section 19

The Department has refused access to some of the records under section 19 of the FOI Act. Section 19, as amended, provides that access shall be refused in certain circumstances where the records at issue were submitted to or relate to meetings of the Government. In most instances, section 19 is cited by the Department without specific reference to particular subsections and without reference to the author, addressee or the circumstances of the creation or use of the record concerned.

Section 19(1)(a) of the FOI Act, as amended, states that access shall 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,

(aa) consists of a communication -

(i) between two or more members of the Government relating toa matter that is under consideration by the Government, or is proposed to be submitted to the Government, or

(ii) between two or more such members who form, or form part of a group of such members to which a matter has been referred by the Government for consideration by the group and the communication relates to that matter,

(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, or

(c) contains information (including advice) for a member of the Government, theAttorney General, a Minister of State, the Secretary to the Government or the Assistant Secretary to the Government for use by him or her primarily for the purpose of the transaction of any business of the Government at a meeting of the Government."

However, section 19(3) provides, inter alia, that subsection (1) of section 19 does not apply to a record -

"...(b) 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, ..."

Section 19 also provides that:

"decision of the Government" includes the noting or approving by the Government of a record submitted to them;

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

There are several records in respect of which the Department cites section 19 as a relevant exemption but where neither the content of the record nor the addressee appear to be directly connected with Government meetings or deliberations; I do not consider that section 19 is the appropriate provision in relation to such records and I will deal with them under the other exemptions cited by the Department. I consider that the circumstances of the creation of the record are particularly relevant where exemption under section 19 is claimed and I will now examine individually those records which can be said to relate in some way to the transaction of the business of the Government.

Record 32

Record 32 is a Draft Memorandum for Government, prepared in July 2001, which was not submitted by the Minister to the Government. I am satisfied from the content that this is not a preliminary or other draft of "final" memoranda for Government which were sent later. Indeed, it is clear from the record that the material and recommendations in this memorandum were never submitted to the Government for consideration. Therefore, I do not believe that section 19(1)(a) can apply to it; neither do I consider that record 32 is "a record of the Government" so that section 19(1)(b) can apply.

I have also considered whether the memorandum, as prepared, contains information (including advice in the form of a proposal and recommendation in his name) for a member of the Government, (the Minister) for use by him in such a way as would bring record 32 within the scope of the exemption provided by section 19(1)(c). There is no suggestion that this record was put before the cabinet meeting for information, approval or decision. Given that the Minister decided not to proceed on the basis of what had been prepared in the form of this record, he did not use the information (including advice) prepared for him primarily for the purpose of the transaction of any business of the Government at a meeting of the Government. For this reason, I have decided that record 32 does not fall within Section 19(1)(c).

Records 62 and 111

Although these records discuss the submission of the proposal to the Government, they were not submitted or proposed to be submitted to Government and do not, in themselves, contain information 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 primarily for the purpose of transacting Government business at a meeting of the Government. They are not records of the Government; neither do they 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 records 62 and 111 under section 19 of the Act.

Records 112 and 113

While record 112 is described in the schedule as "Draft memorandum for Government dated 23rd May 2002", it appears to be a note to the Secretary General of the Department forwarding advice about the Draft Memorandum for the Minister's approval. Record 113 is entitled "Agreement with congregations on contribution to redress scheme" and appears to have been prepared in or around the time of the submission of the Memorandum for Government of 31 May 2002 (record 114 dealt with below). It would appear to have either accompanied that Memorandum or have been prepared for use by the Minister. It seems to me that both records contain information (including advice) for the Minister. Given that this information was for the use of the Minister in dealing with the issues arising from the discussion of the Agreement and the Indemnity at a meeting of the Government, I am prepared to accept that this was its primary purpose. Accordingly, I find that the Department is entitled to withhold records 112 and 113 under section 19(1)(c) with the exception of any parts containing factual information relating to a Government decision that has been published to the general public (section 19(3)). Both records contain opinion and speculation in relation to various scenarios and, therefore, I am satisfied that they do not contain such factual information.

Record 114

This is the actual Memorandum for Government dated 31 May 2002. As it was submitted to the Government for its consideration and clearly created for that purpose, I consider that section 19(1)(a) would apply as a mandatory exemption unless section 19(3)(a) applies in relation to factual information relating to a Government decision that has been published to the general public. It is accepted, I believe, that the decision on the religious congregations' contribution to the Redress Scheme was made known to the general public by virtue of a press release issued by the Department (record 125 released) and that details of the background to the Agreement were also debated in Dáil Éireann (records 135-136 released). Having examined the material in question in the context of the definition of 'factual information' in part 2 of the FOI Act together with the criteria set out in relation to records of this type in a previous decision of this Office (see Case Number 030714 - Mr X and the Department of Finance on www.oic.gov.ie), I am satisfied that section 2 and paragraphs 3.1 - 3.2 and 6.1 contain factual material. The remainder of the record is a mixture of proposal and opinion. Accordingly, my finding is that the Department is entitled to refuse access to record 114 with the exception of those parts identified above which should be released.

By way of explanation, I should say that section 1 is the expression of a request rather than a statement of fact. Most of section 3 and sections 4 - 6 (with the exception of 6.1) are the Department's interpretation of the purpose, main features and implications of the Agreement. In this sense, I would accept that these elements are opinion as opposed to factual information. It is difficult to see why the contents of some of these items need to be withheld as much of the same material has since been published or has been disclosed in records already released under the FOI Act. Nevertheless, for the purpose of this decision and since section 19 is a mandatory exemption, I have decided only to direct release of the material which, as indicated above, I have found to be factual.

Records 115 and 116

(Appendices to record 114)

It will be evident to you from the schedule of records prepared by the Department that there were several appendices to the Memorandum for Government. Appendix 1 and Appendix 2 are records 115 and 116 which comprise drafts of the Indemnity and of the lists of proposed property transfers. Since these were clearly part of the proposals submitted to the Government with the Memorandum of 31 May 2002, I find that, subject to section 19(3)(b), they qualify for exemption under section 19(1)(a). As both records contain proposals in draft form, I do not consider that there is factual information which falls to be released.

Record 124

This is a letter from the Secretary to the Government to the Private Secretary to the Minister for Education and Science setting out the decisions taken at the Government meeting at which the Agreement was approved. This record was not created or submitted to the Government by a Minister or by the Attorney General and does not come within the terms of section 19(1)(a). I have considered whether paragraph (b) of subsection (1) of section 19 might apply on the basis that record 124 conveys the decision of the Government and is signed by the Secretary to the Government and might, therefore, be "a record of the Government". However, I still have to consider whether the decisions taken by the Government were published to the general public. I am satisfied that the decisions at paragraphs (1) and (2) were published and that, accordingly, the provisions of section 19(3)(a) apply in so far as those parts of the record are concerned. Therefore, I consider that the Department is entitled to rely on section 19(1) in refusing access to this record only in relation to paragraph (3).

Furthermore, section 19(2) provides that the head shall refuse to grant a request if the record concerned

"(a) 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

(b) is not a record by which a decision of the Government is published to the general public by or on behalf of the Government".

I am satisfied that information in paragraph (3) of record 124 would reveal or allow the substance of a statement made at the meeting of the Government to be inferred and that the exception at paragraph (b) does not apply. Accordingly, I find that paragraph 3 of record 124 is exempt. For the reasons stated above, paragraphs (1) and (2) of this record are not exempt under section 19.

Record 132

This record is a response to paragraph (3) detailed in record 124 described above. In my view, its contents reveal or allow the substance of a statement made at the meeting of the Government to be inferred in the same manner as paragraph (3) of record 124 dealt with above. It may be that parts of this record would also qualify for exemption under section 22(1)(a) on the grounds of legal professional privilege; however, it is not necessary for me to consider this further having regard to my finding under section 19(2). My finding is that, for the same reasons given in relation to record 124 above, section 19(2) operates to exempt record 132 from release.

Record 133

The Department describes this record as a "Memo relating to issues of responsibility for abuse in industrial and reformatory schools". Although it was created after the Government's approval of the Agreement on 5 June 2002, it seems to me from the context of its creation and from its content that this memo was prepared by the Department for submission by the Minister to the cabinet for consideration. I am satisfied that it does not contain any factual information relating to a decision of the Government that has been published to the general public so that section 19(3)(a) does not apply. I consider that parts of this record would also qualify for exemption under section 22(1)(a) on the grounds of legal professional privilege; however, it is not necessary for me to consider this further having regard to my finding under section 19. Accordingly, I find that record 133 is exempt in accordance with section 19(1)(a) of the Act

Section 20 - Records 68, 70, 74, 79, 83, 84, 85, 111

The Department includes section 20(1)(a) in the exemptions relied upon in withholding the above records (as well as others which I have already found to be exempt under other sections of the Act). This group includes correspondence between the Department and solicitors for CORI on the scope and extent of the Agreement and the Indemnity together with correspondence and memos concerning the proposed property transfers. The section 20(1) exemption, as amended, provides that "a head may refuse to grant a request under section 7 if the record concerned contains matter relating to the deliberative processes of a public body (including opinions, advice, recommendations, and the results of consultations, considered by the body, the head of the body, or a member of the body or of the staff of the body for the purpose of those processes). Any decision to exempt a record on the basis of section 20(1) must be considered in the context of sections 20(2) and 20(3) although I do not believe that any of the exceptions provided in section 20(2) are applicable in the case of these particular records. Section 20(3) provides that section 20(1) "does not apply in relation to a case in which, in the opinion of the head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the request".

Whilst some of the withheld records contain matter relating to the Department's deliberative process, I am satisfied that the deliberative process which led to the signing of the Agreement between the Department and the religious congregations on 5 June 2002 has been finalised. I accept that the release of records giving details of the negotiations between the Department and CORI during the course of those negotiations, would have revealed matter relating to the deliberative process involved and that disclosure of such matter prior to the finalising of the negotiations could be contrary to the public interest; however, this is no longer the case. The Department makes the argument that the properties have not yet been transferred to the State and that negotiations on this aspect of the Agreement are still ongoing. While the implementation of the terms of the Agreement is clearly ongoing, I am satisfied that the records listed above relate to negotiations on the scope and extent of the Agreement prior to its signing and not to subsequent deliberations in the form of advice and recommendations within the Department. In these circumstances, even if I found that some of the records contained matter relating to the deliberative process and that section 20(1) applied, I consider that, on balance, the public interest would be better served by granting than by refusing to grant the request. The issue of the public interest is examined in more detail later in my decision in the context of the exemptions claimed under sections 21, 26 and 27.

Section 21(1)(c)

In the case of the records which I have dealt with immediately above under the section 20 exemption, the Department also relies on section 21(1)(c) in refusing access. Section 21(1)(c) of the FOI Act provides that a public body may refuse access to a record where it considers that access could "reasonably be expected to 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". This section is designed to protect negotiating positions taken or plans used for the purpose of any negotiation carried on, or to be carried on by or on behalf of the Government or a public body from being disclosed directly or indirectly to other parties in negotiations.

As I have pointed out in relation to the deliberative process in the context of the section 20 exemption, I would accept that while the negotiation process is ongoing, correspondence disclosing positions taken or to be taken by the Department would be likely to qualify for exemption. Furthermore, it seems to me that there may be occasions where such correspondence would qualify for exemption after the negotiations had been completed, depending on the contents of the correspondence at issue and the likelihood of similar or related negotiations taking place in the future. Nevertheless, having examined the records at issue in this case, it is not clear to me that release of these records would, in fact, 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 negotiation carried on or being, or to be, carried on by the Department. I note that some of the records which have been released by the Department do contain some indication of positions adopted by it during the negotiations (e.g. records 19, 26, 61, 73). Interestingly, while some of the withheld correspondence discusses positions taken by CORI, I can find no record in this group which reveals the Department's strategy in the negotiations to any extent nor has the Department identified any withheld which would give a significant insight into its conduct of past or future negotiations.

Even if I were to find that the information at issue is of a type which falls within the scope of section 21(1)(c), the question of whether the public interest would, on balance, be better served by granting than by refusing to grant the request, as provided for in section 21(2), would remain to be considered. I accept that there is a strong public interest in protecting the ability of public bodies to negotiate effectively and in ensuring that such negotiations are not prejudiced by the granting of a request for access to information . On the other hand, there is a significant public interest in optimising the openness and transparency of public bodies. The harms identified by the Department as those which could reasonably be expected to arise as a result of disclosure of the information at issue are discussed below in the contexts of sections 26 and 27. In relation to the records listed in this section, I would find, on balance, that the public interest would be better served by the release of this information.

Accordingly, I find that the Department is not justified in refusing access to records 68, 70, 74, 79, 83, 84, 85 and 111 in accordance with section 20(1)(a) or section 21(1)(c) of the FOI Act.

Records 14, 15, 40, 43, 68, 70, 74, 79, 83, 84, 85, 91, 94, 97, 111, 143, 146 - Section 26

Among the exemptions claimed by the Department in respect of the records listed above is section 26 which covers information given in confidence. In its decision and in its submissions the Department argues that section 26(1)(a) is applicable to the correspondence from CORI. Section 26(1)(a) requires that a head refuse a request where the record concerned contains information

• given to a public body in confidence, and
• on the understanding that it would be treated by it as confidential, and
• its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons, and
• it is of importance to the body that such further similar information as aforesaid should continue to be given to the body.

In examining the records in the context of this exemption, I find it necessary to divide the records in this group into two - (i) correspondence from CORI or its representatives to the Department (records 14, 15, 40, 43, 68, 70, 74, 79, 83, 84, 85, 91, 94, 97, 143 and 146) and (ii) record created by the Department (111).

(i) The CORI records

The first question which arises here is whether the information given by CORI to the Department was given in confidence and on the understanding that it would be treated as confidential. I do not accept that the existence of confidentiality notes as headings to letters or fax messages or the highlighting of correspondence as being "Without Prejudice" or "Privileged" is, of itself, evidence that the information contained in the particular record is confidential and that it was understood that the information was given to the Department on the basis that it would be treated as confidential. Earlier in this decision, when dealing with legal professional privilege, I referred to communications made during a dispute between parties and the fact that these cannot generally be admitted in evidence if they have been made "without prejudice" for the purpose of settling a dispute. However, this does not get over the requirement that such records be examined in the context of whether or not they qualify for exemption under section 26(1) of the FOI Act.

It seems to me that where an understanding of confidence is asserted by both parties, then in the absence of any independent evidence, it is appropriate to examine the contents of the records with a view to establishing whether the nature of the contents is consistent with the existence of an understanding of confidence. With the exception of record 97 which I deal with separately below, the CORI records in this group contain the detailed views of the congregations on some of the issues underlying the Agreement and the Indemnity. I should say here that the substance of much of the concerns expressed in these records has already been disclosed in various memoranda and minutes of the negotiations included in the records released by the Department on foot of this request. It is not apparent to me that the whole of the contents of these records is particularly sensitive; nevertheless, it is clear that the information contained in the records is not trite, has not all been put into the public domain and appears to have been furnished to the Department for a restricted purpose. In the circumstances, I am satisfied that the contents of records numbers 14, 15, 40, 43, 68, 70, 74, 79, 83, 84, 85, 91, 94, 143 and 146 have the necessary quality of confidence to come within the terms of section 26(1)(a) and I am satisfied to accept the assertions of CORI and of the Department that the information in these records was given in confidence and on the understanding that it would be treated as confidential.

Record 97 is a covering letter and enclosure concerning information which is in the public domain in relation to the provision of services by one of the congregations. I find that it does not have the necessary quality of confidence to qualify for exemption under section 26.

Having accepted that the first two requirements of section 26(1)(a) are met in relation to the other CORI records identified in this group, I will now consider whether the third and fourth requirements are also met. I understand that CORI regularly has occasion to make submissions to Departments and to public bodies about education, social, justice and other issues. I appreciate that CORI has not at any stage indicated that it will consider ceasing to make such submissions in the future if the records which are at issue in the present case are released. I am not convinced by an argument that CORI, in the course of discharging its role as the representative body for religious congregations in Ireland, would decide against making representations on behalf of its members merely on the basis that these representations could be released under the Freedom of Information Act. In the circumstances of this case, the role of CORI was somewhat different from an advocate or lobbyist role as it was the representative of parties to a legally binding agreement in which the State agreed to indemnify the congregations in consideration of the various covenants specified in the Deed. Thus, CORI's role was not confined to one of putting forward the views of the congregations. The information that it gave to the Department during the negotiations was supplied in support of the objective of securing an agreement with regard to contributions by the congregations to the State's compensation fund comprising cash payments, property transfers and other considerations. In recognition of such contributions, CORI succeeded in obtaining the agreement of the State to an indemnity which could result in a benefit to the congregations.

I accept that it is important for the Department to continue to receive information in order that negotiations towards agreements may be properly conducted where such agreements are deemed necessary or desirable. However, I do not believe that the release of the information contained in these records is likely to deter future potential parties to agreements with the State, whatever the subject matter, from providing information in order that they, or those that they represent, can negotiate the best possible terms in the interests of their members. Bearing in mind the fact that the records do not contain personal information about individuals and that the Freedom of Informaton Act has now been in force for over eight years, I do not accept the argument of the Department that bodies in the education sector would be reluctant to commit their views in writing about potentially sensitive and important matters in education merely on the basis that their submissions could potentially be released under the Act.

Therefore, I do not consider that disclosure of these records would be likely to prejudice the giving to the Department of further similar information and I find that records 14,15, 40, 43, 68, 70, 74, 79, 83, 84, 85, 91, 94, 97, 143 and 146 fail to meet the tests for exemption under section 26(1)(a).

(ii) Record 111 created by the Department - Section 26(1)(b)

Section 26(2) provides that the exemption under section 26(1) does not apply to a record which is prepared by a head, a director or a member of the staff of the public body in the course of the performance of his or her functions. The one exception to this rule is where the disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment or otherwise by law owed to a person other than a public body or head or director, or member of staff of a public body. It follows that the exemptions in section 26(1) are capable of applying, but only if disclosure of the information in record 111 would constitute a breach of a duty of confidence owed by the Department to CORI or to the congregations which it represents.

As no argument was made in relation to any specific provision of an agreement or enactment in relation to this matter, I have considered whether an equitable duty of confidence exists in this case. The correct tests to apply in deciding whether there is a breach of an equitable duty of confidence are set out in the case of Coco v. A. N. Clark (Engineers) Limited F.S. R. 415 (which is accepted as reflecting the Irish law on the subject - see, for example, House of Spring Gardens Limited v. Point Blank Limited [1984] I.R 611) in which Megarry, J. stated as follows:

"Three elements are normally required if, apart from contract, a case of breach of confidence is to succeed. First, the information itself...must have the necessary quality of confidence about it. Secondly, that information must have been imparted in circumstances imposing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it."

In Case Number 98179 - Mr Michael Grange and the Department of Enterprise, Trade and Employment - the previous Commissioner, Mr Kevin Murphy, adopted the following definition of "confidence" taken from F. Gurry "Breach of Confidence" in Essays in Equity; P. Finn (Ed.); Law Book Company, 1985, (p.111):

"A confidence is formed whenever one party ('the confider') imparts to another ('the confidant') private or secret matters on the express or implied understanding that the communication is for a restricted purpose."

I agree with that definition.

Record 111 is a communication prepared in the course of the performance of their functions by officials of the Department for transmission to other Departments or Offices. It contains very limited material which could be held to have been 'imparted' to them by CORI and I do not accept that it contains private or secret matters which have the necessary quality of confidence required to create a duty of confidence. I could envisage a situation in which private individuals or interest groups might, in the course of making their views known to a public body, disclose such details of their own private affairs as might impose an obligation of confidence in relation to those details. However, the matters at issue in this record do not concern the private affairs of the congregations but matters relating to the terms of the agreement generally.

I do not accept that release of any part of this record would give rise to a breach of a duty of confidence owed by the Department to CORI. In the circumstances, I find that, by virtue of section 26(2), the exemptions in section 26(1) does not apply to record 111.

The Public Interest

Even if I were to find that sections 26(1)(a) applied, section 26(3) of the Act provides that release of the records might still be justified where the public interest would, on balance, be better served by granting than by refusing to grant the request. Although it is not necessary for me to do so, I have considered whether the public interest would require release in this case.

It seems to me that the main factor in favour of the release of this information is that release would increase the openness and transparency of the process of Government and would allow increased scrutiny of agreements negotiated on behalf of the State. As a general principle, I consider that it is in the public interest that the facts and representations which influence the negotiation process should be open to public scrutiny especially where that process culminates in a legally binding agreement which involves the State taking on an unspecified financial burden. Before the enactment of the Freedom of Information Act, significant weight might not have been attached to this aspect of the public interest. Indeed, it might have been assumed generally that the public interest was better served by conducting deliberations which preceded such agreements on a confidential basis. I do not consider, nor have the submissions of the parties convinced me that this is a case where the public interest in the preservation of confidences outweighs the public interest in having an open and transparent process of Government.

Section 27 - Records 8, 40, 42, 44, 56, 58, 65, 68, 69, 70, 74, 75, 76, 77, 79, 80, 81, 82, 83, 84, 85, 90, 93, 98, 102, 111, 146 and 149

In the case of all of the above records (and several others which it is not necessary to examine further because I have already found them to be exempt under separate provisions of the Act), the Department has cited section 27(1)(c) in its refusal of access. The records include valuations and other details of properties proposed for transfer in the lead up to the Agreement as well as correspondence between the Department and CORI regarding the scope of the Agreement generally.

Section 27(1)(c)

Section 27(1)(c) of the FOI Act protects information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates. The standard of proof required to meet this exemption is relatively low in the sense that the test is not whether harm is certain to materialise but whether it might do so. Having said that, I would expect that a person seeking to rely on this exemption would be able to show that contractual or other negotiations were in train or were reasonably foreseen which might be affected by the disclosure and to explain how exactly the disclosure could prejudice the conduct or outcome of such negotiations. Given that the Agreement the subject of the negotiations has been concluded and approved by the Government, there can be no question of the actual negotiations which led up to the signing of the Agreement in June 2002 being prejudiced at this point in time.

Both the Department and CORI make the point in their submissions that the process of identifying and transferring properties which qualify under the terms of the Agreement is ongoing. As I understand it, their concern is that a particular property might be deemed unacceptable by the State side and the relevant congregation might be obliged to sell it on the open market with a view to paying the proceeds into the compensation fund. It appears that they fear that release of the records could adversely affect the price realised because potential purchasers would be aware that the State had rejected the property. While neither the Department nor CORI have identified specific negotiations which are in train in relation to individual properties, I accept that there are property transfers to the State or to voluntary organisations which, due to legal or other problems, have yet to be completed in accordance with the terms of the Agreement. However, as I see it, any prejudice to a congregation's future negotiations could only result from release of records which would, in the future, allow a comparison to be made between the properties which were successfully transferred and those where the transaction "fell through" for any reason. Accordingly, records such as the list of properties already transferred to the State or other bodies covered by the Agreement since 1999 would appear to be unaffected by the prejudice envisaged. In addition, there are some records which, on the face of them, contain no information at all in relation to contracts or negotiations other than the terms of the Agreement and the Indemnity themselves and do not identify actual properties. Records 40, 70, 79, 83 , 85, 111 and 146 are examples of records to which section 27 of the Act would appear to have no application whatever. In the circumstances, I find that the provisions of section 27(1)(c) do not apply to any of the records which do not identify properties.

As regards the valuations obtained, it seems to me that, even where the records do disclose the professional opinion of an auctioneer or estate agent, given well over 3 years ago, on the value of particular properties held by religious congregations, this, of itself, would not be likely to cause any prejudice to the congregations in future negotiations. However, it may be that CORI's concern here lies in the fact that if it subsequently transpires that those properties are not transferred to the State, the knowledge that they were under consideration and later "dropped" may have consequences for the price obtained on the open market. A similar situation exists in relation to the records which comprise the draft lists of properties. None of the records under review disclose which properties have not been transferred to date or the reasons for any difficulties in this regard. The point has been made that release of such draft schedules which have since undergone amendment would be misleading. This Office has indicated in previous decisions that the fact that the contents of records might mislead does not mean that release is contrary to the public interest. While the parties to the Agreement might, understandably, prefer that information not be released until the "definitive" list of properties transferred has been finalised and, indeed, the Department has indicated that it intends to publish a list of all properties accepted once the transfers have been finalised, this is not a factor to which I attach great weight given that it is quite clear from the records that the property transfers are in proposal or draft form. I also take account of the fact that the finalising of the property issues under the Agreement may take some considerable time. I note that the Agreement makes provision for such eventualities including an arbitration process and the replacement of any property with an alternative property asset or cash equivalent.

Accepting for the present that it could be established, from an examination of these records in conjunction with information about the current state of the negotiations (which detailed information in relation to individual properties has not been made available to me), that some identifiable properties have been rejected, I am not altogether convinced that it is reasonable to expect that this would cause prejudice to the conduct or outcome of future negotiations of the congregations. It is possible that a property which the State deemed unsuitable at a particular point in time for reasons of title or otherwise would be seen as a valuable asset to a bidder on the open market. Of course, it is by no means certain that all "rejected" properties would be sold by the congregations - they may choose to retain them.

The Public Interest

I am prepared to accept that there is some possibility that identification through release of a small number of the records at issue here might cause the harm envisaged in section 27(1)(c). However, for reasons similar to those discussed above in dealing with section 26 of the Act, I am not convinced that the public interest arguments in favour of release are outweighed by those put forward against release. I consider, from the information available, that the chances of the amount realised by the congregations from disposal of any of the properties involved being substantially reduced as a direct result of disclosure of these records are relatively small. I take the view that the public interest in release of the records does not lie in disclosure of the value or extent of the lands or buildings held by the congregations but in facilitating the public and the taxpayer in scrutinising what was proposed to the State side in the negotiations and what formed a central consideration in the Agreement and in the calculation of the contribution to be made. Therefore, I find in accordance with section 27(3) that the exemption in section 27(1)(c) does not apply because, on balance, the public interest would be better served by granting than by refusing access to the records in this group.

Section 31 - Records 8, 40, 42, 44, 56, 58, 65, 68, 69, 70, 74, 75, 76, 77,79, 80, 81, 82, 83, 84, 85, 90, 93, 98, 102, 111, and 149

In addition to other exemptions discussed above, the Department refers to section 31(1)(b) in refusing access to these records all of which are withheld also under section 27(1)(c). The relevant part of section 31 provides that access to a record may be refused if, in the opinion of the head "...premature disclosure of information contained in the record could reasonably be expected to result in undue disturbance of the ordinary course of business generally, or any particular class of business, in the State and access to the record would involve disclosure of the information that, would, in all the circumstances, be premature..."

Among the types of record identified in section 31(2) as being potentially covered by this exemption is a record relating to:

"(i) property held by or on behalf of the State or a public body and transactions or proposed transactions involving such property."

Although the Department has not identified any particular information in these records which, if prematurely disclosed, would be expected to cause the harm to business and to the State envisaged in section 31(1)(b), I take it from the content of the records in this group that it is primarily concerned about the property transfers proposed in the Agreement. In my opinion, subsection (1)(b) is designed to cover business in the ordinary meaning of the word (that is relating to commercial activity, trade or professions), not the provision of services by or on behalf of the State. I am of the view that the financial interests of the State would not be adversely affected by the release of the information contained in the records even where the records identify and contain some valuations of specific properties proposed to be transferred. I reach this conclusion having regard to the fact that the Agreement includes transfers of real property which have been made by the congregations to the State or local authorities or voluntary organisations since 11 May 1999 to an aggregate value of €40.32 million and these properties include lands used in the provision of education, social services and other community facilities on behalf of the State. Furthermore, I fail to see how disclosure of a limited amount of information about a property listed for transfer would cause undue disturbance as envisaged by subsection (1)(b) even where the State may be in a position to realise that asset in the future. In the case of properties owned by the congregations but refused by the State for transfer due to unsuitability or other reason as provided for in the Agreement, I consider that section 31(1) is not applicable because such property (if any) is not held by or on behalf of the State or a public body. I find that the expectations of the Department are not reasonable and that section 31 does not apply in this case.

Records 126 -129

These records comprise four folders which are referred to in and form part of the Agreement. They contain lists of court proceedings issued or threatened against the congregations and/or the State by persons who were in the residential institutions as well as lists of complaints notified by the Commission to Inquire into Child Abuse (the Commission) at the time that the list was compiled. In all, there are approximately 300 pages of records in the folders, although some pages contain very little information.

Records 126 -128 - Section 28

The lists in Folders 1 -3 typically include the names of the plaintiffs/complainants, their solicitors and the parties, including the congregation or individual who are respondents in the proceedings. I take the view that, notwithstanding that some of the information might be available from examination of the Court lists or Legal Diary published by the Courts Services, the fact that an individual is taking action against the State or others arising from the fact that he or she was in an industrial school or other institution is personal information relating to that person which, prima facie, is exempt from release under section 28(1) of the FOI Act unless any of the exceptions provided for in section 28(2) or section 28(5) are found to apply.

I do not consider that this is a case to which section 28(2) has any application; however, it is necessary to examine whether section 28(5)(a) would allow the request to be granted if the public interest in doing so would outweigh the public interest that the right of privacy of the individuals to whom the information relates should be upheld. No case has been made that there is a public interest in the release of the names of those listed in these records and, in the circumstances, I find that their right to privacy outweighs any possible public interest in granting the request in respect of the folders.

I have considered whether edited versions of the records could be released with the identifying information about the individuals deleted. At this stage, I think I should explain the Commissioner's approach to the granting of access to parts of records. Section 2 of the Act defines "record" as including "anything that is a part or a copy" of a record. Section 13 of the Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. However, the Commissioner takes the view that neither the definition of a record nor the provisions of section 13 require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, and depending on the contents of the records and the substance of the possible extracts, I am not in favour of the cutting or "dissecting" of records to such an extent. In this particular case, I am conscious that if each and every name was to be deleted from the lists, the resulting records would disclose only lists of reference numbers and institutions. Accordingly, I consider that only the four pages in the section headed "Index re Cases and Congregations" (which does not contain any personal information) should be released in this instance.

Record 129

Folder 4 (record 129) contains lists of the numbers of complaints notified to the congregations as having been lodged with the Investigation Committee of the Commission to Inquire into Child Abuse (the Commission). The lists appear to have been compiled by the congregations and/or their solicitors. Unlike the material in folders 1-3 described above, these lists do not contain names, addresses or other personal information about persons who were in industrial schools or other individuals. Only the reference numbers allocated by the Investigation Committee, the names of congregations and/or institutions involved and in one instance, the period to which the complaints relate, appear in these lists. It seems that the cases listed are confined to those in which, at the time of the creation of this record, papers had been received by the congregation involved together with requests from the Investigation Committee under the Commission to Inquire into Child Abuse Act, 2000 to provide statements in writing of the evidence it proposes to give in relation to the complaints. The Department relied on section 22(1)(a), section 26 and section 28 in withholding the record. I have already found in the section of this decision dealing with legal professional privilege that record number 129 is not among the records which qualify for the section 22(1)(a) exemption.

I was concerned lest there be any possibility that release of the Commission's reference numbers allocated to individual complainants could, when taken in conjunction with the names of the relevant institution, lead to the identification of individuals. This Office put this point to the Department and to the Commission and, although their replies did not specifically address how any such link might be made in the absence of names, they expressed the view that it was possible that individual complainants could be identified and that the reference numbers should be redacted from any copies of the record to be released. Apart from the reference numbers, I can find no information in record 129 which could be held to be about an identifiable individual. Thus, as it does not disclose personal information, I cannot find that the remainder of the record is exempt under section 28 of the Act.

I have considered whether the information passed by the congregations to the Department in this folder has the necessary quality of confidence about it to qualify for exemption under section 26 in accordance with the tests which I have discussed earlier in this decision. Essentially, what I must consider is whether a list of numbers of complaints concerning the majority of the congregations who were parties to the Agreement and notified at a particular point in time by the Commission is confidential. It seems to me that since no persons are identified, the information is primarily statistical, notwithstanding the fact that it does not represent a complete account of the volume of complaints to the Commission. I do not find that the information in the records has the necessary quality of confidence to qualify for the section 26 exemption or that the Department owes a duty of confidence to either the congregations or the Commission in respect of the information which now forms part of the appendices to the Agreement. The fact that complaints have been made against the majority of the congregations and the institutions managed by them is, I believe, in the public domain. In the context of my conclusions above in relation to the application of section 26 of the Act to other CORI records, I do not consider that the Department is justified in withholding this record on the basis of section 26.

I am aware of the provisions of The Commission to Inquire into Child Abuse Act, 2000 which prohibit the release of disclosure of certain information provided to the Commission and allow the refusal of a request for records under the FOI Act, subject to a public interest test. I do not consider that these provisions are applicable in this case. I have taken account of the Commission's statement (as published on its website) in relation to Folder 4 which states, inter alia, that:

"There has been no transfer of information from the Investigation Committee of the Commission to any person or body other than in strict compliance with the provisions of the Act of 2000. It is not apparent from Folder Four that there has been any breach by any person or body which has obtained information from the Investigation Committee in accordance with the provisions of the Act of 2000 of the confidentiality provisions which apply to the Investigation Committee."

In the same statement, the Commission says that it was not a party to the Agreement and had no involvement in the compilation of Folder 4.

Section 22(1A) and (1B)

The FOI Amendment Act

The position adopted by the Commissioner following the enactment of the Freedom of Information (Amendment) Act, 2003 is that all reviews must be carried out on the basis of the legislation current at the time of the decision, irrespective of when the original request or the application for review were made. This is consistent with this Office's approach to cases where additional facts come to light during the course of a review. This can occur due to an unforeseen change of circumstances or simply as a result of queries by this Office revealing additional, salient material. The practice is to take into account all circumstances as they exist at the time the decision is reached, whether they be factual or legal.

The basis for this approach is grounded in the High Court judgment of Mr. Justice Ó Caoimh dated 31 July 2001 in the case of the Minister for Education & Science and the Information Commissioner (1999 No. 99 MCA). The case involved records of the Leaving Certificate Examination results for a particular year. In his ruling, Mr. Justice Ó Caoimh stated:

"it is clear that the decision that was to be made by the Information Commissioner in light of the appeals taken to him were to be made in light of the facts and circumstances applying at the date of the review by him and not those facts and circumstances pertaining on the date of the original decision."

 Section 17 of the Freedom of Information (Amendment) Act, 2003 inserts two new subsections into section 22(1) as follows:-

"(1A) A head may refuse to grant a request under section 7 if the record concerned relates to the appointment or proposed appointment, or the business or proceedings, of -

...... (b) any other tribunal or other body or individual appointed by the Government or a Minister of the Government to inquire into specified matters at least one member or the sole member, of which holds or has held judicial office or is a barrister or a solicitor .... and the request is made at a time when it is proposed to appoint the tribunal, body or individual or at a time when the performance of the functions of the tribunal, body or individual has not been completed.

(1B) Subsection (1A) does not apply to a record in so far as it relates to the generaladministration of, or of any offices of, a tribunal or other body or an individual specified in that subsection."

I am prepared to accept that record 129 in this case comes potentially within the scope of this discretionary exemption insofar as it relates to the uncompleted business or proceedings of a body appointed by the Government and chaired by a Judge. I do not consider that the list described above can be said to relate to the general administration of the Commission or of its offices. The applicability of this exemption was not raised by the Department or by you because the request preceded the enactment of section 22(1A). Accordingly, this Office informed you, the Department and the Commission of our intention to consider this issue in relation to record 129 and invited submissions. The Department states that it would have invoked the section 22(1A) exemption had it been available to it and that I should now exercise discretion and apply that exemption, thus refusing access to the record. The Commission's submission is that the record falls within the category of documents covered by section 22(1)(A) and that a decision to refuse access could be justified on the grounds that the details contained in Folder 4 (record 129) are confidential to its Investigation Committee. You did not respond to the invitation to make a submission on whether I should exercise discretion in favour of applying section 22(1A) to record in this case.

The first thing to note about section 22(1A) is that it is a discretionary exemption. A question arises as to whether the FOI Act allows me to review the decision of a public body to exercise a discretion to refuse access in accordance with section 22(1A) . However, the Commissioner is satisfied and has been legally advised that such a decision may be reviewed by her Office. If the section were to be construed as not allowing any further evaluation of how that discretion is to be exercised, the Act would be creating a discretion that could not be challenged by any of the existing legal principles applicable to the exercise of a statutory discretion by an administrative authority.  Having regard to the provisions of section 34(12) I am satisfied that a public body seeking to rely on section 22(1A) must be able to justify its decision to me including its decision to exercise its discretion to refuse access. This requirement reflects the FOI Act's underlying presumption that records will be released and the fact that a person seeking records under the FOI Act is acting on the basis of a legal right. As McKechnie J. put it, in Deely and the Information Commissioner (2000 No. 95 MCA), a FOI requester exercises that right "not out of grace and favour of the public body in question, but rather pursuant to the force of law. It is a legal right which he is exercising...". All decisions under the FOI Act must be consistent with the overall scheme and objectives of the Act. As McKechnie J. put it in the same judgement, and by way of comment on the Long Title to the Act, the exercise of FOI rights should be viewed "in the context of and in a way to positively further the aims, principles and policies underpinning this statute, subject and subject only to necessary restrictions ...".

Section 22(1A) does not provide any guidance as to how the discretion ought to be exercised or what factors ought to be taken into account in exercising this discretion. Much of the earlier discussion in this part of this decision is relevant here in the context of the limited information in the record, the fact that personal information is not disclosed and the finding that the information does not meet the tests laid down in the Act in relation to the exemption for "confidential" information. I am mindful of the fact that the record at issue was appended to the Agreement between the Department and the congregations and that the material in it (apart from the reference numbers) discloses little or nothing about "the business" of the Commission's Investigative Committee. I do not accept that release of this type of information under the FOI Act would have any effect on complainants' confidence in the Commission.

In the light of the foregoing and having considered the submissions received, I conclude that the release of record 129 would not be so detrimental to the functions of the Commission or to the interests of the Department, the congregations or others that I am bound to exercise discretion to apply the non-mandatory provisions of Section 22(1A) to it. Accordingly, my finding is that record 129 should be released subject to the deletion of the reference numbers in the lists (those of the Commission and of the congregations). The redaction should be carried out in such a way that the total number of cases listed on each page is still evident from the copies.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act, I hereby vary the decision of the Department and direct as follows:

• Access to records 21, 22, 49, 50, 52, 53, 57, 60, 63, 66, 72, 87, 88, 89, 95, 99, 100, 101, 104, 105, 106, 108, 110, 112, 113, parts of 114 (section 1, paragraphs 3.3- 3.15, sections 4, 5 and paragraphs 6.2 - 6.3), 115, 116, 117, 118, 119, 120, parts of 124 (paragraph 3), 126 (with the exception of the index in the first four pages as identified in the decision), 127, 128, parts of 129 (reference numbers only), 132, 133, 144, 145, 147 and 148 to be refused.
•  The remainder of the records withheld by the Department - 8, 13, 14, 15, 32, 33, 34, 36, 40, 42, 43, 44, 56, 58, 62, 65, 68, 69, 70, 74, 75, 76, 77, 79, 80, 81, 82, 83, 84, 85, 90, 91, 93, 94, 97, 98, 102, 107, 111, 114 (section 2 and paragraphs 3.1 - 3.2 and 6.1 only) 122, 124 (paragraphs 1- 2 only), 126 (index in first four pages only), 129 (except reference numbers), 143, 146 and 149 - to be released.

 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 eight weeks from the date of this letter.

Yours sincerely

Patrick Whelan
Director General