Case 040302. Request for access to certificates of withholding in relation to records which contain references to the Dublin bombings of November and December 1982 and January 1973 - whether release is prohibited by section 8(4) of the National Archives Act - section 32

Case Summary

Facts

The record at issue in this case was a four-paged list of file titles and reference numbers relating to records certified for withholding under section 8(4) of the National Archives Act, 1986. The Department argued that section 8(4) of the National Archives Act applied not only to the contents of the certified records, but also to the certificates of withholding, including the file titles and reference numbers. During the course of the review, the requester agreed to exclude from the scope of her request any names of individuals and intelligence information appearing in the file titles on the list.

Decision

The Commissioner found that the plain language of the National Archives Act did not support the Department's position. The Commissioner also had regard to the practice of other Departments of State within Ireland and abroad; the observations of her predecessor, Mr. Kevin Murphy, in his 1999 Report on Secrecy Provisions to the Joint Committee on Finance and the Public Service; and the scope for abuse that secrecy provides. The Commissioner concluded that the Department's claim for exemption under section 32 of the FOI Act was not justified.

The Commissioner emphasised, however, that her decision would not necessarily result in the release of sensitive information about certified records. She noted that certificates of withholding are subject to the other exemptions of the FOI Act, which provide ample protection for the type of information that would result in the certification of an archival record under section 8(4) of the National Archives Act. In this case, there was no the information subject to exemption under other provisions of the FOI Act at issue.

The Commissioner annulled the decision of the Department and made a new decision to grant access to the list of file titles and reference numbers subject to the deletion of the names of individuals and intelligence information appearing in the file titles on the list.

Date of Decision: 25.04.2005

Our Reference: 040302

25.04.2005

Ms. Margaret Urwin

Dear Ms. Urwin

I refer to the review of the decision of the Department of Justice, Equality and Law Reform on your request for access under the Freedom of Information Acts, 1997 and 2003 ("the FOI Act") to certificates issued under section 8 of the National Archives Act, 1986 in relation to records which contain references to the Dublin bombings of November and December 1972 and January 1973.

Background

I have now completed my review of the Department's decision. In carrying out my review, I have had regard to your application for review, your submissions to this Office and telephone conversations with Ms. Melanie Campbell, Investigator, and to the submissions made by the Department. I have also examined the record at issue, which is described below.

Scope of Review

The relevant certificate of withholding in this case includes a four-paged list of file titles and reference numbers relating to the certified records. The Department granted access to the certificate of withholding, but has refused to grant access to the four-paged list. During the course of this review, you agreed to exclude from the scope of your request any names of individuals and intelligence information appearing in the file titles on the list. Accordingly, this review is concerned solely with the question of whether the Department's decision to refuse to grant access to the list subject to the deletion of any names of individuals and intelligence information is justified.

Findings

Under section 34(12)(b) of the FOI Act, a decision to refuse to grant access to a record "shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified." The Department claims that section 32 of the FOI Act applies in this case, because the records listed have been withheld from public inspection pursuant to section 8(4) of the National Archives Act, 1986. (Section 8(4) of the National Archives Act is not specified in the Third Schedule of the FOI Act.) The Department considers, on the basis of legal advice from the Attorney General, that section 8(4) of the National Archives Act applies not only to the contents of the certified records, but also to the certificates of withholding, including the file titles and reference numbers.

According to the Department, certificates of withholding and the records specified in the certificates must be regarded as being, in effect, the same records. The Department refers to the definition of "Departmental records" in section 2(2) of the National Archives Act, which includes "papers" and "files" and also "copies of any such records duly made". Based on this definition and the related guidelines produced by the National Archives, the Department considers that the National Archives Act applies to both the cover and papers comprising a file. The Department therefore argues that "any decision properly made to withhold a 'file' from public inspection, pursuant to Section 8(4) of the 1986 Act, necessarily implies that the associated file reference number and file title (where such exist) are also withheld."

The Department also notes that certification is a statutory and regulatory requirement in withholding records, and that this process necessarily involves the description of records in an attached schedule. The Department states:

"In light of the foregoing, the Department maintains that it would be perverse to suggest that, despite the fact that:

• file reference numbers and file titles have been properly withheld pursuant to the 1986 Act; and
• these same file reference numbers and file titles have been naturally and obviously reproduced to describe the records to be mandatorily certified as appropriate for withholding, again pursuant to the same 1986 Act;

they may be released pursuant to a request made pursuant to the Freedom of Information Act (FOI) 1997, as amended, as a Section 32 exemption is not applicable."

The Department further maintains that the date of creation of the certificate of withholding is irrelevant to the issue of whether the descriptive file reference numbers and file titles have been properly withheld. In this regard, the Department invites me to consider a "hypothetical file properly withheld pursuant to the 1986 Act which is photocopied in toto and a meaningless pencil mark made on each photocopies page to create a technically distinct sets [sic] of records." The Department states that "[i]t could not reasonably be accepted in this case that although the original file would be subject to a Section 32 exemption, its photocopy version can enjoy no such exemption simply because it was created now and not 30 years ago." In the Department's view, finding the section 32 exemption inapplicable to the file reference numbers and file titles "would be to set at nought the provisions of the National Archives Act 1986 as applied to those elements of paper Departmental records (i.e., files) containing details of file reference numbers and file titles (i.e., file covers)."

Noting that Ms. Campbell referred to section 8(4) of the National Archives Act as a secrecy provision, the Department also emphasises that secrecy is not a legitimate ground for withholding records from public inspection. Lastly, the Department identifies the relevant file titles which would alternatively be subject to exemption under sections 24 and 28 of the FOI Act.

Having carefully considered the Department's arguments, I find that it has failed to justify its decision to refuse your request for access to the list accompanying the certificate of withholding subject to the deletion of the file titles that would be exempt under sections 24 and 28 of the FOI Act. Section 8(1) of the National Archives Act provides for the transfer of Departmental records "which are more than 30 years old and in relation to which a certificate granted under this section is not in force . . . to the National Archives, where they shall be made available for inspection by the public." (Emphasis added.) Section 8(4) of the National Archives Act states, in turn:

"An officer of a Department of State authorised for the purpose of this subsection may, with the consent of an office of the Department of the Taoiseach so authorised (except in relation to records of the Department of the Taoiseach), certify, in relation to particular Departmental records, or a particular class or classes of Departmental records prescribed in accordance with subsection (11), which are more than 30 years old and are specified in the certificate, that to make them available for inspection by the public- (a) would be contrary to the public interest, or (b) would or might constitute a breach of statutory duty, or a breach of good faith on the ground that they contain information supplied in confidence, or (c) would or might cause distress or danger to living persons on the ground that they contain information about individuals, or would or might be likely to lead to an action for damages for defamation." (Emphasis added).

In my view, the plain language of these provisions does not support the Department's position. Sections 8(1) and (4) of the National Archives Act expressly refer to Departmental records which are over 30 years old. I note that section 8(4) of the National Archives Act provides for the withholding from public inspection of "particular Departmental records" or "particular class or classes of Departmental records" and that the definition of "Departmental records" includes files and papers. However, even assuming that the term "Departmental records" would also include the cover of a file, I do not accept that either the statute or the certificate accompanying the list of files at issue in this case provides for the withholding of the list simply because it would reveal information included on the file covers of the certified record.

The list of file names and reference numbers in this case, which is dated December 2003, is a separate and distinct record from the actual records certified for withholding, which were all originally created over 30 years ago. In view of the express references in the National Archives Act to Departmental records "which are over 30 years old", I do not share the Department's view that the date of the creation of the list is irrelevant. The Department raises the question of whether section 8(4) of the National Archives Act could also apply to a copy of a certified record where the copy was made within the last 30 years. Section 8(1) of the National Archives Act indicates that the provision would only apply to Departmental records which are over 30 years old. Section 2(3) of the National Archives Act permits a Department of State to retain a copy of any record transferred to the National Archives, which indicates that a copy may be treated as a separate record from the original notwithstanding the definition in section 2(2). In addition, I note that in Minister for Justice, Equality and Law Reform and the Courts Service v. Information Commissioner (2000 Nos. 96 and 97 MCA), Mr. Justice Finnegan expressed the view, having regard to section 2 of the FOI Act prior to its amendment in 2003, that the creation by a person of a copy of a record amounts to the creation of a new and separate record. On the other hand, a copy of a record is substantively identical to the original record, a point recognised by the FOI (Amendment) Act, 2003, which amended the definition of "record" to specify that "a copy, in any form, of a record shall be deemed, for the purposes of this Act, to have been created at the same time as the record".

However, for the purposes of this case, I need not determine the status of a copy of a record certified under section 8(4) of the National Archives Act. The list at issue here is a not a copy of a record that was originally created over 30 years ago and it is not substantively identical to the certified records it refers to. Its status in terms of its creation and relationship to the certified records is similar to the certificate of withholding itself, which the Department has agreed to release. Some of the file titles include sensitive information relating to the contents of the certified records, but this information, which would be exempt under sections 24 and 28 of the FOI Act, has now been excluded from the scope of the request. Section 13 of the FOI Act provides for the granting of access to a copy of a record with exempt information removed. Accordingly, in this case, access could be granted to a copy of the list subject to the deletion of the sensitive file titles, which the Department has helpfully identified.

Moreover, it seems to me that if withholding provisions relating to archival records necessarily applied to any information included either within the contents of the relevant records or on their file covers, regardless of the sensitivity of the information, the Department's approach could reasonably be expected to be followed consistently both within Ireland and abroad. Instead, I am informed by a Senior Archivist at the National Archives that different Departments of State apply the withholding provision of the National Archives Act differently. For instance, the Department of Foreign Affairs was described as very open to the release of information about the records withheld. My staff contacted the Department of Foreign Affairs and confirmed that it does not consider itself prohibited by the National Archives Act from releasing information about the records withheld from public inspection and generally makes available the reference numbers, files titles, and dates, subject in recent years to the Data Protection Acts. Moreover, the general practice in the United Kingdom and Australia is also to make available descriptive information about "closed" or "retained" items.

In dated 2 November 1999, which includes reference to section 8(4) of the National Archives Act, my predecessor, Mr. Kevin Murphy, made the following observations:Secrecy Provisions - Report of the Information Commissioner to the Joint Committee on Finance and the Public Service under section 32(5) of the Freedom of Information Act 1997, 

"The FOI Act confers important access rights on citizens in a manner which is consistent with the right to privacy and the public interest and subject to necessary exceptions, which are dealt with in considerable detail in the Act. The operation of a general access regime of this kind over a range of public bodies should, over time, lead to greater certainty both among public servants and the public as to what information should properly be released and what should not. The existence of separate secrecy provisions in legislation other than the FOI Act is not helpful to this process of achieving certainty. In some cases such secrecy provisions may themselves be subject to exceptions or qualifications which can create uncertainty or confusion. In other cases the secrecy provisions may, without good reason, be wider than corresponding exemptions permitted by the FOI Act. As a general point, I do not accept that merely because a secrecy provision in another statute broadly serves the same purpose as an exemption in the FOI Act, this is a good enough reason for leaving the secrecy provision outside the Third Schedule to the FOI Act. "

It is undisputed that section 32 of the FOI Act continues to apply to the archival records certified for withholding. However, I do not accept that section 32 likewise applies to certificates of withholding simply because information on the file covers of the certified records is included. This is not to say that sensitive information about the certified records will necessarily be released. On the contrary, certificates of withholding are subject to the other exemptions of the FOI Act, which provide ample protection for the type of information that would result in the certification of an archival record under section 8(4) of the National Archives Act. In this case, none of the information subject to exemption under other provisions of the FOI Act remains at issue. The list now at issue includes only reference numbers and file titles for which the Department has not claimed any exemption other than section 32. In light of my predecessor's observations, with which I fully agree, the scope for abuse that secrecy provides, and the apparent absence of any statutory or judicial support for the Department's broad interpretation of section 8(4) of the National Archives Act, I conclude that the Department's refusal in the circumstances of this case is not justified.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby annul the decision of the Department of Justice, Equality and Law Reform and make a new decision to grant access to the list of file titles and reference numbers subject to the deletion of the names of individuals and intelligence information identified by the Department in its submission dated 17 January 2005.

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

Emily O'Reilly
Information Commissioner