Request to the Department of the Taoiseach for records relating to the Government decision in favour of the Dublin Airport Authority building and owning a second terminal at Dublin Airport - whether the records were submitted to the Government for its consideration by a Minister of the Government and were created for that purpose - section 19(1)(a) - whether the records were records of the Government other than one by which a decision of the Government was published to the general public by or on behalf of the Government - section 19(1)(b) - whether the records contain information for a member of the Government for their use primarily for the purpose of the transaction of any business of the Government at a meeting of the Government - section 19(1)(c) - whether any elements of those records found to be exempt under section 19(1) contain factual information that may be released - section 19(3)(a) - whether the records were held or created by the Attorney General or the Office of the Attorney General (other than a record containing the general administration of that Office) - section 46(1)(b).

Case Summary

Facts

The requester sought details of records relating to the agreement between the Government and the ICTU dated 22 June 2004 to support the objective of the maintenance of pay and terms and conditions in line with the collective agreement then in place in the industry as part of the negotiations on Sustaining Progress. The requester also sought records relating to the consideration of that agreement in the context of the Government decision on 18 May 2005 in favour of Dublin Airport Authority owning and building a second terminal at Dublin Airport. The Department refused access to the records on a number of grounds, particularly sections 19 and 46 of the FOI Act.

Findings

The Commissioner accepted that the majority of the records were exempt under sections 19(1)(a) or (c) of the FOI Act. Section 19(3)(a) provides that factual information contained in a record to which section 19(1) applies is not exempt from release. In considering this provision, the Commissioner set out her understanding as follows:

• That publication of an actual Government decision is not a prerequisite in considering section 19(3)(a) of the FOI Act - all that is necessary is that the substantive content of that decision is published;
• That section 19(3)(a) is required to be considered in respect of any record relating to such a published decision;
• That, further to the findings made in case 030714 as to what constitutes "factual information" (with which the Commissioner concurred), an analysis or opinion of "something that has really occurred", or an analysis of other general information is not required to be released under section 19(3)(a);
• That the extent to which information in a "Government record" has come into the public domain is irrelevant when considering the meaning of the word "factual";
• That, in line with section 19(2) (which is concerned with protecting details of Government deliberations) any details contained in a record to which section 19(1) applies that would reveal the deliberations that led to a particular decision cannot fall to be released under section 19(3)(a);
• That where a record to which section 19(1) applies contains factual details of a particular decision arrived at by Government, those details fall to be released under section 19(3)(a) and are not exempt under section 19(2);
• That one must have regard to the substantive nature of the information contained in a record, rather than to semantics (i.e. merely by reference to the particular terms in which it is couched).

Having applied this analysis to the records that she had found to be exempt under section 19(1), the Commissioner found that brief extracts thereof should be released under section 19(3)(a). She also accepted that section 46(1)(b) had been validly applied to the remaining records at issue in this case.

Date of Decision: 18.06.2007

Our Reference: 050381

18.06.2007

Y Solicitors

Dear Sirs

Re: Your Clients X Limited

I refer to your application to this Office under the Freedom of Information Act, 1997 (the FOI Act) for a review of the decision of the Department of the Taoiseach (the Department) on your request for records, dated 18 July 2005.

Please accept my apologies for the delays that have arisen in dealing with this application. You have also made applications for review of the decisions of the Departments of Finance and Transport on similar requests, and in recent correspondence, you have asked that these cases be prioritised. As has been explained to you on other occasions, the Investigator to whom your client's cases have been assigned has been unable to deal with them before now due to the workload involved in other cases that were assigned to her before those of your client. She is still dealing with some of those cases, and while this Office will make every endeavour to deal with the remaining applications as quickly as it can, I am unable to state at this stage when they will be finalised. In this regard, I understand that once clarification is received from the Department of Finance in respect of matters raised with it by my Investigator, she will then be in a position to send you a preliminary view on that case.

Background

Your request, dated 18 July 2005, sought copies of all files held by the Department (including all correspondence, memoranda, minutes of meetings, records and documents of any nature whatsoever) relating to:

1. The agreement between the Government and the ICTU dated 22 June 2004 to support the objective of the maintenance of pay and terms and conditions in line with the collective agreement then in place in the industry as part of the negotiations on Sustaining Progress, and;

2. Consideration of the above agreement in the context of the Government decision on 18 May 2005 in favour of Dublin Airport Authority owning and building a second terminal at Dublin Airport.

The Department's decision, dated 16 August 2005, released to you a copy of the agreement referred to at 1. above "without prejudice" to your FOI request, saying that it was already in the public domain. It told you that other records relevant to your request were exempt under section 23(1)(a)(iv) of the FOI Act, in that their release could reasonably be expected to prejudice or impair the fairness of proceedings you had commenced on 15 July 2005 on behalf of your client. It did not detail the extent to which it held records of relevance to your request.

You sought an internal review of this decision on 12 September 2005. The Department's internal review decision of 5 October 2005 was to release nine records to you, six of which it said were already in the public domain. It said that it considered an unspecified number of other records to be exempt under sections 19, 21, and 46 of the FOI Act but did not refer to section 23(1)(a)(iv) as being relevant to its decision. At this stage, the Department had still not provided you with any details of the number of records it was withholding from you.

You made your application to this Office on 23 December 2005. In arriving at my decision, I have had regard to the above correspondence; to correspondence between you and Ms Anne Moran, Investigator in this Office; to correspondence between Ms Moran and the Department; and to copies of the withheld records, which were provided to me for inspection. I note that, in the course of the review, the Department issued to you a schedule listing 15 records as being relevant to your request.

Scope of Review

Before I set out the records that are covered by the scope of my review, I must deal with some preliminary matters, as follows:

Further Exemptions Raised

The Department's internal review decision relied on sections 19, 21 and 46 of the FOI Act. In her letter to you of 1 May 2007, Ms Moran told you that the Department is also now relying on section 27 (in relation to any commercially sensitive information that is contained within the records), and on section 20 (in respect of matters concerning the deliberative process) of the FOI Act. I note that you have objected to the Department having raised new exemptions at this stage of the process.

It should be noted that my review decisions are de novo, which means that they are based on the circumstances and the law as they pertain at the time of my decision. In the High Court judgement in the case of Minister for Education and Science v Information Commissioner - the text of this judgement is available at www.oic.ie - Mr. Justice O'Caoimh, commenting on the nature of a review under section 34 of the FOI Act, said that "importance must be attached to the fact that the nature of the appeal agreed between the parties arising under Section 34 of the Act is by way of a hearing de novo by the Information Commissioner" and that "the decision that was to be made by 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". This position was explicitly endorsed by Mr Justice Quirke in his recent judgment in The National Maternity Hospital and The Information Commissioner.

Clearly, the Department is entitled to appraise me of relevant facts and circumstances as they apply at the date of this review. While you might consider that the facts and circumstances as at the date of this letter are largely the same as when you submitted your FOI request, it seems to me that O'Caoimh J.'s words contemplate a scenario where a public body, during the course of my review, seeks to rely on provisions of the FOI Act that, for whatever reason, it had not considered at earlier stages of the FOI process. The Department has, at all stages of its FOI decision making, contended that certain of the records are exempt in full under section 19 of the FOI Act. While its arguments in respect of sections 20 and 27 were made on foot of Ms Moran's views that elements of the withheld records do not qualify for exemption, it is clear that they were made without prejudice to its position that section 19(1) applies to the records in full. If I were to uphold the Department's view as to the applicability of section 19, the issue of whether any other provision applies would be moot. On the other hand, if I did not uphold that view, I am of the view that the Department is entitled, at any stage, to seek to protect material that would otherwise fall to be released.

It should also be noted that section 34(12)(b) of the FOI Act states that a decision to refuse to grant a request under section 7 shall be presumed not to have been justified unless the head of the relevant public body shows to my satisfaction that the decision was justified. That provision allows me to review the overall refusal to grant a request, and does not appear to confine my review to appraising only the grounds for refusal cited by a public body up to the point at which my review commenced.

Crucially, however, regardless of the number of exemptions that may be relied on by a public body at any stage in the FOI decision making process, the essence of section 34(12)(b) is that the onus rests with the Department to show that its refusal of the records in question, on whatever provision of the FOI Act it considers appropriate, was justified in terms of the FOI Act. Finally, in so far as the fairness of the Department's reliance on new grounds might be an issue, it seems to me that this has been negated by your being appraised of the Department's position by Ms Moran and being given an opportunity to comment on that position (in so far as this is possible, as discussed in the section titled "Description of the Records").

Relevance of Records to Request

Ms Moran's letter to you of 1 May 2007 told you that elements of the withheld records appeared to her to be outside the scope of your request, and alerted you to the possibility that I could rule out those elements of the records from the scope of my review. You did not appear to take issue with this.

The Department, for its part, appears to have considered the records in their entirety as being relevant to your request, and when questioned about this by Ms Moran, indicated that it did not wish to pursue the matter further. (Ms Moran told the Department that, in the absence of any argument to the contrary as to the relevance of the records in their entirety to the request, she considered that I should consider the records in full to be relevant to it.) However, the fact remains that your request was framed in a narrow manner - so as to seek records concerning the agreement between the Government and the ICTU of 22 June 2004, and records concerning the consideration of that agreement in advance of the Government decision of 18 May 2005.

Having examined the records, I note that there are discrete sections in certain of the records that deal with the subject matter of your request; other sections that deal with the subject matter of your request in tandem with other matters not covered by its scope; and other discrete sections that deal entirely with matters not covered by the scope of your request.

In the interests of fairness, I have decided to consider the records on the following basis:

(i) Where there are discrete sections within the records that do not pertain in any way to the subject matter of your request, I have ruled them outside of the scope of my review in their entirety. I do not intend to consider whether any provision of the FOI Act applies to them, accordingly;

(ii) Where discrete sections within the records pertain to the subject matter of your request and also pertain to other matters not referred to therein, I intend to consider these sections in their entirety - except for where the release of any elements thereof, that are not covered by the scope of your request, would affect the interests of third parties.

Even if your client contended that there was a public interest in release of such information about third parties, even where it was not sought in the first instance, I consider it in keeping with my "de novo" jurisdiction that I may have regard to the relevance of the contents of the records to the actual request submitted to a public body, even if the public body concerned did not make such an argument to this effect. While you might contend that this is at odds with the provisions of section 34(12)(b), it seems to me that this section of the Act is concerned with placing the onus of proof on a public body to justify its refusal of records that were specifically sought in an FOI request, rather than requiring it to justify why it should not release records that were not actually requested in the first place.

Description of the Records

Ms Moran's letter acknowledged that, as she was unable to give you particularly informative descriptions of the records at issue, this might affect your ability to properly frame any arguments that you would wish me to take into account in my review. As she told you, however, the provision of more detail as to the nature of each record could be in breach of section 43(3) of the FOI Act, which provides that this Office must take reasonable precautions to prevent disclosure of information in an exempt record. Ms Moran told you that she must refrain from disclosing information which any party contends is contained in an exempt record so as to preserve that party's right of appeal to the High Court.

As mentioned already, the Department's position in this case is that the records in this case are exempt in their entirety. Even if I did not accept this argument at all, and directed the release in full of all records concerned, the Department still would have a right to appeal my decision to the Higher Courts, which could accept or reject my decision. It follows that I am obliged not to reveal the contents of such records so as not to prejudice the Department's rights of appeal. Accordingly, I consider that I am unable to provide any detail as to the content of the records further to that provided by Ms Moran in her letter to you of 1 May 2007.

Summary of Scope of the Review

The Department has released to you nine of the 15 records it considers relevant to your request (records 1, 2, 6, 7, 8, 9, 11, 12 and 14, as described in Ms Moran's letter to you of 1 May 2007). These records will not be considered by me further, nor will the appendices to record 15, which I understand were released to you by the Department in the course of the review.

I also note that record 13 (an Aide Memoire for Government, dated July 2004) is a copy of records 48a and 49, which are under review in your related application involving the Department of Finance (reference number 050380). I am currently awaiting some clarification from the Department of Finance in respect of records 48a and 49, which thus is salient to any decision I would give on record 13. Accordingly, I do not intend to deal with the issue of whether or not you should have been granted access to record 13 in the present review, and will deal with it in the context of my decision on records 48a and 49 in case 050380. This is in accordance with my powers under section 34(9)(a)(iii) of the FOI Act, by which I may discontinue a review if the matter to which the application relates is, has been or will be, the subject of another review under section 34. I do not consider your rights under the FOI Act to have been prejudiced by this approach, given that the substantive matter of access to the record concerned will, in due course, be the subject of review.

Thus, my review is confined to the sole issue of whether or not the Department's refusal to release to you those elements of the remaining withheld records (i.e. records 3, 4, 5, 10 and 15) is in accordance with the FOI Act. Having regard to the reasoning set out in the section of this letter headed "Relevance of Records to Request", the elements of the records that I consider to be under the scope of my review are as follows:

• Record 3: sections 1, 2, 3, 5 (paragraphs 5.1, 5.2 and 5.3 only) 6, 7 and 8. I find, as a matter of fact, that section 4 and the remainder of section 5 comprise discrete sections of the record that do not pertain to your request;
• Records 4 and 5: in full;
• Record 10: the first two paragraphs, the following sentence and bullet point numbered "(1)", and the last paragraph thereof. I find, as a matter of fact, that the remainder of the record does not pertain to your request;
• Record 15: in full.

Please note that, unless otherwise specified, any reference to a withheld record in the remainder of this letter is intended to refer to any such portion of such a record that the Department has withheld from you.

Findings

Relevant Provisions - section 19

Section 19(1)(a) provides that a record shall be not be released pursuant to an FOI request where the record has been, or is proposed to be, submitted to the Government for their consideration by a Minister of the Government or the Attorney General and was created for that purpose.

Section 19(1)(b) provides that a record shall not be released pursuant to an FOI request where it 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.

Section 19(1)(c) provides that a record shall be not be released pursuant to an FOI request where the record contains information (including advice) 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 by him or her primarily for the purpose of the transaction of any business of the government at a meeting of the Government.

Section 19(3)(a) provides for the release of factual information that is contained in a record to which section 19(1) applies, "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(6), which provides that a record may be exempt under section 19(1) where it is a "preliminary or other draft of the whole or part of the material contained in the record". Thus, a record may be exempt under section 19(1)(a) or (c), even if not submitted to Government or provided to the relevant Minister, if it is a draft of a record that was submitted to Government, or if it is a draft of a record for the Minister's use, primarily for the purpose of transacting business of Government at a meeting of Government. This provision also extends the definition of the phrase "decision of the Government"" to include the noting or approving by the Government of a record submitted to it.

Records 3, 13, 10 and 15

Record 3 is a Memorandum for Government, dated 18 May 2005, and record 15 is an Aide Memoire for Government, dated 22 June 2004. Record 10 is a briefing note for the Taoiseach, dated 28 January 2005.

The Department claims that record 10 is exempt under section 19(1)(c), in that it was provided to the Taoiseach for the purposes of briefing him on various aviation matters that were before the Government on a number of occasions. Ms Moran's letter told you that, while she initially had reservations about this claim, she had been satisfied that certain references in the record indicate that the note's primary purpose was to inform the Taoiseach for the purpose of transacting the business of Government at a meeting of Government.

Having regard to the contents of record 10 and to the Department's submission on the matter, I am satisfied that record 10 was created with the primary purpose of advising the Taoiseach for the purpose of transacting, at a meeting of Government, the business of Government in respect of aviation matters, including the issue of the second terminal. I accept that section 19(1)(c) applies to this record.

Ms Moran has told you that the Department contends that records 3 and 15 were created and submitted for use by members of the Government for the purpose of transacting business of the Government at meetings of the Government (18 May 2005 and 22 June 2004 respectively). In its original submission to this Office, the Department claimed that sections 19(1)(a) and 19(1)(c) of the FOI Act applied to these records. As Ms Moran told you, the Department now appears to contend that records 3 and 15 are "records of the Government" and are exempt under section 19(1)(b). In this regard, Ms Moran told you that she considered a "record of Government" to be, for example, a record of a decision that was taken by Government at a Cabinet meeting, and that she did not consider section 19(1)(b) to apply to records that were submitted to Government. She told you that she considered section 19(1)(a) to be the most relevant exemption to apply to the records.

Albeit in the context of explaining its position on the matter of "factual information", the Department submitted to this Office that section 19(1)(b) excludes from protection only a record by which a decision of the Government is published to the general public, and that the words "by which" are critical in this context. It said that as the documents in question (or any portions thereof) were not published, "the provisions of section 19(1)(b) apply to them and all parts of them."

It would appear that the Department is misconstruing section 19(1)(b) of the FOI Act. It seems to me that section 19(1)(b) is designed, in the first instance, to protect the actual record of a decision taken by Government, but that (as acknowledged by the Department) it excludes from such protection the record by which that decision was notified to the general public (for example, a press release or speech). In other words, while section 19(1)(b) would apply to the record of the actual Government decision, the ensuing press release or speech would fall to be released as it would not be exempt under section 19(1)(b) in the first instance.

While the records concerned are not the records by which the decision of Government of 18 May 2005 came into the public domain, neither are they records of the decision reached on that occasion. This, I do not accept that they are "records of the Government" and thus, I do not accept that section 19(1)(b) applies to them.

However, I accept that records 3 and 15 were submitted to the Government for its consideration and were created for that purpose. Accordingly, I accept that section 19(1)(a) applies to these records.

Section 19(3)(a)

The section of this letter headed "Relevant Provisions - section 19" sets out the wording of section 19(3)(a) of the FOI Act. In general terms, it provides for what amounts to an override of sections 19(1)(a) and (c). In other words, if a record stands to be exempt under section 19(1), that exemption can be set aside if section 19(3)(a) (discussed below) applies to the record.

The first issue to be determined in considering this exemption is the issue of "publication" of a Government decision to the general public. Ms Moran told you that the Department appears to contend that, as the actual records at issue were not published, no part of them falls to be considered for release under section 19(3)(a).

I understand that where that decision of Government is "published", such publication can take the form of a press release or a statement, describing the substantive content of the decision, issued by or on behalf of the Government - in which case the actual record of the decision concerned is not itself published. However, I do not consider publication of the actual Government decision to be a prerequisite in considering section 19(3)(a) of the FOI Act.

I am of the view that, once the substantive content of the decision is published, section 19(3)(a) is required to be considered. Thus, I do not accept the Department's view that, as the actual records at issue were not published, no part of them falls to be considered for release under section 19(3)(a).

The next issue is whether the provision is to be considered only in respect of the Memorandum for Government that led directly to the published decision concerned, or whether it must be considered in respect of all records related to that decision and to which section 19(1) applies. I have in mind here, for example, records of related decisions taken by Government that fed into and led up to the published decision (e.g. a decision to embark on particular information-gathering exercise that ultimately informed the tenor of the published decision, or a decision to note the findings of said information-gathering).

Section 19(3)(a) clearly provides for the examination of a record "relating to a decision of the Government that has been published". I have interpreted this as requiring the release of factual information contained in any record that is exempt under section 19(1) and which relates to a decision of the Government the substance of which has been published to the general public.

Thus, while the actual record of the Government decision of 18 May 2005 may not itself have been published, I consider that the press release issued by the Department of Transport, and the speech given by the Minister for Transport, on that date had the effect of publishing the substance of that decision to the general public. The records at issue in this case pertain to that decision and so I consider that they should be examined to see the extent to which they contain factual information for the purposes of section 19(3)(a) of the FOI Act.

The Department would now appear to contend, however, that the records at issue in this case should not be examined to see whether they contain factual information.

In its most recent submission to this Office, it says that section 19(1) and section 19(2) of the FOI Act are "designed to preserve the doctrine of Cabinet confidentiality." It referred to the High Court judgement in the case of Irish Press Publications v the Minister for Enterprise [2002] 4IR 110, which it contends is "authority that the doctrine of Cabinet confidentiality protects not only discussions but documents upon which discussions are based." It says that, while section 19(2) has a specific exemption relating to discussions at Cabinet, "it is clear from the judgement that Cabinet confidentiality would cover documents referred to in section 19(1) also." It goes on to say that section 19(3) "must be interpreted in a way that does not violate the doctrine of Cabinet confidentiality pursuant to Article 28(4)(3) of the Constitution" and that it does not believe it is appropriate to go through a memorandum or other such document on a line by line basis to separate factual information from non-factual information, if the document as a whole formed the basis of Cabinet discussions and is thus protected by Cabinet confidentiality.

The Irish Press case was also cited by the relevant public body in the review conducted by this Office in case 030714. (I note that you also referred to this decision in your correspondence with this Office so I take it you are reasonably familiar with it). The decision set out that, while the High Court judgement concerned deals with the question of whether documents which disclose details of Cabinet discussions should be released on discovery, it did not consider the question of whether factual information contained in such documents could or should be released. That decision pointed out that the Irish Press judgment would be more relevant if the application of section 19(2) were at issue.

The decision in case 030714, however, acknowledged that section 19(2) of the FOI Act provides for the protection of Cabinet discussions (it provides for the protection of records containing the whole or part of a statement made at a meeting of the Government or information that reveals, or from which may be inferred, the substance of the whole or part of such a statement and is not a record by which a decision of the Government is published to the general public by or on behalf of the Government). Furthermore, the decision also noted that, as the provisions of section 19(3)(a) do not apply to records coming within the scope of section 19(2), the former provision clearly does not require the disclosure of Government deliberations, but instead is concerned with the release of factual information relating to Government decisions.

I concur with the finding in case 030714 (issued by Mr Liam Kelly, formerly of this Office) that had the Oireachtas intended that all information contained in records coming within the scope of 19(1) should be protected, then section 19(3)(a) would not have been included in the first instance. I agree that it is of some significance that the exception in section 19(3)(a) applies "if and in so far as" it contains factual information, and that this would suggest that the Oireachtas envisaged that exempt material could be withheld from a document without also withholding factual information. Despite the Department's views to the contrary in the instant case, which I note did not allude to (or challenge) the findings made by Mr Kelly in case 030714 as to the lack of relevance of the Irish Press case to the consideration of section 19(3)(a) of the FOI Act, I am satisfied that it is appropriate for me to examine records 3, 10 and 15 to determine the extent to which they contain information that may be released under section 19(3)(a) of the FOI Act.

The next issue that I must now decide on is what is actually meant by the term "factual information" for the purposes of section 19(3)(a). My approach is as follows:

• Ms Moran's letter to you of 1 May 2007 pointed out that, as your application to this Office referred to case 030714, you must, accordingly, be aware that this Office sees factual information as including material presented to provide a factual background to the central topic in a record, and as being distinguishable from information in the form of proposal, opinion, or recommendation. She also pointed out that the decision in case 030714 referred to the definitions of the words "factual" ("pertaining to or concerned with facts of the nature of fact, actual, real" and "fact" ("[s]omething that has really occurred or is actually the case; something certainly known to be of this character; hence, a particular truth known by actual observation or authentic testimony, as opposed to what is merely inferred, or to a conjecture or fiction; a datum of experience, as distinguished from the conclusions that may be based upon it").

Section 2 of the FOI Act (which is also referred to in case 030714) sets out "factual information" as including "information of a statistical, econometric, or empirical nature, together with any analysis thereof". In case 030714 Mr Kelly explained why the word "including", as contained in the definition of "factual information", suggests that its meaning is not confined to "information of a statistical, econometric, or empirical nature, together with any analysis thereof". Mr Kelly went on to say that he accepted that regard must be had to the ordinary meaning of the term "factual information" when considering its scope.

I concur with these findings.

It could be argued from the above that any analysis of "something that has really occurred", or any analysis of other information of a general nature must also fall into the category of "factual information". It seems to me, however, that "information of a statistical, econometric, or empirical nature" lends itself to a more objective "analysis thereof" than would more general information. Any analysis of "something that has really occurred", or other information of a general nature is likely to be subjective, given that that analysis would be based on the author's opinions. Accordingly, I see no reason to find that an analysis or opinion of "something that has really occurred", or an analysis of other general information, is required to be released under section 19(3)(a).

• Following on from the previous point is the issue of the extent to which information in a "Government record" has come into the public domain, which the Department contends is irrelevant when considering the meaning of the word "factual".

I reluctantly accept the Department's position in this regard, although it does seem farcical that information that is already in the public domain should be withheld from release. Notwithstanding my reservations, however, section 19 does not require the consideration of any harm test. Accordingly, I accept that in so far as a record that is exempt under section 19(1) contains any analysis of information that is in the public domain (say, for example, the analysis of a published report), that analysis (opinion, in any event) would not fall to be released under section 19(3)(a) of the FOI Act.

• You have argued that minutes of a meeting are entirely factual, on the basis that they record matters of fact i.e. the events which occurred, the decisions reached, and the contributions made at a meeting. This argument could be extended to suggest that where a record such as a Memorandum for Government contains details of earlier Government meetings that dealt with the particular issue, those details should be released given that they amount to factual, background material that is relevant to the matter under discussion in the record concerned.

Significant to my decision in this regard is section 19(2), which excludes from release any record that would reveal the substance of Government deliberations (provided that the record was not that which published the details of the Government decision). Thus, any details contained in a record to which section 19(1) applies, that would reveal the deliberations that led to a particular decision, cannot fall to be released.

However, section 19(2) does not appear to restrict the release of information showing the actual decision arrived at on foot of Government deliberations, which, in my view, amounts to factual information . I do not see how the details of such a decision can, by itself, indicate the deliberations on the proposals that led to that decision.

I note that the Irish Press case cited by the Department, refers to the case of Attorney General v Hamilton (No.1 [1993] 2 I.R. 250, in which Finlay C.J. says at p.272:

"I would, therefore, conclude that the claim for confidentiality of the contents and details of discussion at meetings of the Government, made by the Attorney General in relation to the inquiry of this Tribunal is a valid claim. It extends to discussions and their contents, but it does not, of course, extend to the decisions made and the documentary evidence of them, whether they are classified as formal or informal decisions."

Thus, the Attorney General v Hamilton case found that a record of a Government decision was not covered by Cabinet confidentiality. It would seem logical, therefore, that section 19(2) of the FOI Act was drafted with this exclusion from Cabinet confidentiality in mind.

Having regard to sections 19(2) and 19(3)(a) of the FOI Act, and to the comments of Finlay, C.J. as set out earlier, I find that where a record contains details of a particular decision arrived at by Government, those details fall to be released under section 19(3)(a).

It follows that, in the case of a record that contains details of a proposal for consideration by Government, and a later record that details the ensuing decision on that proposal, the former would not fall for release under section 19(3)(a) but the latter would have no reason to be withheld on such grounds (the deliberations between the two stages being exempt under section 19(2)).

• One must have regard to the substantive nature of the information contained in a record, rather than to semantics (i.e. merely by reference to the particular terms in which it is couched).

Having applied this reasoning to the withheld records, I find as follows:

(i) I do not consider that any element of record 10 amounts to "factual information" for the purposes of section 19(3)(a), in that I find that it contains details of opinion and proposal only; thus, I find it to be exempt in full under section 19(1)(c);

(ii) I find that the following elements of record 3 contains factual information that falls to be released further to section 19(3)(a) of the FOI Act:

Record 3: Section 2.2 in full; Section 2.3 (the first sentence, and the first 19 words under the bullet points on page 3 only); Section 3.1 (words 8 to 25 of first sentence and the first 12 words of the second sentence thereof); Sections 3.3 and 3.4 in full; Section 3.5 (last two sentences only); Section 3.6 with the exception of the last sentence thereof; Section 3.12 (first sentence with the exception of the nine words between parentheses); Section 3.17 (first two sentences and the first 21 words of the third sentence); Section 5.1 (fourth and fifth sentences); Section 5.3 (last sentence with the exception of the last six words thereof), Section 8.

I find the remaining elements of record 3 to be exempt under 19(1)(a) of the FOI Act;

(iii) I do not consider that any of record 15 amounts to "factual information" for the purposes of section 19(3)(a), in that I find that it to be entirely comprised of proposal. You do not appear to accept Ms Moran's view that section 19(3)(a) does not apply to record 15. As I have set out earlier, I must preserve the rights of the Department to appeal this decision should it see fit, and so I am unable to describe this record in any detail to explain why I agree with her view. However, it remains that I accept that record 15 does not contain any factual information as contemplated by section 19(3)(a) and that it is exempt from release to you in its entirety, in accordance with section 19(1)(a).

As you know, however, the Department has claimed section 27 of the FOI Act in respect of certain elements of record 3. I will deal with the application of this provision to the records concerned later in this decision.

Section 19 - Public Interest

I note that your submission to this Office of 21 May 2007 refers to the purpose of the FOI Act of enabling enable access to information "to the greatest extent possible consistent with the public interest." You go on to say that the public interest must be considered in every case irrespective of whether an exemption contains a specific public interest test, and refer to comments made by my predecessor, Mr Kevin Murphy, in his Annual Report for 2002 that " ...[i]n practice, ... in the majority of cases where a request falls to be refused on the basis of a particular exemption, there is a requirement to consider whether that exemption should be set aside in the public interest" and ".. that the rights and legitimate interests of individuals, of corporate bodies and of the public sector itself are separate from, and subservient to the public interest."

Mr Murphy's remarks were made in the context of highlighting the extent to which decisions made under the FOI Act are required to take account of the public interest. However, the quotation referred to itself notes that the public interest is required to be considered in the majority of cases, not in all cases, and the sentence immediately preceding the quotation concerned notes that "[s]everal of the exemptions in the Act - sections 20, 21, 26, 20, 27, 28, 30 and 31 - are themselves subject to a public interest override." Mr Murphy did not refer to section 19 as requiring the consideration of the public interest, and as is clear from the totality of his remarks, he was not stating that the public interest must be considered in respect of provisions contained in the FOI Act that do not specifically require its consideration.

You have also referred to my published criticisms of the extent to which section 19 provides for the refusal of records. Regardless of my views on section 19, I cannot amend the FOI Act, and I am bound to interpret it as it stands. It is not open to me to import a public interest test into section 19(1), accordingly. It follows that it is not open to me to consider the public interest arguments you have made in support of the release of those elements of the records that I have found to be exempt under section 19(1) of the FOI Act and that do not qualify for release under section 19(3)(a). Accordingly, I find that the remaining elements of records 3, 10 and 15 have been validly withheld from you under section 19(1) of the Act.

Section 27

Although I have discontinued my review in respect of record 13, it is relevant to this part of my decision that Ms Moran had told you that the Department had claimed section 27 of the FOI Act in respect of nine paragraphs of records 3 and 13 and that she considered four of the nine paragraphs concerned not to be relevant to your request.

I agree Ms Moran's view in respect of the four paragraphs concerned, all of which are contained in section 4 of record 3, which concern third party interests that are not covered by the scope of your request. I have excluded section 4 of record 3 from my review, as explained earlier in the section of this letter headed "Scope of the Review". They do not fall to be considered by me further.

Accordingly, this leaves five paragraphs to which the Department is seeking to apply section 27. Four of those paragraphs are contained in record 13, the present review on which I have discontinued. Thus, I do not intend to review the Department's arguments in this regard.

The remaining paragraph in relation to which the Department is citing section 27 is Section 3.12 of record 3. While I have found section 19(1)(a) largely applies to this part of record 3, I have also found that section 19(3)(a) applies to first sentence thereof, with the exception of the nine words between parentheses also contained in that sentence. I must now consider the Department's reliance on section 27(1)(b) of the FOI Act in respect of that element of the first sentence of section 3.12 of record 3 that I have found should be released under section 19(3)(a) of the FOI Act.

In informing you of the Department's reliance on section 27 in respect of elements of records 3 (and 13), Ms Moran told you that the elements concerned pertained to Aer Rianta (the Dublin Airport Authority or "DAA") but that, due to the requirements of section 43(3), she could not elaborate on the detail of excerpts concerned. She invited you, in so far as it is possible, to comment on the application of section 27 to the three paragraphs concerned, and on the public interest in its release to you. You replied that you were being asked to comment in a vacuum, and referred me to the harm tests as contained in sections 27(1)(a), (b) and (c), to the exceptions to these provisions in section 27(2), to the public interest test at section 27(3) and to the fact that the onus of justifying the refusal of the records is placed on the Department. You also question whether section 27 may be claimed in respect of Aer Rianta and refer me to Maeve McDonagh's book "Freedom of Information Law" (second edition, 2006) which you say suggests that this provision should be confined to the commercially sensitive information of private individuals or private sector persons, and that Aer Rianta is not such a person.

I have decided to examine the nature of the information in the first instance, and I am not of the view that it amounts to a trade secret. Thus, I find that section 27(1)(a) does not apply to it.

I am not satisfied (nor has the Department explained why) that the information concerned is of a nature that its disclosure could reasonably be expected to result in a material financial loss or gain to the DAA, or that it could prejudice the DAA's competitive position in the conduct of its business. The sentence concerned describes, in general terms, a particular action taken, and the context against which that action was taken (the requirements of section 43(3) mean that I cannot provide further detail as to the sentence concerned). I am not of the view that the information is of a nature that falls to be exempt under section 27(1)(b) of the FOI Act.

Nor am I satisfied that the information concerned is of a nature that, if disclosed, could prejudice the conduct or outcome of contractual or other negotiations of the DAA. Again, no argument has been made to me by the Department that this might be the case, nor has it pointed to current or future negotiations of the DAA that might be prejudiced by such release. I find that section 27(1)(c) is not applicable to the information.

In the light of my finding that the information concerned is not exempt under section 27, there is no need for me to deal with your argument as to whether section 27 should apply to information concerning the DAA, nor is there a need for me to consider the public interest.

Records 4 and 5

Section 46(1)(b) provides that the FOI Act does not apply to a record held or created by the Attorney General or the Office of the Attorney General (other than a record concerning the general administration of that Office). Section 22(1)(a) provides for the refusal of a record where it would be exempt from production in court on the grounds of legal professional privilege.

Record 4 is the opinion given by the Attorney General to the Department, while record 5 is a submission by a staff member of the Attorney General's office to the latter, on foot of a request from the Department for legal advice on issues concerning the Second Terminal.

The two records are copies of records created by the Attorney General and his Office. They do not relate to the administration of that Office, nor are they of the nature referred to by you in your submission to my Office of 23 December 2005. I consider that section 46(1)(b) has been validly applied to the records and that they are outside the scope of the FOI Act.

Furthermore, record 4 clearly contains legal advice provided to the Department, and it reflects the content of record 5. Accordingly, I am also of the view that even if the records were covered by the FOI Act, they would be exempt from release to you under section 22(1)(a) of the FOI Act, in that they comprise communications made between the client (the Department) and his/her professional legal adviser (the Attorney General and his staff) for the purpose of obtaining and/or giving legal advice.

Again, while you say that your client believes it to be in the public interest to make these records available, section 46 does not require the consideration of the public interest (as neither does section 22(1)(a)). Accordingly, they must remain exempt from release to you.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, I hereby vary the decision of the Department in this case. I direct that the following be released to you further to section 19(3)(a) of the FOI Act:

Record 3: Section 2.2 in full; Section 2.3 (the first sentence, and the first 19 words under the bullet points on page 3 only); Section 3.1 (words 8 to 25 of first sentence and the first 12 words of the second sentence thereof); Sections 3.3 and 3.4 in full; Section 3.5 (last two sentences only); Section 3.6 with the exception of the last sentence thereof; Section 3.12 (first sentence with the exception of the nine words between parentheses); Section 3.17 (first two sentences and the first 21 words of the third sentence); Section 5.1 (fourth and fifth sentences); Section 5.3 (last sentence with the exception of the last six words thereof), Section 8.

I uphold the Department's decision in respect of the remaining elements of record 3 that is under the scope of my review; in respect of that portion of section 10 that is under the scope of my review; and in respect of records 4, 5 and 15 in full.

Right of Appeal

A party to a review, or any other person affected by a decision of the Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date of this letter.

Yours sincerely

Emily O'Reilly
Information Commissioner