Whether the Department is justified in its decision (in reliance variously on sections 19(1)(a), 19(1)(aa)(i), 19(1)(c), 20(1), 21(1)(c), 26(1)(a), 26(1)(b), 27(1)(b), 28(1), 31 and 32 of the FOI Act) to refuse access to records sought in a request under section 7 of the FOI Act

Case Summary

The Commissioner affirmed the Department's decision that section 19(1)(c) applied to the records. In view of this she found it was not necessary to consider whether the other sections cited by the Department applied.

Date of Decision: 22.01.2010

Review Application under the Freedom of Information Acts 1997 & 2003 (FOI Act) to the Information Commissioner.

Background:

The Applicant, in his request of 3 October 2008, sought copies of the following records:

1. All internal documents, emails, briefing notes, records of meetings and memos created by the department which relate to the decision announced on 30 September for a Government guarantee of Irish Banks;

2. All external correspondence received from banks, EU institutions and the British Government relating to this same decision;

3. All internal documents relating to efforts to bring this legislation through the Dáil;

4. All documents relating to the decision to raise the guarantee for bank deposits to eur 100,000.

The Department, in its decision of 27 november 2008, refused to release an unspecified number of records, while it released some records relating to the government decision which it said had been "placed in the public domain".

In refusing access to the records the Department relied upon sections 19(5), 22(2), 24(3), 26(4), 27(4) (all concerning refusal to disclose existence or non-existence of records); 19, 20, 21, 21(1)(c), 22, 24, 26(1)(a), 26(1)(b), 27, 28, 31(2)(c), 31(2)(a), 31(2)(e), 31(2)(f) and 46 of the FOI Act. The Applicant sought an internal review of the decision on 1 December 2008, and on 23 January 2009, the Department affirmed its original decision. On 27 January 2009, the Applicant applied to this office for a review of the department's decision.

In this case, while the Department adhered to the statutory timeframe set down in the FOI Act in dealing with the original decision, it did not adhere to the deadline for issuing an internal review decision. Section 14(4) provides for an internal review decision to be issued within 3 weeks and does not provide for an extension to that timeframe. The Applicant sought an internal review on 1 December 2008 and the internal review decision was issued on 23 January 2009 (i.e. almost 8 weeks after the request for a review). In this regard, I note that the Applicant was made aware of the delays by the Department and the points made by the department regarding what it refers to as "unprecedented pressures" in the banking area since September 2008.

On 14 May 2009, the Department notified this Office that it had located two further relevant records (these were not contained in any of the schedules but referred to as the records of the meetings of 30 September 2008). When it was put to the Department by my Office that these records were only located following a specific query on their existence from the Applicant, the department disputed this and said that "the records were brought to the attention of the deciding officer by the officer who created them after he had discovered them in a notebook". A further additional 14 records were then brought to the attention of my office by the department on 2 September 2009 (schedule z 1-14). My office has expressed its concern to the Department that a further 14 records have been disclosed 6 months after our investigation started. When the issue was raised with the Department, the Department said that "the omission of the records in schedule z was the result of a simple oversight which was rectified as soon as it came to light". However, I believe these two instances of additional records being disclosed calls into question the efforts made by the Department to fully identify all relevant records at the outset.

Between its submissions of 18 March, 11 June, 2 September, and 21 October, 2009, the Department sought to rely on the following specific sections of the FOI Act: 19(1)(a)-(c); 19(2); 20(1), 20(1)(a); 22(1)(a); 22(1)(c)(ii)(i); 24(1)(c); 24(1)(e); 24(2)(b), (c), (e), and (f); 27(1); 27(1)(b); 28(1)31(1); 31(1)(a) and (c); 32(1); 32(2); 46(1)(b), (d) and (db); and 46(2)(a) and (b).

Conducted in accordance with section 34(2) of the FOI Act by Ms. Emily O'Reilly, Information Commissioner.

Scope of the Review

This FOI request encompassed approximately 100 records amounting to in excess of 800 pages. The Department made several lengthy submissions outlining why it contended that each and every page of the records concerned should be withheld. Several exemptions were quoted in respect of each record, all of which had to be dealt with by my Office as part of our review.

Mr. Sean Garvey, Senior Investigator with my Office, issued preliminary views letters to both the applicant and the public body on 17 November 2009. This preliminary view letter dealt with all records (i.e. in excess of 800 pages) and expressed the view that some records and parts of records had been properly exempted by the Department, but that many of the records withheld by the Department should be released. The applicant notified my Office that he accepted these preliminary views. The Department also notified my Office that, having consulted with the relevant third parties where appropriate, it agreed to release the records in accordance with the preliminary views expressed by Mr. Garvey, in his letter of 17 November 2009, with the exception of two records concerning minutes of meetings held on 30 September 2008. These meetings were held during the night of 29 September through to the morning of the 30 September. They were date stamped 30 September 2008 by the Department and will be referred to for the purpose of this review as meetings of "29/30 September 2008". The records consist of the following:

• Record 1 - This meeting involved the Taoiseach, the Minister for Finance, the Attorney General, senior staff of the Departments of the Taoiseach and Finance, the Chairman and Chief Executive of the Irish Financial Services Regulatory Authority (IFSRA) and the Director General of the Central Bank.
• Record 2 - This meeting involved the Taoiseach, the Minister for Finance, the Attorney General, senior staff of the Departments of the Taoiseach and Finance, the Chairman and Chief Executive of the Financial Regulator, a legal advisor, the Governor and the Director General of the Central Bank, the Governor and Chief Executive of the Bank of Ireland and the Chairman and Chief Executive of Allied Irish Banks (AIB).

Neither Bank of Ireland nor Allied Irish Banks objected to the release of any of the records which affected them, apart from record numbers 1 and 2 above. The Department has informed my Office that it has released all records in accordance with Mr. Garvey's preliminary views letter of 17 November 2009, apart from the two records in question. That means that this review will only deal with exemptions raised in respect of the two records referred to above. While I welcome the decision of the Department and the affected parties to agree to release many of the remaining records, I regret that an inordinate amount of time and resources was unnecessarily spent in processing this request. I say this because the released records were not contentious and of a routine administrative nature and therefore, in my view, could never have been properly exempted. The fact that the Department subsequently agreed to administratively release the records some 9 months after its first submission to my Office on the matter demonstrates that it accepts that no harm would follow such release. It is disappointing that it took 9 months and extensive correspondence before the central Government Department with overall responsibility for implementing FOI policy in the public service finally accepted that most of the records it had strenuously maintained were extremely sensitive and exempt were, in fact, suitable for release.

The Department has assured my Office that it has undertaken comprehensive searches for any further relevant records not previously disclosed and that they did not exist or could not be found after all reasonable steps have been taken to ascertain their whereabouts. Accordingly, at this stage and notwithstanding my earlier comment on the flaws in the Department's original searches for relevant records, I am satisfied that section 10(1)(a) would apply, i.e. that refusal of any further records on the basis that they do not exist or cannot be found is justified.

This review is concerned with the original handwritten notes of the meetings. The Department has submitted that these notes were hurriedly written, contemporaneous, partial and informal notes entered in an official's personal notebook. It is noted that the Department created a typed version of the record as an aid to processing this FOI review.

Therefore, this review will solely concern whether the Department is justified in withholding the two records concerning these meetings. This means that the exemptions which remain to be considered in this review are sections 19(1)(a), 19(1)(aa)(i), 19(1)(c), 20(1), 21(1)(c), 26(1)(a), 26(1)(b), 27(1)(b) 28(1), 31 and 32. and I do not intend to deal with the other exemptions as part of this review.

In reviewing this case, I have had regard to the following:

• The decisions of the Department on the matter;
• The correspondence from the Department to my Office including letters/emails dated 18 March, 12 May, 14 May, 11 June and 2 September, 11 September, 25 September, 21 October and 16 December 2009;
• The correspondence from my Office to the Department including those letters/emails dated 23 April, 22 June, 15 September, 17 September, 30 September, 1 October and 17 November 2009.
• The communications between the applicant and the Department on the matter;
• The applicants communications with my Office;
• The communications between my Office and AIB and Bank of Ireland; and
• The provisions of the FOI Act as amended by the FOI Amendment Act 2003.

Submissions

.

Findings

Preliminary Matters

Section 34(12)(b) of the FOI Act provides that, where a decision to refuse a request is being reviewed by me, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Thus, in this case, the onus is on the Department to satisfy me that its decision is justified.

While the FOI Act requires me to provide reasons for my decisions, section 43 of the FOI Act requires that I take all reasonable precautions to prevent disclosure of information contained in an exempt record during the course of a review. Thus, I can only give a limited description of the records at issue in this case.

Findings

Records of meetings of 29/30 September 2008

The Department has contended that the records are exempt in accordance with sections 19(1)(a), 19(1)(aa)(i), 20(1), 21(1)(c), 26(1)(a), 26(1)(b), 27(1)(b) 28(1), 31 and 32 of the FOI Act. Firstly, I will deal with section 19(1)(c) of the FOI Act.

Section 19(1)(c)

Before considering the Department's submission on section 19(1)(c) of the FOI Act in particular, I think it is worthwhile to comment on the application of section 19 in general. Unlike most other exemption provisions, section 19 does not contain any harm tests. This means that a public body does not have to justify a contention that release of the records would lead to particular consequences specified in the exemption provision, and all that is required to properly invoke section 19 is to demonstrate that a record comes within any of the categories specified in the section (with the exception of 19(3) which provides in certain circumstances for release of factual information contained in section 19 records, but those circumstances do not apply in this case). Furthermore, unlike most of the other exemption provisions, section 19 does not contain a public interest override, meaning that I do not have the statutory authority to find that a record covered by the section 19 exemption should nevertheless be released on public interest grounds.

Accordingly, my decision in this case is based solely on whether or not the two records at issue fall within the provisions of section 19, and I do not have the statutory power to require the Department to go further than that in contending that the records are exempt.

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 ".

Department of Finance position

The Department submitted to my Office that an incorporeal Government meeting was held in the early hours of 30 September at which the information in the records was used as the basis for the Government's decision to introduce the guarantee. In response to an enquiry from my Office about incorporeal meetings, the Department stated that it understood from the Government Secretariat that "the procedures used for incorporeal meetings of the Government are used very sparingly and only in circumstances where a decision of the Government is urgently required and the circumstances preclude the convening of a normal meeting of the Government. Incorporeal meeting involve Ministers being briefed, usually by telephone about the matter to be decided upon".

In support of this point, the Department submitted that "in circumstances where an incorporeal meeting is clearly unavoidable for urgent national reasons and therefore there is no time for papers to be submitted to Ministers - as was very notably and unavoidably the case on 30 September 2008 - it would be contrary to the purposes of section 19 to release details of discussions of highly confidential and sensitive national issues that formed the basis of the briefing for Ministers. The information imparted by the participants at the meetings with representatives of the banks, etc., was used to brief Ministers on the proposed response by the Government to the extremely urgent national issue arising and to formulate the terms of the specific decision then taken. The records contain information that was clearly intended to be the basis for urgent consideration and decision by the Government and are therefore subject to mandatory exemption under sections 19(1)(a), 19((1)(aa)(i) and 19(1)(c). Of particular relevance is the exemption under section 19(1)(c) relating to records containing information for a member of Government for use primarily at Cabinet. The information imparted and discussed at the two meetings concerning banks, including on possible courses of action, was relayed to members of the Government during the incorporeal Government meeting. Accordingly the records of those meetings fall under section 19(1)(c) and are therefore prohibited from release".

Issues

The two issues for me to consider are (i) whether the records contain information for use by a member of the Cabinet for the purpose of the transaction of any business at a meeting of Government and (ii) whether the information in question was for use "primarily" for the purpose of transacting business of a Government at a meeting of Government.

In conducting my review of this case, I think that it is important to bear in mind the unprecedented circumstances and extraordinarily tight timelines in which the process of conducting these meetings and the making of a decision by Government was required to be undertaken on an issue of such national importance.

I note that the importance of the role the meetings played in providing the necessary information which the Government required to make a decision was referred to by the Taoiseach during proceedings in Dáil Éireann, in the immediate aftermath of the Government decision, on 30 September 2008 when he said "regarding the risks, the greatest risk to the stability of the financial system of this country was, undoubtedly, on the basis of my very detailed discussions, looking at all the issues with the Minister for Finance and others yesterday evening after close of business, until the decision was made in the early hours of this morning, to do nothing.........On the advice of the relevant people who have the competent authority in this area, I had to make that decision. Government made that decision with the impact that it has since had. That was the situation".

It is apparent from the Taoiseach's comments to the Dáil that the very detailed discussions with the Minister for Finance and others to which he referred, and which happened after close of business on 29 September and into the early hours of 30 September, included information contained in the records under this review. I take it that the Taoiseach, on the public record at the time, made a connection between the information contained in these records and the Government decision that was taken in the early hours of 30 September 2008. In view of this, and after examining the records in question, I find the Department's position that the information contained in these records was used for the conduct of an incorporeal meeting of Government to be sustainable. That said, in cases such as this it is not even so much the quality of the information contained in the records which is important, but rather the circumstances surrounding it and the evidence that some of the information contained in the records in question was indeed used for the purpose of transacting business at a meeting of the Government.

I will now consider the issue of whether the information in question was for use primarily for the purpose of transacting business of a Government at a meeting of Government. There is no doubt as to the exceptional urgency of the situation which led to a decision being taken at an incorporeal meeting of Government. The extraordinarily tight timelines have been well documented and extensively commented upon in the media. It is also evident that a number of senior Ministers were put on notice that an incorporeal meeting of Government would be held in the early hours of the morning. I think that, in view of the unprecedented circumstances of this case, the only correct conclusion is to find that the primary use of the information was indeed to transact business of the Government at that incorporeal Government meeting. It could be argued that the purpose of recording the information was simply to have a record of what the participants at the meetings said. However, in view of the timelines and the connection between the information and the incorporeal briefing of the Cabinet, I am satisfied that the information contained in the records was used primarily for transacting Government business at a Government meeting.

Therefore, I find that the meetings were held primarily for the purpose of the transacting of an incorporeal meeting of Government and it follows that the records concerned, being notes taken of these meetings, contain information for use primarily for the conduct of business of the Government. The fact that the incorporeal meeting of Government and the meetings in question took place on the same night, copperfastens my belief that the primary purpose of the information exchanged at the meeting was for the conducting of the incorporeal meeting of Government.

It should also be noted that section 19(1)(c) of the FOI Act is a mandatory exemption, so once make a finding that section 19(1)(c) is applicable, I cannot take into account issues such as whether release of the records is in the public interest or not.

In view of the unprecedented circumstances of this case, as outlined above, I find that section 19(1)(c) of the FOI Act is applicable to the records and therefore that the two records remaining in this review are exempt in their entirety.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of the Department that the two records are exempt under section 19(1)(c) of the FOI Act. In view of my finding in relation to section 19(1)(c), I do not need to consider any other sections of the FOI Act which the Department put forward as being a basis for exemption of the two records in question.

Right of Appeal

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 four weeks from the date of this letter.

Emily O'Reilly

Information Commissioner

22 January 2010