The Senior Investigator affirmed the public body's decision.

Case Summary

Whether the Department is justified in its decision to refuse a request for a record made under section 7 of the FOI Act on the basis that it is exempt from release under section 24(2)(e) of the FOI Act.

Conducted in accordance with section 34(2) of the FOI Act by Mr Seán Garvey, Senior Investigator, Office of the Information Commissioner, authorised by the Information Commissioner ("the Commissioner") to conduct this review.

Date of Decision: 08.10.2010

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

Background:

The FOI request in question was made on 29 September 2008 to the Department of Justice, Equality and Law Reform (D/JELR). The Applicant sought:

"access to a copy of the letter to the EU Commission dated April 2008, re the Commission's "Reasoned Opinion" concerning Ireland's compliance with Directive 2000/78/EC"

In its decision of 10 November 2008 the Department refused the Applicant's request in accordance with sections 20, 21, 23 and 24 of the FOI Act. On 3 December 2008 the Applicant sought an internal review of the Department's decision to refuse access to the information sought by him in his original request. In its internal review decision dated 15 October 2009 the Department, while apologising for the delay in responding to the Applicant, upheld its original decision that the record was not releasable under section 24 of the FOI Act. The Department also cited sections 20, 21 and 23 of the Act in support of that decision. The Applicant applied on 29 January 2010 to this Office seeking a review of the Department's decision.

In response to this Office's correspondence, the Department indicated on 22 March 2010 that it was not agreeable to release the record contending that the information contained in the record was properly withheld from release in accordance with sections 23(1) and 24(2)(e) of the FOI Act. This Office also corresponded with the EU Commission as the party to whom the record was sent. The Commission indicated, on 19 May 2010, that it shared the Department's view that records relating to a Government's response to a reasoned opinion of the Commission was communicated in confidence and access should not be provided to it. As the Applicant confirmed that he did not accept the Department's position, the case proceeded to formal review.

On a point of clarity, the public body initially dealing with this application was the D/JELR but following a reconfiguration of roles, responsibility for the equality function of D/JELR transferred on 2 June 2010 to a new Department of Community, Equality and Gaeltacht Affairs ("D/CEGA").

Scope of Review

The Applicant's request is set out above and the review is concerned solely with the question of whether or not the public body is justified, in terms of the provisions of the FOI Act, in its decision to refuse the Applicant's request for access to the record on the grounds that sections 24(2)(e) and 23(1) apply to the record.

Submissions

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Findings

Preliminary Matters

In conducting this review, I have had regard to the provisions of the FOI Acts and the relevant submissions of the public body as well as those of the Applicant, the contents of the record, and to the additional information and clarifications provided by the parties concerned at the request of this Office, including the EU Commission.

I also wish to point out that, while I am required by section 34(10) of the FOI Act to give reasons for my decisions, this is subject to the requirement of section 43 that I take all reasonable precautions in the course of my review to prevent disclosure of information contained in an exempt record so as to preserve that party's right of appeal to the High Court. These constraints mean that I can give only a limited description of the record at issue. The record consists of the Government's response to the EU Reasoned Opinion in relation to an alleged failure of Ireland to correctly transpose specified Articles of Council Directive 2000/78/EC of 27 November 2000 ("the Directive"). The Directive prohibits employment discrimination on the grounds of religion or belief, disability, age or sexual orientation.

Analysis and Findings

Section 24 of the Act deals with security, defence and international relations and, in pertinent part, provides as follows:

Section 24(2) provides a head shall refuse to grant a request under section 7 if the record concerned -

(e) contains information communicated in confidence from, to or within an international organisation of states or a subsidiary organ of such an organisation or an institution or body of the European Union or relates to negotiations between the State and such an organisation, organ, institution or body or within or in relation to such an organisation, organ , institution or body, or.

Accordingly, I will focus my analysis on whether or not section 24(2)(e) applies to the record.

Section 24(2)(e)

In order for the exemption to apply to a record, the requirement in section 24(2)(e) is that the record contains information communicated in confidence to an international organisation of states or an institution or body of the European Union.

The Department has indicated to this Office that it made its decision on the basis of its understanding that any correspondence between a Government Department and the European Union regarding infraction matters remains confidential at all times.

The record at issue was communicated by the Permanent Representative of Ireland on behalf of the Government to the European Commission on 4 April 2008, and sets out the Government's response to the alleged failure of Ireland to correctly transpose certain specified Articles of the Directive. The EU has confirmed to this Office that it received the record and confirmed that it regards Members States responses to the Commission's Reasoned Opinion as being communicated in confidence in the context of infringement proceedings, and that such responses remain confidential. It also advised that the Commission refuses requests for access to such documents as long as infringement procedures remain open. It further added that in its view disclosure of the reply might jeopardize an amicable solution to the dispute and the whole process of investigation.

The Applicant contends that confidentiality no longer applies because the Irish Government's response to the Commission's Reasoned Opinion is now an historical document being more than two years old. He considers that there is a legitimate public interest in viewing the arguments made on behalf of the Irish Government. The Applicant is of the understanding that infringement proceedings have been brought to a close in relation to the specific issue of discrimination based on religion, which is the focus of his request, and which he contends supports his request for access to the record.

In order to properly claim an exemption under section 24(2)(e), the Department does not, unlike many other exemptions in the Act, have to identify the potential harm that might arise from disclosure, rather the pertinent test to apply is whether the information contained in the Government's response of 4 April 2008 contains information that was communicated in confidence to the EU Commission. The Department contends that it does and that view is shared by the EU Commission. The Department also contends that although certain issues have been resolved, the State continues to be in negotiations with the Commission in relation to the infringement proceedings against Ireland regarding the Directive. The EU Commission, in its correspondence with this Office, confirmed that it shares this view also. The Commission has also advised that it is its practice in the case of pending cases to keep exchanges between Member States and the Commission confidential until the infringement process is closed by the Commission or until a judgement is rendered by the Court.

Section 24(2)(e) does not contain a public interest override allowing me to consider whether, irrespective of any confidentiality in the communications of the record, the balance of the public interest would, as contended by the Applicant, be better served by release than by non release of the record. In the absence of such an override in section 24(2)(e) I am not statutorly permitted to consider the wider public interest in making a decision on this case.

In considering the matter, I have had regard to the Commission's contention that it regards the infringement process as confidential until such time as that process is complete. This Office has searched for evidence of publication of records of the type relevant to the review but, apart from the Commission's press release of 31 January 2008 (ref MEMO/08/68 which contains information of a general nature on the proceedings but does not provide detailed information of the type contained in the withheld record), has been unable to find any such evidence. I am satisfied, therefore, that the Commission has justified its contention on this point.

Also, having examined the withheld record, I am satisfied it is a substantive part of the infringement process and is not merely procedural or administrative in nature. Therefore, given the contents of the record and the absence of evidence of publication of the substance of its content, I am satisfied that the record was communicated in confidence to the EC Commission and is therefore exempt from release by virtue of section 24(2)(e) of the FOI Act. I find accordingly.

Other Exemptions cited by Department

As I have found the record to be exempt under section 24(2)(e), it is not necessary for me to consider the application by the Department of sections 20, 21 and 23 of the FOI Act.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby affirm the decision of the Department to refuse the Applicant's request and that the record is properly withheld in accordance with section 24(2)(e) of the FOI Act.

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 eight weeks from the date of on which notice of the decision was given to the person bringing the appeal.

Seán Garvey

Senior Investigator

08 October 2010