The Senior Investigator varied the decision of the Department by affirming it in part and annulling it in part. He accepted that the Department's decision to refuse access to most of the records remaining at issue was justified under section 19(1), 22(1)(a), or 10(1)(a) of the FOI Act. However, he directed the release of a set of attachments to one record on the basis that the Department's claim for exemption in that particular instance was not justified.

Case Summary

Whether the Department's decision to refuse access to certain records relating to the development and drafting of the legislation contained in sections 10, 11, 12, 13, 14, and 15 of the Central Bank and Financial Services Authority of Ireland Act 2004 was justified under the FOI Act.

Date of Decision: 22.03.2012

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

Background:

In a letter dated 14 October 2005, the applicant made a request to the Department for access under the FOI Act to copies of all correspondence in relation to the development and drafting of the legislation contained in sections 10, 11, 12, 13, 14, and 15 of the Central Bank and Financial Services Authority of Ireland Act 2004.  The Department initially refused access in full to 62 of the records identified as relevant in its schedule of records.  Access to two additional records was refused in part. 

In May 2009, the applicant applied to this Office for a review of the Department's decision.  During the course of the review, which involved numerous contacts between this Office and the parties concerned, the Department agreed to release a large number of additional records listed in its schedule.  The applicant, in turn, accepted the Department's decision with respect to four of the records to which access was refused.

On 6 February 2012, Ms. Melanie Campbell, Investigator, issued a letter to the applicant to notify him of her preliminary view in relation to the remaining records at issue.  A copy of Ms. Campbell's preliminary view letter was also sent to the Department for its information.  A period of three weeks was given in which to make a reply to Ms. Campbell's letter. 

With the authority delegated to me by the Commissioner, I have now completed my review in accordance with section 34(2) of the FOI Act.  In carrying out my review, I have examined the records at issue.  I have also had regard to the numerous submissions that have been made by the parties, including the applicant's most recent submission dated 28 January 2012 and the Department's submission dated 6 February 2012.  However, no further submissions in response to Ms. Campbell's preliminary view letter of 6 February 2012 have been received to date.  Therefore, I have decided to conclude the matter by way of a binding decision on the basis of the information now before me.

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

Scope of the Review 

Adopting the reference system used by the Department in its schedule of records, I note that the records remaining within the scope of this review are as follows:

in relation to section 19 of the FOI Act: 

• in part:  D9, O9, O10, O13, T2, U6, U23, BF3, BF7
• in full:  D8, BF8

 in relation to section 22(1)(a) of the FOI Act: 

• in part:  H1, L3, P4, P5, P6, P11, P13, P17, P19, P21, P23, P24, U16
• in full:  E4, E5, E6, E7, I1, K7, L1, L4, P12, P14, P18, P28, P29, P32, P38, P40, U11, Z2, BF10, BF12

 in relation to 10(1)(a) of the FOI Act:

• D8 in part
• attachments or appendices to P5, P19, P23, P35, AJ1.

The question before the Commissioner is whether the Department's decision to refuse access to these records was justified as claimed.

Submissions

.

Findings

Section 19

Section 19 of the FOI Act is a mandatory exemption which is designed, in essence, to protect Cabinet confidentiality.  Under section 19(1)(a), a record is exempt if it 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) applies to 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) applies to a record that 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(6) specifies that the term "record" as used in the exemption "includes a preliminary or other draft of the whole or part of the material contained in the record".  Section 19(3)(a) provides, however, that the exemption does not apply to a record if and insofar as it contains factual information relating to a decision of the Government that has been published to the general public.

The Commissioner has previously found that section 19(1)(a) applies to records such as Memoranda for Government, Aides Memoire for Government, or records that are a preliminary or draft of the whole or part of such documents.  Accordingly, I find that the following records are exempt under section 19(1)(a), subject to section 19(3)(a):  D8, D9, O9, O10, O13, T2, U6, BF3, BF7, and BF8.  Record U23 is also an Aide Memoire for Government that is likewise exempt under section 19(1)(a), subject to section 19(3)(a).  Record O13 also includes a submission to the Minister that I accept is exempt under section 19(1)(c).  Moreover, based on my examination of the records, and in light of the Department's submission dated 6 February 2010, I am satisfied that the Department has fully complied with the requirements of section 19(3)(a) in this case.

Section 22(1)(a)

Section 22(1)(a) states that access shall be refused to records which would be exempt from production in proceedings in a court on the ground of legal professional privilege.  Legal professional privilege enables the client to maintain the confidentiality of two types of communication:

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

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

I agree with Ms. Campbell that section 22(1)(a) applies to the following records on the basis of legal advice privilege insofar as they remain at issue: 

L3, P4, P5, P6, P11, P12, P13, P17, P19, P21, P23, P24, U16, E4, E5, E6, E7, I1, K7, L1, L4, P14, P18, P28, P29, P32, P38, P40, U11, Z2, BF10, BF12. 

I also find that one of the attachments included in record H1 is exempt under section 22(1)(a). 

The records concerned contain confidential legal advice, requests for legal advice, or form part of the continuum of communications relating to the requests for legal advice.  In some instances, the legal advice and proposals for requests for legal advice were shared between the Department and the Central Bank of Ireland (otherwise referred to in these records as IFSRA).  However, I accept that these parties had a common interest with respect to the matter concerned.  As Ms. Campbell noted, in Redfern Limited v. O'Mahony [2009] IESC 18, Finnegan J quoted the following passage from Kershaw v. Whelan:  "'Waiver is not lightly to be inferred; although privilege is an aspect of the law of evidence and not of constitutional rights it is firmly established in our law for sound reasons of public policy.'"  I find no evidence to suggest that there has been any disclosure that would have resulted in a waiver of privilege in this case.  On the contrary, I am satisfied that there was an understanding of confidence between the Department and the Central Bank in relation to the limited disclosures that were made. 

Moreover, as Ms. Campbell explained, the judgment of the European Court of Justice (ECJ) in Akzo Nobel Chemicals Ltd v. Commission, Case C-550/07 (14 Sept. 2010) is not applicable in this case.  I see no evidence that the relevant communications involved in-house lawyers for the Central Bank in any event.

However, I do not accept that the set of attachments to record H1, referred to during the course of the review as "H1b", is exempt under section 22(1)(a) or any other exemption provision in the Act.  The Department has agreed to the release of H1b apart from one sentence.  The Department has expressed a concern that the sentence in question could be misinterpreted.  The sentence does not qualify for exemption on the basis of legal professional privilege, however, and the Department has not shown that it meets the criteria for refusal under any of the other exemptions in the Act.  For instance, even assuming that it was given to the Department in confidence and on the understanding that it would be treated as confidential, as the Department claims, I am not satisfied, given the passage of time, that its disclosure would be likely to prejudice the further supply of similar information (section 26(1)(a) of the FOI Act refers).  I find that the set of attachments referred to as H1b should be released in full.

Section 10(1)(a)

The Department has effectively claimed that section 10(1)(a) of the FOI Act applies in part to record D8 and also to the attachments or appendices referred to in records P5, P19, P23, P35, AJ1.  In his submission dated 28 January 2012, the applicant also seemed to question whether additional records may exist.  Section 10(1)(a) provides that access to a record may be refused if "the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken".   In this case, the Department has stated repeatedly and unequivocally that it hold no further records relevant to the applicant's request.  In addition, in its most recent submissions, the Department has explained:  "The Department of Finance's filing system provides that each file is registered with a reference number with its title clearly indicating the subject matter of its contents.  I am satisfied that all relevant records, including electronic records, have been scheduled with the original decision."  More specifically, it states that the steps taken to search for relevant records have included:

1. a search of the electronic databases and records held by the Department, including individual staff computers;
2. a physical search of all relevant areas of the Department in which the records sought might possibly be held; and
3. consultation with relevant individuals who were previously working in this area.

I find no basis for disputing the Department's submissions.  In light of the Department's statements, and the passage of time since these records were created, I am satisfied that section 10(1)(a) applies as claimed.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby vary the decision of the Department in the following terms:

I annul its decision in relation to the part of record H1 referred to as H1b and direct the release of H1b in full.I affirm its decision in relation to the remaining records at issue, as identified above.

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 after notice of the decision was given to the person bringing the appeal.

Stephen Rafferty

Senior Investigator

22 March 2012