Whether the Department was justified in refusing the applicant's request for access to certain records relating to Cabinet meetings that took place more than 10 years before the receipt of the request.

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

Background

In a request dated 12 April 2010, the applicant sought access to the following:

all agendas for Cabinet meetings from 1 January 2000 to 31 March 2000, inclusive;

the FOI requests log from 1 January 2000 to 31 March 2010, inclusive;briefing papers prepared for An Taoiseach for Cabinet meetings held on 21 April 1998, 28 April 1998, 5 May 1998, and 12 May 2008 respectively; and

certain specified Memoranda for Government pertaining to Cabinet meetings held in April 1998, including a Memorandum dated 23 April 1998 relating to an application for an industrial grant.

In a decision dated 17 May 2010, the Department granted the request in part and refused it in part. Apart from from a record created prior to the commencement of the FOI Act, the only record refused in full was the Memorandum for Government dated 23 April 1998 relating to an application for an industrial grant. According to the Department's schedule of records, the Memorandum, which is listed as record 17, was withheld under sections 27 (commercially sensitive information), 26 (information obtained in confidence), and 31 (financial and economic interests of the State and public bodies), as well as section 19(2) and Article 28 of the Constitution.

On 31 May 2010, the applicant applied for an internal review of the Department's decision, particularly in relation to the records identified at Items Three and Four of his request. In a decision that issued in June 2010, the Department affirmed its original decision to refuse access to the records concerned in full or in part. On 19 February 2010, the applicant applied to this Office for an external review of the Department's decision.

Following the Commissioner's acceptance of the application for review, submissions were made by the Department and also the Department of Jobs, Enterprise and Innovation (the DJEI). The DJEI was particularly concerned about the potential release of information relating to industrial grant applications because of its supposed confidentiality and commercial sensitivity; therefore, it argued that record 17 should continue to be withheld in full on various grounds, including sections 26 and 27. The Department stated that it had considered record 17 in conjunction with the DJEI and it endorsed the arguments against release as set out in the DJEI's submission.

On 15 March 2011, Mr. Colin Stokes, Investigator, wrote to the relevant third party companies to notify them of the review and to give them an opportunity to make submissions in relation to the information affecting their interests. In his letters, Mr. Stokes explained that it was his preliminary view that the relevant records should be released. Only one of the relevant companies made any reply to Mr. Stokes. On 24 March 2011, the company sought clarification through its solicitors regarding the nature of the information affecting its interests. Subsequently, on 8 April 2011, the company confirmed that it did not wish to make a submission objecting to release of the relevant records.

Mr. Stokes had also written to the Department and the applicant in March 2011 to inform them of his preliminary view on the matter. In brief, Mr. Stokes accepted that the refusal of access to parts of certain records was justified, because they contained information relating to the President (section 46(d)), legal advice (section 22(1)(a)), or personal information (section 28), but that the majority of the requested records should be released. He included an appendix in which he specified the redactions that he did not consider to be justified under section 19(2) of the FOI Act or any of the other claimed exemptions.

On 16 May 2011, the Department made a reply in which it agreed to release some additional records, but otherwise maintained that the records concerned should continue to be withheld in full or in part. On the same day, further submissions were also received from the DJEI in relation to the requested industrial grant information. Included with the DJEI submissions was a letter dated 11 May 2011 from the Chief Executive Officer (CEO) of IDA Ireland. Subsequently, on 18 July 2011, the Department agreed to the release of an additional record (record 11) subject to minor redactions necessary to protect the personal information therein.

The DJEI made further submissions on 17 August 2011. Regrettably, a long delay arose in making further progress with the review due to personnel changes in this Office and other exigencies.

The case was ultimately reassigned to Ms. Melanie Campbell, Investigator. In May 2013, Ms. Campbell recommenced the investigation by contacting the Department, the DJEI, and the applicant. In particular, she suggested to the DJEI that it may wish to reconsider its position in the matter given the absence of any submissions from the relevant third party companies objecting to the release of the information affecting their interests. A further delay then arose as the DJEI sought extensions of time in which to consider its options.

In the meantime, a submission dated 17 June 2013 was received from a Director of the parent company of one of relevant third parties that had been notified of the review by Mr. Stokes. The submission raised concerns over "detailed corporate information". Ms. Campbell discussed the matter with the Director by telephone on 20 June 2013. The DJEI also forwarded another letter from the CEO of IDA Ireland dated 12 June 2013.

Ultimately, however, the DJEI made a new submission dated 21 August 2013 in which it confirmed that it had withdrawn its previous submissions, including the supporting documentation provided. The DJEI no longer argues that sections 26 and 27 apply, but it maintains that certain parts of records 1, 7, 13, 15, and 17 relating to industrial grant information should still be withheld under section 31 of the FOI Act. The Department has confirmed that it continues to endorse the DJEI's position on the matter of industrial grant information.

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 had regard to the Department's submissions, the DJEI's submission dated 21 August 2013, and the submissions made in June 2013 by the parent company of one of the relevant third party companies. I also have examined the records concerned.

Scope of the Review

As noted above, the applicant's internal review application particularly concerned Items 3 and 4 of his request. He made no reply to Mr. Stokes' preliminary view letter, and in a telephone conversation with Ms. Campbell on 22 May 2013, he stated that he is particularly interested in the industrial grant application information concerned. I therefore take it that the applicant is no longer interested in pursuing his request for the information identified by Mr. Stokes as relating to the President (section 46(d)), legal advice (section 22(1)(a)), or personal information (section 28).

Record 19 was released to the applicant in full apart from a report which is available at www.transport.ie/upload/general/2620-0.pdf. This record is therefore outside the scope of this review (section 46(2) refers).

In addition, the applicant was notified by the schedule of records attached to the Department's original decision that the briefing note for the Cabinet meeting held on 21 April 1998 (record 12) was created on 17 April 1998, prior to the commencement of the FOI Act. Therefore, this record also does not form part of this review.

Adopting the numbering system used by the Department in its schedule of records, the records that remain at issue are as follows:

the names of the industrial grant applicants redacted from records 1 and 7;
records 13 to 15 in part (briefing notes);
records 17-18 and 20-21 in part (Memoranda for Government).

This review is concerned solely with the question of whether the Department's decision to refuse access to the records identified above was justified under the FOI Act.

Analysis and Findings

Section 34(12)(b) of the FOI Act provides that a decision to refuse to grant access to a record "shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified." It should also be noted that a review under section 34 of the FOI Act is de novo, which means that it is based on the circumstances and the law as they pertain at the time of the decision. This view of the role of the Information Commissioner was endorsed by the High Court judgment of Mr Justice Ó Caoimh in the case of Minister for Education and Science v Information Commissioner[2001] IEHC 116.

Section 19(2) and Article 28 of the Constitution
The Department claims that the parts of the Memoranda for Government and briefing notes remaining at issue are protected from disclosure by section 19(2) of the FOI Act and Article 28 of the Constitution. Section 19(2)(a) is a mandatory exemption that applies to a record 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". Unlike section 19(1) of the FOI Act, which in conjunction with section 19(3)(b) protects certain records relating to meetings of the Government from disclosure for a period of 10 years from the date the relevant decision of the Government was made, the protection provided for by section 19(2) is of indefinite duration. It is based on Article 28.4.3 of the Constitution, which provides for the confidentiality of discussions at meetings of the Government. The purpose of Cabinet confidentiality is to ensure collective ministerial responsibility for Cabinet decisions, as required under Article 28.4.2 of the Constitution.

However, the records at issue were created in advance of the Cabinet meetings to which they pertain. They reflect the positions that were taken by the Ministers prior to the relevant Cabinet meetings, but they do not record the actual discussions that subsequently took place, nor for the most part do they contain information that reveals, or from which may be inferred, the substance of the whole or part of any statement that was made at the actual meetings. Such records are described by Maeve McDonagh in her book, Freedom of Information Law (2d ed., 2006), at p. 167, as relating to the "pre-deliberative stage of the Cabinet process, that is, the part of the Cabinet process leading up to the making of a Cabinet decision". They are distinguishable from, for instance, the record of discussions of a meeting of the Government that was at issue in the High Court case of An Taoiseach v. The Commissioner for Environmental Information [2010] IEHC 241 relating to a request made under the Access to Information on the Environment (AIE) Regulations. Indeed, it seems to me that Memoranda for Government and briefing notes are exactly the type of records that were intended by the Oireachtas to fall for release under section 19(3)(b) at the expiration of the 10-year period of protection for records relating to meetings of Government. With certain limited exceptions, I find that section 19(2) does not apply.

The exceptions are as follows:

• the first redaction made on page 5 of record 13 ("Minister . . . this meeting");
• the first sentence of the third redaction made on page 5 of record 13 ("While the Ministers . . . more.");
• the second redaction and the first sentence of the third redaction made on page 7 of record 13 ("Minister . . . that Department.");
• the last redaction made on page 3 of record 15 ("Minister . . . the above.").

These extracts provide information on statements made by Ministers at previous meetings of Government and section 19(2) therefore applies.

Section 31
Section 31(1) states that a "head may refuse to grant a request under section 7 in relation to a record (and, in particular, but without prejudice to the generality otherwise of this subsection, to a record to which subsection (2) applies) if, in the opinion of the head-
( a ) access to the record could reasonably be expected to have a serious adverse affect [sic] on the financial interests of the State or on the ability of the Government to manage the national economy,
( b ) premature disclosure of information contained in the record could reasonably be expected to result in undue disturbance of the ordinary course of business generally, or any particular class of business, in the State and access to the record would involve disclosure of the information that would, in all the circumstances, be premature, or
( c ) access to the record could reasonably be expected to result in an unwarranted benefit or loss to a person or class of persons."

Section 31(2) sets out a list of the types of records to which this section may apply.

For section 31 to apply, one of the three limbs of subsection (1) must apply; the list set out in subsection (2) is illustrative of what might be protected under sub-section (1). A public body may invoke section 31(2) only in conjunction with one of the three limbs of subsection (1). Subsection (1) does not apply, moreover, if the public interest would, on balance, be better served by granting rather than by refusing the request (section 31(3) refers).

In its submission dated 21 August 2013, the DJEI argues that sections 31(1)(a) and (c) in conjunction with subsections (2)(j), (k), and (n) apply to certain parts of records 1, 7, 13, 15, and 17. It argues in particular that subsection (2) applies to record 17, because it is a record relating to (j) foreign investment in enterprises in the State; (k) industrial development in the State; and (n) information the disclosure of which could reasonably be expected to affect adversely the competitive position of a public body in relation to activities carried on by it on a commercial basis.

The basis of the DJEI's claims for exemption under section 31(1)(a) and (c) is that the State operates in a highly competitive international environment in seeking to attract and maintain direct foreign investment. According to the DJEI, no other competing jurisdiction releases the following type of information relating to industrial grant or other similar investment incentive schemes: the name of the company featured on the Cabinet record; the actual monetary value of the grants, whether employment, capital, or training grants; and the grant cost per job. The DJEI argues in essence that the release of such information would weaken Ireland's competitive position in making offers relating to industrial development and encourage forum shopping by business operators. The DJEI places great emphasis on the "'mobile nature' of industry and its ability to relocate to another jurisdiction at the first sign of perceived breaches of confidence by the State Department with responsibility for industrial development". It describes the redactions it proposes as "minimal" and "particularly relevant to the issue of protecting Ireland's 'bidding strategy' in a fiercely competitive international playing field".

The Department's arguments very closely resemble the arguments presented by the Department of State Development in the Queensland case of Seeney, MP and Department of State Development; Berri Limited (Third Party) (2004) 6 QAR 354 (the so-called "Berri" case), available at wwww.oci.qld.gov.au, where the information at issue was three years old. As the DJEI is aware, section 31 is not a class-based exemption. It requires a showing of a reasonable expectation that some impact will result from the release of the record concerned: a serious adverse effect in the case of section 31(1)(a) and an unwarranted benefit or loss in the case of section 31(1)(c).

The DJEI has presented no evidence to substantiate its claim that no other competing jurisdiction releases the specific type of information that it wishes to have redacted from the records at issue. Rather, it has provided a list of equivalent exemption provisions in access to information legislation in 20 other jurisdictions. (The "Federal Act 2006" of Germany is also listed, but this does not appear to be a specific legislative provision. It may be intended as a reference to section 3(6) of the Federal Freedom of Information Act 2006.) Like section 31, however, all but one of the provisions still in effect appear to be harm-based. For instance, section 29(1) of the UK Freedom of Information Act 2000 states that "information is exempt information if its disclosure under this Act would, or would be likely, to prejudice (a) the economic interests of the United Kingdom or any part of the United Kingdom, or (b) the financial interests of any administration in the United Kingdom, as defined by section 28(2)". The UK exemption is also subject to a public interest test. Sections 39 and 44 of the Freedom of Information Act 1982 of Australia have been repealed altogether and replaced with section 47D, which states: "A document is conditionally exempt if its disclosure under this Act would have a substantial adverse effect on the financial or property interests of the Commonwealth, of Norfolk Island or of an agency." I further note that access must generally be given to a conditionally exempt document unless it would be contrary to the public interest.

The exception arises in Queensland, which enacted a class-based exemption for investment incentive scheme information following the "Berri" case referred to above. However, the exemption only applies for "the relevant period", which is generally no longer than eight years. (For an incentive given or arranged under a contract, the "relevant period . . . means the period ending at the earlier of (i) 1 year after the contract ends; or (ii) 8 years after the contract begins" [emphasis added].)

This is not Queensland. The records at issue are now over 15 years old. They were created during the heyday of the so-called "Celtic Tiger". The Irish and world economies have drastically changed since then. I do not doubt that competition for direct foreign investment is as fierce as ever, if not more so. However, industrial grant aid is just one of many factors that determines a multinational company's foreign investment decisions. It is my understanding, for instance, that Ireland's low corporate taxes are considered to be a more important factor, as indicated by IDA spokesman Brendan Halpin in any article in The New York Times, dated 3 March 2005, entitled "Dublin withdraws promise of aid to Intel". I simply do not accept that industrial grant information dating from over 15 years ago is of any relevance in today's economy.

The companies originally contacted by Mr. Stokes did not object to the release of the information concerned. The Director of the parent company who made submissions in June 2013 indicated that only information of a more detailed nature than what is at issue in this case would be of concern to his company. Thus, the question of a breach of confidence is also not relevant.

I am not satisfied that access to the records concerned could reasonably be expected to have a serious adverse effect on the financial interests of the State or on the ability of the Government to manage the national economy. I am also not satisfied that access to the records concerned could reasonably be expected to result in an unwarranted benefit or loss to a person or class of persons. I find that sections 31(1)(a) and (c) do not apply. In the circumstances, it is not necessary for me to address the matter of the public interest under section 31(3) of the FOI Act.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby annul the Department's decision and direct the release of records 1, 7, 13-15, and 17-18, 20-21 apart from the information accepted as relating to the President or as legal advice and the extracts specified above in relation to section 19(2).

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.

Peter Tyndall
Information Commissioner