Whether the Department was justified in its decision to refuse access to briefing documents for Ministers Lenihan, Cowen and McCreevy upon their respective appointments as Minister for Finance on the basis that the records are exempt from release under various sections of the FOI Act.

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

Background

The applicant made an FOI request on 19 June 2010 seeking access to briefing documents for Ministers Lenihan, Cowen and McCreevy upon their respective appointments as Minister for Finance. The Department granted access to certain records in its decision of 15 October 2010. The applicant applied for an internal review in relation to those records refused on the basis of being considered commercially sensitive or part of the deliberative process. Additional records were released in the Department's internal review decision of 19 November 2010. The remaining records were withheld on the basis of sections 19, 20, 21, 22, 24, 27 and 31 of the FOI Acts.

The applicant wrote to this Office on 28 November 2010 seeking a review of the Department's decision to withhold the remaining records.

For ease of reference I have adopted, throughout this decision, the numbering system as used by the Department in its schedules of the records at issue.

Mr Sean Garvey of this Office wrote to the Department on 27 January 2011 outlining his preliminary views on the records at issue and the Department responded to those views on 25 March 2011. A second preliminary views letter was sent to the Department on 8 June 2011 and a preliminary views letter was sent to the applicant on 25 May 2011. Following further communications between this Office and the Department additional records were released. The remaining withheld records are:

Record 1, pages 17 and 25,

Record 2, pages B5, C9 - C10 and C17,

Record 3, pages 17, 18, 19, 53, 56, 69 and 104,

Record 4, pages 7, 26, 58, 73, 76 and 97,

Six page briefing document, dated May 2008, withheld in full,

Small portion of a second briefing document also dated May 2008.

In conducting this review, I have had regard to the correspondence between the applicant and the Department, to the submissions of the Department and of the applicant and to the provisions of the FOI Act. I have also had regard to the contents of the records provided by the Department for the purposes of this review.

Scope of the Review

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

Analysis and Findings

Preliminary Matters
Before dealing with the exemptions claimed by the Department I should explain that while I am required by section 34(10) of the FOI Act to give reasons for my decision, this is subject to the requirement of section 43 that I take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record or one claimed to be exempt. This constraint means that I can give only a limited description of the records at issue.

I have had regard also to the provisions of section 34(12)(b) of the FOI Act which provides that, in a review, "a decision to refuse to grant a request under section 7 shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified." This places the onus on the Department of showing, to the satisfaction of the Commissioner, that the decision to refuse access to the records at issue in this case was justified under the provisions of the FOI Act.

It is relevant also to note that a review under section 34 of the FOI Act is a de novo review which takes account of the facts and circumstances as they apply at the time of the review decision.

Finally, this decision is structured by reference to those instances (10) where I have agreed with the Department's decision and (2) where I have disagreed with the Department's decision.

1. Department's Decision Upheld

Section 22(1)(a)
The Department refused access to certain records on the basis of section 22(1)(a) of the FOI Act which provides:

"A head shall refuse to grant a request under section 7 if the record concerned -

(a) would be exempt from production in proceedings in a court on the ground of legal professional privilege,"

In considering this matter, I have to ignore the likelihood or otherwise of court proceedings taking place. The question comes down simply to whether or not the Department would succeed in withholding the documents on the ground of legal professional privilege in court proceedings.

Legal professional privilege enables the client to maintain the confidentiality of two types of communication:

"advice privilege" - confidential communications between a professional legal adviser and a client in the course of a professional legal relationship, made for the purpose of giving or receiving legal advice;

and

"litigation privilege" - confidential communications between a professional legal adviser and either a third party or the client; or between the client and a third party; or between the client and professional legal adviser, the dominant purpose of which is the preparation for contemplated or pending litigation.

I have examined each of the records for which the Department claims exemption under section 22(1)(a) in order to decide whether this exemption was justified on the basis of the understanding of legal professional privilege set out above. The Department contends that the records in question contain legal advice provided to it. I am satisfied that the records can be said to contain legal advice for the Department and that they attract legal professional privilege. Accordingly, I find that the following portions of records are exempt from release by virtue of section 22(1)(a) of the FOI Act:

Record 3, page 18, first two redactions,

Record 3, page 56, sentence beginning 'The National Lottery.... ' and ending with '... the current law',

Record 4 page 26, first two redactions.

Section 21
Section 21(1) provides:

"A head may refuse to grant a request under section 7 if access to the record concerned could, in the opinion of the head, reasonably be expected to-

(a) prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of a public body or the procedures or methods employed for the conduct thereof,

(b) have a significant, adverse effect on the performance by a public body of any functions relating to management (including industrial relations and management of its staff), or

(c) disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations carried on or being, or to be, carried on by or on behalf of the Government or a public body".

Section 21(1)(c) is the provision being relied upon by the Department in the case of the redacted portions of the following records:

• Record 1, page 17,
• Record 2, page C9,
• Record 3, page 53,
• Record 4, page 73.

In principle, but subject to a public interest test, for section 21(1)(c) to apply, the only requirement is that release of the records would disclose negotiating positions. The purpose of the exemption is, presumably, to protect the negotiating positions of Government or of a public body.

These records (identified immediately above) estimate the cost of the Metro North project and give the Department's view on possible sources of funding for the project. They detail the proposals considered to be relevant to the completion of the project which, according to the Department, will be subject to commercial negotiation and public tender. The records also disclose the views of previous Ministers for Finance on how best to proceed with this project.

While the Metro North project has now been deferred until 2015/2016, it remains the case that release of these records would disclose the Department's position and estimated costs on a project that has not been completed. I am satisfied that, subject to a public interest test, section 21(1)(c) applies to these records.

Other portions of records for whose refusal the Department has relied on section 21(1)(c) are: Record 4, page 58 and Record 2, page B5. The former is a one sentence redaction concerning the Department's view on the position to be taken in regard to University status for Institutes of Technology. The Department argues that although this record was created in 2008, this is a live issue and is still under consideration. The latter is a portion of a record containing the views of the Department on the likely issues to be raised by the teaching unions in the course of negotiations. The Department argues that the issues described in the record are live issues and would form part of a future negotiations with the unions.

In both cases, having examined the portions of records in question, I am satisfied that, subject to a public interest test, section 21(1)(c) applies to them..

Public Interest Test
Section 21(1)(c) may be invoked only where the public interest would, on balance, be better served by refusing rather than by granting the request. I have considered the various public interests which would seem to be relevant in this context.

There is a public interest in ensuring openness and transparency in the Government's decision to commit taxpayer monies to large projects such as Metro North. However, there is also a public interest in ensuring value for money in the improvement of State infrastructure, particularly when State finances are constrained. I accept that release of the Metro North records could result in the project becoming more expensive for the State. I also accept that release of what the Department anticipates as the requirements of the teaching unions in their negotiations could impact negatively on future negotiations. The public interest arguments for withholding the records concerning University status for Institutes of Technology, as identified by the Department, include the need to preserve confidentiality at this stage of its consideration of this policy issue in order to preserve its negotiating position with interested parties.

Having considered the public interest arguments in relation to all of the records for which the Department claims a section 21(1)(c) exemption, I find that the public interest in favour of withholding the records outweighs the public interest in releasing the records and I find that the relevant redacted portions of the following records should be withheld:

• Record 1, page 17,
• Record 2, page B5, page C9,
• Record 3, page 53,
• Record 4, page 58, page 73.

Section 27
The Department is relying on section 27(1)(b) as justification for its refusal of the redacted portion of Record 3, page 69. Section 27(1)(b) protects information whose disclosure:
could reasonably be expected to result in material financial loss or gain to the person to whom the information relates, or
could prejudice the competitive position of the person in the conduct of his or her profession or business or otherwise in his or her occupation.

The essence of the test in section 27(1)(b) is not the nature of the information but the nature of the harm which might be occasioned by its release. Furthermore, the word "could" in the provision allows for more generous latitude in refusing to grant access on the ground of perceived harm than the word "would". In relation to the second bullet point above, it should be noted that this provision may apply even where such harm is not certain to materialise but might do so.

The redacted portion of Record 3, page 69 concerns an EU Commission Decision which found that heavy fuel excise relief granted to Aughinish Alumina Ltd in Shannon between 1983 and 2003 constituted unlawful state aid and should be refunded. I understand that this matter is the subject of ongoing European Court proceedings. The redacted portion of the record gives an estimates the amount the company could lose should the Court decide that the monies should be repaid. According to the Department, revealing the amount which the company may have to repay is not in the commercial interests of the company. Although the information in the record dates back to 2007, it seems reasonable that revealing the information in the records at issue could result in a material financial loss for the company. Accordingly, I accept that, despite its age, the release of the record could still impact on the commercial interests of the company today.

Section 27(3) provides that section 27(1) does not apply if the public interest would, on balance, be better served by granting than by refusing to grant the request. There is a strong public interest in government being open and accountable, in particular, there is a strong public interest in achieving openness and transparency in relation to the expenditure of public monies. There is also a public interest in reasonable protection for the position of commercial companies operating within the State. The issue regarding the EU Commission's Decision is already in the public domain as is the fact that the issue remains the subject of litigation. All that is at issue in the redacted record is the estimated cost to the company should the EU Commission's Decision prevail. On balance, I take the view that whatever public interest might be served by disclosing the estimated cost to the company, it is not of sufficient weight to displace the public interest served by the withholding of that information. Accordingly, I find that the redacted portion of Record 3, page 69 is exempt from release on the basis of section 27(1)(b).

Section 20
The Department has relied on section 20(1) to justify its withholding of the third redaction in Record 3, page 18. Section 20(1) provides:

"A head may refuse to grant a request under section 7 if the record concerned contains matter relating to the deliberative processes of a public body (including opinions, advice, recommendations, and the results of consultations, considered by the body, the head of the body, or a member of the body or of the staff of the body for the purpose of those processes)".

The section 20(1) exemption is not a mandatory exemption unlike, for example, the exemption provision contained at section 20(1A) of the FOI Act. In invoking a discretionary exemption, the Commissioner expects that a public body will make a clear case in support of the need to rely on that particular exemption.

The third redaction in Record 3, page 18 refers to the impact of Fixed Term Work legislation on the CEOs of commercial State-sponsored Bodies. The third redaction discusses possible options on what approach to take when dealing with this matter. According to the Department, the matter remains current and the issue has not progressed since the briefing was prepared in 2007. The Department contends that release of this record would disclose the deliberations of the Department on how to progress a matter that has not been concluded and affect the outcome of these deliberations. Having examined the record at issue, I am satisfied that it does contain matter relating to the deliberative process of the Department. However, if the record is of a type which falls to be protected under section 20(1) it may still be released where the public interest in granting the request outweighs, on balance, the public interest in refusing access.

It is a reasonable proposition that the Department should be in a position to engage in a pre-decision deliberative process without undue or unreasonable interference.I am satisfied that the records at issue contain material relating to the Department's deliberations on the final position, or decision, it wishes to take in relation to the impact of Fixed Term Work legislation on the CEOs of commercial State-sponsored Bodies. I am conscious of the need to strike a balance between the public interest in increased openness, on the one hand, and the public interest served where a public body is enabled to engage fully in unimpaired pre-decision deliberative processes, on the other hand. I am satisfied that the public interest in favour of the release of the record at issue is outweighed, on balance, by the public interest in refusing the request. I find, therefore, that the Department was justified in refusing access to the third redaction on page 18 of Record 3 pursuant to the provisions of section 20(1) of the FOI Act.

Section 19(1)(a)
The Department relied on section 19(1) to refuse access to a six page briefing document dated May 2008 headed "Secret" with "Brief for Minister for Finance for use at Cabinet" below the title. Section 19 is a mandatory exemption and is not subject to a public interest override.

While it is unclear which of the various provisions of section 19(1) is being relied upon by the Department, it seems to me that the most relevant provision is that at section 19(1)(c); this applies to a record containing "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". This briefing document is a submission to the Minister for use at Cabinet and was created for that purpose and I find that it is exempt under section 19(1)(c) of the FOI Act.

Section 24
Section 24 of the FOI Act exempts from release certain information relating to defence, security and international relations. Subsection (1) is a discretionary exemption for records concerning the security, defence and international relations of the State. Subsection (2) is a mandatory exemption for certain records including records containing information obtained or prepared for the purposes of intelligence in respect of security or defence of the State. Section 24 is not subject to a public interest override.

The Department relied on section 24(2)(e) to refuse access to the redacted portion of Record 4, page 97. Section 24(2)(e) requires the refusal of a record that "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". Section 43 prevents me from providing any full description of the content of the redaction.. The Department contends that 'the matter is the subject of negotiations between the State and the EU....'. Having examined the record, I agree with the Department and I find that the redacted portion of Record 4, page 97 is exempt from release on the basis of section 24(2)(e) of the FOI Act.

2. Department's Decision Not Upheld

Section 26(1)(b)
In its decision the Department invoked the exemption provided for in section 26(1)(b) of the Act to refuse access to the redacted portion of Record 1, page 25 which concerns the sale of ACC Bank.

Section 26(1)(b) is a mandatory exemption that applies where "disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment (other than a provision specified in column (3) of the Third Schedule of an enactment specified in that Schedule) or otherwise by law". Under section 26(2), but subject to some exceptions mentioned below, the confidentiality exemption does not apply to a record prepared by a staff member of a public body or a person who is providing a service for a public body under a contract for services.

The effect of section 26(2) is that it precludes public bodies from invoking section 26(1)(a) or (b) to exempt records prepared by a staff member of a public body in the course of the performance of his or her functions unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than a public body or someone who is providing or provided a service for a public body under a contract for services.

This record was created by a staff member of the Department and refers to the contract agreed with Rabobank Nederland on the sale of ACC Bank and to an indemnity for certain litigation cases referred to in that contract. The Department argues that the State entered into a contractual commitment not to release this information. The record was created in 2002 and most of the information contained in this record is now in the public domain. However there is one sentence which in my view contains information which falls within the legal requirement of confidentiality. I find that section 26(1)(b) applies to exempt the second sentence of the redacted portion of Record 1, page 25 but does not apply to the remainder of that redaction which should now be released.

The Department also relied on sections 27 and 31 to withhold this redaction; however, as the information in the remainder of the redaction is is now in the public domain these provisions cannot now apply.

Section 31
It is the Department's view that section 31 applies to a number of withheld records. Section 31(1) provides as follows:

31.-(1) 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 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 sub-section (1) must apply; the list set out in sub-section (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 sub-section (1).

Record 2, page C10 (redacted portion)
The record was created in 2004 and concerns discussions taking place between the Department of Transport and Dublin Bus. The Department contends that release of this record could have a significant adverse effect on the performance of a public body specifically in relation to industrial relations (section 21) and that it contains analysis and advice on an issue that remains part of the deliberative process (section 20). It also claims that release of this information at this juncture would disclose positions taken and to be taken for the purpose of negotiations carried out on behalf of the Government or a public body (section 21). The Department does not go into any detail as to what 'significant adverse effect' would occur should this record be released. Having examined the redacted portion, it is my view that the record does not contain opinions, advice, recommendations or results of consultations nor does it disclose positions taken in negotiations. Nor is it clear how its release could be detrimental to any of the interests protected by section 31(1). I find therefore that neither section 20, 21 or 31 apply to exempt this redacted portion from release.

Record 2, page C17 (redacted portion)
This record relates to Shannon Airport and and also to the establishment of Terminal 2 at Dublin Airport. The Department claims that sections 19, 20, 21, 27 and 31 applies to exempt this record from release, however it did not detail the effects of its release. I have examined the record which was created in 2004 and I do not see how any of the above sections apply. In my view, the content of the redacted portion has now lost whatever sensitivity it may have had and the matters referred to have been completed. I find that none of the provisions at sections 19, 20, 21, 27 or 31 apply to exempt this record from release.

Record 3, page 17 (redacted portion)
The Department relied on sections 21(b) and (c) to refuse access to this record the contents of which relate to the industrial relations dynamic within the teaching unions. It claims that release of this record could adversely affect interaction between the Department and the relevant unions in both current and future negotiations. The record, in my view, does not disclose negotiating positions and, while its release might cause some small difficulty, I am not persuaded that there would be any significant adverse effect. This is particularly the case given the date of creation of the record in 2007. Therefore, I find that section 21 does not apply to this record.

Record 3, page 56 (redacted portion)
This record created in 2007 concerns plans for the National Lottery including possible legislation. The Department claims that it forms part of a deliberative process which requires to be protected under section 20 of the Act. However, since this briefing note was prepared, legislation has been passed to allow the sale of the National Lottery and the issue discussed has been resolved. I am satisfied that the record concerned does contain matters relating to the deliberative process of the Department. However, as the issue has now been resolved, it is my view that the matter has lost whatever sensitivity it may have had and that grounds for invoking section 20 do not now apply. I find that, with the exception of the portion withheld on the basis of section 22(1)(a) as identified above, the redacted portion of this record is not exempt by virtue of section 20.

Record 3, page 104 (redacted portion)
This record refers to tax treatment on donations to charity and names EU Member States which, along with Ireland, may be affected by the European Court of Justice ruling in the Stauffer case. The Department relies on section 24 for the refusal of this portion of the record. It argues that to release the text could 'affect adversely the international relations of the State as it would reveal the stances taken by other Member States of the EU in relation to the matter'. It also said that 'this is particularly the case as we understand that infringement proceedings (in relation to charitable donations), although resolved in the case of Ireland remain ongoing for certain other member states.'

As explained above under section 24(1), my view is that there must be real and substantial grounds for any expectation of the release of records adversely affecting the international relations of the State. I accept that releasing the names of the EU states could reveal the stances taken by them. I find that the redacted portion of Record 3, page 104 is not exempt by virtue of section 24 with the exception that section 24 does apply to protect the names of the Member States concerned.

Record 4 Briefing Document May 2008 (redacted portions)
This document is a briefing from the Secretary General to the Minister dated May 2008. The Department has argued that the information in the first redaction - under the heading 'EU developments on tax' - could, if released, cause some difficulties in Ireland's relations with some other EU member states.

As stated above in my analysis of section 24 of the FOI Act, my view is that the mere possibility of some adverse effect on international relation is not sufficient to withhold records and I find that none of the provisions of section 24 applies to this portion of the record.

The Department contend that the second redaction under the heading EU developments on tax' contains information sentence was communicated in confidence from an EU Institution. Taking account of section 43 of the FOI Act, I cannot expand further on the contents of this redaction. However I am aware, having searched the internet, that the information contained in the record is freely available, quoted by the person named and therefore cannot be regarded as confidential. Accordingly, I find that section 24(2)(e) - contrary to the claim of the Department - does not exempt the content of this second redaction.

Record 4, page 7 (redacted portion)
This redaction is one sentence concerning the Department's view on changes to the Common Agricultural Policy. The Department relied on sections 20 and 31 of the FOI Act to refuse access to this sentence. It contends that the record clearly 'states the Department's view on one of the most important aspects of what our negotiating position should be.' While I agree the sentence does state generally what would be in Ireland's interest, I do not agree that it would reveal the Government's position in any negotiations. Neither do I believe that section 31 applies to this record as the general view expressed could not be seen reasonably to impact negatively on the financial interests of the State. I am aware that agreement has now been reached by the European Agriculture Ministers on the reform of the CAP. I find that neither section 20 nor 31 applies to exempt the redacted portion of Record 4, page 7.

Record 4 page 76 (redacted portion)
This record concerns Eircom's "Fibre Nation" proposal and summarises the subsidies required by the previous owners of Eircom in order to significantly increase its broadband investment in its network. The Department states that the summary of the proposal is very high level and that it does not reveal the complexity of the proposals made by Eircom and that release of the information in this form would be open to misinterpretation and prejudicial to their interests in the marketplace at this time. It also states that the record contains commercially sensitive information disclosure of which could reasonably be expected to result in financial loss to Eircom. It is widely known that Eircom submitted a proposal to the Government in 2008 seeking subsidies of €150 million. The additional information in this record is the detail of the subsidies requested by Eircom. The Department claims that this information could be misinterpreted. However, the FOI Act concerns the release of records and is not concerned with whatever interpretation may be put on the information contained in the records. Therefore, in my view section 27(1) - contrary to the claim of the Department - does not apply to exempt this record and I find accordingly.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby vary the decision of the Department and direct the release of the redacted portions of the following records:

• Record 1, page 25 (portion),
• Record 2, pages C10 and C17,
• Record 3, page 17, page 56 (portion) and page 104 (portion),
• Record 4 Briefing Document May 2008 and pages 7 and 76.

The Department is welcome to contact this Office for clarification in the event of there being any uncertainty as to the portions of records now to be released.

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 on which notice of the decision was given to the person bringing the appeal.

Fintan Butler
Senior Investigator
29 August 2013