Whether the Department was justified in refusing access to all records relating to the applicant's request for "documents/correspondence between Ireland/the State and the European Commission ... which took place following the adverse finding against Ireland by the European Court of Justice ... in Case C-215/06."

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

Background

On 15 October 2010, the applicant made an FOI request to the Department for copies of "documents/correspondence between Ireland/the State and the European Commission ... which took place following the adverse finding against Ireland by the European Court of Justice ... in Case C-215/06." The Department's decision of 15 November 2010 withheld the 12 records it identified as relevant to the request. Following the applicant's internal review application of 8 December 2010, the Department issued an internal review decision on 13 January 2011, upholding the refusal of the records concerned. On 29 July 2011, the applicant sought a review by this Office of the Department's refusal to release the relevant records.

In carrying out my review, I have had regard to copies of the records of relevance to the request (which were provided to this Office for the purposes of the Commissioner's review); to correspondence between the Department and the applicant as set out above; to details of various contacts between this Office and the Department; and to details of various contacts between this Office and the applicant, particularly the letter sent to him by Ms Anne Lyons, Investigator, dated 23 January 2013 (to which I will refer as "the preliminary views letter" in the remainder of this decision, as necessary), and the applicant's reply, dated 18 February 2013.

Scope of the Review

The scope of this review is confined to assessing whether or not the Department is in accordance with the terms of the FOI Act in refusing to release the 12 records it considered relevant to the applicant's FOI request.

Findings

As explained to the applicant in the preliminary views letter, section 8(4) of the FOI Act does not allow this review to have regard to any reasons as to why he is seeking the withheld records, whilst section 43(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record.

The preliminary views letter also told the applicant that, of the various provisions relied on by the Department in refusing access to the 12 records at issue, section 24(2)(e) appeared to be the most relevant. I agree that this is the most appropriate exemption to consider in the circumstances of this case.

Section 24(2)(e)
The records at issue in this case contain details of written, electronic, and verbal communications from, and to, the European Commission (the Commission) concerning the State's infringements of EU law.

Section 24(2)(e) requires the mandatory 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".

As set out in the preliminary view, in relying on section 24(2)(e), the Department is not required to identify any specific harm that might arise from the release of the records concerned, nor must the public interest be considered. It must simply either demonstrate that the records contain information that was communicated in confidence from or to the Commission, or that the records "relate" to negotiations between the State and the Commission.

The Department contends that the various communications were confidential and that it understands the Commission to "adopt a similar view". The key issue is whether or not the communications concerned were understood to have been confidential at the time thereof.

Generally speaking, I think it reasonable that member states of the EU should be able to confidentially engage with the Commission in relation to infringements of EU law, so that a mutually agreeable outcome can be achieved that avoids the need for initial or further referrals to the European Court of Justice, and/or financial penalties for the state concerned. I consider the Department's description of its own understanding of confidentiality in respect of the matters the subject of the communications, and the fact that no similar records appear to have been made publicly available by the Commission (such as on the internet), to be sufficient for me to find that the information in the records at issue was communicated in confidence. It is also relevant that, in a separate case, the EU Commission confirmed to this Office that it considered details such as those at issue in the case at hand to have been confidentially communicated.

Furthermore, the information so communicated does not, of itself, have to retain a quality of confidence for section 24(2)(e) to continue to apply. Neither is the confidentiality of the communication negated by the State having been found to have breached EU environmental laws or by such findings having resulted from complaints made by the applicant or others, nor is it relevant whether the communications have ended or are ongoing for some reason. I also consider the applicant's contention, that Ireland effectively forced the EU into treating such communications as confidential, to be irrelevant. The important point is not the merits of the process by which such communications have come to be treated as confidential, but is simply that the communications are so treated by the parties involved.

As I accept that the 12 withheld records "contain information communicated in confidence from [and] to [the Commission]", I find them to be exempt under section 24(2)(e) of the FOI Act. It is therefore not necessary for me to consider whether or not the records "relate" to negotiations between the State and the Commission. Finally, whilst the applicant's letter of 18 February argues that it is in the public interest to release the records at issue, it remains that the public interest is not required to be considered in respect of records to which section 24(2)(e) has been found to apply.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the Department's refusal of the withheld records.

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.

Stephen Rafferty
Senior Investigator
25 February 2013