Whether the Department was justified in its decision to refuse a request for access to certain communications received from the president of the European Central Bank (the ECB) during 2010 and 2011 on the basis that sections 10(1)(a) and 24 of the FOI Act apply.

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

Background

On 15 November 2011 the applicant made a request to the Department under the FOI Act for access to records. His request was in three parts and Part 2 of his request was for -
"Any communications received from Jean Claude Trichet or his office as president of the ECB (not the ECB generally), including but not limited to, a letter dated November 18, 2010, sent to the Department of Finance/ Minister for Finance. This should cover the years 2007, 2008, 2009, 2010, 2011 (to November)." On 13 February 2012, following communications with the Department, the applicant agreed to narrow the scope of this part of his request to the calendar years 2010 and 2011 (including December 2011). This part of the request, as narrowed by agreement, is referred to as the "request" in the remainder of this decision.

On 20 March 2012 the Department made a decision in which it identified 14 records as relevant to the request. It granted access to two records (Records 3 and 10); refused access to three records (Records 5, 8 and 9); and granted partial access to five records and relied on section 46(2) of the FOI Act in refusing access to the remaining parts of those records (Records 6, 7, 11, 12 and 13) and in relation to the remainder of the records (Records 1, 2, 4 and 14) on the basis that they were in the public domain. On 19 April 2012 the applicant sought an internal review of the Department's decision. In its internal review decision of 10 May 2012 the Department affirmed its original decision. On 10 May 2012 the applicant applied to my Office for a review of the Department's decision.

On 18 October 2013 Ms Roisin Connolly of this Office wrote to the applicant by email putting forward her preliminary view that the decision of the Department was justified. This Office did not receive a submission or comments from the applicant in response to the matters raised in this preliminary view and I consider that the review should now be brought to a close by the issue of a formal binding decision. In conducting the review, I have had regard to the correspondence between the applicant and this Office, to correspondence between the applicant and the Department, to correspondence between the Department and this Office, to correspondence between the European Central Bank (ECB) and the applicant (regarding his applications to the ECB pursuant to the ECB procedures for public access to ECB documents) and to certain media coverage relating to communications between the ECB and the Department / Minister for Finance. I have also had regard to the provisions of the FOI Act and to the contents of the records at issue.

Scope of the Review

The Department relied on section 46(2) of the FOI Act for its refusal to grant access to certain records and parts of records on the basis that they were in the public domain. (These records, or parts of records, were ECB Opinions.) During the course of this review, the applicant agreed to the exclusion of those records, or parts of records from the scope of this review, namely, Records 1, 2, 4, 6 (in part), 7 (in part), 11 (in part), 12 (in part) and 13 (in part) and 14.

During the course of this review the Department informed my Office that it no longer wished to withhold Record 8 and offered to send the applicant a copy of this record. On this basis, Record 8 has also been excluded from the scope of this review.

There are therefore two remaining records (Records 5 and 9) identified by the Department as falling within the scope of this request which it has refused to release to the applicant.

Record 5 is a letter from the President of the ECB to the Minister for Finance dated 15 October 2010. The Department initially refused access to this record pursuant to section 21(1), section 24(2)(e), 27(1)(b)and section 31(1)(a). During the course of this review the Department indicated that it was no longer relying on the exemption at section 27(1)(b) for this record.

Record 9 is a letter from the President of the ECB to the Minister for Finance dated 19 November 2010. The Department refused access to this record pursuant to section 21(1), 24(2)(e), 26(1)(a), and 31(1)(a).

During the course of this review the applicant raised concerns regarding the possible existence of further records (other than those referred to by the Department in the Schedule of Records which it had issued in this case). This question of whether the Department was justified, in accordance with the terms of the FOI Act, in effectively refusing to grant access to further relevant records on the ground that they do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken (section 10(1)(a) of the FOI Act refers) is also within the scope of this review.

Accordingly, this review is concerned with the question of whether the Department was justified in deciding to refuse access to Records 5 and 9. It is also concerned with the question of whether the Department was justified in effectively refusing access to any further records of relevance to the applicant's FOI request (other than those referred to in the Schedule of Records) on the basis that section 10(1)(a) of the FOI Act applies.

Findings

As my Office has already explained to the applicant, section 43(3) of the FOI Act provides that all reasonable precautions shall be taken in the course of a review to prevent the disclosure, to a party to a review, of information contained in an exempt record. This means that I am constrained in the references I can make to the content of the records at issue.

Section 10(1)(a)
During the course of this review, the applicant raised concerns that records of communications might exist which had not been mentioned by the Department (in the Schedule of Records) in this case. This Office raised the matter with the Department. The Department stated that it was unable to establish the existence of any further records other than those listed on the Schedule of Records which issued to the applicant and therefore section 10(1)(a) of the Act applies.

Section 10(1)(a) provides that a request 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 cases such as this, the role of the Commissioner is to decide whether the public body has had regard to all the relevant evidence and to assess the adequacy of the searches conducted by the public body in looking for relevant records. The evidence in "search" cases generally consists of the steps actually taken to search for the records along with miscellaneous other information about the records management practices of the public body insofar as those practices relate to the records in question. On the basis of the information provided, the Commissioner forms a view as to whether the public body was justified in concluding that the records sought do not exist or cannot be found after all reasonable steps have been taken to ascertain their whereabouts. It is not normally the Commissioner's function to search for records.

The applicant provided my Office with details and information, including references to newspaper articles and other material, which he argued supported the existence of communications other than those referred to by the Department. Arising from communications with the applicant, my Office understood that the applicant was concerned that further records of communications, particularly records of communications on 4 November 2010 and 12 November 2010, may exist.

Following contact with the applicant and research by my Office, the matter (including certain media coverage) was raised by my Office with the Department. The Department stated that since 2010 it had received ten requests on a similar subject matter to that of the request in this case. The Department provided my Office with a table of these requests (including the request in this case) and with copies of eight schedules of records (it appears from the table of requests that two of the requests were withdrawn). While a number of these schedules refer to a letter to the President of the ECB dated 4 November 2010, there is no mention in any schedule of a record of a communication from the President of the ECB dated 4 November 2010 or to any communication from the President of the ECB dated 12 November 2010.

The Department also provided an overall schedule which, it stated, references all the records to and from the President of the ECB in 2010. Insofar as any of these records fall within the scope of the applicant's request, the records concerned also appear on the Schedule of Records which was provided to him by the Department. In particular, there is no reference to a record of a communication from the President of the ECB to the Minister for Finance dated 4 November 2010 or 12 November 2010.

The Department stated that in all the FOI requests received on this subject matter, it carried out searches for all records which fell under the scope of these requests. In relation to the request in this case, records were requested from all sections dealing with the ECB and the Minister's Office. The Department official stated that as far as she could ascertain from her examination of previous cases on this subject matter, she had not established the existence of any of the further records which had been referred to in a letter from my Office in which the applicant's concerns regarding the existence of further records had been raised. The Department stated that it is unable to establish the existence of any further records other than those listed on the Schedule of Records which issued to the applicant.

It is relevant to note that the applicant also sought records from the ECB. In a letter addressed to the applicant from Mr Mario Draghi, President of the ECB, dated 21 November 2012 regarding a review of the ECB's handling of the applicant's request for ECB documents Mr Draghi stated "we understand that a recent press article in an Irish newspaper refers to the existence of letters that are said to have been sent by the ECB's President to the Irish Finance Minister on 4 November and 12 November 2010. In this respect, we confirm that the ECB has no record of such letters. We would like to assure you that our services were specifically instructed to look for these letters upon receipt of your confirmatory application. We only have knowledge of a letter dated 4 November 2010, but this was sent by the Irish Finance Minister to the ECB's President, and not vice versa." Mr Draghi's letter clearly indicates that the ECB also took steps to look for letters from the ECB's President dated 4 November and 12 November 2010 and that it has no record of such letters.

Having considered the matter, I am satisfied that further records falling within the scope of the applicant's request (other than those listed on the Schedule of Records provided by the Department) do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken and, accordingly, I find that section 10(1)(a) of the FOI Act applies.

Section 24(2)(e)
The Department relied on section 24(2)(e) for its refusal to grant access to Records 5 and 9. Section 24(2)(e) provides that a public body shall refuse to grant a request 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,

As my Office has already explained to the applicant, it is important to note that section 24(2)(e) is a mandatory exemption. Unlike some other exemptions in the FOI Act, section 24(2)(e) does not have a 'harm' test. This means that there is no requirement to identify a harm that might reasonably be expected to occur in the event of the record(s) being released. Also, unlike some other exemptions, the provision is not subject to a public interest test. I should add that while a refusal to grant access to records under section 24(2)(e) does not equate to a general prohibition on release outside of the FOI process, my remit is limited to determining whether the Department was justified in refusing access in accordance with the provisions of the FOI Act.

The Department argues that section 24(2)(e) is a mandatory exemption. It has stated to my Office that it is totally opposed to the release of records 5 and 9 for two reasons. Firstly, it states that it was the intention of the ECB when sending the letters that they be treated as confidential and that this is clearly indicated by the fact that record 5 is marked "strictly confidential" and record 9 is marked "secret". Secondly, it states that the ECB has refused to release the letters under the Public Access Scheme. The Department referred to a letter of 15 October 2012 from the ECB to the applicant in which the ECB described certain records, including records 5 and 9, as "strictly confidential communications concerning the then extraordinarily severe and difficult situation" and refused to give the applicant access to records. The Department referred to the following statement by the ECB in its letter : "... the ECB must be in a position to communicate and exchange pertinent and candid messages with European and national authorities in the euro area in the manner judged to be most effective for serving the public interest in terms of fulfilling the ECB's mandate. If it is required and in the best interest of the public, effective informal and confidential communication must also be possible and should not be undermined by the prospect of disclosure." While it has not specifically said so, it is apparent that the Department accepts that the records at issue were communicated in confidence.

Having regard to the Department's submissions and to the contents of the records at issue, I am satisfied that the records contain information communicated in confidence from an institution or body of the European Union. Section 24(2)(e) is a mandatory exemption, it is not subject to a harm test and there is no public interest test. I find that section 24(2)(e) of the FOI Act applies and that the Department's decision to refuse access to Records 5 and 9 pursuant to the provisions of section 24(2)(e) of the FOI Act was justified.

As I have found that the Department's decision to refuse access to the records pursuant to section 24(2)(e) is justified, I do not consider it necessary to consider the application of the other exemptions relied upon by the Department.

Decision

Having carried out a review under section 34(2) of the FOI Act, I find that the Department's decision to refuse access to Records 5 and 9 was justified and I affirm its decision to refuse access to these records under sections 24(2)(e) of the FOI Act. I also find that the Department was justified in refusing access to any further relevant records (other than those referred to by the Department in the Schedule of Records which it provided to the applicant in this case) and I hereby affirm the Department's refusal to grant access to such further records on the basis that section 10(1)(a) of the Act applies.

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.

Peter Tyndall
Information Commissioner