Whether the Department was justified in its decision to refuse access to records containing briefing papers for Cabinet meetings in 2007, 2008 and 2009 for Ministers Cowen and Lenihan under sections 28, 31(2)(c) and 33(1)(d) of the FOI Act

Conducted in accordance with section 22(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background
On 8 December 2014, the applicant made an FOI request to the Department of Finance for access to "Ministerial briefing papers for Cabinet meetings for the Minister (Cowen or Lenihan, depending on date) for Cabinet meetings held in September 2007, January 2008, March 2008, September 2008, October 2008, and January 2009". On 4 February 2015, the Department decided to refuse access to the records requested. The applicant sought an internal review of the Department's decision. On 19 March 2015, the Department issued its internal review decision granting the applicant's request in part. On 23 March 2015, the applicant applied to this Office for a review of the Department's decision. At this stage, I must bring the review to a close by the issue of a formal binding decision.

In conducting this review I have had regard to correspondence between the applicant and the Department, to correspondence between the Department and this Office, to correspondence between the applicant and this Office, to the contents of the records at issue and to the provisions of the Act.

Scope of Review

The Department considered 25 records at internal review stage. It granted access to 10 records, it refused access to 10 records, and it decided that five records were outside the scope of the applicant's request. This review is concerned with whether the Department has justified its decision that: (i) records 6, 7, 19 and 20 are exempt under section 31(2)(c) of the Act, (ii) record 17 is exempt under section 33(1)(d) of the Act, (iii) records 2(part), 4, 8, 15 and 18 are exempt under section 28 of the Act. Although records 21, 22, 23, 24 and 25 were originally identified as being within the scope of the request, the Department decided at internal review that these records fell outside the scope of the request. Having considered their content and context, I accept that the Department was entitled to treat these records as falling outside the scope of the applicant's request.

Preliminary Matters
Section 22(12)(b) of the FOI Act provides that, where a decision to refuse a request is being reviewed by the Commissioner, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Thus, in this case, the onus is on the Department to satisfy me that its decision is justified.

I am required to give reasons for my decision subject to the requirement of section 25(3) that I take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the records at issue and the circumstances of their creation is somewhat limited in the analysis part of the decision.

I should explain also that a review conducted by this Office under section 22 of the FOI Act is considered de novo in that it is based on the circumstances and the law as they apply on the date of the decision. This approach 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. In a more recent judgment, The National Maternity Hospital and The Information Commissioner [2007] 3 IR 643, [2007] IEHC 113, the High Court (Quirke J) explained: "The Commissioner was entitled to consider all of the material before her on the date on which she made her decision and to make her decision having regard to the circumstances which existed on [the date of her decision]".

The Department refused to release ten records on the basis of section 28 of the Act (records 2(part), 4, 6, 7, 8, 15, 17, 18, 19 and 20). The Department decided that four of these records (6, 7, 19 and 20) are also exempt under section 31 of the Act, and that one of these records (17) is exempt under section 33 of the Act. The approach taken in this decision is to consider sections 31 and 33 of the Act first. Consideration of whether records 6, 7, 17, 19 and 20 are exempt under section 28 of the Act is necessary only if it is decided that these records are not exempt under sections 31 and 33 of the Act which do not contain a public interest balancing test.

Analysis and Findings

Section 31(2) - Records relating to the Appointment or Business of a Tribunal
The Department refused to release records 6, 7, 19 and 20 on the basis that they are exempt under section 31(2)(c) of the Act. Section 31(2)(c) provides that a head may refuse to grant an FOI request if the record concerned relates to the proposed appointment or business or proceedings, of any tribunal or other body or individual appointed by the Houses of the Oireachtas to inquire into specified matters, and the request is made when it is proposed to appoint the tribunal, body or individual at a time when the performance of the functions of the tribunal, body or individual has not been completed. This exemption does not require consideration of whether a harm is likely to occur upon release of the records.

In its submissions to this Office, the Department stated that records 6, 7, 19 and 20 were requested by, and provided to, the Banking Inquiry in January 2015. According to the Department, the Oireachtas Banking Inquiry was established on 26 November 2014, to conduct a "Part 2" Inquiry under the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013, into certain aspects of the banking crisis. I am satisfied that the Inquiry is a body appointed by the Oireachtas as envisaged by section 31(2)(c). The work of the Inquiry is still underway and has not been completed. The Department pointed out that the context phase of the Inquiry consisted of briefings in areas such as financial stability and monitoring. The Department submits that records 6, 7, 19 and 20 are relevant to the context phase of the Inquiry.

Having examined them, I am satisfied that these records relate to the business of the Banking Inquiry and were requested at a time when the performance of the functions of the Inquiry had not yet been completed. The records do not relate to the general administration of the Inquiry so section 31(3) does not disapply section 31(2). Therefore, I find records 6, 7, 19 and 20 are exempt under section 31(2)(c) of the Act. In light of this finding, it is not necessary to consider whether these records are exempt under section 28 of the Act.

Section 33 - International Relations
The Department refused to release record 17 on the basis that it is exempt under section 33(1)(d) of the Act. Section 33(1)(d) provides that a head may refuse to grant an FOI request in relation to a record if, in the opinion of the head, access to it could reasonably be expected to affect adversely the international relations of the State. An FOI body relying on this exemption must satisfy the Commissioner that harm to the international relations of the state could reasonably be expected to occur as a result of disclosure of the record in question.

In its submissions to this Office, the Department stated that record 17 contains sensitive information on planned actions by the Governments of other EU Member States and that release of this record would adversely affect the willingness of EU Member States to share information with Ireland and could reasonably be expected to affect adversely the international relations of the State. An FOI body relying on this exemption must satisfy the Commissioner that harm to the international relations of the state - could reasonably be expected to occur as a result of disclosure of the record in question.

Record 17, which dates from 2008, contains speaking points for a Government meeting in relation to certain proposals concerning the EU and a named member state. Although the record concerns events that occurred almost seven years ago, it contains details of the Minister's view in relation to the positions of the other member states. I accept that the expectation of the international community with regard to the information at issue is a relevant factor for consideration in determining whether adverse affect to international relations is a reasonable expectation. In the circumstances, I accept the Department's view that release of record 17 could reasonably be expected to affect the willingness of EU Member States to share information with Ireland thus adversely affecting the international relations of the State. I find that record 17 is exempt under section 33(1)(d). In light of this finding, it is not necessary to consider whether record 17 is also exempt under section 28 of the Act.

Section 28 - Meetings of the Government
The Department refused to release records 2(part), 4, 8, 15 and 18 on the basis that they are exempt under section 28 of the Act. The relevant parts of section 28 are as follows:

"(1) A head may refuse to grant an FOI request if the record concerned-
(a) has been, or is proposed to be, submitted to the Government for its consideration by a Minister of the Government... and was created for that purpose
(b) ...
(c) contains information (including advice) for a member of Government... for use by him or her solely for the purposes of the transaction of any business of the Government.
(2) A head shall refuse to grant an FOI request if the record concerned-
(a) contains 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, and
(b) (i) it is not a record referred to in paragraph (a) or (c) of subsection 1, or.
(ii) by which a decision of Government is published to the general public by or on behalf of the Government.
(3) Subject to this Act, subsection (1) does not apply to a record referred to in that subsection-
(a) if and so far as it contains factual information relating to a decision of the Government that has been published to the general public, or
(b) if the record relates to a decision of the Government that was made more than 5 years before the receipt by the head concerned of the FOI request concerned."

Section 28(1) provides a discretionary exemption for certain records connected to cabinet meetings. It is not a harm based exemption and there is no "public interest override". It applies to certain records submitted to the Government, certain records of the Government or certain records containing information for a member of the Government. Section 28(1) is subject to exceptions which are provided in section 28(3). The exceptions for factual information relating to a published decision of the Government and records relating to a Government decision made more than 5 years before the FOI request, relate to section 28(1) only and not section 28(2) which has protection of indefinite duration. Section 28(2) is based on Article 28.4.3 of the Constitution, which provides for the confidentiality of discussions at meetings of 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. Section 28(2) applies to certain records relating to discussions at a Cabinet meeting. It is a mandatory exemption so that if it applies to a record or part of a record it is no longer necessary to consider section 28(1). For this reason, it is appropriate to consider whether section 28(2) applies to records 2(part), 4, 8, 15 and 18, before considering section 28(1).

Section 28(2)
An FOI body relying on section 28(2) for its refusal to grant access to a record must show that the record concerned contains a statement made at a Government meeting or contains information which reveals the substance of such a statement or from which such a statement may be inferred. The Department submits that because records 2 (part), 4, 8, 15 and 18 consist of memos for the Minister for Finance to brief Government or speaking notes provided to the Minister for use at Cabinet meetings, it is reasonable to assume that release of these records would allow a conclusion to be drawn on the substance of the whole or part of a statement made by the Minister in a meeting of the Government.

I note that the records were created by civil servants briefing the Minister in advance of the Cabinet meetings. They reflect information given to the Minister prior to the relevant cabinet meetings, but they do not record actual discussions that subsequently took place nor, with the exception of one record (record 8), do they contain information that reveals, or from which it may be inferred, the substance of the whole or part of any statement that was made at an actual meeting. I find therefore, that records 2(part), 4, 15 and 18 are not exempt under section 28(2) of the Act.

In any case, I consider that these records would be excluded from the section 28(2) exemption on the basis that they are records referred to in paragraph (c) of section 28(1).The second requirement of section 28(2)(b) limits the scope of that part of the exemption so that it excludes records submitted to Government as defined in sections 28(1)(a) and (c). The rationale for this was explained to the Dáil by Minister Brendan Howlin during Report Stage on the FOI Bill when he said:

"The amendment also seeks to ensure that memoranda to Government and briefing material may not be captured by this provision. It was clear from the Supreme Court judgment on Cabinet confidentiality that it literally only referred to talk around the table. It does not protect memoranda to Government or the decisions."

As regards record 8 which contains material that goes further than the "briefing material " in other records, I accept that its content discloses the position of the Minister on a particular issue from which may be inferred the substance of a statement made at the cabinet meeting. Therefore, I find that section 28(2) applies to it and that it is not excluded from this exemption by virtue of section 28(2)(b)(i).

Section 28(1)
Records 2, 4, 15 and 18 contain information for a member of Government for use by him or her solely for the purposes of the transaction of business of the Government. I consider that these records fall within the scope of section 28(1)(c) of the Act. Section 28(1)(c) is concerned with the contents and use of the record. In this regard, I note that in his decision on Case Number 98058 (Fitzgerald and Department of An Taoiseach - available on www.oic.ie), the former Commissioner set out examples of the type of material likely to fall within section 28(1)(c). The examples referred to were departmental briefing notes for individual ministers attending a Government meeting and notes prepared for the Secretary to the Government for the purposes of such a meeting. In formulating this list the Commissioner noted that:

"The sole reason for the creation of such records is to assist the Government in the conduct of one or more of its meetings and the record ceases to have a purposeful existence after the conclusion of the meeting."

I find that records 2(part), 4, 15 and 18 fall within the scope of section 28(1)(c). However section 28(1)(c) is subject to exceptions which are provided for in section 28(3) of the Act. These exceptions are considered below.

As regards record 8, as I have found above its content is not confined to briefing information and advice and I am satisfied that it comes within section 28(2) rather than section 28(1).

Section 28(3)
Section 28(3)(a) provides that records which would otherwise be exempt under section 28(1) will not be exempt if the record contains factual information relating to a decision of the Government that has been published to the general public. The term factual information is defined in section 2 of the Act as including information of a statistical, financial, econometric or empirical nature, together with any analysis thereof. The Commissioner takes the view that the use of the word "includes" in the definition of factual information means that while information of a statistical etc. nature should be regarded as factual, regard must also be had to the ordinary meaning of the term when considering its scope. The Commissioner considers that factual information would generally include, for example, material presented to provide a factual background to the central topic in a record. He also takes the view that factual information is distinguishable from information in the form of proposal, opinion or recommendation. The information contained in records 2(part), 4, 15 and 18 is briefing material for the Minister. While a small amount of statistical or financial material is included, this is in the form of estimates or forecasts . Therefore, I am not satisfied that any factual information relates to a decision of the Government that has been published to the general public. Therefore, I do not consider that section 28(3)(a) applies to these records.

Section 28(3)(b) provides that records which would otherwise be exempt under section 28(1) will not be exempt if the record "relates" to a decision of the Government that was made more than 5 years before the receipt by the head concerned of the FOI request concerned. In its submissions to this Office, the Department stated that:
- Record 2 - "Memo for Information concerning the Finance Bill 2008 Timetable" was noted by Government,
- Record 4 - "Finance Bill 2008 possible speaking points" resulted in a Government decision,
- Record 15 - "Memo for Government" resulted in a Government decision,
- Record 18 - "Speaking points for Cabinet Meeting 7 January 2009" was for information and no Government decision resulted.
The Department also submitted that there is no five year time limit in the constitutional obligation to respect the confidentiality of discussions at meetings of the Government as set out in Article 28(4)(3) of the Constitution. The Department argued that the well established rule of statutory interpretation which requires that a constitutional interpretation be applied to a provision should be applied in this case. It said that when Section 28 (as a whole) is interpreted in this light it is clear that the documents which would reveal the contents of discussion at cabinet need not be released pursuant to the Act, irrespective of whether the meeting concerned was more than five years prior to receipt of the FOI request.
The type of record covered by section 28(3)(b) (formerly section 19(3)(b)) was discussed in Case Number100171 (Mr X and the Department of the Taoiseach - available on www.oic.ie) when the former Commissioner stated:
"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."

Section 28 is broadly similar to the equivalent provision section 19 of the 1997 Act, before the period of protection was amended under the 2003 Act from five years to ten years. The Department has stated in its submissions that these records were either noted by the Government, for the information of the Government or resulted in Government decisions. Section 28(6) of the Act defines "decision of the Government" as including the noting or approving of a record submitted to the Government. Section 28(3)(b) applies if the record relates to a decision of the Government that was made more than five years before the receipt of the request by the FOI body. It is clear that in order for a record to "relate to" a decision of Government it need not result in an actual decision. It has not been argued that material submitted for the information of the Government was not noted by it. There is no requirement that the Government agreed with or adopted the material. I am satisfied that these records are the type of document intended to fall for release under section 28(3)(b) after the expiration of the five year period and they "relate" to decisions of Government. Records 2(part) , 4, 15 and 18 are all more than 5 years old. I therefore find that section 28(3)(b) applies to these records and I direct their release to the applicant.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the decision of the Department. I affirm the Department's decision that records 6, 7, 19 and 20 are exempt under section 31(2)(c). I affirm the Department's decision that record 17 is exempt under section 33(1)(d). I affirm the Department's decision that record 8 is exempt under section 28(2)(a). I annul the Department's decision that records 2(part), 4, 15 and 18 are exempt under section 28 of the Act and I direct the Department to release these records to the applicant.

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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

Elizabeth Dolan
Senior Investigator