Whether the Service was justified in refusing access to records concerning communications to and from the Ceann Comhairle on the grounds that they are exempt under section 31(1)(c)(ii), section 41 and section 42 of the FOI Act

Conducted in accordance with section 22(2) of the FOI Act by the Information Commissioner

Background

On 27 February 2015, the applicant made a request to the Service for access to the following records:

"1. Any communications to and from the Ceann Comhairle and his office in relation to Standing Order 40A for the years 2014 and 2015.

2. Details about each of the submissions sent to Standing Order 40A which should include the identification number of the question the submission is referring to, date of submission, who asked the question, status of submission and also any final amendments made to the Dáil record as a result of queries involving the Standing Order 40A rule.

3. Any correspondence to and from the Ceann Comhairle and his staff, including all communications, reports or other documentation held, which mention Standing Order 40A (or the idea for this new parliamentary procedure/rule before it was drafted and/or put into effect since the last general election)."

On 23 March 2015, the Service refused the request on the grounds that the records were exempt pursuant to section 31(1)(c)(ii) and section 42(k) of the Act. On 13 April 2015, the applicant sought an internal review of the refusal. On 27 April 2015, the Service upheld its original decision, and relied upon section 42(l), section 42(k), and section 31(1)(c)(ii) of the Act. On 8 May 2015, the applicant sought a review by this Office of the Service's decision.

I have decided to conclude this review by way of a formal binding decision. In conducting this review, I have had regard to the contents of the relevant records, to the submissions of the parties, and to the provisions of the FOI Act.

Scope of the Review

The scope of this review is concerned solely with whether the Service was justified in refusing to release the requested records to the applicant.

Analysis and Findings

Preliminary matters
It should be noted that the courts have taken the view that, under FOI, records are released without any restriction as to how they may be used and, thus, FOI release is regarded, in effect, as release to the world at large. Additionally, while I am required by section 22(10) of the FOI Act to give reasons for decisions, this is subject to the requirement of section 25(3) that I take all reasonable precautions during 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 is limited.

Standing Order 40A

Standing Order 40A ('SO 40A') of Dáil Éireann's Standing Orders provides for a procedure whereby a member of the Dáil may request the Ceann Comhairle to seek further information from a member of the Government, if the member is of the opinion that the member of the Government (i.e. the Minister) did not fully address a request for information contained within a parliamentary question. If the Ceann Comhairle agrees with the member's opinion, SO 40A provides that he shall communicate this to the Minister, who is obliged to furnish additional information. According to the Service, this measure was proposed and adopted by the Dáil in 2011 as part of a series of reform measures.

The Service has identified 48 records as being relevant to the request. The majority of these concern individual applications under SO 40A. There are also records of proposals/consultations regarding amendment of the Dáil's standing orders.

In his submissions to this Office, the applicant argued that there is a strong public interest in ensuring transparency in the working of the Houses of the Oireachtas. He contended that the Service has incorrectly applied the exemptions/restrictions claimed, and that "The fact that the Ceann Comhairle is a member of the majority government party gives rise to risk or [sic] bias or perception of bias in the application of his duties and of such rules governing the access to information made available under the rules of the House to TDs and other members of parliament. It is incumbent on FOI officers and the Information Commissioner to prevent the abuse or misinterpretation of the FOI Act to prevent access to how the Ceann Comhairle and his office administer such significant procedures of the House."

It is important to note that it is the role of this Office is to review decisions for access to records under the provisions of the FOI Act. The Commissioner has no jurisdiction to investigate or make findings upon how the Ceann Comhairle or the Service conducts its business.

In its internal review decision letter of 27 April 2015, the Service refused access on the following grounds:

• Correspondence to the Ceann Comhairle is exempt pursuant to section 42(l).
• Correspondence from the Ceann Comhairle is exempt pursuant to section 42(k).
• 'Reports or other documentation held' are exempt pursuant to section 31(1)(c)(ii)(I) and (II).
• Records sought at point 2 of the request are exempt pursuant to section 42(k).

 

In additional submissions to this Office of 7 July 2015, the Service contended that access to the relevant records falls to be refused on the basis of section 31(1)(c)(ii) and section 42(k) of the FOI Act, and Part 10 of the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013.

Section 31(1)(c)(ii)
I will consider this exemption first. Section 31 is a mandatory exemption that obliges refusal of a request if the record concerned, inter alia,

"(c) consists of...

(ii) opinions, advice, recommendations, or the results of consultations, considered by --

(I) either House of the Oireachtas or the Chairman or Deputy Chairman or any other member of either such House or a member of the staff of the Houses of the Oireachtas Service for the purposes of the proceedings at a sitting of either such House, or

(II) a committee appointed by either such House or jointly by both such Houses and consisting of members of either or both of such Houses or a member of such a committee or a member of the staff of the Houses of the Oireachtas Service for the purposes of the proceedings at a meeting of such a committee."

In order to fall within the scope of section 31(1)(c)(ii), the record must fulfil three conditions:

• It must constitute opinions, advice, recommendations or results of consultations.
• It must have been considered by inter alia the chairman of either House, a committee appointed by either House, or a staff member of the Office of the Houses of the Oireachtas.
• Such consideration must have been for the purposes of the proceedings at a sitting of either House, or a meeting of a committee.

 

It is important to note that there is no public interest balancing test applicable to this exemption; if a record meets the three conditions above it is automatically exempt from release.

I agree with the Service that the following records, containing recommendations to the Ceann Comhairle from certain staff members of the Office of Dáil Éireann, fulfil the above conditions and are exempt from release:

Record 4(d); 6(a)(ii); 7(a); 7(c); 21(b), 24(a); 30(b) (incorrectly stated as being 30(e) on schedule of records); 31(d); 42(i).

In addition, I consider that records 44-48, which relate to amendments to Dáil Éireann Standing Orders and procedures, qualify for exemption under section 31(1)(c)(ii). In my opinion, record 44 contains the results of consultations considered by members of the Dáil for the purposes of proceedings of that House; record 45 contains the results of consultations considered by members of staff of the Service for the purposes of proceedings of the Dáil; and records 46 to 48 contain recommendations considered by members of staff of the Service for the purposes of proceedings of the Dáil.

Section 42

The bulk of the records have not been released on the basis that they come within the provisions of section 42 and therefore the FOI Act does not apply. No discretion arises in respect of this provision, which has a "stand alone independent existence" from the rest of the Act (Deely v. Information Commissioner [2001] 3 IR 439, at p. 458)

The Service has stated that "the records requested were 'members' private papers' and that by virtue of the combined effect of Section 42(k) of the FOI Act and Section 105 of the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013, the records are not releasable on foot of a request made under the FOI Act (absent authorisation by the member(s), order by a court or determination by a Part 10 Committee)."

Additionally, the Service has stated that "correspondence to the Ceann Comhairle in every case in which it arose in relation to this Standing Order, was a protected communication of a member of Dáil Éireann within the meaning of Part 10 of the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013" and that therefore is excluded from the FOI Act under section 42(l).

Therefore, the Service's contention is that the remaining records are excluded from the provisions of the FOI Act by virtue of section 42(k), and/or section 42(l), and I will consider each in turn.

Section 42(k)

This provision restricts the FOI Act so that it does not apply to:

"a record relating to any of the private papers (within the meaning of Article 15.10 of the Constitution) of a member of either House of the Oireachtas or an official document of either or both of such Houses that is required by the rules or standing orders of either or both of such Houses to be treated as confidential."

Therefore, section 42(k) excludes both "private papers" and "official documents" from the FOI Act. My understanding of the Service's position is that the records in question are "private papers" of members of Dáil Éireann, and/or are "official documents" of the Dáil, and therefore should not be released.

The section refers to Article 15.10 of the Constitution, which states inter alia that

"Each House shall make its own rules and standing orders...and shall have power ... to protect its official documents and the private papers of its members..."

This Article was considered by the Supreme Court in Howlin v. Morris [2006] 2 I.R.321. At p. 384, Geoghegan J. stated that

"The most that can be said is that Article 15.10 does seem to assume that, independently of the terms of Article 15.10 itself, the freedom of debate, the protection of official documents and the protection of private papers of members were all natural to the efficiency and efficacy of a house of parliament. The main purpose of Article 15.10 is to dispense with the necessity for legislation to secure these freedoms and protections by allowing each House to make its own separate rules relating to them."

Therefore, my understanding of section 42(k), which is to be read in the context of Article 15.10 of the Constitution, is that it protects those private papers of members, and official documents of the House, that are required "by the rules or standing orders of either or both of such Houses to be treated as confidential." It is not solely sufficient that a document is determined to be a private paper or an official document to be excluded by this section (and for the purposes of clarity, I am not making any determination at this stage whether the records before me are indeed private papers or official documents within the meaning of Article 15.10); it must be a private paper or official document that is required by a rule or standing order of the Oireachtas to be treated as confidential.

The Service has contended that the records are rendered confidential by virtue of Dáil Éireann's Standing Order 111. This provides that

"The Clerk shall have custody of all Journals of Proceedings, records, or other documents belonging to the Dáil, and he or she shall neither take nor permit to be taken any such Journals of Proceedings, records or documents from the Chamber or offices, without the express leave or order of the Dáil: Provided, however, that in the event of the Dáil being adjourned for any period longer than a week, such leave may be given by the Ceann Comhairle who shall report the same to the Dáil upon its reassembling."

I cannot agree with the Service that this standing order requires that the private papers of members, or official documents of the House, be treated as confidential. This standing order concerns the custody of records and documents of the Dáil; nowhere does it state that these records and documents are to be treated as confidential. In this respect, I note that McDonagh, in "Freedom of Information Law" (3rd ed., p. 153), states that "The current standing orders of the Dáil and Seanad do not require that any official documents be treated as confidential."

Indeed, this issue, in respect of private papers, was raised in Seanad Éireann during the debate on the Freedom of Information Bill 2013 (September 25, 2014):

"Deputy Brendan Howlin: I refer the Senator to section 42(k) of the bill, which states that "a record relating to any of the private papers (within the meaning of Article 15.10 of the Constitution) of a member of either House of the Oireachtas or an official document of either or both of such Houses that is required by the rules or standing orders of either or both of such Houses to be treated as confidential".

Senator Thomas Byrne: That is the point. There are no Standing Orders in that regard.

Deputy Brendan Howlin: That is a matter for the House, not for me.

[...]

Deputy Brendan Howlin: These are exemptions for private papers. Section 42, which I quoted, exempts in total the papers of the Oireachtas because of the constitutional imperative.

Senator Thomas Byrne: Yes, if we enact Standing Orders, which we have not done.

Deputy Brendan Howlin: That is a matter for the House."

I am satisfied that the same situation pertains to official documents of the Dáil.

Therefore, as I am of the view that the standing orders of Dáil Éireann do not provide that private papers or official documents should be treated as confidential, the records under review do not meet the requirements of section 42(k), and therefore they cannot be excluded from the provisions of the FOI Act by virtue of that section.

Section 42(l)

This section provides the Act does not apply to

"a record relating to any private paper or confidential communication, within the meaning of Part 10 of the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013 , or official document, within the meaning of Part 11 of that Act", unless consent has been lawfully given for its disclosure.

"Private paper" is defined by the 2013 Act as, inter alia,

"in relation to a member, means whichever of the following as applies to the member (other than a paper that has already been lawfully put into the public domain):

(a) in relation to a member who is not a holder of ministerial office, any paper in the possession or control of the member in relation to his or her political (including party political) role or in his or her capacity as a member;

(b) in relation to a member who is the holder of ministerial office, any paper in the possession or control of the member in relation to his or her political (including party political) role or in his or her capacity as a member, but does not include any paper (whether or not held by his or her Department or Office, by the member, or by any special adviser in his or her Department or Office) which relates to the member's own functions in relation to his or her ministerial office..."

The Service has submitted that "the records are clearly papers 'in the possession or control of the member...in relation to his or her capacity as a member', (as they relate to parliamentary questions tabled by the member)." The bulk of the records outstanding consist of correspondences, by letter and email, between the Ceann Comhairle and Dáil deputies, and in some instances (where the Ceann Comhairle determined that a parliamentary question had not been adequately answered), to communications between the Ceann Comhairle and the relevant government Minister, and from the Minister to the Dáil deputy.

In my view, it is a mandatory component of the definition of "private paper" in the 2013 Act, both under paragraph (a) and paragraph (b), that the paper be "in the possession or control of the member". However, in my opinion, the records in question are clearly not in the possession or control of the relevant Dáil deputies, as they are held by the Office of the Ceann Comhairle. I do not consider that it is sufficient for a member merely to hold a copy or version of a document to render it a private paper; I believe that in order to meet the requirements of the definition in the 2013 Act, the document itself must be within the control of the member. Furthermore, I do not believe that they could be properly classified as "private papers" of the Ceann Comhairle, and consequently excluded from the FOI Act, as he, although a member of the Dáil, holds the documents not in his capacity as a member, but in his capacity as Ceann Comhairle.

Therefore, I am satisfied that the records before me are not "private papers" within the meaning of the 2013 Act, and consequently this aspect of the section 42(l) exclusion cannot apply.

In its internal review decision letter, the Service contended that correspondences to the Ceann Comhairle, contained in the records, were "protected communications" within the meaning of Part 10 of the 2013 Act. The term "protected communication" is not to be found in Part 10 of the 2013 Act, or in section 42(l) of the FOI Act, both of which instead refer to "confidential communication". Therefore, I presume that the Service's argument is that these correspondences come within the definition of "confidential communication", and should not be released.

"Confidential communication" is defined by the 2013 Act as "a communication (not being a private paper), by any means (whether in writing or not), of information to and from the member, in the course of his or her capacity as a member, on an understanding (whether express or implied) that its source or content, or both, would be treated as confidential, and includes any document evidencing such a communication."

Therefore, my understanding is that, for a record to come within the definition of a "confidential communication" and therefore be excluded from the FOI Act by virtue of section 42(l), the following conditions must be met:

• It consists of a communication of information to or from a member of the Dáil.
• It is made in the course of his or her capacity as a member.
• It is made on the understanding, explicit or implicit, that its source and/or content would be treated as confidential.
• Consent has not been granted for its disclosure.

 

I am satisfied that the correspondences to the Ceann Comhairle that are contained within the records meet the first two requirements, as they were communications from Dáil members, and made in their capacity as such. However, I do not accept that they meet the third requirement, i.e. that they were made on the understanding that they would be treated as confidential. This is because the communications were made in relation to responses to parliamentary questions, and, as stated on the website of the Houses of the Oireachtas,

"The replies to parliamentary questions are published daily as part of the Debates and form part of the Official Report."

Parliamentary questions, and the replies given to them, are a matter of public record. They cannot, in any way, be said to be confidential. The SO 40A procedure is a part of the parliamentary question regime, and I do not believe that communications under this procedure are made on an understanding, whether explicit or implicit, of confidentiality. That the SO 40A procedure is not a private one is made clear, in my opinion, by SO 40A(5), which states that

"Each and every response received [pursuant to the Ceann Comhairle requiring further information from a Minister] shall be included in or otherwise be associated with the Official Report of the Debates to which it is relates."

Furthermore, SO 40A(5) clearly envisages that the source and content of the communication from the member would be communicated to the Minister responsible. This, of itself, removes any understanding that the communications would remain confidential.

Consequently, as the original parliamentary question and reply are matters of public record, and as a Minister's reply to a successful SO 40A application is also a matter of public record, I am not satisfied that the Service has demonstrated that communications to the Ceann Comhairle from Dáil members pursuant to the SO 40A procedure were made on an understanding of confidentiality. Therefore, as I find that the third element of the definition in the 2013 Act has not been met, I find that these correspondences are not "confidential communications" and consequently are not excluded from the FOI Act by virtue of section 42(l).

Finally, although it has not been raised by the Service, I have considered whether the restriction created by section 42(j) might be applicable. This excludes a record given by an FOI body to a member of the Government for use by him or her for the purposes of any proceedings of the Houses of the Oireachtas, including in answering parliamentary questions. However, I am of the opinion that the records at issue in this case were not given by the Service to the relevant Minister for use by him or her in providing further information pursuant to the SO 40A procedure, and therefore I am satisfied that this restriction does not apply.

Section 41(1)
In its submissions of 7 July 2015, the Service contended that section 41(1) of the FOI Act, read in conjunction with section 105(1) of the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013, exempts some of the records under review from release under the FOI Act. While this argument was not advanced in its responses to the applicant, either in the initial decision or following internal review, section 41(1) is a mandatory exemption and therefore I believe that it is appropriate to address it.

Section 41(1) provides that

"A head shall refuse to grant an FOI request if --

(a) the disclosure of the record concerned is prohibited by law of the European Union or any enactment (other than a provision specified in column (3) of Part 1 or 2 of Schedule 3 of an enactment specified in that Schedule), or

(b) the non-disclosure of the record is authorised by any such enactment in certain circumstances and the case is one in which the head would, pursuant to the enactment, refuse to disclose the record."

The Service has argued that the disclosure of certain records is prohibited by section 105(1) of the 2013 Act, which states that

"A person shall not have access to, or require the disclosure of, a private paper of a member other than --

(a) with the consent in writing of the member, or

(b) subject to subsection (2), where it is determined by the Court, upon application being made to it under this section, that the access or disclosure, as the case may be, is relevant to the investigation of any offence alleged against the member, or is essential by virtue of an overriding public interest arising in the context of proceedings before a court, tribunal, commission or Part 2 inquiry."

Therefore, it can be seen that section 105(1) concerns the "private papers" of Dáil members. However, this section is to be found within Part 10 of the 2013 Act, and as discussed above in relation to section 42(l), I am satisfied that the documents before me do not come within the definition of "private papers" under the 2013 Act. Consequently, it follows that the disclosure of these documents is not prohibited by section 105(1), and therefore the section 41(1) exemption does not apply.

Decision
Having considered all the records before me, and the exclusions/exemptions claimed by the Service, I am satisfied that records 4(d); 6(a)(ii); 7(a); 21(b), 24(a); 30(b); 31(d); 42(i), and 44 to 48 are exempt pursuant to 31(c)(ii), and should be withheld. However, in respect of the remaining records, I am not satisfied that the Service has displaced the presumption of section 22(12)(b) that the refusal to grant the request was unjustified. Having carried out a review under section 34(2) of the Act, I hereby vary the Service's decision. I affirm the Service's decision to refuse access to the records listed above under section 31(c)(ii). I annul the Service's decision under sections 41(1), 42(k) and 42(l) in relation to the remaining records and direct their release

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

Peter Tyndall
Information Commissioner