Case Number: 160392

Whether the Department was justified in refusing access to certain records concerning the Services Directive and/or the regulations governing advertising or commercial speech by solicitors under section 33(3)(c)(ii) of the FOI Act

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

Background

On 26 July 2016, the applicant submitted a request to the Department for all records created since 1 April 2016 regarding the Services Directive (Directive 2006/123/EC) and/or the regulations governing advertising or commercial speech by solicitors. The Department failed to issue a decision within the requisite time period and on 26 August 2016, the applicant sought an internal review of the Department's deemed refusal of his request. On 20 September 2016, the Department decided to grant access to two records and to refuse access to 18 other records. On the same day, the applicant sought a review by this Office of that decision.

During the course of the review, this Office's Investigator, Simon Noone, invited the Department to make a submission in support of its decision. Although it initially indicated that it would make a submission, the Department subsequently declined this invitation, and stated that it wished to rely on its internal review decision. Mr Noone also notified the European Commission (the Commission) and the Law Society of Ireland (the Law Society) of the review, and invited them to make submissions as affected parties. While a submission was received from the Law Society, no response was received from the Commission.

In conducting this review, I have had regard to the contents of the records, to the internal review decision of the Department, and to the submissions of both the applicant and the Law Society. In referring to the records at issue, I have adopted the numbering system used by the Department in the schedule of records it prepared when processing the FOI request.

Scope of the Review

This review is concerned with whether the Department was justified in its decision to refuse access to 18 of the 20 records it identified as coming within the scope of the applicant's request.

Findings and Conclusions

The Department refused access to the records at issue under section 33(3)(c)(ii) of the FOI Act. That section provides for the mandatory refusal of a request if the record concerned 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 within or in relation to such an organisation, organ, institution or body, or is a record of such a body containing information the disclosure of which is prohibited by the organisation, organ, institution or body".

In considering whether the subsection applies, the relevant test to apply is whether the record meets the description of any of the classes or categories of records set out therein. There is no requirement on the FOI body to identify a potential harm that might arise from disclosure of the record. In addition, there is no public interest override which would allow for the consideration of whether the public interest would be better served by release of the record. Nevertheless, in order for subsection (3)(c) to apply, it is an overarching requirement that the record concerned must contain information communicated in confidence.

All of the records at issue relate to ongoing infringement proceedings taken by the Commission regarding the incompatibility of certain restrictions under Irish law on commercial communications by lawyers with Article 24 of Directive 2006/123/EC. In its internal review decision, the Department argued that all of the records fall into one or more of the categories of records set out in section 33(3)(c)(ii).

Records 1, 2, 3 and 18 comprise email correspondence between the Department and the Commission and a letter (record 18) from the Permanent Representation of Ireland to the EU to the Commission. Records 11, 13, 15, 16 and 17 comprise email correspondence between the Department and the Permanent Representation of Ireland to the EU. Records 12 and 14 comprise email correspondence between officials of the Department. Records 4 to 10 comprise correspondence between the Department and the Law Society. While some of those records refer to High Court proceedings involving the Law Society, the records are concerned with the infringement proceedings. Having carefully examined the records, I agree with the Department's contention that all fall into one or more of the categories of records set out in section 33(3)(c)(ii). Indeed, it seems to me that all of the records relate to the negotiations between the State and the Commission concerning the infringement proceedings.

However, that is not the end of the matter. As I have outlined above, for the exemption to apply the records must contain information communicated in confidence. It is unfortunate that neither the Department nor the Commission made a submission on this point, despite having been given an opportunity to do so. The Department stated that the reasons for its decision were set out in its internal review decision letter and that it was satisfied that the reasons given are comprehensive. That letter simply stated that the records contained information communicated in confidence. It did not explain why the Department considered the information to have been communicated in confidence. I have considered whether the Department might be deemed to have failed to meet the burden of satisfying this Office that its decision to refuse the request was justified, as provided for in section 22(12)(b) of the Act. However, given the contents of the Law Society's submission, and given that this Office has previously considered the confidentiality of records relating to infringement proceedings, I believe, on balance, that it is appropriate for me to proceed to consider whether the records contain information communicated in confidence, as argued by the Department.

I note that the Law Society, in its submission to this Office, argued that records 4 to 10 contain information given in confidence. It argued that the records relate to two extremely important issues, namely Commission infringement proceedings and High Court litigation, and that it is implicit that the communications were confidential. In Case 100030 (X & Department of Community, Equality and Gaeltacht Affairs), this Office considered whether a communication between the Permanent Representative of Ireland and the Commission in relation to infringement proceedings against the State concerning an alleged failure to correctly transpose specified Articles of Directive 2000/78/EC, which prohibits employment discrimination on the grounds of religion or belief, disability, age or sexual orientation. In that case, the Department in question argued any correspondence between a Government Department and the European Union regarding infraction matters remains confidential at all times. The Commission stated it is its practice in the case of pending cases to keep exchanges between Member States and the Commission confidential until the infringement process is closed by the Commission or until a judgement is rendered by the Court. This Office accepted that the communication in question, relating to ongoing infringement procedures, contained information given in confidence.

I am also cognisant that the Court of Justice of the European Union has determined that documents concerning an infringement procedure during its pre-litigation stage enjoy a general presumption of confidentiality in respect of Article 4(2) of the Access to Documents Regulation (EC) 1049/2001 (LPN and Finland v Commission, C-514/11 P and C-605/11 P). In such circumstances, it seems reasonable to me that the Department considered the records at issue in this case, relating to infringement procedures, to contain information given in confidence.

In his submission to this Office, the applicant argued that the information contained in the records could not be confidential and that section 33(3)(c)(ii) should not apply. He made the following arguments:

• That the records were "identical in topic and substance" to records previously released during the course of this Office's review of Case 150350;
• That the Law Society is not an FOI body, and that therefore the records do not contain information communicated in confidence relating to negotiations between the State and the European Commission, as the information had been shared with a private third party;
• That the Director General of the Law Society told the Joint Oireachtas Committee on Finance, Public Expenditure and Reform and Taoiseach on 13 September 2016 that the Law Society had not received any information, confidential or otherwise, regarding infringement number 2013/2192;
• That an enforcement action by the Commission is not a matter for negotiation between the Member State and the Commission.

I do not accept the applicant's arguments. In respect of the first point, while I have not seen the subject records previously released in Case 150350, I note that, unlike this review, the applicability of section 33(3)(c)(ii) was not considered. In any event, the fact that the Department may have released certain records does not, of itself, mean that the information contained in the records cannot have been given in confidence, even where those records were created after the release by the Department of similar records. It is also noteworthy that the wording of section 33(3)(c)(ii) is such that it may still apply even if the information contained in the record can no longer be considered to be confidential.

Regarding the second point raised by the applicant, it seems to me that his argument is that information relating to negotiations between the State and the Commission cannot be said to have been communicated in confidence where it has been shared with a body that is not an FOI body. In this case the Law Society is a key party in the issues relating to the infringement procedures as it is the Law Society that regulates the advertising by solicitors. The Department corresponded with the Law Society on matters relating to the infringement procedures. Both the Department and the Law Society have argued that the information was communicated in confidence. In my view, the fact that the Law Society is not an FOI body is not, of itself, determinative of whether or not the information was communicated in confidence.

On the matter of the applicant's third point, I do not believe that it would be appropriate for me to comment on the statement of the Law Society's Director General to the Joint Oireachtas Committee, nor do I consider it to be relevant for the purposes of this review. I am satisfied that the records before me demonstrate that there were communications between the Law Society and the Department regarding the enforcement procedure, and I accept the argument of the Law Society and the Department that the information in the correspondence was communicated in confidence. Finally, I note that the Commission's website states that it may refer the infringement procedure to the Court of Justice, but that "most cases are settled before being referred to the Court." In my opinion, the possibility of settlement necessitates the possibility of negotiations between the Commission and the Member State, and therefore I do not accept the applicant's contention that an enforcement action is not a matter for negotiation between the State and the Commission.

In conclusion, therefore, I am satisfied that all of the records relate to the negotiations between the State and the Commission concerning the infringement proceedings. It seems to me, given the contention of both the Department and the Law Society, together with the general presumption in favour of confidentiality under EU law in relation to documents of this nature, that the information in the records was communicated by the parties in confidence. I find, therefore, that the Department's decision to refuse access to records 1 to 18 under section 33(3)(c)(ii) was justified.

Decision

Having carried out a review under section 22(2) of the Act, I hereby affirm the Department's decision to refuse access to records 1 to 18 under section 33(3)(c)(ii).

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator