Case Number: 170084

Whether the Patents Office was justified in refusing access to certain records relating to disciplinary proceedings before the European Patent Organisation involving allegations of misconduct against the applicant

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

In a request dated 28 September 2016, the applicant sought access through his solicitors to certain records of correspondence relating to the Administrative Council of the European Patent Organisation's Disciplinary Proceedings Decision in a particular case. The Patents Office granted the request in part and refused it in part. On 15 February 2017, the applicant applied to this Office for a review of the Patents Office's decision.

I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the applicant's comments in his application for review and to the submissions made by the Patents Office in support of its decision. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

In its decision, the Patents Office identified 16 records as relevant to the applicant's request. It refused access to nine of the records in full or in part. Adopting the numbering system used by the Patents Office in its schedule of records, however, I note that only parts of records 3, 4, and 5 relate to the subject matter of the request, i.e. the Disciplinary Proceedings Decision identified in the request. This review is concerned solely with the question of whether the Patents Office was justified in refusing access to the records concerned insofar as the records relate to Disciplinary Proceedings Decision concerned.

Preliminary Matters

Before setting out my findings, there are some preliminary points I wish to make.

First, I note that the applicant raises a concern about objective bias on the part of the official who carried out the internal review in this case because of his role in the Administrative Council of the European Patent Organisation (EPO). However, it is common practice within public bodies that staff appointed as internal reviewers of FOI decisions continue to fulfil other duties and inevitably have to make decisions in relation to records falling within their own area of responsibility. It does not necessarily follow that such decisions are flawed. In any event, this review is de novo; as such, the applicant has not been prejudiced by any perceived irregularity in the Patents Office's handling of the matter.

Another point that I wish to make is that, with certain limited exceptions, the FOI Act does not provide for the limiting of access to records to particular individuals only. When a record is released under the FOI Act, it effectively amounts to disclosure to "the world at large" (H.(E.) v Information Commissioner [2001] IEHC 58). The FOI Act places no restrictions on the type or extent of disclosure or the subsequent use to which the record may be put.

In addition, I should point out that, while I am obliged to give reasons for my decision, section 25(3) requires that I take all reasonable precautions to prevent the disclosure of information contained in an exempt record or matter that, if it were included in a record, would cause the record to be exempt. This constraint means that the extent to which I can describe the contents of the records is limited. However, I am mindful of the burden of proof under section 22(12)(b) of the Act, which provides that a decision to refuse to grant access to a record "shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified."

Lastly, I should draw attention to section 18 of the FOI Act, which provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. However, the Commissioner takes the view that neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent.

Analysis and Findings

As referenced above, section 22(12)(b) of the FOI Act provides that a decision to refuse to grant access to a record "shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified." In this case, the Patents Office refused access to all of the records at issue under section 33(3)(c)(ii) of the FOI Act. It also invoked section 33(2)(b)(i) of the FOI Act in relation to records 7 to 9. Moreover, in its submissions to this Office, the Patents Office has claimed that sections 33(1)(d), section 35(1)(a), and section 41 of the FOI Act may apply in the alternative.

Relevant provisions of section 33
Section 33(3)(c)(ii)
Section 33(3)(c)(ii) of the FOI Act is a mandatory, class-based exemption that applies to 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". In order for section 33(3)(c)(ii) to apply, the following must be shown:

• that the record contains information communicated in confidence, and
• that the information was communicated 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
• that the information 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
• that the record concerned is a record of such a body and that the information contained in the record is prohibited from disclosure by the organisation organ, institution or body.

Section 33(2)(b)(i)
Section 33(2)(b)(i) is also a mandatory, class-based exemption. It provides that a record must be refused where it contains a communication between a Minister of the Government or his or her Department or Office and a diplomatic missions or consular post in the State or of the State or a communication between the Government or an officer of a Minister of the Government (or another person acting on behalf of such a Minister) and another government (or a person acting on behalf of another government) where such information was communicated in confidence or relates to negotiations between the State and the other state in question or in relation to such a state, or is a record of that other state containing information the disclosure of which is prohibited by that state.

Section 33(1)(d)
Section 33(1)(d) of the FOI Act, on the other hand, is a harm-based exemption. It provides that a request may be refused if access to the record sought could reasonably be expected to affect adversely the international relations of the State. Thus, an FOI body relying on section 33(1)(d) must identify the potential adverse effect on the international relations of the State and, having identified that adverse effect, and how it might occur, consider the reasonableness of any expectation of that the adverse effect occurring from disclosure of the record. However, like the other exemptions under section 33 of the Act, it is not subject to a public interest test.

The records at issue
In this case, I note that many of the records at issue consist of communications between the Irish delegate on the Administrative Council (the Council) of the EPO and members of the Intellectual Property Unit (IPU) of the Department of Jobs, Enterprise and Innovation (the Department) that are about the relevant disciplinary proceedings, but they are not records of the Council or any other organisation referred to in section 33(3)(c)(ii) of the FOI Act. The disciplinary proceedings involve allegations of misconduct against the applicant. In cases of misconduct, the Council exercises disciplinary authority over individuals in the applicant's position. In cases of serious misconduct, a person in the applicant's position may be removed from his or her position on a proposal from the Enlarged Board of Appeal. According to the Patents Office, all of the records at issue consist of notes, reports, observations or comments on matters discussed at confidential sessions of the Council or preparation for such sessions and have been withheld in keeping with the Council's Rules of Procedure.

Records 3 to 5
Records 3 to 5 are reports of the Council's discussions to the IPU of the Department. Only parts of the reports relate to the disciplinary proceedings, but the relevant discussions were held by the Council as it met in what is referred to as "restricted composition" or "closed session". The Patents Office has explained that under the Rules of Procedure of the Council, such discussions fall under Category "C", which means that they concern confidential matters. In particular, Article 9, paragraph 3 of the Rules of Procedure provides in relation to the categorisation of items on the agenda for Council meetings that "Category C shall be for confidential items which the Council discusses and adopts in closed session comprising the Members, the President and the assisting employees of the European Patent Office (Article 7, paragraph 1), and the Board of Auditors (Article 7, paragraph 3)". Article 13, paragraph 1, in turn, states: "All persons taking part in meetings and receiving documents shall preserve the confidentiality of proceedings and votes relating to Category C items (Article 9, paragraph 3), of associated documents and of other documents marked confidential, regardless of the manner of their transmission." I accept that the reports of the discussions relating to the disciplinary proceedings contain information communicated in confidence within a body of the European Union and that section 33(3)(c)(ii) therefore applies.

Records 7 to 9
Records 7 to 9 consist of communications between the Irish delegate and members of the IPU about the disciplinary proceedings. They are based on the Council's discussions and findings at its confidential sessions, related developments in the disciplinary proceedings, including proceedings before the Enlarged Board of Appeals, and communications with the Council Chair about the disciplinary proceedings. A letter from the Enlarged Board of Appeal to the Council Chair dealing with what seems to have been a contentious procedural matter is appended to record 7. I accept in the circumstances that section 33(3)(c)(ii) applies to the letter. I also accept that section 33(3)(c)(ii) applies to certain direct references in the records to other communications of the Council about the disciplinary proceedings, such as a report of a telephone conversation between the Irish delegate and the Council Chair. However, I do not accept that information that is merely based on the confidential communications of the Council necessarily qualifies as information communicated in confidence from, to or within the Council. Unlike the reports of the Council's communications, records consisting of observations or comments on or relating to such communications are at a step removed from the communications of the Council itself.

Nevertheless, I accept that the Council regards the disciplinary proceedings as a sensitive, confidential matter and that it expects its members to treat information about the disciplinary proceedings as confidential. As the Patents Office has explained:
"[A] decision to grant access to records, which in the Office's view contain confidential and sensitive information on an ongoing disciplinary case, that has been obtained as a result of the State's participation in the confidential discussions of the governing body of an international organisation, could result in a loss of trust or confidence in Ireland amongst EPO member states. The Council's Rules of Procedure concerning confidential discussions and confidential  information passed to Council members on foot of or in preparation for those discussions show an express desire on the part of the EPO member states that such discussions and information and records pertaining to same should be kept confidential by all Council members. Therefore, a decision to grant access might result in a view being taken by those member states that Ireland was unable or unwilling to adhere to the Council's Rules Of Procedure regarding confidentiality and this could prejudice Ireland's involvement and participation in future 'Confidential' discussions."

In the circumstances, I accept that disclosure under FOI of the information contained in records 7 to 9 could reasonably be expected to result in a loss of trust or confidence in Ireland among EPO member states and thus be damaging to the international relations of the State. I am therefore satisfied that section 33(1)(d) of the FOI Act applies to the records concerned insofar as section 33(3)(c)(ii) does not apply.

Records 10 and 11
Record 11 is an email from the Council Chair to the other members of the Council outlining certain options for consideration in preparation for an upcoming meeting regarding the disciplinary proceedings. Record 10 is a communication between the Irish delegate and members of the IPU setting out the background to the Council Chair's email and making some observations about the matter. In line with my findings above in relation to records 7 to 9, I accept that section 33(3)(c)(ii) applies to record 11 and that section 33(1)(d) applies to record 10. I do not consider it necessary to address the question of whether section 33(2)(b)(i) (or the other exemptions claimed) may also apply.

Record 16
Record 16 consists, in pertinent part, of an email from the Irish delegate to a member of the IPU forwarding a confidential communication from the Chair to other members of the Council to which a confidential document was appended. Again, I accept that section 33(3)(c)(ii) applies to the communication from the Council Chair and that section 33(1)(d) applies to a comment made on the disciplinary proceedings that is included in the email from the Irish delegate to the IPU (paragraph 1 of the email).

However, the second paragraph of the email from the Irish delegate makes a comment raising concerns in response to the communication from the Council Chair. It is a reaction to the communication and the implications of the applicant's alleged misconduct rather than a comment on the communication itself. In the circumstances, I am not satisfied that the comment qualifies for exemption under section 33(3)(c)(ii). Moreover, I find no basis for concluding that disclosure of the comment could reasonably be expected to adversely affect the international relations of the State. Therefore, I am also not satisfied that section 33(1)(d) applies.

As noted above, the Patents Office also claimed that section 35(1)(a) and section 41 apply in this case. However, the relevant part of record 16 was prepared by the Irish delegate, who is a staff member of a public body. Therefore section 35(2) operates to disapply section 35(1) unless disclosure of the information concerned would constitute a breach of a duty of confidence that is owed to a third party, i.e. to a person other than a member of staff of a public body or a person who is providing a service for a public body under a contract for services. No such person has been identified in relation to the email from the Irish delegate. On the contrary, the claim is based on information provided by the Council, its Chair or other EPO member states rather than information emanating from the Irish delegate himself. The claim for exemption under section 41 is based on section 101 of the Patents Act 1992, which authorises the non-disclosure of certain reports of the Controller and officers of the Controller. The Controller is defined in section 2 of the Patents Act 1992 as the Controller of Patents, Designs, and Trade Marks. It has not been shown that record 16 qualifies as a report of the Controller or officer of the Controller within the meaning of section 101 of the Patents Act 1992. I am therefore not satisfied that section 35(1)(a) or section 41 applies to record 16.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of the Patents Office in this case. I affirm its decision to refuse access to the records at issue with the exception of record 16 in part. I direct that access be granted to record 16 subject to the redaction of the first paragraph of the email from the Irish delegate and the communication from the Council Chair in full.

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 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