Whether the Department was justified in refusing access to records relating to the Taoiseach’s visit to Ethiopia, under sections 29, 33(2)(b)(i) and 33(2)(b)(ii) of the FOI Act

29 July 2019

Background

On 19 January 2019, the applicant made an FOI request for records relating to the Taoiseach’s visit to the Our Lady of Mary of Zion Church complex, in Ethiopia. By letter dated 20 February 2019, the Department granted access to certain information and refused access to the remaining records, on the grounds that they were exempt under sections 29, 33(1)(d), 33(2)(b)(i), 33(2)(b)(ii) and 37 of the FOI Act. On 20 February 2019, the applicant applied for an internal review. The Department issued an internal review decision by letter dated 28 March 2019. First, it identified an additional record within the scope of the applicant’s FOI request. Secondly, it varied the basis for its refusal by withholding the records under sections 29, 33(2)(b)(i), 33(2)(b)(ii) and 37. On 1 April 2019 the applicant applied to this Office for a review of the Department's decision.

In conducting my review, I have had regard to the correspondence between the applicant and the Department as outlined above and to the correspondence between this Office and both parties, as well as the content of the records that were provided to this Office by the Department for the purposes of this review.

Scope of the Review

During the review process, the applicant confirmed that he does not seek access to the information withheld under section 37, which is contained in Records 8 and 9. That information therefore falls outside the scope of my review. The question for me is whether the Department was justified in refusing access to Records 1, 2, 4, 5, 6, 7 and 10 (“the records”) under sections 29, 33(2)(b)(i) or 33(2)(b)(ii)  of the FOI Act.

Preliminary Matter

Before considering the exemptions claimed, I wish to note that while I am required to give reasons for my decision under section 22(10) of the FOI Act, I am also required to take reasonable precautions to prevent disclosure of information in an exempt record, under section 25. This means that the extent to which I can describe the records at issue is very limited.

Analysis and Findings

Section 33 - Security, defence and international relations

The Department claims sections 33(2)(b)(i) and 33(2)(b)(ii) of the FOI Act over the records. I will consider section 33(2)(b)(i) first.

In his application for review, the applicant says that section 33 makes clear that application of this exemption involves material that could “reasonably be expected to affect adversely the international relations of the State”. It is true that section 33(2)(b)(ii) contains that requirement. However, if a record falls within the description of any of the records set out in section 33(2)(b)(i), there is no requirement to meet a harm test. Section 33(2)(b)(i) is a class-based and mandatory exemption. It applies (among other things) to a record that contains a communication between a Minister of the Government or his or her Department or Office and a diplomatic mission or consular post in the State or of the State, where such information was communicated in confidence. I should also note that in his internal review request, the applicant refers to the public interest test. However, section 33(2)(b)(i) does not contain a public interest test.

The records comprise correspondence between the Department and a diplomatic mission of the State (the Irish Ambassador to Ethiopia) about the Taoiseach’s visit to Ethiopia. They include diplomatic briefings and a record of the Taoiseach’s various meetings on that visit. The Department says that the correspondence concerned was sent in confidence in the context of the visit.

Having considered the content of the records and the circumstances of their creation, I am satisfied that they contain communications between the Department and a diplomatic mission of the State and that the information in those communications was communicated in confidence. I find that the Department was justified in refusing access to the records under section 33(2)(b)(i) of the FOI Act. Given this finding, I do not need to consider the exemptions claimed under section 29 or 33(2)(b)(ii) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I affirm the Department's decision under section 33(2)(b)(i) of the FOI Act.

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.

Elizabeth Dolan

Senior Investigator