Whether the Department was justified in refusing access under various provisions of the FOI Act to certain records covered by the applicant’s request for electronic correspondence between the Department’s Ministers and Secretary General from 1 December 2018 to 29 January 2019
27 September 2019
Background
On 13 May 2019, the applicant applied to this Office for a review of the Department’s decision. During the review, the Department said that it is now willing to release record 3 in full and record 2 in part (i.e. subject to the redaction of two paragraphs).
I have now completed my review in accordance with section 22(2) of the FOI Act and have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges and to correspondence between this Office and the Department and the applicant. I have had regard to the contents of the records and the provisions of the FOI Act.
Scope of the Review
Findings
Record 2
The Department’s schedule describes this record as a comment on a submission concerning the International Financial Services (IFS) Successor Strategy. It is relying on section 29(1) (deliberative processes) in relation to the two remaining withheld paragraphs.
Section 29(1) provides that an FOI request may be refused (a) if the record concerned contains matter relating to the deliberative processes of an FOI body (including opinions, advice, recommendations, and the results of consultations considered for the purposes of those processes), and (b) the granting of the request would, in the opinion of the head of the FOI body, be contrary to the public interest. Section 29(1) also provides that, without prejudice to the generality of paragraph (b), the head shall, in determining whether to grant or refuse to grant the request, consider whether the grant thereof would be contrary to the public interest by reason of the fact that the requester concerned would thereby become aware of a significant decision that the FOI body proposes to make. The requirements of sections 29(1)(a) and (b) are independent, and the fact that the first is met carries no presumption that the second is also met.
A deliberative process involves the consideration of various matters with a view to making a decision on a particular matter. It would, for example, include some weighing up or evaluation of competing options or the consideration of proposals or courses of action.
The public interest test in section 29(1)(b) differs from the public interest test found in other exemptions under the FOI Act. Other exemptions require the public body to be of the opinion that the public interest would be better served by release. To avail of section 29, the public body must be of the opinion that releasing the records would be against the public interest. In my view, this exemption tends more strongly towards release of records. It seems to me that release of material would be contrary to the public interest if a specific harm to the public interest flows from such release. While there is nothing in the exemption itself which requires the deliberative process to be ongoing, the question of whether the process is ongoing or at an end may be relevant.
The Department says that the paragraphs concern the consideration of a particular matter that is still part of the deliberative process because the Minister has not made a decision on that matter. Its submission elaborates further and I find that section 29(1)(a) applies.
Moving on to section 29(1)(b) and the public interest, although it was dealing with a different exemption, the Supreme Court has made it clear that, in considering the public interest, I must have regard to "true public interest[s] recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law." The FOI Act recognises a public interest in promoting openness and accountability in relation to the performance by public bodies of their functions. In this case, there is a public interest in promoting the Department’s openness and accountability regarding the deliberative processes concerned.
This public interest is reflected in the applicant’s general argument that there is an overriding public interest and transparency argument to be made for the release of all of the withheld records in this case, because they concern correspondence between the Minister and the most senior civil servant in the Department. He also says that the deliberations of those in elected positions such as the Minister for Finance should be open to public examination. I should say, however, that such arguments are not of themselves a sufficient basis for me to direct the Department to grant access to the records.
While I note that the deliberative processes have not concluded, the Department has not explained how disclosing the details withheld from record 2 could or would interfere with those processes or impact on the Minister’s ability to make an appropriate decision. I have no reason to consider that it would be contrary to the public interest to disclose the details such that section 29(1)(b) applies. In addition, the Department does not argue that release of the details would result in the applicant becoming aware of a significant decision that the Department proposes to make. I find that section 29(1) does not apply to the paragraphs and I direct that they be released.
Records 4 and 5
These are described in Department’s schedule as emails between Minister Donohue and the Secretary General in relation to a meeting with the Taoiseach in December 2018. The Department says that the meeting related to deliberations concerning ongoing sensitive negotiations that have domestic and international dimensions.
The Department has relied on various exemptions including section 33(1)(d), which provides for the refusal to grant access to a record if access to the record sought could reasonably be expected to affect adversely the international relations of the State. It is important to note that this provision is not subject to a public interest test.
In particular, the Department says that the records contain advice on the position that the Government should adopt in the negotiations concerned. It says that disclosure would potentially prejudice the negotiations and also adversely affect Ireland’s international relations and financial interests, which it says would not serve the public interest.
I accept that disclosure of the details concerned at this point in time could reasonably be expected to adversely affect the State’s relationship with other countries and thus to affect adversely the State's international relations. I find that section 33(1)(d) applies to records 4 and 5.
Records 6 and 7
The Department’s schedule describes these records as relating to a meeting on Carbon Tax and it has withheld them under section 29(1). The Department says that policy proposals in relation to this tax remain under consideration in the context of ongoing preparations for Budget 2020 and that placing the content of the records in the public domain at this point in time would adversely impact on that deliberative processes. I accept that a deliberative process is ongoing in relation to Carbon Tax and I find that section 29(1)(a) applies.
I agree with the applicant that there is a public interest in promoting openness and accountability regarding possible policy changes relating to Carbon Tax. He also says that the deliberations of those in elected positions such as the Minister for Finance in relation to matters such as taxation and spending that affect the lives of all persons in this country should be open to public examination. Again, though, such arguments are not of themselves a sufficient basis for me to direct the Department to release the relevant records. I accept that there is a public interest in officials and the Minister having the space to deliberate on budgetary matters. Having regard to the particular content of records 6 and 7, I accept that it would be contrary to the public interest if they were disclosed to the world at large at this point in time and that section 29(1)(b) applies. I find that the records are exempt under section 29(1) of the FOI Act.
Record 8
As set out in the Department’s schedule, the record is concerned with a Memorandum in relation to Brexit. The Department has relied on various exemptions including section 28 of the FOI Act. It refers to section 28(2)(b), which, generally speaking, requires the refusal of access to a record that 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. It says that the record contains advice for the Minister’s use solely for the purpose of transacting the business of Government at a meeting of the Government.
Having regard to its contents, the record seems to me to concern what the Minister might say at a meeting of Government. It does not contain details of what he said at that or any other Cabinet meeting or details that reveal or from which may be inferred the substance of such a statement. I do not accept that the record is exempt under section 28(2) of the FOI Act.
However, although the Department does not refer to section 28(1)(c) of the FOI Act, I note that this particular provision provides for the refusal of an FOI request if the record concerned contains information (including advice) for a member of the Government, the Attorney General, a Minister of State, or the Secretary to the Government for use by him or her solely for the purpose of the transaction of any business of the Government at a meeting of the Government. I find that record 8 is exempt under section 28(1)(c). Section 28(1) does not require consideration of the public interest and thus the applicant’s arguments on the public interest in the disclosure of records relating to Brexit are not relevant.
Record 10
The Department’s schedule describes this record as an email from Minister Donohoe to a named official within the Department. I note that it was also sent to the Secretary General. The Department is relying on section 29(1). It describes the particular matter that the record concerns, which it says is currently under deliberation by the Department. The Department says that disclosure of the details concerned would not be in the public interest.
I accept that a deliberative process is ongoing in relation to the matter and I find that section 29(1)(a) applies. There is a public interest in promoting openness and accountability in relation to decisions on the matter concerned.
Again, the Department’s position is that the ongoing deliberative processes would be adversely affected if the details in this record became public at this time. It does not explain how this could or would happen nor is it evident from the brief content; thus I have no reason to consider that it would be contrary to the public interest to disclose the particular details concerned such that section 29(1)(b) applies. The Department does not argue that release of the details would result in the applicant becoming aware of a significant decision that an FOI body proposes to make. I find that section 29(1) does not apply to record 10 and I direct that it be released.
Record 11
The Department’s schedule says that this is an email concerning a particular electronic submission. The submission concerns the preparation of a Memorandum for Government regarding legislative options relating to a particular matter. The Department relies on various exemptions and refers generally to section 28. It also refers specifically to section 28(2)(b) and says that the record contains advice for the Minister’s use solely for the purpose of transacting the business of Government at a meeting of the Government.
For reasons already set out in relation to record 8, I do not accept that record 11 is exempt under section 28(2)(b). However, I note that section 28(1)(a) provides for the refusal of an FOI request where the record concerned has been, or is proposed to be, submitted to the Government for their consideration by a Minister of the Government or the Attorney General and was created for that purpose. I also note that section 28(6) of the FOI Act provides that a “record” for the purposes of section 28 includes a preliminary or draft of or the whole or part of the material contained in the record. Accordingly, having regard to the contents of the record and the Department’s submission, I find that record 11 is exempt under section 28(1)(a) of the FOI Act. As I have already noted, this provision does not require consideration of a public interest test.
Record 12
As set out in the Department’s schedule, this is an email thread concerning a draft US Canada Strategy Summary. The Department is refusing it under various provisions including section 33(1)(d).
The Department says that while a final version of the Strategy was published, details of discussions relating to its formulation should be withheld. It says that an integral part of the State’s relations with international partners is Ireland’s ability to maintain trust and confidence in its communications with those partners. It says that disclosing the record would affect Ireland’s ability to be taken as a trusted interlocutor on confidential issues. It also says that disclosure of the confidential opinions and recommendations in it could affect Ireland’s relations with a range of international partners and also adversely impact on the State’s financial interests.
Having considered the record, it seems to me that certain aspects of the discussion in the email thread informed the text of the published Strategy. I accept that in the overall circumstances, disclosure of the relevant details at this point in time could reasonably be expected to adversely affect the State’s relationship with other countries and thus the State's international relations. I find that section 33(1)(d) applies to the details concerned. While the rest of the record may be more general, in that it refers generally to details in the published document, I do not consider it to be in keeping with the requirements of section 18 to direct that access be granted to the excerpts concerned. Section 18(1) provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the public body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). This Office takes the view that, generally, 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.