Whether the Department was justified in refusing access to records relating to the purchase of an aircraft under section 28(1)(c) of the FOI Act

29 March 2021

Background

On 28 July 2020, the applicant made an FOI request to the Department for a specified submission, memo and speaking points. On 27 August 2020, the Department issued a decision. It refused access to the records on the ground that they were exempt under section 28(1)(c) of the FOI Act. On 28 August 2020, the applicant applied for an internal review. On 18 September 2020, the Department issued an internal review decision, in which it affirmed its original decision. On 7 October 2020, the applicant sought a review of the Department’s decision by this Office.

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 this Review

The scope of this review is whether the Department was justified in refusing access to the records concerned under section 28(1)(c) of the FOI Act. During the review, the Department also submitted that certain paragraphs in Record 3 are exempt under sections 33 and 36 of the FOI Act, my consideration of which is set out below

Preliminary Matters

Before considering the exemptions claimed, I wish to note that my jurisdiction under section 22 of the FOI Act is to make a new decision, in light of the facts and circumstances as they apply on the date of the review. The Courts have endorsed this approach.

Analysis and Findings

Section 28 – Meetings of the Government

The Department claims section 28(1)(c) over the records. For section 28(1)(c) to apply, the record must contain information (including advice) for a member of the Government, the Attorney General, a Minister of State or the Secretary General to the Government and this information must be for use by that person solely for the purpose of the transaction of any business of the Government at a meeting of the Government. Section 28(1)(c) is concerned with the contents and use of the record. The category of records covered by this exemption would include departmental briefing notes for individual ministers attending a Government meeting and notes prepared for the Secretary to the Government for the purposes of such a meeting and the agenda of such a meeting. The sole reason for the creation of such records is to assist the Government in the conduct of one or more of its meetings and, as a general matter, it is reasonable to expect that the relevant records would cease to have a purposeful existence after the conclusion of the meeting.

Section 28(3) disapplies section 28(1) if and insofar as the record contains factual information relating to a decision of the Government that has been published to the general public. Section 2 of the FOI Act provides that "factual information" includes information of a statistical, financial, econometric or empirical nature, together with any analysis thereof. The Commissioner considers that factual information would generally include, for example, material presented to provide a factual background to the central topic in a record. The Commissioner also takes the view that factual information is distinguishable from information in the form of proposal, opinion or recommendation.

The Department says that the records only came into existence to secure Cabinet approval (and were duly used for that purpose) and therefore attract Cabinet confidentiality. The Department says that Record 1 is a submission by the Secretary General to the Minister regarding approval for a contract to replace an aircraft. The Department says it was created solely for the purpose of Ministerial approval to proceed with a memo to Government. The Department says that Record 2 is a memo from the Assistant Secretary General to the Secretary General of the Department, which was created for the sole use of Government business by the Secretary General in seeking Ministerial agreement to the conclusion of the contract. This record is addressed to the Secretary General to the Department and not to the Secretary General to the Government. The Department says that it is normal procedure for Government memos to go through the chain of responsibility in the Department. It says that the ultimate intended recipient of the information contained in the memo was the Secretary General to the Government, to enable him to discharge business at a meeting of the Government. The Department says that Record 3 contains speaking notes prepared solely for use by the Minister at Cabinet discussions.

The applicant says that the records were not created solely for the purpose of the transaction of government. He says that section 28(1) does not apply to factual information relating to a decision of the Government that has been published to the general public. He says that the relevant decision is known and there is no rationale for the records to remain secret.

I have examined the content of each record and considered the parties’ submissions. The Department says that the records only exist to secure Cabinet approval. The question I must consider under section 28(1)(c) is whether the sole purpose of the use of the information was for the transaction of Government business. Record 1 states that it is a submission for Ministerial and Secretary General approval to proceed with a memo to Government. It may indeed be the case that the record contains information which might ultimately have been used for the purpose of transacting Government business at a Government meeting. However, given the record’s stated purpose, I am not satisfied that the sole purpose of the use of the information contained in the record was for the transaction of Government business at a Government meeting. Rather, it was used to obtain the Minister’s approval to prepare a memo for Government. While any subsequent memo for Government prepared on the basis of such approval would arguably be for use by the Minister solely for the purpose of Government business, the same cannot be said of the record at issue, the purpose of which was to obtain the Minister’s approval to proceed with such a memo.

Further, I am not satisfied that the sole purpose of the use of the information in Record 2 was for transaction of Government business at a Government meeting. It is a memo from the Assistant Secretary General, which is stated to be submitted for the Secretary General’s approval to seek Ministerial agreement to the conclusion of a contract. It seems to me that one purpose of the use of the information contained in both memos was to obtain the relevant approvals, from the Secretary General to, and then the Minister of, the Department. I find that section 28(1)(c) does not apply to Records 1 or 2 and the Department was not justified in refusing access to them under section 28(1)(c) of the FOI Act.

Record 3 contains draft speaking points, which the Department says were prepared solely for use by the Minister at Cabinet discussions. I am satisfied that this record contains information for use by the Minister for the sole purpose of transacting Government business at a Government meeting.  I must then consider whether section 28(3) applies. I consider that Record 3 contains factual information relating to a decision of the Government that has been published to the general public. The decision in question relates to the purchase of an aircraft. The Department confirms that this decision was published to the general public by way of a Department press release of 13 December 2019. The Department accepts that Record 3 contains some factual information. During the review, it identified three sentences which it said comprised factual information. However, having examined this record, I consider that with the exception of the last paragraph, it is information which provides background to the decision under discussion, as distinct from opinions or recommendations. I am satisfied that it is factual information within the meaning of the FOI Act. As I consider the last paragraph of Record 3 to contain opinions, I do not consider that section 28(3) applies to it.

I find that section 28(3) disapplies section 28(1)(c) to the majority of Record 3 and the Department was not justified in refusing access to it under section 28(1)(c). I find that section 28(1)(c) applies to the last paragraph of Record 3 and the Department was justified in refusing access to it.

Given this finding, I do not need to consider the Department’s submission that the last paragraph of Record 3 is also exempt under section 33 of the FOI Act.

Section 36(1) - Commercial Sensitivity

Section 36(1)(b) provides that an FOI body shall refuse to grant an FOI request if the record concerned contains financial, commercial, scientific or technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation. Section 36(1) does not apply if the public interest would, on balance, be better served by granting rather than refusing the request (section 36(3) refers).

The Department says that paragraph 6 of Record 3 contains information regarding the cost make-up of the aircraft which is considered to be commercially sensitive in nature, and any release of such information could prejudice the competitive position of the company concerned. However, it does not explain how disclosing the content of the paragraph concerned could result in the alleged harm. Neither does it address the public interest balancing test under section 36(3). As the Supreme Court observed in the University College Cork and the Information Commissioner & Ors 2020 [IESC] 58, it is not sufficient for the FOI body to merely assert that disclosure could prejudice the competitive position of a person; an FOI body must also have a reasonable basis for that position.

I have examined paragraph 6 of Record 3 and considered the Department’s submission. For section 36(1)(b) to apply, there must be a link between disclosure and the harms alleged. No such link is apparent to me from the Department’s submission or my own examination of the information concerned. In the circumstances, I have no basis on which to find that section 36(1)(b) applies. Given this, I do not need to consider sections 36(2) or (3). I find that the Department was not justified in refusing access to paragraph 6 of Record 3 under section 36(1)(b).

Decision

Having carried out a review under section 22(2) of the FOI Act, I vary the Department’s decision as follows. I annul the Department’s decision on Records 1 and 2 and direct their release. I annul the Department’s decision on Record 3 and direct its release, except for the last paragraph, in respect of which I affirm the Department’s decision under section 28(1)(c).

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.

 

Deirdre McGoldrick

Senior Investigator