Whether the Department was justified in refusing access to records relating to the rotation of troops serving with the United Nations Interim Force in Lebanon (UNIFIL), under sections 33(1)(d), 33(2)(a), 33(2)(b)(i), 33(2)(b)(ii), 33(3)(c)(ii) or 35(1)(a) of the FOI Act
16 September 2021
Background
On 5 May 2020, the applicant made an FOI request for copies of seven categories of correspondence held by the Department concerning the rotation of troops currently serving with the United Nations Interim Force in Lebanon (UNIFIL). The applicant also requested dates and times of all press contacts or releases concerning the rotation of troops serving with UNIFIL. On 12 May 2020, the applicant amended the scope of his FOI request to records created between 7 April 2020 and 12 May 2020.
On 22 October 2020, the Department issued a decision. It granted partial access to one record and it refused access to the remaining 14 records on the grounds that they are exempt under sections 33(1)(d), 33(2)(a), 33(2)(b)(i), 33(2)(b)(ii), 33(3)(c)(ii) and 35(1)(a) of the FOI Act. On 27 October 2020, the applicant applied for an internal review. On 10 December 2020, the Department issued an internal review decision, in which it affirmed its original decision. On 17 December 2020, the applicant applied to this Office for a review of the Department’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 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 confined to the question of whether the Department was justified in refusing access to records 1 to 3, 5 to 15 and parts of record 4 under sections 33(1)(d), 33(2)(a), 33(2)(b)(i), 33(2)(b)(ii), 33(3)(c)(ii) and 35(1)(a) of the FOI Act.
Preliminary Matters
Before considering the exemptions claimed, I wish to note the following points. First, 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 and the level of detail I can discuss in my analysis are limited.
Secondly, 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.
Analysis and Findings
The Records
The records contain correspondence between the Departments of Foreign Affairs and Defence, the Defence Forces and the United Nations in relation to the rotation of Irish troops who were serving with UNIFIL. The background to the creation of these records is set out in the following reply to Dáil questions provided by the Minister of State at the Department of Defence on 27 May 2020:
“As part of its response to the global Covid pandemic, on 5 April 2020, the UN Secretary General directed the suspension of all rotations and leave for military personnel serving in UN missions until 30 June…The UN directed that only in certain very limited and extenuating circumstances would any exemption be allowed… Immediately upon the direction of the UN Secretary General, the Defence Forces, the Department of Defence and the Department Foreign Affairs and Trade engaged with the UN in the mission areas and at UN Headquarters, though both informal and formal contacts to ensure that the rotation of Irish personnel would be achieved as close as possible to the scheduled dates… a submission was made by the Defence Forces through the Senior Irish Officer to the UNIFIL Force Commander seeking an exemption... In tandem with this, the Department of Foreign Affairs through our Permanent Mission in New York engaged with UN Headquarters at senior level…the UN has agreed to an exemption of the suspension for Ireland which will allow Ireland to rotate its full contingent to UNIFIL during the UN moratorium.” https://www.oireachtas.ie/en/debates/question/2020-05-27/6/
Section 33 – Security, defence and international relations
In my view, section 33(3)(c)(ii) is the most relevant provision to consider in my review of this matter. I will therefore consider this exemption first.
Section 33(3)(c)(ii)
In its internal review decision, the Department relied on section 33(3)(c)(ii) of the FOI Act in refusing access to records 2 and 5-15. In its submissions to this Office, the Department also sought to rely on section 33(3)(c)(ii) to refuse access to records 3 and 4. This Office notified the applicant of the Department’s revised position and the applicant submitted that the records ought to be released.
Section 33(3)(c)(ii) of the FOI requires the mandatory refusal of 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 relying on section 33(3)(c)(ii), the Department is not required to identify any specific harm that might arise from the release of the records concerned, nor must the public interest be considered. It must simply demonstrate that the records contain information that was communicated in confidence from or to international organisations of states (such as the United Nations), or that the records “relate” to negotiations between the State and an international organisation of states
The applicant states that the dates of rotations are routine matters within any UN troop missions and have nothing to do with information communicated in confidence. He contends that local populations would know for months in advance the day, date and hour when the rotations of troops will take place. He contends that if the email correspondence at issue was not sent by secure electronic means using markings such as “Restricted, Confidential, Secret or Top Secret” then the information contained in these 15 emails could not be confidential. The applicant states that the UN is an organisation that is by policy and practice committed to transparency in its dealings with Member States and it is not credible to suggest that it would consider correspondence with a Member State on an issue as routine as troop rotations to be confidential.
The Department states that Ireland’s status as the only member of the United Nations with a more than 60-year unbroken record of deployment to UN missions means that this issue had a weight and sensitivity attached to it, particularly as Ireland was seeking an exemption to the request of the UN Secretary General to suspend all troops rotations due to Covid-19. It states that the fifteen records illuminate aspects of this. The Department states that, although it was not set out in the response or the appeals letter, its staff have followed up where necessary to confirm that the material was in fact communicated in confidence, e.g. records 6 and 9, where this was not explicitly stated in the covering email.
I understand that Irish troops serving with UNIFIL were scheduled to rotate in May 2020; however after the announcement on 5 April 2020 by the UN Secretary General, the exact date of the rotation became uncertain. I do not accept that at the time these records were created i.e. between 7 April to 12 May 2020, the issue of when the rotation of troops would take place was a routine matter, which had nothing to do with information communicated in confidence. It seems to me that at this time, the issue of whether Ireland would be given an exemption to allow its troops to rotate before 30 June 2020, was the subject of sensitive communications and negotiations between senior officials in the Department and the UN.
It is important to note that in showing that a record contains information “communicated in confidence” the issue is whether it was communicated in confidence at the time of the communication. In case 110146 Mr. X and the Department of the Environment, Community and Local Government (available on www.oic.ie). The Department argued that records of communications from and to the European Commission concerning the State’s infringements of EU law were confidential. The Commissioner found that the key issue was whether or not the communications concerned were understood to have been confidential at the time thereof. He also found that the information did not, of itself, have to retain a quality of confidence for the relevant exemption (now incorporated into section 33(3)(c)(ii)) to continue to apply. He found that the important point was not the merits of the process by which the communications had come to be treated as confidential, but rather was simply that the communications were so treated by the parties involved.
The records at issue include emails between senior officials in the Departments of Foreign Affairs and Defence, the Defences Forces and senior UN officials. A number of the records contain attached letters or faxes from or to the UN. The records also include internal emails which contain information provided by the UN or which contain details of telephone calls with UN Officials. While I am limited in the description that I can give in relation to the content of the records, I can say that they concern the issue of an exemption to the general suspension of rotations. In my view, the fact that not all of the records were marked as confidential does not mean that the records were not treated by the parties as confidential. I accept that these communications had a high level of sensitivity attached to them and they were treated by the parties as confidential.
Having examined their content, I accept that records 2-15 contain information communicated in confidence from and to the United Nations or relate to negotiations between the State and the United Nations in relation to when and how rotations of Irish troops serving with UNIFIL would take place. I find them to be exempt under section 33(3)(c)(ii) of the FOI Act.
Section 33(2)(b)(ii)
In its internal review decision, the Department relied on sections 33(1)(d), 33(2)(a), 33(2)(b)(ii) and 35(1)(a) of the FOI Act in refusing access to record 1. As section 33(2)(b)(ii) of the FOI Act is a mandatory exemption provision, I will consider this exemption first.
Where the record falls within the description of records at section 33(2)(b)(ii) and meets that harm test, it is subject to a mandatory exemption. Section 33(2)(b)(ii) applies 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, 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, containing analysis, opinions, advice, recommendations and the results of consultations or information the release of which, in the opinion of the head, could reasonably be expected to affect adversely the international relations of the State.
The Department states that if record 1 were released into the public domain, it could be exploited by parties wishing to weaken Ireland’s standing in the world of UN peacekeeping. The Department states that Ireland is at present an elected member of the UN Security Council and is constantly engaged in negotiations with other members, not all of whom share Ireland’s foreign policy priorities. It states that in relation to UN peacekeeping in particular, our reputation and standing allow us to advance our position on Protection of Civilians and on the importance of full, equal and meaningful participation of women, both principles that are important to the conduct of our international relations and both often challenged by some other UN members.
As outlined above, I cannot disclose the content of an exempt record. I can say that record one comprises an email sent by an official in the Department to the Diplomatic Mission in New York and to other officials of the Department. This email which is headed “Confidential: rotations update” contains analysis and opinions in relation to how troop rotations would be approached and details of how the UN was managing such rotations. Having examined the record, I am satisfied that releasing this record could reasonably be expected to affect adversely the international relations of the State. It is my view that this adverse effect could reasonably be expected to occur, as its release would disclose to the world at large information in relation to developing opinions and positions which could be used by parties wishing to undermine Ireland’s authority in relation to UN peacekeeping matters.
I find that the Department was justified in refusing access to record 1 under section 33(2)(b)(ii) of the FOI Act. In light of this finding, it is not necessary to consider whether record 1 is also exempt under sections 33(1)(d), 33(2)(a) or 35(1)(a) of the FOI Act
Decision
Having carried out a review under section 22(2) of the FOI Act, I affirm the Department’s decision to refuse access to the records under sections 33(2)(b)(ii) and 33(3)(c)(ii) 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.
Deirdre McGoldrick
Senior Investigator