Whether the Department was justified in refusing access to records relating to the D9+ group of EU member states and the EU Digital Services Act Package, under sections 33(1)(d), 33(2)(b)(i) and 33(2)(b)(ii) of the FOI Act

28 July 2021

Background

On 22 February 2021, the applicant made an FOI request to the Department for documents relating to meetings between the D9+ group of EU member states regarding the EU’s proposed Digital Services Act Package. On 23 March 2021, the Department issued a decision. It granted access to two records and refused access to the remaining records on the grounds that they were exempt under sections 33(1)(d), 33(2)(b)(i) and 33(2)(b)(ii) of the FOI Act. On 30 March 2021, the applicant applied for an internal review. On 26 April 2021, the Department issued an internal review decision, in which it affirmed its original decision. On 11 May 2021, 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 this Review

The scope of this review is confined to whether the withheld records are exempt under sections 33(1)(d), 33(2)(b)(i) and 33(2)(b)(ii) of the FOI Act. They are scheduled as Records 2, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21 and 22.

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.

Finally, in his application for review, the applicant queries the adequacy of the explanation given by the Department for its decision. I note that neither the original nor internal review decision letter gave reasons for the exemptions claimed, although the internal review schedule gave some reasons. The original decision merely cited the relevant statutory provisions. That is not a satisfactory approach to responding to FOI requests. Requesters are entitled to understand the basis on which they are being refused access to records. I would remind the Department of its statutory obligation to give reasons in FOI decision-making, under sections 13(2) and 21(5) of the FOI Act. The Department gave reasons in its submissions to this Office and I take those into account below.

Analysis and Findings

Section 33 – Security, defence and international relations

Given the mandatory nature of the exemption claimed under section 33(2)(b) of the FOI Act, I will consider this exemption first.

Section 33(2)(b)(i)

The Department says that Records 4, 5, 9, 13, 15, 17, 20 and 21 are exempt under section 33(2)(b)(i) of the FOI Act. This is a mandatory and class-based exemption and there is no requirement to meet the harm test in subsection (1). 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 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.

The Department says that all the e-mails issued by the Polish authorities in relation to the D9+ meeting contain a statement of confidentiality forbidding further disclosure and such issues of confidentiality are a common understanding within the D9+ Group. The applicant says that several member states with which the exchanges occurred have strong freedom of information laws, creating a reasonable expectation of transparency for any kind of deliberation between officials.

As noted earlier, I cannot disclose the content of exempt records. However, I do not believe that I would be disclosing exempt information by confirming the following. These records comprise emails from Poland to the other member states of the D9+ Group (including Ireland) about their discussions on the Digital Services Act Package. They enclose a number of draft versions of the “non-paper” and detail the development of the position set out in the “non-paper”. I note that the final “non-paper” was released to the applicant as Record 3.

I have examined the content of these records and considered the circumstances of their creation. I am satisfied that they contain communications between the Government or an officer of a Minister of the Government or another person acting on behalf of such a Minister the Department and another government or a person acting on behalf of another government, and that the information was communicated in confidence. I acknowledge that other member states have freedom of information laws. However, I do not believe that it follows from this that there arises a general expectation of transparency over the content of these communications. My remit in this matter is bound by the provisions of the FOI Act.

I find that the Department was justified in refusing access to these records under section 33(2)(b)(i) of the FOI Act. Given this finding, I do not need to consider any other exemptions claimed over them.

Section 33(2)(b)(ii)

The Department says that Records 2, 6, 7, 12, 14 and 19 are exempt under section 33(2)(b)(ii) of the FOI Act. 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 says that these records contain analysis, opinions, advice, recommendations and the results of consultations or information the release of which could reasonably be expected to affect adversely the international relations of the State. It says that releasing any of these records could reasonably be expected to affect adversely the international relations of the State, as they would reveal developing national positions and could potentially weaken the negotiating stance of the member states concerned. The Department says that disclosure is likely to lessen the level of trust that Ireland would be held in by other member states, making engagement in future discussions much more difficult or impossible.

Once more, I cannot disclose the content of exempt records. However, I can say that these records comprise communications between D9+ member states which contain their opinions about the Digital Services Act Package and the results of consultations with them. They enclose a number of draft versions of the final “non-paper”, disclosing opinions and positions which differed and developed. Moreover, I am satisfied that releasing these records 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 which was given in confidence by D9+ member states.

I find that the Department was justified in refusing access to these records under section 33(2)(b)(ii) of the FOI Act. Given this finding, I do not need to consider any other exemptions claimed over them.

Section 33(1)(d)

The Department says that Records 8, 10, 11, 16, 18 and 22 are exempt under section 33(1)(d) of the FOI Act. Section 33(1)(d) provides that an FOI body may refuse to grant access to a record if access could reasonably be expected to affect adversely the international relations of the State. Section 33(1)(d) is a harm-based exemption. An FOI body relying on section 33(1)(d) for its refusal to grant access to a record must satisfy this Office that harm to international relations could reasonably be expected to occur as a result of disclosure of the record concerned. It is important to note that this section is not a class exemption. Consideration should be given to the particular record at issue and its contents. Consideration may be given to information which is otherwise available or is in the public domain. I do not have to be satisfied that the adverse effect will definitely occur. It is sufficient for the FOI body to show that it expects such an outcome and that its expectations are reasonable in the sense that there are adequate grounds for them.

I accept that the expectation of the international community with regard to the information at issue is a relevant factor for consideration in determining whether access to the record could reasonably be expected to affect adversely the international relations of the State.

The Department says that the harm envisaged is the potential inability to engage in future international negotiations on issues of European policy. It says that to divulge documentation which would reveal developing national positions would cause unease to the member states concerned and potentially weaken their negotiating stance. The Department says this is likely to lessen the level of trust held in Ireland, making engagement in future discussions much more difficult or impossible. Finally, the Department reiterates its position that all e-mails issued by the Polish authorities regarding the meeting contain a statement of confidentiality forbidding further disclosure and such issues of confidentiality are a common understanding within the D9+ Group.

Once again, I cannot disclose the content of exempt records. However, I have examined the records and considered the nature and context of these communications. They comprise emails from member states about the “non-paper”, which disclose differences of opinion and developing views. I accept that this exchange of information was carried out on an understanding of confidentiality. I further accept that disclosing it could reasonably be expected to compromise a mutuality of trust and thereby jeopardise international relations. I am satisfied that disclosing these records could reasonably be expected to affect adversely the international relations of the State. Accordingly, I find that the Department was justified in refusing access to these records under section 33(1)(d) of the FOI Act.

Given these findings, it is not necessary for me to consider the Department’s submissions under section 30(1)(c) 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)(i), 33(2)(b)(ii) and 33(2)(d).

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