Whether the DFA was justified in refusing access to various records relating to a Communication (the communication) from the United Nations Special Rapporteur on extreme poverty and human rights (the UNSR) on the basis of sections 29, 31 and 33 of the FOI Act 

16 November 2021

 

 

Background

By way of context, the communication at the centre of this request was written by the UNSR on extreme poverty and human rights. It relates to information the UNSR had received about Ireland’s Public Services Card (PSC), which the UNSR wished to bring to the attention to the Irish government, “especially its impact on the human rights of beneficiaries of social welfare payments and other government benefits”.

 

In a request dated 4 May 2020, the applicant sought access to records relating to the communication dated 14 April 2020, including correspondence between DFA and the Department of Social Protection (DSP), correspondence between DFA and the author or organisation responsible for the communication, and copies of any relevant briefings or submissions prepared for DFA’s Minister or Secretary General.

 

In a decision dated 9 June 2020, DFA identified 78 records, 36 of which it released in full and one in part. It refused access to the remaining records on the basis of sections 29(1) (deliberations of FOI bodies), 31(1)(a) (legal professional privilege), and 33(1)(d)/33(3)(c)(ii) (international relations) of the FOI Act. The applicant requested an internal review and on 14 July 2020, DFA affirmed its original decision. On 17 July 2020, the applicant applied to this Office for a review of DFA’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 applicant’s comments in his application for review and correspondence with this Office, and to the submissions made by the FOI body in support of its decision. I have also had regard to the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision.

 

 

Scope of Review

During the course of the review, this Office’s Investigator contacted the applicant and set out her view that DFA’s reliance on section 31(1)(a) to withhold access to records 13, 17 and 38 should not form part of this review. The applicant indicated that he wanted the entirety of DFA’s decision to be reviewed.

 

I note that the applicant’s request for an internal review solely concerned DFA’s reliance on sections 29 and 33. Consequently, DFA did not address section 31(1)(a) in its internal review decision and the applicant did not object to this. I also note that the applicant’s application for a review of DFA’s decision to this Office was similarly confined to DFA’s reliance on sections 29 and 33. Having considered the matter, I am satisfied that the applicant had two opportunities to object to DFA’s reliance on section 31(1)(a), but chose not to do so. Therefore, DFA’s decision to refuse access to records 13, 17 and 38 on the basis of section 31(1)(a) will not form part of this review.

 

Accordingly, this review is solely concerned with whether DFA was justified in its decision to refuse to grant access to records 4, 5, 8, 9, 11, 12, 15, 19, 22, 25, 27, 28, 32, 33, 35, 36, 42-45, 59-64, 66-72, 73 (in part) and 74-78 on the basis of sections 29(1), 33(1)(d) and 33(3)(c)(ii) of the FOI Act.

Preliminary Matters

I acknowledge that in circumstances such as these, it is difficult for the applicant to make arguments without knowledge of the contents of the records. However, although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. I consider that this is a case in which describing certain harms and arguments set out by DFA would essentially disclose the subject matter of the records. It follows that my description and analysis of certain of DFA’s arguments, references to the content of the records, and the reasons I can give for certain aspects of my decision in the circumstances of this case, are limited. However, I am mindful of the burden of proof under section 22(12)(b) of the Act, which requires DFA to show to my satisfaction that its decision to refuse to grant the request was justified.

 

It is also relevant that disclosure of records under FOI is considered equivalent to placing them in the public domain.

 

 

Analysis and Findings

The records at issue comprise the following:

• emails between DFA and DSP concerning whether and how to respond to the communication (records 4, 5, 8, 9, 11, 12, 15, 19, 22, 25, 27, 28, 32, 33, 35, 36, 42-45 and 59-64, refused on the basis of a combination of sections 29(1)(d), 33(1)(d) and 33(3)(c)(ii)),
• correspondence between DFA and the UN Office of the High Commissioner for Human Rights (OHCHR) concerning Ireland’s response to and the publication of the communication (records 66-75, refused on the basis of sections 33(1)(d) and 33(3)(c)(ii))
• briefings/submissions prepared for the Minister or the Secretary General (records 76-78, refused on the basis of sections 29(1)(d) and 33(1)(d)).

 

Section 33(1)(d) seems to me to be the most relevant exemption in the circumstances, so I shall consider this exemption first.

For ease of reference, I have used the numbering system in DFA’s record schedule provided to this Office. However, it is important to note that although the details on the schedule appear to correspond with individual emails, the records provided to this Office generally comprise copies of email threads. For example, record 9, as provided to this Office, contains the emails described in record 8 and record 9 on the schedule. This applies to many of the emails listed, a number of which contain additional emails that have been released and/or information that has been withheld. For the avoidance of doubt, unless otherwise stated, any comments I make below in relation to specific records relate to the individual emails as listed on the record schedule, and not the entirety of each email thread.

 

 

 

 

Section 33(1)(d) – International relations of the State

DFA refused to grant access to records 4, 5, 8, 9, 11, 12, 15, 19, 22, 25, 27, 28, 32, 33, 36, 42, 43, 45, 59, 60, 61, 62, 63, 64, 66, 67, 68, 69, 70, 71, 72, 73 (in part), 74, 75, 77 and 78 under section 33(1)(d).

Section 33(1)(d) provides for the refusal of a request where the FOI body considers that 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.

 

The applicant has argued that the exemption appears to have been claimed in relation to communications between two Irish government departments (i.e. most of records 1-64), rather than with an international body. He said that in its original and internal review decisions, the Department had made no attempt to explain what the adverse effect on international relations would be, or how it could reasonably be expected to happen.

 

In its submissions to this Office, DFA said that the records mainly related to concerns expressed by the State regarding the communication. It said that disclosure would risk adversely affecting Ireland’s international reputation and its relationship with the UN and prejudice its ability to effectively discharge its functions. DFA provided further information and arguments in its submissions to this Office. As noted above, section 25(3) requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This includes revealing details in a submission, which would disclose the content of such records.

 

DFA stated that due to various concerns about the communication and the pressure on resources due to the COVID-19 pandemic at the time, the State sought to engage with the Secretariat of the OHCHR in relation to the timeframes for a response and the publication of the Communication. DFA said that this correspondence was “necessarily confidential” to allow for a free flow of discussions. It also said that Ireland’s ability to engage effectively with the UN would be harmed if such correspondence were not exempt from FOI requests. It further stated that release of this information would hinder the ability of Ireland’s overseas Missions to report fully and frankly to Headquarters on their engagement with international organisations.

 

In the circumstances of this case, and, having carefully considered the contents of the records at issue, I am satisfied that disclosure of much of the information in the records concerned could reasonably be expected to adversely affect the State’s international relations. Accordingly, I find that section 33(1)(d) applies to records 4, 5, 8, 9, 22, 27, 28, 33, 36, 42, 43 (in part), 44 (in part), 61, 63 (in part), 64 (in part), 66, 67, 68, 70, 71, 72 (in part), 73, 74 and 75 (in part) and that DFA was justified in refusing access to these records on that basis.

 

However, it seems to me that a number of the emails at issue solely concern administrative queries relating to the time to reply and do not appear to me to have been communicated in confidence. I note that DFA has provided a copy of correspondence from the UN when informed of the current FOI request which states “[i]n this context, please be informed that the correspondence between the United Nations and Governments are confidential communications. Without the consent of OHCHR, such communications should not be shared with third parties”. I also note that some records between DSP and DFA, which were withheld under this exemption, contain draft documents which closely resemble final drafts that were published and/or released, for example records 25 and 35.

 

This Office’s Investigator contacted the relevant section of the UN, using the contact details in the email provided by DFA, to seek comment on the release of the records concerning the UN. No response to this correspondence has been received.

 

I have had close regard to the specific content of the records concerned, DFA’s submissions and to the UN’s comments above. However, in the circumstances of this case, I do not accept that the release of what I consider straightforward, routine correspondence with an international organisation, references to this correspondence between DSP and DFA, or correspondence containing draft press releases could reasonably be expected to affect adversely the international relations of the State.

 

Accordingly, I find that section 33(1)(d) does not apply to records 11, 12, 15, 19, 25, 32, 35, 43 (in part), 44 (in part), 45, 59, 62, 63 (in part), 64 (in part), 69, 72 (in part), 75 (in part), 76, 77 and 78.

 

 

Section 29 - Deliberations of FOI bodies

DFA also relied on section 29(1) in respect of its refusal to grant access to a number of records. I shall now consider the application of section 29 to the relevant records which I have not already found to be exempt under section 33(1)(d) above.

 

Section 29(1) provides for the discretionary refusal of a request, (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 by the body for the purpose of those processes and (b) the body considers that the granting of the request would be contrary to the public interest.

 

These are two independent requirements and the fact that the first is met carries no presumption that the second is also met. Furthermore, the public interest test at section 29(1)(b) is a strong test. Any arguments against release should be supported by the facts of the case and it should be shown how release of the record(s) would be contrary to the public interest.

 

There is nothing in the exemption itself which requires the deliberative process to be ongoing. However, the issue of whether the deliberative process is ongoing or at an end may be relevant to the issue of the public interest. The first requirement which must be met in order for section 29(1) to apply is that the record must contain matter relating to the “deliberative processes” of an FOI body.

 

In his application for review, the applicant indicated that he was of the view that DFA’s reliance on section 29 did not appear to relate to an actual, active deliberative process. He described its position as refusing records on the basis that they “might be pertinent to a further response which they may or may not send”. He argued that this was not a reasonable use of section 29 and essentially contended that if this were accepted, all sorts of records could be found to be exempt on the basis that they "might" someday form part of a deliberative process.

 

In its submissions to this Office, DFA stated that the records related to two distinct deliberative processes. It said that the first concerned the State’s response to the communication. It stated that Ireland’s initial response was submitted on 21 April 2020, and that at the time of the applicant’s request, the State was considering whether to submit a further substantial response. DFA stated that since then, a decision was made not to respond further. During this review DFA said that the State had retained the right of reply when the UNSR’s report was next presented to the UN Human Rights Council (the Council) in June 2021. I understand that this meeting took place, but the matter was not raised and the State was not required to make any further response on these matters.

 

DFA further stated that the documents withheld clearly relate to the internal thought processes of DFA and DSP, which informed its initial response to the UNSR. It contended that the correspondence between the departments reflected the weighing up of various matters, including competing priorities, and its submission elaborates further in this regard. Essentially, DFA’s position is that the finalised State response comprises the outcome of its internal deliberations, and that this is in the public domain. DFA’s view seems to be that it is entitled to withhold records containing the deliberations which lead to the finished response.

 

DFA stated that the second deliberative process related to the State’s appeal to the Circuit Court of an Enforcement Notice issued by the Data Protection Commission (the DPC) concerning the PSC. It said that the communication had direct relevance to that appeal. From media reports, I understand that the DPC issued a report on the PSC in September 2019 and that it subsequently issued an Enforcement Notice to DSP, which was appealed. My understanding is that this matter has not yet proceeded to hearing.

 

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. I do not accept that records containing details of deliberations which led to a final response or decision are exempt as a class, as DFA seems to be arguing. However, having had regard to the contents of the records concerned, I am satisfied that the records contain information relating to DFA’s and DSP’s deliberative processes concerning the communication and how to respond, which also relates to pending court matters. I therefore find that the records at issue meet the requirements of section 29(1)(a) of the Act.

 

This is not the end of the matter, however, as I must also consider whether these records meet the requirements of section 29(1)(b) of the Act.

29(1)(b) - Contrary to the public interest

While there is nothing in section 29 itself which requires the deliberative process to be ongoing, the question of whether it is ongoing or not may be relevant to the issue of the public interest. What I must consider is whether release at this point in time is contrary to the public interest.

 

The public interest test at section 29(1)(b) is a stronger public interest test than the public interest test in many other sections of the FOI Act, which require that, on balance, the public interest would be better served by granting than by refusing to grant the request. The public interest test in section 29(1)(b) requires the FOI body to show that the granting of the request would be contrary to, or against, the public interest. In my view, this exemption tends more strongly towards release of records. Where a body wishes to rely on section 29(1) to refuse access to records, I would expect it to be in a position to explain how release of the records would be contrary to the public interest. Generally speaking, this requires a body to identify a specific harm to the public interest flowing from release.

 

The applicant contended that there was an “overwhelming public interest” in the records sought, as they related to the PSC project, which had been “the subject of international criticism” and “intense controversy” within Ireland. However, in its submissions to this Office, DFA said that the records at issue did not relate to any substantive consideration of the PSC project itself, but that rather, they concerned the process around the communication, its substance, and the State’s response.  

 

In its submissions to this Office, DFA stated that its mission was “to serve the Irish people, promote their values, advance their prosperity and interests abroad” and to provide the Government with “the capabilities, analysis and influence to ensure that Ireland derives the maximum benefit from all areas of its external engagement.” It stated that in order to achieve these objectives, it was essential that it be able to have full and frank discussions on sensitive issues with other government departments to agree the State’s approach when engaging in international relations. In essence, it stated that if it could not communicate on that basis, it would prejudice DFA’s ability to carry out its functions effectively and that this would be contrary to the public interest.

 

DFA also stated that, in this case, the State had a number of concerns regarding the communication and that the appropriate procedure in such circumstances was to raise relevant issues via diplomatic channels, rather than to put them in the public domain. It also said that the release of internal discussions in relation to these matters could have unintended consequences and its submissions went into considerable detail in this regard. While section 25(3) prevents me from repeating DFA’s arguments here, I can confirm that I have had regard to its submissions on this matter.

 

In this case, I accept that there is a significant amount of information in the public domain about the PSC, the DPC’s investigation and published report, and DSP’s response as well as the subsequent litigation. In relation to the State’s response to the communication, I note that its formal response has been published by the OHCHR and is available online, as is the communication itself. I also note that DFA has released almost half of the records identified in this case in full or in part to the applicant on foot of this FOI request. Furthermore, I accept, as DFA has argued, that the records in this case concern the deliberations of two public bodies on how best to respond to an UNSR communication via diplomatic channels, not the implementation of the PSC.

 

Having regard to the circumstances of this case, while the ongoing matters before the UN Council appear to be concluded, I am satisfied that the matters under deliberation also relate to an ongoing court case. I accept that there is a significant public interest in FOI bodies being able to deliberate on such matters, and to be in a position to exchange full and frank views with other FOI bodies, especially in circumstances where related litigation is pending, without such discussions being released to the world at large.

 

Having regard to the above and to the contents of the majority of the records at issue, I accept that it would be contrary to the public interest to release two of the records concerned at this time. I find that DFA was justified in refusing to grant access to records 77 (in part) and 78 (in part) on the basis of section 29(1)(a) of the FOI Act.

 

However, having regard to the contents of the remaining records at issue, it seems to me that they contain what could be described as administrative queries concerning the relevant procedures and timelines involved, draft versions of documents which have since been published or released and/or factual information concerning the matters at hand. I am not satisfied that the release of these particular records at this time is contrary to the public interest. Accordingly, I find that section 29 does not apply to records 11, 12, 15, 19, 32, 35, 44 (in part), 45 (in part), 59, 60, 62, 63 (in part), 64 (in part), 76, 77 (in part) and 78 (in part).

 

 

Section 33(3)(c)(ii) – confidential communications with international organisation of states

Section 33(3)(c)(ii) provides that a request shall be refused if the record 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 within or in relation to such an organisation, organ, institution or body, or is a record of such a body containing information the disclosure of which is prohibited by the organisation, organ, institution or body.

 

A record falling within any class or category of records described in subsection (3) is subject to a mandatory exemption and access must be refused. Thus, the relevant test to apply in considering whether subsection (3) applies is a) whether the information was communicated in confidence and b) whether the record meets the description of any of the classes or categories of records set out in subsection (3). Unlike subsection (1), the FOI body does not have to identify a potential harm that might arise from disclosure of the record. In addition, there is no public interest override which would allow for the consideration of whether the public interest would be served by release.

 

I will now consider DFA’s reliance on section 33(3)(c)(ii) to refuse access to the remaining records which I have not found to be exempt above: records 25, 63 (in part), 69, 72 (in part) and 75 (in part).  These records comprise correspondence with the OHCHR from DFA or DFA’s Permanent Mission to the UN. I accept that the records contain information communicated from or to an international organisation of states or a subsidiary organ of such an organisation, or which relates to negotiations between the State and such an organisation. However, the fundamental question I must consider is whether or not the relevant information in the records at issue was communicated in confidence.

 

DFA’s position is that all of these communications were made in confidence. In its submission to this Office, DFA stated that there is a “clear understanding and expectation” in the international community that communications of this nature between the UN and Member States of the organisation are confidential. As noted above, it also provided a copy of correspondence from the UN which states that “[i]n this context, please be informed that the correspondence between the United Nations and Governments are confidential communications. Without the consent of OHCHR, such communications should not be shared with third parties”.

 

DFA referred to OIC case 100030, which stated that “[t]he Commissioner made clear that, if the Council of the EU or some other institution of the Union were to express strong opposition to the release of certain records, he would take its views into account in his assessment of the possible harm that release might bring about.” It also referred to OIC Case 090077 and stated that given the full and frank content of the exchanges and having regard to the circumstances of their creation, it was clear that the communications were intended to be “in confidence”. DFA was of the view that the understanding of both parties in this case (ie DFA and the UN) was that the communications were confidential.

 

DFA also stated that the release of the records could reasonably be expected to have a deterrent effect on the State’s ability to conduct “diplomatic communications of this nature and thus … impair the conduct of international relations”.

 

In terms of the application of section 33(3)(c)(ii) to correspondence between DFA and DSP, DFA stated that it acts in an agency capacity in relation to communications addressed to the State from the UN. It said that many such communications relate to matters for which other government departments have primary responsibility. DFA stated that one of its functions was to act as a channel of communication. It said that it did not refuse to grant access to all of this correspondence, and that the records withheld comprised the onward transmission to DSP of confidential information exchanged between the OHCHR and Ireland’s Permanent Mission to the UN in Geneva. DFA was of the view that in the circumstances, section 33(3)(c)(ii) also applied to these records as, in essence, they would reveal the original communications, which it considered to have been made in confidence.

 

While I have taken the UN’s comments and DFA’s assertions into account, having regard to the circumstances of this case, I am not satisfied that all of the records were communicated in confidence. In this regard, I am conscious of the fact that it was open to the Oireachtas to exempt all communications between the State and international organisations such as the UN from the scope of the FOI Act. However, the Act is clear, section 33(3)(c)(ii) only applies to confidential communications. As noted above, it seems to me that some of the records at issue solely relate to queries concerning the time the State had to respond to the communication and requests for information concerning its publication/that of Ireland’s response. I can identify nothing in the content of records 25, 63, 69, 72 or 75 to indicate that these matters were particularly sensitive or confidential. While I accept that in certain circumstances, such correspondence might have a quality of confidence, in the circumstances of this case and having regard to the content of the specific records concerned, I do not accept that what essentially appears to be administrative and factual queries and responses could have been expected or intended to have been made in confidence. Furthermore, as noted above, the OHCHR has not made any submissions to this Office to support DFA’s arguments in this regard.

 

Accordingly, I find that section 33(3)(c)(ii) does not apply to records 25, 63 (in part), 69, 72 (in part) and 75 (in part), on the basis that DFA has not adequately demonstrated the information not already found to be exempt in the remaining records was communicated in confidence, as required by the FOI Act.

 

Records to be released

In the interest of clarity, I am directing the release of the following records, in full or in part, to the applicant:

 

11 – email from DFA to DSP 15 April 2020 19:07 only

12 – email from DSP to DFA 15 April 2020 19:16 only

15 – email from DSP to DFA 16 April 2020 16:45 only

19 – email from DFA to DSP 16 April 2020 18:39 only

25 - email from DFA to DSP 17 April 2020 17:18 only

32 – email from DFA to DSP 20 April 2020 08:41 only

35 – email and attachment from DFA to DSP 20 April 2020 10:59 only

43 – email thread and attachment, subject to the redaction of the second paragraph in the letter

44 – email from DSP to DFA 20 April 2020 18:21 only, subject to the redaction of the comment in brackets

45 – email from DSP to DFA 20 April 2020 19:25 only

59 – email from DFA to DSP 22 April 2020 17:34 only

60 -  email from DSP to DFA 22 April 2020 17:29 only

62 – email from DSP to DFA 22 April 2020 18:30 only

63 – email and attachment from DFA to DSP 1 May 2020 17:41, subject to the redaction of the first paragraph

64 – email from DSP to DFA 1 May 2020 17:54, subject to the redaction of the sentence starting with the word “It”.

69 – email and attachment from OHCHR to PM Geneva 17 April 2020

72 – emails between DFA to OHCHR 20 and 21 April 2020, subject to the redaction of the first email dated 20 April 2020 16:29

75 – emails between DFA and OHCHR dated 29 April 2020 15:05 and 17:31 only

76 – internal email and attachment to SG’s office DFA 16 April 2020 19:42

77 – internal email and attachment to SG’s office DFA 20 April 2020 19:32, subject to the redaction of four sentences (from “DEASP” on line 3 to “matter” in the first paragraph, and from “Given” to “advance” in the second paragraph)

78 – email from DFA to Tánaiste’s office, 21 April 2020 12:27, subject to the redaction of four sentences (from “DEASP” on line 3 to “matter” in the first paragraph, and from “Given” to “advance” in the second paragraph)

 

 

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary DFA’s decision. I affirm its decision to withhold access to certain records on the basis of section 29(1)(a). I also affirm DFA’s decision to refuse to grant access to certain other records on the basis of section 33(1)(d). I annul its decision to refuse to grant access to other records on the basis of section 33(3)(c)(ii). I direct the release of the remaining records in full or in part to the applicant, as set out above.

 

 

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