Whether the Department was justified in refusing access to records of communications with the European Bank of Reconstruction and Development

19 December 2022

Background

The records at issue in this case relate to the European Bank of Reconstruction and Development (EBRD). According to its website, the EBRD is currently owned by 71 countries, along with the European Union and the European Investment Bank. It was established in 1991 to help build a new, post-Cold War era in Central and Eastern Europe. It says that it has since played a historic role and gained unique expertise in fostering change in the region and further afield, investing €170 billion in more than 6,400 projects. The EBRD is currently active in more than 35 countries from central Europe to central Asia and the southern and eastern Mediterranean, plus the West Bank and Gaza.

The applicant-�s FOI request, as clarified on 23 December 2021, sought access to records of communications and documents sent and received between Mr Y and certain staff in the Department, where the applicant is referred to by name, dating from 1 December 2020 to 9 December 2021. He said he believed that Mr Y was on secondment to the EBRD.

The Department-�s decision of 21 January 2022 covered 19 records, all of which it released except for parts of records 1, 12, 17, 18 and 19. It relied on section 35(1)(a) (information given in confidence) of the FOI Act in relation to the withheld details.

On 27 January 2022, the applicant sought an internal review of the Department-�s decision.

The Department-�s internal review decision of 28 February 2022 affirmed its partial release of the records.

On 27 May 2022, the applicant applied to this Office for a review of the Department-�s decision on records 12, 17, 18 and 19. He also disputed the charging of an internal review application fee but subsequently withdrew this part of the application. During this Office-�s review, the Department released records 18 and 19 in full.

I have now completed my review in accordance with section 22(2) of the FOI Act and I 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, the Department and the applicant, as well as to the contents of the records at issue and the provisions of the FOI Act.

Scope of Review

The scope of this review is confined to whether the Department-�s decision to partially release records 12 and 17 was justified under the provisions of the FOI Act.

Analysis and Findings

Records 12 and 17 consist of emails between the Department and the EBRD. The Department withheld excerpts under section 35(1)(a) of the FOI Act, on the basis that they comprise confidential information received from the EBRD regarding an investigation undertaken by that organisation. However, I intend to instead consider section 33(3)(c)(i) of the FOI Act. While the Department has not relied on this provision, it is mandatory. In other words, I must apply it if I am satisfied that the relevant conditions are met.

Section 33(3)(c)(i) -�confidential information relating to international relations of the State

Section 33(3)(c)(i) provides that a head shall refuse to grant an FOI request if the record concerned contains information communicated in confidence to any person in or outside the State from any person in or outside the State (including any law enforcement agency) and relating to a matter referred to in subsection (1), or to the protection of human rights and expressed by the latter person to be confidential or to be communicated in confidence. In particular, section 33(1) refers to the international relations of the State. Section 33(3)(c)(i) does not require consideration of the public interest.

The parties-� submissions

The applicant describes concerns that he raised with the EBRD. He says that the EBRD did not investigate and outlines how his career has been affected accordingly. He says that he brought the matter to the Department-�s attention and that it corresponded with the EBRD. He says that the Department had a responsibility to challenge the EBRD in relation to the matters he raised.

The applicant says also that incorrect information was provided to the Department and that it is not appropriate to refuse access to the correspondence on the basis of confidentiality. He says that he already has a full version of record 1 and comments on the redactions that the Department made to it in its original decision.

The Department says that the EBRD provides project finance and equity for new and existing banks, industries and businesses, and also works with publicly-owned companies to support privatisation, the restructuring of state-owned firms and the improvement of infrastructure. It says that Ireland joined the EBRD upon its establishment in 1991. It says that each shareholder including Ireland (through the Minister for Finance) is represented on the Board of Governors, which has overall responsibility for the EBRD-�s strategic direction.

The Department says that information exchanged between it and the EBRD, which is marked -�Confidential-� or sent securely, is provided in confidence and on the understanding that it will be treated as confidential. It says that it is important for Ireland to maintain a secure flow of information with the EBRD to ensure that its investment and interests in the bank are represented and protected. It says that Ireland holds a good reputation and relationship with the EBRD and other shareholders, which could face irreparable damage if information provided in confidence was released to the public.

It is the Department-�s position that, similar to all documents shared by international organisations, the details at issue were given to it in confidence with an expectation of confidence. It says that their release would limit the further sharing of such information with the Department, with potential negative implications for the State.

Analysis

Section 13(4) of the FOI Act requires me to disregard any reasons that the applicant has or may have for making his FOI request. As the applicant is also aware, the FOI Act gives me no power to examine the actions of either the Department or any other party, or to determine whether the contents of any record are accurate.

Section 25(3) of the FOI act requires the Information Commissioner to take all reasonable precautions in the performance of his functions to prevent the disclosure of information contained in an exempt record or that would cause the record to be exempt if it contained that information.  Accordingly, I can only say that the withheld details comprise information given by the EBRD to the Department. I also note that the released records and parts of records include references to the -�confidential-� or -�restricted-� nature of the various communications. Having considered the withheld details, I am satisfied that the EBRD did not intend for them to be placed in the public domain. In this regard, release of records under FOI is generally understood to have the same effect as publishing them to the world at large. Therefore, I accept that the withheld details were expressed by the EBRD -�to be confidential or to be communicated in confidence-�.

I accept the Department-�s position regarding the nature of its, and the State-�s, relationship with both the EBRD and the EBRD-�s other shareholders, and regarding the expectations of those stakeholders. Given the remit of the EBRD as set out above, as well as the specific content and context of the withheld information, I accept that the details at issue relate to the international relations of the State.

I find that section 33(3)(c)(i) applies to the details withheld from records 12 and 17. In the circumstances, it is not necessary for me to deal with the public interest, or to consider the Department-�s application of section 35(1)(a) to the details.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department-�s decision, on the basis that section 33(3)(c)(i) applies to the details withheld from records 12 and 17.

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