Whether UCC was justified in refusing access to records concerning the repatriation of heritage items to Egypt

14 November 2023

Background

On 8 December 2022, UCannouncedits intention to repatriate various items in its Heritage Collection to the Egyptian State in 2023. At the time of writing this decision, arrangements are still being made for the return of the items.

The applicant's FOI request of 2 October 2022 sought access to all records relating to what was then only a possibility of repatriation. UCC's decision of 14 December 2022 covered over 300 records, all of which it claimed were exempt under various provisions of the FOI Act, including section 29 (deliberative processes) and 31(1)(a) (legal professional privilege). It also relied on various provisions relevant to the security and well-being of a heritage resource. 

On 14 December 2022, the applicant sought an internal review. UCC's internal review decision of 13 January 2023 granted access to three records and affirmed its refusal of the remainder. On 23 January 2023, the applicant sought a review by this Office of UCC's decision.

During the review, the applicant helpfully agreed to exclude a number of records, including some containing considerable amounts of different types of third party information. In addition, he has not disputed my understanding that he is not seeking access to the small amounts of personal information in the records, such as phone numbers and email addresses. Furthermore, while record 85 remains under review (see below), the applicant has not disputed my understanding that one of its attachments, which is a further copy of the excluded record 62, may also be disregarded.

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 correspondence between this Office, UCC, and the applicant, as well as the contents of the records at issue and the provisions of the FOI Act. In the particular circumstances of this case, I also sought comment from the Department of Foreign Affairs (the Department) and the National Museum, who were parties to some of the records. I have had regard to the comments received from the Department. No response has been received from the National Museum.

Scope of Review

The applicant has confined the review to UCC's decision on records 3-7, 10-14, 16-20, 22-46, 53-54, 56-61, 63-68, 73-74, 78-88 and 92 (as numbered on UCC's April 2023 schedule). The scope of this review is confined to whether UCC's refusal of these records was justified under the provisions of the FOI Act.

Preliminary Matters

Further to the applicant's comments on UCC's general decision making in this case, it should be noted that a review under section 22 of the FOI Act does not extend to examining the FOI body's practices and procedures for implementing the FOI Act.

Section 25(3) of the FOI Act requires me to take all reasonable precautions in the performance of my 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.  For this reason, the description I can give of the withheld information and of the reasons for aspects of my decision are somewhat limited in this case.

The release of records under FOI is, in effect, regarded as release to the world at large given that the FOI Act places no constraints on the uses to which the information contained in those records may be put.

Finally, inThe Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors, [2020] IESC 5 (the eNet judgment), the Supreme Court said that "it is the FOI body that must explain and justify a conclusion that the records are exempt by reference to the relevant provisions of the Act, and equally, it is the FOI body that must explain why the public interest does not justify release in the public interest."� I also note that, in the Supreme Court case ofSheedy v the Information Commissioner ([2005] 2 I.L.R.M. 374, [2005] 2 IR 272, [2005] IESC 35) Kearns, J. made it clear that a general prediction without any supporting evidence is not sufficient to satisfy the requirement that access to the record could reasonably be expected to result in the outcome envisaged. He stated that "[a] mere assertion of an expectation of [prejudice] could never constitute sufficient evidence in this regard"�.

However, while FOI bodies must justify their decisions, the eNet judgment in particular also says that a failure by an FOI body to do so does not lead to an inevitable or statutorily mandated outcome. Rather, I must adjudicate the merits of the decision to refuse by reason of an analysis of the records and the interests engaged, which might suggest either disclosure or refusal.

Analysis and Findings

Section 31(1)(a) "� legal professional privilege

UCC relies on section 31(1)(a) in relation to records 13, 22, 81, and 85.The applicant knows that I will also consider section 31(1)(a) regarding the attachment to record 22 (i.e. record 63).

Section 31(1)(a) must be applied to a record that would be exempt from production in proceedings in a court on the ground of legal professional privilege (LPP). It does not require the consideration of the public interest. LPP enables the client to maintain the confidentiality of two types of communication, one of which is confidential communications made between the client and a professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege).

Advice privilege attaches to confidential communications made between the client and his/her professional legal adviser in a situation where the legal adviser is acting in a professional capacity. The Commissioner takes the view that privilege may, in certain circumstances, also apply to communications between non-legal advisory staff which detail legal advice sought or received or are part of a continuum of communications arising from an initial request for legal advice. The concept of "once privileged always privileged" applies to advice privilege, and thus, unless otherwise lost or waived, lasts indefinitely. The Commissioner also accepts that, provided the ingredients of the relevant type of LPP are present in any given case, the fact that the professional legal adviser concerned is employed as an in-house legal adviser does not prevent the client from being able to assert the privilege over the communications at issue.

UCC's position is that the relevant records contain legal advice. The applicant did not make any arguments about UCC's reliance on section 31(1)(a).

Record 85 and its remaining attachment are requests to UCC's internal professional legal adviser for legal advice. Records 13, 22 and 81 are email strings comprising communications between non-legal advisory staff that are part of a continuum of communications arising from an initial request for legal advice from UCC's internal professional legal advisor. UCC's April 2023 schedule describes record 63 as a draft contract, and I note from record 22 (to which it was attached) that it was prepared by UCC's legal advisor. I am satisfied that, in the particular circumstances of this case, the drafting by the legal advisor of record 63 amounts to the provision of legal advice rather than legal assistance.

In summary, I am satisfied that the above records attract advice privilege. I find that they are exempt under section 31(1)(a) of the FOI Act.

Section 33(1)(d) "� international relations of the State

As noted earlier, UCC claims that section 29(1) applies to each of the withheld records, on the basis that they relate to deliberative processes and that their release would be contrary to the public interest. However, while UCC does not explicitly claim reliance on section 33(1)(d), the provision appears to me to be relevant, having regard to certain of UCC's arguments regarding section 29 and other provisions of the 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. The provision does not require consideration of the public interest. The Commissioner has accepted that a loss of trust or confidence in Ireland could be damaging to the international relations of the State. He also takes account of matters such as the expectations of the international community with regard to the information at issue, and the sensitivity or confidentiality of the records.

The records

Bearing in mind the requirements of section 25(3), I can provide little detail on the content of the remaining records other than to say they largely concern the making of legal and other arrangements for the return of the items. They include details of contacts between the Egyptian authorities and their Irish equivalents, details about the location of the items and their potential transportation arrangements (including the identities of parties involved in these matters), details about the provenance of the items and their current condition. Finally, they include a very small number of records which, on their face, appear to be more general and/or high level records or to concern what is already in the public domain.

The parties' arguments

UCC says that it had not originally intended to publicise its internal decision to repatriate the items. It says that its December 2022 press release was partly in response to journalistic and social media speculation about the matter. It says that the announcement also demonstrates its commitment to act responsibly in line with good practice in the heritage sector regarding the return of heritage items, and in seeking to de-colonialise its collections.

UCC says this is the one of the first repatriation processes in which Irish cultural authorities have engaged, and that arranging the actual repatriation remains ongoing. It says that the process involves contact between Irish and Egyptian authorities and covers matters such as the granting of an export licence, and the arranging of a memorandum of understanding and a legal agreement covering the various responsibilities of the donor and recipient institutions. It says that the process to date has proceeded on a basis of good faith, careful cooperation, and discretion because of the sensitivity of the matter from the Egyptian authorities' perspectives. It says that any publicity arising from the release of any of the records at this point in time (including those that on their face appear to be high level or to concern what is already in the public domain), could undermine the trust and relationships built up between the Irish and Egyptian authorities and the work to date on the matter.

UCC gives examples of the controversial nature of the issue of the return of cultural objects generally, including media coverage of attempts by activists to forcibly remove objects from museums which they viewed as having been pillaged from their countries of origin. It also gives an example of the strong feelings which it says were expressed to it in relation to this particular repatriation. It says that it is acutely aware of its obligations of respect and care to the human remains and funerary items being repatriated. It says that disclosure of any records confirming or indicating the location of the items and their potential transportation arrangements (including any details concerning the moving specialists and/or conservators, including their identities) could present a risk to the objects themselves, to the locations in which these and other heritage items are stored and to those involved in preparing the items for repatriation.

The Department also emphasises the sensitive and contentious nature of repatriation processes generally. It says that the ongoing work on the legal and logistical aspects of the repatriation may be active for some time yet, and is a sensitive process, involving Irish officials, the Egyptian Embassy in Dublin, the Embassy of Ireland in Cairo, export/import authorities and various Egyptian agencies and organisations. It says that the Egyptian authorities expect that the specific details and minutiae of the repatriation are not disclosed, in order to ensure that the items, their locations, and details of those handling them are not compromised. It says that any such harms would cause reputational damage to Ireland, and endanger Ireland-Egypt bilateral relations.

I informed the applicant that I intended to consider section 33(1)(d), and summarised the relevant arguments. He says that he has no comment to make.

Analysis

I accept that the repatriation of heritage items generally is a highly sensitive and emotive issue. I accept that ensuring the safe return of the items at issue is very important, particularly from an Egyptian perspective, and that the process of arranging this repatriation remains ongoing. I accept that Ireland's relations with the Egyptian State could reasonably be expected to be adversely affected if disclosure of information under FOI were to hinder the making of arrangements for the actual repatriation and/or endanger the items.

Having considered the records and the arguments, it seems to me that disclosing information confirming or indicating the location of the items and their potential transportation arrangements (including the identities of parties involved in such matters) could enable third parties to intercept and/or endanger the items. In the circumstances and at least until the matter has concluded, it is also reasonable to accept that the Egyptian authorities would expect their Irish equivalents not to disclose details of their various contacts, or of the various legal and other arrangements being made, and I accept that such disclosure could undermine the work done to date on the matter. I accept that the relationship could be adversely affected by disclosure at this point in time of details concerning the provenance of the items and their current condition, on the basis that these would be likely to add to the controversy around UCC holding the items and/or around the repatriation process. Finally, and again in the very acparticular circumstances of this case, I accept that disclosure now of the small number of remaining records, which appear on their face to be less sensitive than others, could also undermine the trust and relationships built up between the Irish and Egyptian authorities and impact on the conclusion of the matter.

Accordingly, I accept that disclosure of the remaining records could reasonably be expected to affect adversely the international relations of the State. I find that they are exempt under section 33(1)(d) of the FOI Act. In the circumstances, there is no need for me to consider the other exemptions relied on by UCC.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm UCC's decision on the basis that the records are exempt under sections 31(1)(a) and 33(1)(d) 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.

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Anne Lyons

Investigator