Decision
Ms. X & The Department of Foreign Affairs (the Department)
From Office of the Information Commissioner (OIC)
Case number: OIC-150501-J2F0P7
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-150501-J2F0P7
Published on
Whether the Department was justified under sections 33(1)(d) and 33(3)(c)(i) in refusing access to records relating to feedback it provided to the International Protection Office on the potential designation of Algeria as a safe country of origin for the purposes of the International Protection Act 2015
5 November 2025
In a request dated 21 May 2024, the applicant sought access to records relating to feedback provided by the Department to the International Protection Office (IPO) on the potential designation of Algeria as a safe country of origin for the purposes of the International Protection Act 2015 (the 2015 Act). In a decision dated 19 June 2024, the Department part-granted the applicant’s request, identifying one record which fell within the scope of the request and releasing it with redactions made pursuant to section 33(1)(d) of the FOI Act. On the same day, the applicant sought an internal review of the Department’s decision. In its internal review decision dated 10 July 2024, the Department affirmed its original decision. On 12 July 2024, the applicant applied to this Office for a review of the Department’s decision.
In the course of conducting this review, this Office’s Investigator formed the opinion that, in addition to section 33(1)(d), he might be required to consider the potential applicability of section 35(1) of the FOI Act (relating to information received in confidence) to the record at issue. He put both parties to the review on notice that he was considering the potential application of section 35(1), and invited both parties to make any further submissions that they wished. Both the Department and the applicant subsequently made additional submissions, and I have considered both sets of additional submissions in full. On foot of the submissions made by the Department in particular, I have concluded that I am not, in fact, required to consider section 35(1) in detail, for reasons that I set out below.
Moreover, in the circumstances of this case, I considered it appropriate to issue a draft of this decision to the parties prior to concluding matters. All parties were informed that it was open to them to make a further submission on foot of the draft decision, but that any such submission should be confined to an additional point of fact, an error of fact or an error of law. The Department made an additional submission, in the course of which it submitted that a further exemption applied to the record, namely section 33(3)(c)(i) of the FOI Act. The Department also made additional arguments relevant to the applicability of section 33(1)(d) to the record. In general, the purpose of issuing a draft decision is to ensure that there are no errors of fact or law. It should not be used as an opportunity for public bodies to cite additional exemptions. Nevertheless, a review by this Office is considered to be “de novo ", which means that in this case, it is based on the circumstances and the law as they pertain at the time of the decision and is not confined to the basis upon which the FOI body originally reached its decision. Accordingly, I have considered the late reliance on additional discretionary exemption in this case. As the applicant had not previously had the opportunity to consider the potential applicability of section 33(3)(c)(i), the Investigator wrote to her to put her on notice of same and invite her to make any further submissions that she wished. The applicant subsequently reverted to make further submissions which I have considered in full.
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 submissions made by the parties as well as the correspondence exchanged between the Department and the applicant on the matter. I have also examined the record at issue. I have decided to conclude this review by way of a formal, binding decision.
This review is solely concerned with whether the Department was justified, under sections 33(3)(c)(i) and 33(1)(d) of the FOI Act, in redacting certain information from the record at issue.
Before I address the substantive issues in this case, I wish to make two preliminary points. First, I wish to note that, under section 25(3) of the FOI Act, I am required to take all reasonable precautions in the course of a review to prevent the disclosure of information contained in an exempt record. This means that the extent to which I can describe the content of the record at issue is limited. It also means that I am limited in the amount of detail I can give in relation to the submissions made by the Department outlining why it considers certain information to be exempt from release.
Secondly, in the case of The 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 of Sheedy 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 ”. I further note, however, that 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.
The record at issue in this case appears to have been generated as part of the IPO’s “Safe Country Project 2023 ”, namely a process undertaken by the Department of Justice (the parent Department of the IPO) to seek the views and opinions of relevant parties to assist the then Minister for Justice in assessing whether or not to designate certain specified countries, including Algeria, as safe countries of origin for the purposes of applications for international protection (in its submissions, the Department noted that, under section 72 of the 2015 Act, the Minister for Justice is empowered to designate countries as safe countries of origin). The relevant record in this case, an IPO feedback form for the Safe Country Project, appears to be a document that was made available for relevant parties to provide such views and opinions. It should be noted that the Irish Government subsequently designated Algeria as a safe country of origin as of 31 January 2024.
Section 33(1) of the FOI Act relates to security, defence and international relations. Subsection (d) of section 33(1) provides that an FOI body may refuse to grant an FOI request if, in its opinion, access to the record(s) at issue could reasonably be expected to affect the international relations of the State. Section 33(1)(d) is a harm-based provision – in other words, where an FOI body seeks to rely on it, the body must be able to demonstrate grounds for its opinion that the release of the record(s) at issue would affect the international relations of the State. In so demonstrating, the FOI body should identify the potential adverse effect on the international relations of the State, and outline the basis on which it considers the release of the record could result in that adverse effect. It should be noted that the FOI body is not required to demonstrate that the adverse effect it has identified will definitely occur. It is sufficient for the 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. In addition, subsection (2) of section 33 provides a non-exhaustive list of categories of records that may qualify for exemption. With the exception of records falling within section 33(2)(b)(i) or (ii), the mere fact that a record falls within a category of records described in subsection (2) is not sufficient to render the record exempt pursuant to subsection (1); it must also meet the harm test in subsection (1). It should be noted that section 33 of the FOI Act does not contain a public interest test. Accordingly, if the requirements of subsection (1) are met, the relevant record(s) will be exempt from release.
In its initial submissions, the Department stated that the Department of Justice had requested that it provide its views for the purpose of assisting the then-Minister for Justice in her assessment of whether Algeria should be designated as a safe country of origin. The Department stated that, in response, it had provided (via the feedback form that comprises the record at issue) information on the situation in Algeria, including internal comment on, and analysis of, the security and human rights situation in that country. The Department stated that the information it had provided is highly sensitive in nature and had been shared on an understanding of confidentiality between Government departments. The Department noted that the Algerian state may not agree with – and indeed could reasonably be expected to take offence at – the Department’s analysis. On this basis, the Department argued, the release of the information that it had redacted from the record could reasonably be expected to negatively impact the State’s international relations, by disclosing to the world at large its analysis of the security and human rights situation in a country with which Ireland maintains diplomatic relations.
In addition, the Department argued that it is vital that officials are not hampered in the provision of advice between Government departments. It stated that it was reasonable to expect that, if the redacted information in the record was disclosed, it would be more widely circulated, which – it argued – could limit its ability to credibly provide confidential analyses in the future. The Department also noted that the information that it had redacted from the record is not otherwise available or in the public domain. In this regard, the Department also noted that the FOI Act does not place any restrictions on the subsequent use to which information released under FOI can be put, and that it is generally considered that the release of information under FOI is regarded, at least potentially, as release to the world at large.
As outlined above, subsequent to being provided with a draft decision in this review, the Department made additional submissions relevant to its reliance on section 33(1)(d). In the course of its additional submissions, it argued that I had made an error of fact in my draft findings under section 33(1)(d). In particular, it noted that the draft decision had stated that the final decision of the Department of Justice was to designate Algeria as a safe country of origin and concluded that, in those circumstances, the Algerian State would not take issue with the information in the record, should it be released. The Department disputed this, arguing that the withholding of the record was based on its direct experience of the bilateral relationship with Algeria and the harm that could be caused by the release of the information in the record. The Department argued that the relationship with Algeria is one that it carefully managed across several areas, taking account of a range of issues, including matters where there was an awareness of sensitivity on the Algerian side. The Department argued that it was therefore incumbent on it to exercise caution in public statements by Ireland on the human rights situations in that country, so as not to prejudice the entirety of the relationship, including its political and economic dimensions. The Department also noted that it is important to distinguish between information concerning Algeria's security and human rights situation that is publicly available, and the Department's own analysis and conclusions, which are not. Moreover, the Department argued that its interpretation of various sources to inform its analysis and draw its conclusions for the purpose of providing the comments contained in the record is not in the public domain. It argued that, should that information be released, wider inferences may be drawn, correctly or incorrectly. The Department stated that it would respectfully suggest that this Office is not in a position to have a full overview and understanding of Ireland's bilateral relationship with Algeria in the manner that the Department does. It therefore submitted that, in its draft decision, this Office did not fully consider the nuances that exist in maintaining this relationship and did not lend sufficient weight to the Department's direct knowledge of the likely reaction of its Algerian counterparts and the harm that the release of the information in the record could cause.
In initial submissions made by the applicant, she argued that the information redacted from the records would not differ from the Department’s travel advice for Algeria, which suggests a “high degree of caution ” when travelling to the country and which is available on the Department’s website. She stated that if the Department’s travel advice can publicly state that Algeria is unsafe, it should be able to release similar information when it relates to the Department of Justice’s designation of Algeria as a safe country of origin. She argued that, if the Department’s claim that the release of the information in the records would adversely affect relations between Ireland and Algeria was accepted, the same would surely be true for its travel advice, yet the latter information is publicly available.
The applicant also made additional submissions in relation to the draft decision that was provided to her, and in response to the additional submissions made by the Department (a summary of which was provided to her by this Office). In her additional submissions, she argued, firstly, that the Department had mischaracterised the relevant finding of this Office as an “error of fact ”. The applicant argued that the Department was essentially asserting that this Office had paid insufficient deference to its opinions. She argued that this was not an error of fact, and stated that was important that this Office note that the Department’s additional submissions in this regard did not constitute a factual argument.
The applicant further argued that, contrary to the assertion of the Department, she considered that the draft decision had demonstrated this Office to have engaged carefully, thoughtfully and with nuance with the Department’s submissions. She argued that, while the Department may disagree with the draft decision and conclusions, it was clear that this Office’s draft findings had been reached on the basis of an assessment that had been conducted lawfully and carefully. She stated that the Department's argument is one of emphasis on the materials before this Office. The applicant stated that, in her view, the conclusions reached in the draft decision were correctly reached and, indeed, that the very matters the Department referred to in its subsequent submissions had already been examined in the draft decision. The applicant stated that it could not be said, as a matter of fact or law, that this Office had erred in its draft findings.
Furthermore, the applicant argued that the inexorable and only logical conclusion that could be drawn from the Department’s additional submission, if it were to succeed, would be that this Office is bound to and must defer to the Department’s opinion in all matters relevant to section 33(1)(d). The applicant argued that this would completely defeat the purpose of the provision, and of the FOI Act, essentially rendering it entirely inoperable, and would negate the purpose of the legislation and its aim of enhancing public transparency. The applicant stated that, should the additional arguments of the Department be accepted, it would be difficult to understand how section 33(1)(d) could ever function. She argued that the interpretation proposed by the Department is absurd in the legal sense, insofar as – if it was accepted – it would also completely undermine and neutralise this Office, which would be deleterious to its public function and role in public transparency. She argued that the Department’s additional arguments, if accepted, would result in records being de facto refused wherever the Department sought to rely on section 33(1)(d) of the FOI Act.
In addition, the applicant argued that well-publicised debates in Dáil Éireann in relation to safety in Algeria, by reference to the Department’s own public travel advice, and which had identified concerns in relation to the treatment of sexual minorities, would seem to be entirely inconsistent with the Department’s position that the record should be withheld.
I have considered all the arguments of both parties in this case, in the context of the contents of the records. Firstly, I would note that I have reviewed the Department’s travel advice for Algeria and the redacted information from the record, and I do not accept the applicant’s argument (in her initial submissions) that both sets of information are essentially the same. Due to the requirements of section 25(3) of the FOI Act, I am unable to go into full details in this regard. Suffice to say, although I would accept that the information redacted from the record is, in some aspects, broadly similar to the Department’s publicly-available travel advice, in other respects it is significantly different, particularly in terms of the level of detail and specificity contained in the redacted information, as well as the main focuses of the information. I therefore did not accept in my draft decision the applicant’s argument that, on the basis of the similarity of the two sets of information, the Department should release the redacted information in the records.
This being said, I am also not entirely convinced by the Department’s arguments regarding the potential effects of the release of the record on relations between the Irish and Algerian States. For one thing, certain information in the records would appear to simply constitute factual statements regarding the state of the law in Algeria, and it is difficult to envisage a manner in which the release of this information could result in the harms posited by the Department. Furthermore, in relation to the Department’s argument that the redacted information is not otherwise available or in the public domain, I find it somewhat difficult to accept that this is the case. The Department itself states that certain of the redacted information is “according to Human Rights Watch ”, which is an international non-governmental organisation that conducts research and advocacy on human rights, and which regularly publishes reports on the human rights situations in various countries around the world. In one such report on Algeria, covering events in 2022 and which it published in 2023 (in other words, before Ireland designated Algeria as a safe country), Human Rights Watch provided a wide-ranging commentary on the human rights situation in that country, including the prevailing circumstances in the areas of political rights and freedom of expression, freedom of association and assembly, women’s and girls’ rights, and sexual orientation and gender identity. While I am, again, cognisant of the requirements of section 25(3) of the FOI Act, I consider that it is reasonable for me to note that this report touches on some of the same issues as are covered in the information redacted by the Department from the record at issue.
Furthermore, I consider that it is reasonable to note that certain other information that the Department redacted from the record relates to the security situation in Algeria. Again, it seems to me that this information is, at least partly, publicly available. For example, a US Department of State report on for Algeria for 2023 (which, again, has a publication date prior to Ireland’s designation of Algeria as a safe country) contains a number of findings that are similar in content to the information redacted from the record that relates to various security and terrorism risks. Similarly, a Transformation Index report on Algeria published in 2022 by the Bertelsmann Stiftung (an independent foundation which promotes reform processes in areas such as science and research, social welfare, democracy and social engagement) touches on similar issues related to security in Algeria as are contained in the record, as does a report on Algeria published in September 2022 by the Human Rights Council of the UN General Assembly. On the basis of the information available to me, while I would accept that certain details in the redacted information in the record that relate to the security/terrorism risk in Algeria are not (or at least, not readily) in the public domain, I also consider that the main thrust and conclusions of the redacted information, insofar as it pertains to the security situation, is publicly available information.
As noted above, in the course of conducting this review I also sought submissions from the Department on the applicability of section 35(1) of the FOI Act to the record at issue. In the Department’s subsequent additional submissions, as well as addressing section 35(1) (which I address below), it made a number of further arguments that I consider are pertinent to section 33(1), and as such it is appropriate to examine them in this section. Firstly, the Department stated that this Office had previously accepted that a loss of trust or confidence in Ireland could be damaging to the international relations of the State. Moreover, the Department noted that this Office had previously held 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 referred to the previous decision of this Office in case number OIC-136756, wherein the Senior Investigator stated that “the sensitivity or confidentiality of the records are relevant issues to be considered in determining whether the harm test in subsection (1) of section 33 has been met .” The Department reiterated that, if the information that it had provided to the IPO in relation to the situation in Algeria were to be released, the likelihood was that this would inhibit the Department’s analysis in relation to future requests. It also argued that to release the information in the record would provide details of its internal thinking and analysis on the human rights and security situation in Algeria and other countries.
In relation to these additional arguments made by the Department, I fully accept, as a general proposition, that that a loss of trust or confidence in Ireland could be damaging to the international relations of the State. Similarly, I fully accept that the expectation of the international community with regard to information in a record 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. However, it does not automatically follow from such general assumptions that the information in the record at issue in this case is exempt under section 33(1)(d). In this regard, I would like to distinguish the previous decision of this Office referenced by the Department (in case OIC-136756) from the matter at hand. In that previous case, in which we accepted that certain records withheld by the Department of Justice were exempt from release under section 33(1)(d), the information at issue was highly sensitive material regarding the deportation of failed applicants for International Protection, and in particular regarding states who had failed to co-operate with Ireland in the repatriation of such applicants. In exempting the relevant information from release, pursuant to section 33(1)(d), the Senior Investigator accepted in that case that “…disclosure of the identities of the specific states from whom the State is experiencing a lack of cooperation, or whose policies are impacting on Ireland, could reasonably be expected to be a cause of embarrassment for those states and to undermine the relationships that Ireland needs with those states in order to implement its deportation policies ”. I do not accept that the information with which this review is concerned is of a level with the material that was at issue in that previous case.
I also consider it relevant to note that, as outlined above, Ireland has in fact designated Algeria as a safe country, based on all the information available to it. In my draft decision I concluded that this designation – if anything – is likely to have met with the favour of the Algerian state. I found that it follows that – to my mind – the idea that the release of the information in the record at issue could cause embarrassment to Algeria is a somewhat remote possibility. Furthermore, in circumstances where – as I have outlined above – much of the material in the record at issue appears to have been gleaned from publicly available sources, I determined that it did not seem reasonable to me to equate that information with the highly sensitive and delicate information that was at issue in case OIC-136756.
On the question of whether the release of the redacted information could give rise to the harms identified by the Department, I have considered the additional submissions of the Department and, on that basis, am minded to amend my draft findings. In the draft decision, I concluded that – in circumstances where the information would appear to be almost entirely (in the case of the human rights situation) or, at the very least, partly (in the case of the security situation) publicly available – I was not convinced that its release could feasibly affect the relations between the Irish and the Algerian States. In addition, I noted that it seems apparent that the comments of the Department that comprise the redacted information are clearly based, at least in large part, on research carried out by Department staff, based on the various sources of information available, much of which is – as noted above – publicly available. I stated that it was not at all evident to me that the Algerian State could be reasonably expected to – as the Department’s submissions put it – “take offence ” to analysis and conclusions that, on their face, are based on sources that appear to be, in the main, publicly available. I also found that, based on the information in the record, it was not apparent to me that the Algerian State is likely to “be offended ” by the release of the information at issue, or that such release could reasonably be expected to adversely affect Irish-Algerian relations. By the same token, and for the same reasons as I have stated above, I stated in the draft decision that I found it difficult to accept that the specific information in the record at issue could result in a loss of trust or confidence in Ireland, or that is information in respect of which the international community could reasonably have any particular expectations.
I consider that this finding remains valid in relation to the information withheld from the first two paragraphs of the record. I fully accept the Department’s position, as argued in its additional submissions, that this Office is not in a position to have the same level of understanding of the relationship between Ireland and Algeria as the Department itself enjoys, and in light of the Department’s arguments to this effect have further examined the record. Notwithstanding the deference that I accept is due to the Department in terms of its greater knowledge of the bilaterial relationship between Ireland and Algeria, it remains the case that certain information in the record appears to me to be, firstly, largely factual and, secondly, derived from information that is publicly available. In these circumstances, and in relation to the information in the first two paragraphs of the record, I remain unconvinced that the Algerian State could take offence at the release of this information, or that its release could otherwise affect the international relations between the two countries. I find that the redacted information in the first two paragraphs is not exempt from release under section 33(1)(d) of the FOI Act.
In relation to the third and final paragraph of the record, upon further consideration I am minded to accept the Department’s arguments. In the first instance, I would note that this paragraph contains certain statements that go beyond mere findings of fact, and comprise statements that are essentially the Department’s analysis and opinions in relation to certain matters in Algeria. Again, the factual elements of the information in this paragraph appear to me to be largely derived from sources that are publicly available. However, given the fact that the paragraph does contain value judgements made by the Department, and in light of the due deference I consider it appropriate to afford to the Department in terms of its greater knowledge of the bilaterial relationship between Ireland and Algeria, I am willing to accept that the release of the information in the third paragraph could reasonably be expected to give rise to the harms provided for in section 33(1)(d).
I wish to address the additional submissions of the applicant at this point. While I would accept as a general point that the additional submissions of the Department might not relate, in the strictest sense of the word, to an error of fact, it is the case that the Department made additional submissions, which it was entitled to do and which I am obliged to consider. In relation to the applicant’s argument that, if the Department’s submission is to be accepted, it would render the role of this Office void and essentially mean that any argument the Department made under section 33(1)(d) would be accepted as a matter of course, I do not accept that this is the position. For one thing, I have not accepted the additional arguments of the Department in respect of two out of the three paragraphs of information at issue. In addition, the Department is correct to argue that it is better placed to assess its inner workings than this Office. This is true of any FOI body, as investigators in this Office as a matter of practicality cannot be subject-matter experts in the wide spectrum of activities carried on in public sector organisations. In any review conducted by this Office, a decision to affirm or annul the decision of an FOI body to withhold records is based on the requirements of the relevant provisions of the FOI Act, the individual facts of the case and the contents of the relevant records. Any review that comes before this Office in which section 33(1)(d) (indeed, any provision of the FOI Act) is cited will be decided based on those factors. It is certainly (and demonstrably) not the default position that, in a case where section 33(1)(d) is cited, the provision automatically applies to exempt information from release.
Accordingly, based on the above analysis, I do not accept the arguments of the Department under section 33(1)(d) in relation to the first two paragraphs of the record, and I find that the redacted information in the first two paragraphs is not exempt from release under that provision of the FOI Act. However, I find that section 33(1)(d) applies to exempt from release the information in the final paragraph of the record.
As outlined above, subsequent to being provided with a draft decision in this review, the Department indicated that it sought to rely on an additional provision of the FOI Act, in the form of section 33(c)(i). This provides for the mandatory refusal by an FOI body of a request where the records sought contain 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 […]
The relevant test to apply in considering whether subsection (3) of section 33 applies is whether the record meets the description of any of the classes or categories of records set out in subsection (3). Unlike subsection (1) of section 33, in relying on section (33)(3) an 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. While factors which may be relevant to the harm test do not arise, the FOI body must show to the satisfaction of the Commissioner that the record meets the requirements of the description of the category of records concerned.
Furthermore, in order for subsection (c) of section 33(3) to apply, the record concerned must contain information communicated in confidence. In showing that the record contains information “communicated in confidence ”, the issue is whether it was communicated in confidence at the time of the communication.
As I have found the third paragraph of the record to be exempt from release under section 33(1)(d) of the FOI Act, I need only consider the applicability of section 33(3)(c)(i) in relation to the first two paragraphs. In its submissions, the Department argued that section 33(3)(c)(i) applied on the basis that, while it accepted that some information similar to that contained in the record could be found in public sources, the overall analysis and its attendant parts taken together is analysis that the Department had produced and should be considered in an overall context. The Department argued that, while the record contained some references to reports by other organisations, it remained the case that such matters had been included in an overview report, which provides an official government perspective, as opposed to any third-party perspective. The Department submitted that it was vital that it be able to continue to provide confidential, frank and comprehensive information in relation to matters such as those addressed in the record, so that other parts of government are in a position to make decisions with a comprehensive overview of the situation on the ground.
The Department further noted that the information being provided to the Department of Justice was an analysis of the political, security, and human rights situation of Algeria, and stated that it had provided this information on a confidential basis in order to provide the Department of Justice with Ireland's perspective of the situation in Algeria, in relation to both international relations and human rights.
In order for section 33(3)(c)(i) to apply, I must be satisfied that the following conditions are met:
• that the information was communicated in confidence and
• that the record meets the description of the classes or categories of records set out in subsection (c)(i) of section 33(3), in other words that the information relates to the matters referred to in subsection (1) of section 33, or to the protection of human rights.
To address the second condition first of all, I take the view that the information in the records clearly relates to a matter referred to in subsection (1) of section 33, namely the international relations of the State as provided for by section 33(1)(d). While I have found that section 33(1)(d) does not itself operate to exempt the first two paragraphs of the record from release, again it should be noted that section 33(3) does not contain a harm test, and thus in the context of that provision I am only required to be satisfied that the information at issue relates to the international relations of the State, and not that its release is likely to harm such matters. In addition, I am also satisfied based on the contents of the record that it relates to the protection of human rights. Accordingly, I take the view that the information at issue meets the second condition for exemption under section 33(3)(c)(i) of the FOI Act. As to the first condition – the requirement for the information to have been communicated in confidence – I note that subsection (c)(i) of section 33(3) stipulates that the relevant information is “expressed by the latter person to be confidential or to be communicated in confidence ”. Furthermore, as noted above, I must also be satisfied that the information was communicated in confidence at the time of the communication.
I find as follows in relation to these requirements. First of all, I would note there does not appear to be any information before me to suggest that, when the Department provided the information at issue to the IPO, it expressed that the information was confidential or communicated in confidence. Furthermore, I have noted above that the information in the first two paragraphs of the record appears to me to be, firstly, largely factual and, secondly, based on publicly available sources. In those circumstances, I find it somewhat difficult to accept that this information might be said to have the necessary quality of confidentiality. Accordingly, I am not satisfied that section 33(3)(c)(i) applies to this information
I also note that the Department has argued that it must be to continue to provide confidential, frank and comprehensive information in relation to matters such as those addressed in the record, with the implication being that its ability to carry out this function would be impaired by the release of the relevant information. However, as outlined above, section 33(3)(c) does not contain a harm test. It follows that, for the purposes of section 33(3)(c)(i), the question of harms arising from the release of the information does not arise. This being said, I would note as a general observation that, in circumstances where I have found that the information in the first two paragraphs of the record are statements of fact largely gleaned from publicly available sources, I would be hesitant to conclude that its release could affect the Department’s ability to continue to provide confidential, frank and comprehensive information. On the basis of the above analysis, I find that the first two paragraphs of the record are not exempt from release under section 33(3)(c)(i) of the FOI Act.
As outlined above, the Department also argued that the release of the redacted information could have the effect of adversely impacting the exchange of confidential information between Government departments. While I fully accept, as a general proposition, that the confidentiality of the information at issue will be one of the factors in determining whether the harm test in subsection (1) of section 33 is met, in my view this is distinguishable from an argument regarding confidentiality between Government departments. I consider that the matter of confidential exchanges of information between Government departments is not, in and of itself, an argument that pertains to the international relations of the State, and is therefore not relevant for the purposes of section 33(1)(d) of the FOI Act.
As outlined above, it initially appeared to me that this was an argument more relevant to section 35(1) of the FOI Act (which deals with information provided in confidence). However, in subsequent correspondence received from the Department, it clarified its view that, in this case, section 35(1) was precluded from applying to the record by virtue of section 35(2) (which provides that section 35(1) shall not apply to a record prepared by the head, director or staff member of an FOI body in the course of the performances of their functions, unless disclosure of the information concerned would constitute a breach of a duty of confidence that is owed to a person other than an FOI body or a head, director or staff member of same). In those circumstances, I am satisfied that section 35(1) does not apply in this case. I am therefore disregarding the Department’s arguments regarding the impact of the release of the information at issue on the exchange of confidential information between Government departments, as in my view this is not an argument that pertains to the international relations of the State, and is therefore not relevant to section 33(1)(d) of the FOI Act. In any case, as outlined above I am not satisfied that the information at issue – the first two paragraphs of the record – has the necessary quality of confidentiality such that its release might reasonably be expected to adversely affect the international relations of the State.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Department’s decision. I find that the Department was justified in redacting, under section 33(1)(d) of the FOI Act, the information in the third paragraph of the record at issue. However, I find that it was it was not justified in redacting, under sections 33(1)(d), 33(3)(c)(i) or section 35(1) of the FOI Act, the remaining information in the record sought by the applicant, and I direct its release.
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 requester 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.
Stephen Rafferty
Senior Investigator