Decision
Mr Ken Foxe, Right to Know CLG and Department of Justice
From Office of the Information Commissioner (OIC)
Case number: OIC-136756-P5H0Z3
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-136756-P5H0Z3
Published on
Whether the Department was justified in redacting, under sections 29(1), 32(1)(b) and 33(1)(d) of the FOI Act, certain information from records relating to the decision to resume deportations for failed asylum seekers
15 March 2024
In a request dated 29 July 2022, the applicant submitted a request to the Department for “copies of all records held referring or relating to the decision to resume deportations for failed asylum seekers” to cover the period from 1 April 2022 to the date of his request. As the Department failed to issue a decision on the request within the statutory timeframe, the applicant sought an internal review of the deemed refusal of his request on 3 October 2022. On 2 November 2022, the Department issued its internal review decision. Of the six records it identified as relevant to the applicant’s request, it granted access in full to record 4, partial access to records 1, 2, 3, and 5, and it refused access to record 6. Information was withheld from records 1, 2, 3, and 5 under sections 29(1), 32(1)(a)(i), (ii) and 33(1)(d) of the FOI Act, while record 6 was withheld under sections 29(1) and section 33(1)(d) of the Act.
On 22 March 2023, the applicant applied to this Office for a review of the Department’s decision. He said he did not believe the level of redaction of the documents provided could be justified.
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 correspondence between the applicant and the Department and to the correspondence between this Office and both parties on the mater. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.
During the course of the review, the Department indicated that it was willing to release additional information from the records to the applicant. In addition, following communications with this Office, the applicant agreed to remove the redactions on pages 5 and 6 of record 1 from the scope of the review. The Department has confirmed that only the following information remains redacted, and pursuant to the exemptions cited:
Record 1: Page 15 - 3 line redaction from paragraph 1 - section 33(1)(d)
Record 5: Pages 2/3 – Five line redaction from last paragraph of page 2 and the first line of page 3 - section 32(1)(b)
Record 6: Redaction on page 4 – sections 29(1) and 33(1)(d)
Accordingly, the scope of this review is concerned solely with whether the Department was justified in its decision to withhold the information outlined above under the exemptions cited. I assume that the Department has, at this stage, provided the applicant with all of the remaining information that it no longer claims to be exempt and if not, it should do so without further delay.
Before I address the substantive issues arising, I would like to make a number of preliminary comments. First, while I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me 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 records or give detailed reasons for my decision is somewhat limited.
Secondly, in 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”.
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.
The records
While I am limited in the extent to which I can describe the records at issue by virtue of section 25(3), I believe it would be useful to include some contextual information on the records, including a broad overview of the contents.
In its internal review decision, the Department said that during the COVID-19 pandemic a humane approach to the enforcement of deportation orders was taken by the Department and the Garda National Immigration Bureau. It said deportation orders were not enforced, except in cases where an individual would be considered a threat to national security or whose presence in Ireland would be contrary to the public interest. It said that with the lifting of COVID related public health restrictions and a return to more normal travel these processes recommenced.
Record 1 is an April 2022 internal discussion paper on deportation in the State. It describes its purpose as “to examine the current landscape pertaining to deportation in the State and matters impinging on it, particularly in the light of the possible need to review the continuing necessity for a moratorium on deportations created as a response to the recent pandemic”. Record 5 is an information note for the Minister on the same matter. Record 6 is described by the Department as an analysis document on asylum applicants from a particular State.
As I consider section 33(1(d) of the Act to be of most relevance to the information at issue, I will consider the applicability of that exemption first.
Section 33 – Security, defence and international relations
The Department withheld the relevant parts of records 1 and 6 under section 33(1)(d). That section provides for the refusal of a request if access to the record concerned could reasonably be expected to affect adversely the international relations of the State. The provision does not require a consideration of the public interest.
An FOI body seeking to rely on section 33(1)(d) should identify the potential adverse effect that might arise from disclosure of the record and, having identified that adverse effect, consider the reasonableness of any expectation that the adverse effect will occur. In doing so, it must demonstrate how granting access to the specific records at issue could reasonably be expected to have the adverse effect identified. The body is not required to show that such effect will definitely occur. Rather, it is sufficient for it 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 its submissions, the Department argued that the current operating environment relevant to the request requires interaction and diplomacy in terms of dealing with other jurisdictions. It argued that the State is required to demonstrate courtesy and respect to other states in the context of such interactions, be they in progress or proposed. It said it is not in the public interest that the State be required to disclose matters of a nature, outside of appropriate fora or channels, where a consequence of such a disclosure might be a detrimental effect on the international cooperation that the State receives or is seeking.
The Department also said that in order to execute a deportation or arrange for a charter flight carrying deportees to a specific state, the cooperation of that state is required. It argued that without cooperation from other states, deportations would not occur and the immigration system would be undermined. It said Ireland continues to work to maintain the best relationship possible with relevant partner states. It argued that it serves no positive purpose to ‘out’ these states when Ireland is dependent on their cooperation and a withdrawal of that cooperation will undermine the integrity of the immigration system. It argued that a functioning immigration system is generally regarded in the public interest and that consideration outweighs any public interest in disclosing the information at issue.
This Office has previously accepted that a loss of trust or confidence in Ireland could be damaging to the international relations of the State. Moreover, we have 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. Other relevant issues include the sensitivity or confidentiality of the records in determining whether the harm test in subsection (1) of section 33 has been met.
The information redacted from record 1 identifies specific states from whom the State is experiencing a lack of co-operation concerning the deportation of migrants. The information withheld from record 6 comprises a brief description of the immigration policies of other states in respect of applicants from a specified state and their effects on Ireland. The Department argued that despite reservations about the conduct of these states, many have embassies here and their cooperation is vital in ensuring the deportation of their nationals, specifically considering that the States in question must give permission. It argued that it is preferable not to be seen to be causing embarrassment to the countries concerned as this could further the detrimental effect on cooperation.
I accept that the deportation of migrants is a highly sensitive and important issue. I accept that ensuring the effective functioning of the deportation system is very important, and that the cooperation of states accepting people back is imperative to achieving the aims of the State in relation to its deportation policy. I accept that the 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. Accordingly, I find that the Department was justified in refusing access to the relevant information redacted from records 1 and 6 under section 33(1)(d) of the Act.
Having found section 33(1)(d) to apply to the relevant information redacted from record 6, I do not need to also consider the applicability of section 29(1) to that information.
Section 32(1)(b)
The Department redacted certain information from record 5 under section 32(1)(b) of the Act. That section provides for the refusal of a request if the FOI body considers that access to the record concerned could reasonably be expected to endanger the life or safety of any person. This Office takes the view that the exemption should not be applied without careful consideration having been given as to whether the expectation set out in the subsection is a reasonable one in all the circumstances and that it should only be invoked in circumstances of the most serious nature. An assessment of the expected consequences of releasing particular records in terms of endangering life or safety is required. It is not necessary, or indeed possible, to establish that such harm will occur but there must be a reasonable expectation of such harm occurring.
The Department said the information in question was redacted from a public safety perspective. It argued that the release of the information may increase a negative sentiment amongst the general public and endanger genuine applicants for International Protection.
The information comprises observations in relation to international protection applicants generally and in relation to the international protection process itself. In essence, the Department’s argument is that the release of the information could reasonably be expected to endanger the lives or safety of international protection applicants generally. I fully appreciate that in the current climate, the international protection process is a matter of significant public Interest and debate, with strongly held views and heightened emotions on all sides. Nevertheless, it seems to me that the observations in question would not come as a surprise to the wider public to the extent that the release of the information could, of itself, reasonably be expected to endanger the lives or safety of international protection applicants generally. Accordingly, I am not satisfied that the Department has satisfactorily shown that the release of the information at issue could reasonably be expected to give rise to the harms identified. I find, therefore, that section 32(1)(b) does not apply.
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 certain information from records 1 and 6 under section 33(1)(d). I find that it was not justified in redacting certain information from record 5 under section 32(1)(b) and I direct the release of that information.
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.
Stephen Rafferty, Senior Investigator