Decision
Ms A and The International Protection Appeals Tribunal
From Office of the Information Commissioner (OIC)
Case number: OIC-137416-G7Z4M3
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-137416-G7Z4M3
Published on
Whether IPAT was justified in refusing access to copies of email correspondence between the IPAT chairperson and other tribunal members under sections 29(1), 31(1) and 31(2) of the FOI Act
23 April 2024
In a request dated 10 February 2023, the applicant sought access to “Email correspondence between IPAT chairperson and other tribunal members in relation to decision-making/asking tribunal members for reconsideration and resubmission of some of their decisions between January 2023 to the present”.
In a decision dated 8 March 2023, IPAT refused access to all of the 28 records it identified as coming within the scope of the request under sections 29(1) and 31(2)(b) of the FOI Act. The applicant sought an internal review of that decision on 14 March 2023 following which IPAT affirmed its refusal of the request. On 14 April 2023, the applicant applied to this Office for a review of IPAT’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 correspondence between IPAT and the applicant as outlined above and to the communications between this Office and both parties on the matter. 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. When referring to the records at issue, I have adopted the numbering system used by IPAT in the schedule of records it prepared when processing the request.
During the course of the review, this Office noted that certain records contained attachments and sought copies of those attachments for the purposes of the review. IPAT provided copies of attachments in respect of 10 of the email records and these attachments have been considered.
In its submissions to this Office, IPAT also put forward additional arguments in support of its decision to refuse the request. It argued that the release of certain records would constitute a breach of the in camera and sub judice rules and that the records are therefore exempt pursuant to section 31(1)(b) of the FOI Act. It also argued that certain records were exempt on the grounds of legal professional privilege, which constitutes a claim for exemption under section 31(1)(a). The applicant was notified of additional arguments and invited to make further submissions.
During the course of the review, the applicant confirmed that she is not seeking access to any information contained in the records relating to third party individuals (eg. applicants for international protection). A number of the records at issue comprise case specific communications regarding applicants for international protection and appeals pending before the Tribunal. Accordingly, following communications with this Office, the applicant agreed that records 4, 5, 10, 13, 15, 17 and 24 could be excluded from the scope of this review. I am satisfied that the attachments subsequently provided by IPAT also comprise case specific documentation and are outside the scope of the review. Accordingly, I will give no further consideration to records 4, 5, 10, 13, 15, 17, 24 or the attachments. I am also satisfied that the names or identifying details of third parties referenced in the remaining records fall outside the scope of this review, including mobile phone numbers of IPAT staff and email addresses of all third parties. Moreover, I am satisfied that the first email dated 23 January 2023 in record 20 and the third paragraph in the third email of the thread which commences “I seem to be…” in record 27 comprise personal information relating to IPAT Tribunal members. I am satisfied that this information can also be excluded from the scope of this review.
In summary, therefore, the scope of this review is concerned with whether IPAT was justified in refusing access, under sections 29(1), 31(1)(a), 31(1)(b), and 31(2)(b) of the FOI Act, to the remaining information in records 1 to 3, 6 to 9, 11, 12, 14, 16, 18 to 23 and 25 to 28.
Before commencing my analysis, I wish to make a number of preliminary comments. Firstly, in its submissions to this Office, IPAT said its inclusion as a public body for the purposes of the FOI Act without any qualification risks undermining its role as a body independent in the performance of its decision-making functions as a court or tribunal of first instance, tasked with performing the judicial scrutiny function provided for in Article 39 of Directive 2005/85. It argued that although the Tribunal is currently not included in the list of ‘Partially Included Agencies’ in Schedule 1 of the FOI Act 2014, it should be generally exempt from the application of Section 6 of the Act save as regards a record concerning the general administration of the Tribunal in light of its status as a ‘court or tribunal of first instance’ in EU law. It noted that a number of “quasi-judicial bodies with the same public interest concerns” as IPAT “are excluded, exempted or merely required to provide details of administrative matters”.
Section 6(1) of the Act defines those bodies that are public bodies for the purposes of the FOI Act. Section 6(2) provides that any entity specified in Schedule 1, Part 1 of the Act shall, subject to the provisions of that Part, be a public body for the purposes of the Act. Schedule 1, Part 1 contains details of bodies that are partially included for the purposes of the Act and also details certain specified records that are excluded. In essence, IPAT’s argument is that certain bodies similar in nature to IPAT are included in Schedule 1 as public bodies in respect of general administration records only and that it too should be treated as such a body. Regardless of IPAT’s views on the appropriateness or otherwise of its inclusion as a public body without limitations such as are available to similar type bodies, the fact remains that it is not included in Schedule 1, Part 1. As such, it is a public body in all respects for the purposes of the FOI Act. Therefore, a right of access exists to records held by it unless they are otherwise exempt by virtue of one or more of the exemptions in the Act.
Secondly, it is important to note that 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 reached its decision. Accordingly, in light of the “de novo” nature of our reviews, I consider it appropriate to examine the applicability of additional relevant exemptions, notwithstanding the fact that they were not relied upon as a ground for refusing access to the records in IPAT’s decisions on the request.
Thirdly, section 22(12)(b) of the FOI Act provides that in a review by the Commissioner, a decision to refuse a request is presumed not to have been justified unless the public body shows to the satisfaction of the Commissioner that the decision was justified. Therefore, in this case, the onus is on IPAT to satisfy this Office that its decision to refuse to grant access to the records at issue was justified.
Finally, I would also note that although 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 disclosure of information contained in an exempt record. This means that the extent to which I can describe the content of the records at issue is somewhat limited.
The records at issue comprise email correspondence between the Chairperson and IPAT Tribunal members. While I am limited in the extent to which I can describe the records, IPAT has usefully separated the records into three categories:
As I have outlined above, IPAT cited sections 29(1), 31(1)(a), 31(1)(b) and 31(2)(b) as grounds for refusing the request. Having regard to its submissions and to the fact that section 31(2)(b) is a class based exemption, I will consider the applicability of that section to the records at issue in the first instance.
Section 31(2)(b) – records relating to tribunals
Section 31(2) provides for the discretionary refusal of a request if the record concerned relates to the appointment or proposed appointment, or the business or proceedings, of-
a. a tribunal to which the Tribunals of Inquiry (Evidence) Act 1921 applies,
b. any other tribunal or body or individual appointed by the Government or a Minister of the Government to inquire into specified matters at least one member, or the sole member, of which holds or has held judicial office or is a barrister or a solicitor, or
c. any tribunal or other body or individual appointed by either Houses of the Oireachtas to inquire into specified matters,
and the request is made at a time when it is proposed to appoint the tribunal, body or individual or at a time when the performance of the functions of the tribunal, body or individual has not been completed.
IPAT was established under section 61 of the International Protection Act 2015 (the 2015 Act). Each member of the Tribunal, including the Chairperson and Deputy Chairpersons, is appointed by the Minister for Justice pursuant to section 62(3).
IPAT said that pursuant to section 62(1) and (2) of the 2015 Act, all Members of the Tribunal, including the Chairperson and Deputy Chairpersons must, before their appointment, have had not less than 5 years’ experience as a practising barrister or solicitor. It said the majority of the Members continue to hold practising certificates following their appointment. It added that while the Members of IPAT are not judges, their decision-making is based entirely on EU law, as implemented into Irish law. It said the Tribunal provides “an effective remedy before a court or tribunal” within the meaning of Article 39 of the ‘Asylum Procedures Directive’ and an “effective remedy, in the form of an appeal or a review, in fact and in law, against a transfer decision, before a court or tribunal” within the meaning of Article 27 of the Dublin III Regulation. It said the Tribunal is considered a “judicial authority”, providing the possibility of an appeal or a review, in fact and in law in relation to reception conditions pursuant to Article 26 of Directive 2013/33/EU. It argued that the Tribunal, as a ‘court or tribunal’ as defined in EU law, must meet the requirements of Article 267 TFEU and its Members should be considered equivalent to judicial office holders.
Referring to previous decisions of this Office (Cases 99017, 99018, 99019, 99020, 99038, 99039 and 99040), IPAT further said that the Appeal Commissioners in Revenue cases was considered to be a tribunal for the purpose of section 31 of the FOI Act 2014. It said IPAT determines appeals against first instance administrative decisions affecting individuals’ rights in respect of;
For section 31(2)(b) to apply, the following four requirements must be met:
i. the record concerned must relate to the appointment or proposed appointment, or the business or proceedings, of a tribunal or body or individual (other than a tribunal to which the Tribunals of Inquiry (Evidence) Act 1921 applies), and
ii. the tribunal or body or individual must be appointed by the Government or a Minister of the Government to inquire into specified matters, and
iii. at least one member, or the sole member, of the tribunal or body must hold or have held judicial office or is a barrister or a solicitor, and
iv. the request is made at a time when it is proposed to appoint the tribunal, body or individual or at a time when the performance of the functions of the tribunal, body or individual has not been completed.
I should say at the outset that this Office did not consider the Appeal Commissioners to be a tribunal for the purposes of section 31(2)(b) of the 2014 Act in the cases cited by IPAT. Rather, we found the Appeal Commissioners to be a tribunal for the purposes of section 23(1)(a)(iv) of the FOI Act 1997, which is the equivalent of section 32(1)(a)(iv) of the FOI Act 2014. That section provides for the refusal of a request where the FOI body considers that access to the record could reasonably be expected to prejudice or impair the fairness of criminal proceedings in a court or of civil proceedings in a court or other tribunal.
For section 31(2)(b) to apply, all four requirements outlined above must be met. While I fully accept that IPAT is a tribunal, this, of itself, is not sufficient for the exemption to apply if one or more of the other requirements are not met. In my view, section 31(2)(b) serves to protect records relating to tribunals or other bodies appointed on an ad hoc basis by the Government or a Minister of the Government for the purpose of inquiring into specified matters and which would cease to exist once those inquiries were completed. IPAT is not a Tribunal that was appointed by the Government or a Minister of the Government to inquire into specified matters. Rather, it was established by statute, the 2015 Act, and its functions are as outlined in that Act. Accordingly, I find that the second requirement above is not met in this case. I find, therefore, that IPAT was not justified in refusing the request under section 31(2)(b).
Section 31(1)(a) – legal professional privilege
Section 31(1)(a) provides for the mandatory refusal of a request if the record sought would be exempt from production in proceedings in a court on the ground of legal professional privilege. The exemption does not require a consideration of the public interest for or against release.
Legal professional privilege enables the client to maintain the confidentiality of two types of communication:
The concept of “once privileged always privileged” applies where privilege is based on legal advice privilege, but not where it is based on litigation privilege. Thus, unless otherwise lost or waived, legal advice privilege lasts indefinitely.
Legal professional privilege belongs to the client and the client has the right to waive this privilege if the client so wishes. Waiver by the client may be done expressly, but it may also be implied from the circumstances. The Commissioner takes the view that the Irish courts would be slow to infer that there was a waiver of privilege, other than in clear cut cases. He considers that he would not be justified in concluding that, as a general proposition, privilege does not extend to records in the possession of an FOI body simply on the grounds that the body is not the client to whom the privilege belongs.
One of the factors necessary to establish that legal professional privilege arises is that the communication concerned is confidential. Where the communication ceases to be confidential, waiver of privilege may result. The steps taken to preserve the confidentiality of the communication may be relevant in considering whether there has been a waiver of privilege. The Commissioner has explained that his approach concerning the disclosure of a record to a third party is that it generally amounts to a waiver of privilege, except where there is “limited disclosure for a particular purpose, or to parties with a common interest”, as per the Supreme Court judgment in the case of Redfern Limited v O’Mahony [2009] IESC 18.
IPAT said the category A records 1, 6 to 9, 11, 12, 14, 16, 18 to 21, 23, 25 and 28 (communications relating to judicial review applications against Tribunal decisions) include advices and observations in respect of judicial review proceedings. It said that once the Tribunal makes a decision as the equivalent of a court of first instance in EU law, it is “functus officio”. This essentially means that its functions in respect of the case have come to an end. It said that in any judicial review proceedings against the Tribunal, the Minister for Justice is the “legitimus contradictor”. This essentially means that the Minister is the proper opponent in such proceedings. It said that any such proceedings are handled for the Minister by the Department of Justice Legal Services Unit and that the Minister is represented in the proceedings by the Chief State Solicitor’s Office (the CSSO). It said that Tribunal members are informed of any such proceedings and are invited to provide observations and many do.
The applicant was notified of IPAT’s reliance on section 31(1)(a) of the FOI Act and invited to make submissions. No substantive submissions on the particular exemption ground have been received.
The relevant records at issue comprise emails between various combinations of IPAT staff, the Department of Justice Legal Services Support Unit, the CSSO, and external legal counsel. I am satisfied that the dominant purpose of the vast majority of the communications was the preparation for contemplated/pending litigation, namely judicial review proceedings that had been initiated against decisions of the Tribunal. I find that section 31(1)(a) applies to records 1, 6 to 8, 11, 14, 16, 18, 19, 20 (in part only), 21, 23 (in part only), and 28. Having found section 31(1)(a) to apply, it is not necessary for me to consider the applicability of any other exemption to those records.
However, I am not satisfied that section 31(1)(a) applies to records 9, 12, the second and third emails in record 20, the first two emails in record 23, or record 25.
Record 9 comprises a number of internal IPAT emails that are concerned with clarifying certain matters regarding the status of an outstanding Tribunal hearing which was apparently postponed pending Court proceedings. Records 12, the relevant parts of records 20 and 23, and record 25 are also concerned with relaying the outcome of certain Court proceedings. I am satisfied that the records were not created for the purposes of obtaining and/or giving legal advice, nor can their dominant purpose be described as for the preparation of contemplated/pending litigation.
I note, however, that the email in record 12 that issued on 12 February 2023 at 13:13 and the email in record 25 that issued on 11 January 2023 on 12:23 were both created by the CSSO. Section 42(f) of the FOI Act provides that the Act does not apply to a record held or created by the Attorney General or the Director of Public Prosecutions or the Office of the Attorney General or the Office of the Director of Public Prosecutions, other than a record relating to general administration. The CSSO is a constituent part of the Office of the Attorney General. I am satisfied that the relevant emails do not relate to general administration, which is essentially concerned with the management of a body. I find that section 42(f) applies to both emails. Having found section 42(f) to apply, it is not necessary for me to consider the applicability of any other exemption to those parts of records 12 and 25.
In summary, therefore, I find that neither section 31(1)(a) nor section 42(f) apply to
record 9, the first two emails of record 12, the second and third emails in record 20, the first two emails in record 23, or the first three emails in record 25.
Section 31(1)(b) – contempt of court
IPAT argued that the category A and B records are exempt under section 31(1)(b) of the Act. Accordingly, I must consider the applicability of section 31(1)(b) to record 9, the first two emails in record 12, the second and third emails in record 20, the first two emails in record 23, the first three emails in record 25, record 26, and the relevant parts of record 27.
Section 31(1)(b) provides for the mandatory refusal of a request if the record concerned is such that the FOI body knows or ought reasonably to have known that its disclosure would constitute contempt of court. IPAT’s position is that the release of the records in categories A and B would be a breach of the in camera rule and that the matters before the Tribunal falling under categories A and B are considered sub judice.
On the matter of its argument that the release of the records would be in breach of the in camera rule, IPAT said that proceedings before the Tribunal are in private. It referred to section 42(4) of the 2015 Act which provides that “Subject to subsections (5) and (6), an oral hearing shall be held in private”. It argued that that the decision of the High Court in L.K. v The Information Commissioner [2013] IEHC 373 is of relevance. It said the communications between the Tribunal Chairperson and the Members of the Tribunal take place in the context of proceedings before the Tribunal which it said meets the standards required of a “court or tribunal” under EU law. It said that this must include the privacy of hearings as provided for in the 2015 Act, the confidentiality of proceedings before the Tribunal generally and confidential communications between the Chairperson and the Members in that context.
IPAT further referenced sections 26(1) and 26(2) of the 2015 Act which provide respectively that “(T)he Minister and the Tribunal and their respective officers shall take all practicable steps to ensure that the identity of applicants is kept confidential” and “(A) person shall not, without the consent of the applicant, publish in a written publication available to the public or broadcast, or cause to be so published or broadcast, information likely to lead members of the public to identify a person as an applicant”.
In respect of its argument that the matters before the Tribunal falling under categories A and B are considered sub judice, IPAT said that matters before the Tribunal must be considered sub judice in that even where confidential communications between the Chairperson and Tribunal Members concern the application of general legal principles and case-law in the context of Tribunal decision making, any current and future proceedings pending before the Tribunal will be impacted by those confidential communications. It said release of such communications would hinder the due administration of the quasi-judicial Tribunal proceedings as it would have the potential to limit the independent decision making of the Tribunal and each of its divisions.
It is a contempt of court for any person to disseminate information emanating or derived from proceedings held in camera without prior judicial authority. The in camera rule applies to proceedings where there is a statutory requirement that such proceedings are held in private or otherwise than in public. In addition, breach of the sub judice rule amounts to a contempt of court. Sub judice may arise where a matter is before the courts and has not yet been decided. In the High Court case of Desmond v Glackin (No. 1) [1993] 3 IR 1, O'Hanlon J. referred to the definition of contempt by way of publication interfering with particular legal proceedings in the New South Wales case of Attorney General for New South Wales v John Fairfax & Sons which read: "[C]ontempt will be established if a publication has a tendency to interfere with the due administration in the particular proceedings."
I have provided a brief description of record 9 and the relevant parts of records 12, 20, 23, and 25 above. They are essentially concerned with administrative matters, namely the status of an outstanding Tribunal hearing and the relaying of the outcome of certain Court proceedings. Records 26 and 27 comprise internal emails concerning, in essence, the consistency of two Tribunal decisions.
It seems to me that IPAT is essentially arguing that the in camera and sub judice rules apply to all of its communications that are concerned in any way with Tribunal proceedings. In my view, such a broad application of the rules is not permissible. IPAT has identified no information in any of the records at issue whose release would involve the dissemination of information emanating or derived from proceedings held in camera, nor is it apparent to me that they contain any such information. Similarly, it has not identified any specific information in the records whose disclosure would involve the publication of prejudicial material about pending court proceedings that would interfere with the administration of justice, nor has it explained how the release of any of the information in the records might do so.
Moreover, I do not accept IPAT’s argument that the release of the records at issue would hinder the due administration of the quasi-judicial Tribunal proceedings. IPAT has not explained how the release of any of the information in the records would give rise to the harm identified, nor is it apparent to me how it would. The records do not, for example, contain details of positions the Tribunal might take in future proceedings and that might be undermined if released. Instead, they are concerned with essentially administrative matters.
I also note that while IPAT referenced sections 26(1) and 26(2) of the 2015 Act which provide for the protection of the identities of international protection applicants, all such information has been excluded from the scope of this review.
In conclusion, therefore, I find that IPAT has not justified its decision to refuse access to the records at issue under section 31(1)(b).
Section 29 – deliberations of FOI bodies
IPAT’s position is that all of the records identified are exempt from release under section 29(1) of the FOI Act. Accordingly, I will consider the applicability of that section to records 2, 3, 9, the first two emails in record 12, the second and third emails in record 20, record 22, the first two emails in record 23, the first three emails in record 25, record 26, and the relevant parts of record 27.
Section 29(1) provides for the discretionary refusal of a request if (a) the record contains matter relating to the deliberative processes of an FOI body (including opinions, advice, recommendations, and the results of consultations, considered by the body, the head of the body, or a member of the body or of the staff of the body for the purpose of those processes), and (b) granting 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.
Section 29(1)(a)
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. An FOI body relying on this exemption should identify both the deliberative processes concerned and any matter in particular records which relates to these processes. A deliberative process may be described as a thinking process which informs decision making in FOI bodies. It involves the gathering of information from a variety of sources and weighing or considering carefully all of the information and facts obtained with a view to making a decision or reflecting upon the reasons for or against a particular choice. Thus, it 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.
As noted above, IPAT categorised the records as communications relating to judicial review applications, appeals pending before the Tribunal, and discussions, opinions, advice or recommendations. It said the records concern its decision making in situations in which the Chairperson engages in discussions, opinions, advice or recommendations with Tribunal Members in the performance of her functions as set out in section 63 of the 2015 Act. It said that the discussions, opinions, advice or recommendations must be considered both in the context of specific cases but also, because of the general application of such matters, as part of the deliberative process of the Tribunal Members. It said that each Member constitutes a division of the Tribunal as per section 61(6) of the 2015 Act in respect of cases in hand or future cases presenting with a similar set of facts or circumstances. It said that the performance of the functions of the Tribunal has not been completed and remains ongoing in that the discussions, opinions, advice or recommendations provided and queries raised have general application for other ongoing cases and future cases coming to the Tribunal by way of appeal.
It seems to me that the essence of IPAT’s argument is that the performance of the functions of the Tribunal comprise deliberative processes and that all related records are therefore captured by section 29(1)(a) as a class, regardless of their content. If this is the case, then I do not accept that argument. Each record at issue must contain matter relating to the deliberative processes of an FOI body for section 29(1)(a) to apply.
This Office takes the view that the process of establishing facts and circumstances and applying pre-existing principles would not, of itself, generally be regarded as constituting a deliberative process in the sense intended by the FOI Act. However, in this case I accept, on balance, that the performance by the Members of the Tribunal of their functions in considering and making decisions on international protection appeals comprise deliberative processes. In forming this view, I note that the Tribunal is inquisitorial in nature, that each Tribunal Member constitutes a division of the Tribunal, and that each Tribunal Member is independent in the performance of their functions. I further note IPAT’s submission that while discussions with, and opinions, advice, or recommendations provided by the Chairperson may be taken into account by the Tribunal Members, such discussions, opinions, advice or recommendations do not direct them in any way.
Records 2, 3 and 22 comprise emails or threads of emails sent from the Chairperson to Tribunal Members as a group. The records relate to two substantive communications from the Chairperson. The first substantive communication is contained in record 3. Record 2 comprises a copy of the communication in record 3 with a short response from one of the Tribunal Members. In record 3, the Chairperson draws the attention of the Tribunal Members to certain matters that should be considered in certain specified case types. In record 22, the Chairperson highlights certain findings of the Court of Justice of the European Union contained in a recent specified judgment. It is reasonable to assume that the purpose of the communications was to achieve a consistent approach by all Tribunal Members where the matters in question arose. Accordingly, I accept that section 29(1)(a) applies to records 3 and 22 and to the second email in record 2, but not to the first email in that record, namely the Tribunal Members response to the Chairperson’s email.
I am also satisfied that records 26 and 27 relate to a deliberative process. The records concern IPAT’s consideration of a potential issue concerning consistency of decision making in certain specified cases. I accept that section 29(1)(a) applies to records 26 and 27.
I am not satisfied, however, that section 29(1)(a) applies to record 9 or to the relevant parts of records 12, 20, 23, or 25. These records are essentially administrative; concerning the status and outcome of certain court proceedings. They do not contain opinions, advice, recommendations, or the results of consultations, considered by the body for the purpose of IPAT’s deliberative processes. There is no “thinking process” evident, nor is there a weighing up or evaluation of competing options or the consideration of proposals or courses of action. I find that section 29(1)(a) does not apply to these records.
In summary, therefore, I find that section 29(1)(a) applies to record 2 in part, and to records 3, 22, 26 and 27.
Section 29(2)
As I have indicated above, for section 29(1) to apply to a record, both subsections (a) and (b) must apply. Moreover, section 29(2) serves to disapply section 29(1). Accordingly, before I proceed to consider whether subsection (b) applies to the records to which I have found subsection (a) to apply, I consider it appropriate to first consider whether section 29(2) serves to disapply section 29(1).
Section 29(2) provides that subsection (1) does not apply to a record if and in so far as it contains any or all of the following:
a. matter such as rules, procedures, guidelines, interpretations and precedents used, or intended to be used, by an FOI body for the purpose of making decisions, determinations or recommendations;
b. factual information;
c. the reasons for the making of a decision by an FOI body;
d. a report of an investigation or analysis of the performance, efficiency or effectiveness of an FOI body in relation to the functions generally or a particular function of the body;
e. a report, study or analysis of a scientific or technical expert relating to the subject of his or her expertise or a report containing opinions or advice of such an expert and not being a report used or commissioned for the purposes of a decision of an FOI body made pursuant to any enactment or scheme.
IPAT argued that none of the subsections of section 29(2) serve to disapply section 29(1). In respect of subsection (a), it said that while certain records relate to case-law and legal interpretations expressed by way of opinions, advice, or recommendations, they do not meet the requirements of the subsection as Tribunal Members are independent in their decision making. It said that while discussions with, and opinions, advice or recommendations provided by the Chairperson may be taken into account by Tribunal Members, such discussions, opinions, advice, or recommendations do not direct them in any way that would amount to rules, procedures, guidelines, interpretations and precedents used, or intended to be used, by an FOI body for the purpose of making decisions, determinations or recommendations.
In respect of subsection (b), IPAT said that the records do not include factual information. It said that while the facts of a particular case pending before the Tribunal may be relevant as the background to a query, the records would be of more general application. It said that subsection (c) did not apply as the records concern the ongoing deliberative processes of the Tribunal. It said that reasons are set out in its decisions and these are provided to “appellants and their legal representatives”, as well as to the Minister for Justice and the UN High Commissioner for Refugees. It said that redacted versions are available on its website. IPAT’s position is that subsections (d) and (e) do not apply.
It seems to me that the relevant part of record 2 and records 3 and 22 are, indeed, captured by subsection (a). As I have indicated above, it appears that the Chairperson issued the communications with a view to achieving a consistent approach by all Tribunal Members where the matters in question arose. I note that in its submissions, IPAT said that the Chairperson may, in accordance with section 63(6) of the 2015 Act, from time to time convene a meeting with Members for the purpose of discussing matters such as the avoidance of undue divergences in the transaction of business by the Members. It said that it is essential for the performance of this duty that the Chairperson can engage in discussions and provide opinions, advice and recommendations to Tribunal Members. I accept this to be the case and as such, it seems to me that the matter contained in the records at issue can reasonably be described as procedures, guidelines or interpretations that the Chairperson intended the Tribunal Members would have regard to in their decision making processes. The fact that the Members are independent and are not bound by the guidance etc. does not, in my view, mean that it is not used or intended for use. Accordingly, I find that section 29(2)(a) serves to disapply section 29(1) in respect of the three records.
I am satisfied that none of the provisions of section 29(2) apply to records 26 and 27. Therefore, as I have found section 29(1)(a) to apply to those records 26 and 27, I must go on to consider section 29(1)(b). Moreover, for the sake of completeness, and in the event that I am incorrect in my finding that section 29(2) serves to disapply section 29(1) in respect of the relevant part of record 2 and records 3 and 22, I will also consider whether section 29(1)(b) applies to those records.
Section 29(1)(b)
The public interest test at section 29(1)(b) is a stronger test to meet than the public interest test in many other sections of the Act (which require that, on balance, the public interest would be better served by granting than by refusing to grant the request). Any arguments against release should be supported by the facts of the case and it should be shown how release would be contrary to the public interest e.g. by identifying a specific harm to the public interest flowing from release.
In her application to this Office, the applicant said that her FOI request was based on information she received that the chairperson of the Tribunal had emailed some members about a lack of consistency with overall rulings in their decision-making and that this was of significant interest to the public. In her subsequent submissions, she said that she filed the original request because she believed it was in the interest of a marginalised cohort of the public to know if Tribunal Members hearing their cases were encouraged to change their decision due to a “perceived inconsistency with a pattern”. She urged this Office to seek evidence from IPAT reasonably demonstrating that the release of the emails would be contrary to the public interest.
IPAT made a number of arguments as to why it believes the release of correspondence concerning decision making considerations between the Tribunal Chairperson/Deputy Chairpersons and ordinary Members of the Tribunal would be contrary to the public interest, as follows:
a. It argued that any such communication where it occurs is based on an understanding of mutual trust and confidence in communications between Tribunal Members and the Chairperson and Deputy Chairpersons, in a manner similar as would apply between the President of a Court and Judges of that Court. It said its Members should be considered equivalent to judicial office holders and it argued that it would be contrary to the public interest if its decision making function, including the deliberative processes related thereto, was not protected in a manner akin to that of the courts.
b. It argued that the release of the records could prejudice decisions yet to be made by the Tribunal in respect of pending appeals, reducing public confidence in the international protection appeals process.
c. It argued that the release of such communications would have the potential to limit the Chairperson of the Tribunal in the fulfilment of her statutory duty to ensure the functions of the Tribunal are performed efficiently and that the business assigned to each Member is disposed of as expeditiously as may be consistent with fairness and natural justice, including the avoidance of undue divergence in Tribunal decision making, while fully respecting Members’ independence in their decision-making.
d. It argued that the release of the records would impede the application of Chairperson’s Guideline No: 2020/1 - Code of Conduct and Rules on Conflict of Interest issued under section 63(2) of the International Protection Act 2015 on the basis that this Guideline provides, inter alia, that “Members shall not disclose or make known any information of a confidential nature that was obtained in their capacity as a Member”.
IPAT also drew attention to the legal context in which the Tribunal operates at EU and national level and said Article 41 of the Asylum Procedures Directive provides that “Member States shall ensure that authorities implementing this Directive are bound by the confidentiality principle as defined in national law, in relation to any information they obtain in the course of their work”. It also said that notwithstanding those provisions, it endeavours to assist applicants, legal advisors and other individuals through the publication of certain specified documentation and information on its website.
In relation to the first argument at (a) above, this seems to me to be, yet again, an argument for the protection of all correspondence concerning decision making considerations as a class, regardless of their contents. While IPAT has argued that its communications should be treated as confidential, it has not identified any specific harm that might arise by failing to protect such communications from disclosure. If its concerns relate to the potential for the impairment of full and frank exchanges of communications, I fully accept that there may be occasions where such harm might arise, depending on the nature of the communications concerned. However, I do not accept that this means all such communications should be protected regardless of their contents. In considering whether section 29(1) applies to the records at issue, regard must be had to the nature and contents of the records. It is not apparent to me how the release of the records at issue might impair the future exchange of such communications, nor has IPAT explained how such harm might arise.
In relation to the remaining arguments, it seems to me that they are no more than assertions of harms that could arise without any explanation as to how such harms might occur were the records at issue to be released. While records 2, 3, and 22 contain details of matters to which Tribunal Members should have regard when considering appeals, no explanation has been given as to how the release of such information might prejudice the decision making process itself or the Chairperson’s ability to fulfil her statutory functions. Similarly, while records 26 and 27 concern IPAT’s consideration of a potential issue concerning consistency of decision making in certain specified cases, no explanation has been given as to how the harms outlined by IPAT might arise as a result of the release of those records. Neither do I accept that the disclosure of any of these quite specific records would impede the application of the guidelines referenced, particularly given that the applicant has removed from scope any information in respect of third parties, including applicants for international protection.
As I have outlined above, IPAT has not satisfactorily explained how the release of the specific records at issue would be contrary to the public interest. Accordingly, I find that section 29(1)(b) does not apply to the relevant part of record 2 or to records 3, 22, 26 or 27. As both requirements of the exemption have not been met, I find, therefore, that section 29(1) does not apply to those records.
I find that IPAT was not justified in refusing access to record 2, record 3, record 9, the first two emails in record 12, the second and third emails in record 20, record 22, the first two emails in record 23, the first three emails in record 25, record 26 or record 27. I direct the release of those records in whole or in part, subject to the redaction of the certain third party personal information that I have excluded from the scope of the review.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary IPAT’s decision. While I find that it was justified in refusing to release certain records, in whole or in part, under sections 31(1)(a) and 42(f) of the FOI Act, I find that it was not justified in refusing access to the following records, in whole or in part:
I direct the release of those records in whole or in part, subject to the redaction of the following information that has been excluded from the scope of the review:
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