Decision
Mr Mark Tighe, The Sunday Times and the Department of the Taoiseach
From Office of the Information Commissioner (OIC)
Case number: 170175
Published on
From Office of the Information Commissioner (OIC)
Case number: 170175
Published on
Whether the Department was justified in refusing access to emails sent to the former Taoiseach's Gmail account on the ground that some records are exempt from release under sections 28, 30, 31, 33, 35, 36, 37 or 40 of the FOI Act and any further records do not exist or cannot be found, under section 15(1)(a) of the FOI Act
17 August 2018
On 24 November 2016, the applicant made an FOI request to the Department for copies of any emails sent to a Gmail account of the former Taoiseach over the period from March 1 2011 to the date of his request. On 16 February 2017, the Department issued a decision, in which it granted access to some information and refused access to the remaining information under sections 28, 30, 31, 33, 35, 36, 37 or 40 of the FOI Act. On 18 February 2017, the applicant applied for an internal review decision in respect of the withheld information. On 21 March 2017, the Department issued an internal review decision to the applicant, in which it affirmed the majority of its original decision and granted access to two further records in full and one in part. On 13 April 2017, the applicant applied to this Office for a review of the Department's decision. At that stage, over 160 records were scheduled as falling within the scope of the request. The applicant contended that the Department had not justified its refusal and that further records were held.
In reviewing this case, I have had regard to the correspondence between the applicant and the Department as outlined above and to the correspondence between this Office and both parties, as well as to the contents of the withheld records that were provided to this Office by the Department for the purposes of this review.
During the review process, the Department released additional records to the applicant, which now fall outside the scope of this review. Furthermore, in correspondence with the Investigator, the applicant confirmed that he was happy for personal information to be taken out of the scope of the review. I have therefore taken the records which the Department withheld under section 37, which comprise the majority of the withheld records, out of the scope of this review. For the avoidance of doubt, I would have found those records to be exempt under section 37 of the FOI Act. The following records remain within the scope of this review: 5, 9, 16, 27, 51-54, 59, 67, 83, 85, 93, 94, 103, 112, 117-119, 133, 137, 141 and 152.
In submissions to this Office, the applicant says that the withheld or redacted emails should be released in the public interest in there being transparency in how the (former) Taoiseach used Gmail for office business. However, in deciding whether the Department is justified in refusing access to the withheld information, I must consider the exemptions claimed and the public interest test, where that arises. I should note that not all of the exemptions claimed contain a public interest test.
The question for this review is whether the Department is justified in refusing access to the information which remains withheld, under sections 15(1)(a), 28, 30, 31, 33, 35, 36, 37 or 40 of the FOI Act.
Before considering the exemptions claimed, I wish to make the following points. First, it is important to note that section 22(12)(b) of the FOI Act provides that when the Commissioner reviews a decision to refuse a request, there is a presumption that the refusal is not 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 the Department to satisfy me that its decision is justified.
Secondly, my jurisdiction under section 22 of the FOI Act is to make a new decision, in light of the facts and circumstances as they apply on the date of the review. The Courts have endorsed this approach.
Thirdly, section 18 of the FOI Act provides that if it is practicable, records may be granted in part, by excluding the exempt material. Section 18 shall not apply if the copy of the record provided would be misleading. This Office takes the view that the provisions of section 18 do not envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, this Office is not in favour of the cutting or "dissecting" of records to such an extent. Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.
Fourthly, while I am required to give reasons for my decision under section 22(10) of the FOI Act, I am also required to take reasonable precautions to prevent disclosure of information in an exempt record, under section 25. This means that the extent to which I can describe the records at issue is very limited.
Finally, I must draw attention to the Department's handling of this case. I appreciate that FOI bodies are under pressure in relation to resources. However, it seems to me that if the Department had handled the applicant's FOI request thoroughly and properly at the start, this would have facilitated the review process. I would expect the Department of the Taoiseach to be adequately resourced for the purpose of managing FOI requests and reviews. The Department's overall approach in a case which involved many records and exemptions made the review process lengthier and more cumbersome than it should have been. Further, the diverse nature of the records and the number of separate provisions of the FOI Act claimed in relation to the exemptions mean that this decision is lengthy and complex.
Having regard to all the applicant's correspondence with the Department and this Office, I understand that he seeks access to any emails sent to the former Taoiseach's Gmail account between March 1 2011 and the date of his FOI request. In his internal review request, he said that he believed that the Taoiseach would have received many more emails relating to government business on that account and that he seems to have been given only emails which the former Taoiseach sent on to officials. He said that the Gmail account should be examined to see what other records relating to official government business are received and sent through that account. In his application for review to this Office, he said that he believed that the Department had failed to carry out a complete search of the Gmail account to see what records relate to official business.
Where the applicant claims that further records exist, it is appropriate to consider section 15(1)(a) of the FOI Act. Section 15(1)(a) provides that access to records may be refused if the records concerned do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The role of this Office in cases such as this is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision-maker and the reasoning used by the decision-maker in arriving at his decision and I also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in "search" cases consists of the steps actually taken to search for records, along with miscellaneous other evidence about the record management practices of the FOI body, on the basis of which the FOI body concluded that the steps taken to search for records were reasonable. Having regard to the information provided, this Office forms a view as to whether the decision-maker was justified in coming to the decision that the records sought do not exist or cannot be found.
During this review, the Investigator asked the Department about the existence of further records and the steps it had taken to search for records which were within the scope of the applicant's FOI request. The Department says that it identified 161 records as falling within the scope of the request. It maintains that it contacted individuals within the Department identified as possibly having sent or received emails to that Gmail account, including staff in the Taoiseach's private office and his advisors. During this review, it stated that it contacted all members of the senior management team, who confirmed that they did not send emails to that Gmail account during the relevant period and that no further records were found. It says: "due to the nature of the Gmail account, which was a private account and therefore not under the control of the Department within the meaning of section 2(5) of the FOI Act, the former Taoiseach was not asked for details of the account". It says that the former Taoiseach's Private Secretary confirmed that he did not monitor or have access to the account and is not aware of anyone other than the Taoiseach who did.
The Central Policy Unit (CPU) Guidance Note 24, published by the Department of Public Expenditure and Reform, refers to records held on non-official systems and electronic devices used by individuals. The Note states that in certain exceptional circumstances, official information subject to FOI may be transmitted via non-official systems e.g. web-based email, such as Gmail. It says that public bodies are required to take reasonable steps to search for and extract the records to which the FOI request relates.
It also states that: "the FOI Act does not require records ‘held’ by a public body to be held in any particular location. If the records relate to official functions and/or business activities of a public body, and if the public body has a legal right to procure the records regardless of whether they are held in official or non-official systems (including web-based email such as Gmail or Hotmail), these records are subject of the FOI Act."
It further says that where records fall within the scope of a particular FOI request and are not held on that public body's own systems, "it will necessitate the individual being asked to retrieve the official records from the non-official system or electronic device". It says that "public bodies should be aware that records held by individuals, regardless of the form in which they are held, and which relate to the functions and/or business activities of the public body, are held on behalf of the public body and as such may be subject to the FOI Act".
I see no reason to disagree with or disregard the points set out in Guidance Note No. 24.
It is clear from the records under review that the former Taoiseach wrote from the account and people wrote to the account in relation to official business. To the extent that the account was used in this way, I do not accept that its contents could reasonably be characterised as "private". The Department has not made any other argument to support a position that records relating to official business, sent to and from an email account of the former Taoiseach, are not records held by or on behalf of the Department of the Taoiseach and subject to FOI.
I accept that it is likely that emails of a purely personal nature may also be held in the Gmail account of the former Taoiseach. Guidance Note 24 says that records held in non-official systems or in other electronic devices that do not relate to official functions and/or business of a public body will not be subject to the FOI Act. However, I consider that it is reasonable and necessary for the Department to enquire of the former Taoiseach whether the Gmail account holds other emails relating to the applicant's FOI request.
As noted above, Guidance Note 24 says that records held by individuals, regardless of the form in which they are held, and which relate to the functions and/or business activities of the public body, are held on behalf of the public body and as such may be subject to the FOI Act. The Note clearly provides for a scenario where a decision-maker requests an individual to search non-official systems or other electronic devices. The Note states that in such a situation, the decision-maker should record all actions taken, so that the public body can demonstrate that appropriate searches were conducted in relation to a particular FOI request.
I have had regard to the CPU guidance and the fact that the Department failed to ask the account-holder whether further records existed within the scope of this FOI request. In the circumstances, I consider that the Department has not taken all reasonable steps to ascertain the whereabouts of further records. I find that the Department is not justified in refusing access to further records under section 15(1)(a) of the FOI Act.
I consider that the best course of action is to direct the Department to ask the former Taoiseach to confirm whether (apart from the 161 records identified), additional records within the scope of the applicant's FOI request are held and if they exist, to retrieve them so that the Department can consider their content and make a decision on any such records in accordance with the provisions of the FOI Act.
As the Department claims six separate exemptions for each of these records, I will deal with them first. Record 54 contains points prepared for the Taoiseach for a discussion with a senior representative of a company. Record 152 is a briefing pack on a matter which the State is appealing, which includes further discussion points with that representative.
The Department claims section 40(1) of the FOI Act over Records 54 and 152. Section 40(1) provides that an FOI body may refuse to grant an FOI request if access to the record could reasonably be expected to result in specified harms to the financial and economic interests of the State. Where an FOI body relies on section 40(1), it should identify the potential harm specified in the relevant paragraph of subsection (1) that might arise from disclosure. The FOI body should show the link between granting access to the record concerned and the harm identified. Having identified that harm, the FOI body should consider the reasonableness of any expectation that the harm will occur. The FOI body must then go on to consider the public interest test at section 40(3).
The Department says that these records contain information regarding confidential discussions between the company concerned and Ireland. It submits that disclosing them would prejudice the sharing of similar information by the company and other multinational companies and which could have a negative influence on other enterprises who could choose not to invest or expand and have a serious adverse effect on the Government's ability to manage the national economy and the financial interests of the State.
Record 54 and the two cover pages and last four pages of Record 152 disclose points in confidential discussions between the former Taoiseach and the company concerned. Having reviewed their content, I accept that disclosing this detailed information could reasonably be expected to have a negative impact on decisions by enterprises to invest or expand in the State or on the effectiveness of the State's industrial development strategy. I therefore find that section 40(1)(c) applies to this information.
Section 40(3) of the FOI Act then requires me to consider whether, on balance, the public interest would be better served by granting than by refusing the FOI request. Section 40(1) itself reflects the public interest in protecting the State from loss or prejudice. On the other hand, the FOI Act recognises that there is a significant public interest in government being open and accountable, which is also reflected in section 11(3) of the FOI Act.
I take the approach that in attempting to strike the balance under section 40(3), it is legitimate to consider two things: the positive public interest which is served by disclosure and the harm that might be caused by disclosure. I have already identified above the harm that might be caused by disclosure. The positive public interest is transparency around the Government's engagement with companies which invest in the State.
I consider that on balance, the public interest in protecting the specific financial and economic interests of the State which section 40(1)(c) provides for outweighs the public interest in transparency in relation to this information. I believe that the public interest would not be better served by granting access to this information and therefore section 40(3) does not disapply section 40(1). I find that the Department is justified in refusing access to this information under section 40(1)(c) of the FOI Act.
However, the Department has not satisfied me that its expectation that releasing the remaining information could cause the harms claimed under sections 40(1)(a), (b) or (c) is reasonable. Consideration should be given to what disclosure of the record would actually reveal. For example, where the information contained in the record is already known or in the public domain, it may not be reasonable to expect that prejudice or harm would result from its disclosure. The remaining information is a briefing on the State's appeal. I note that the Department released the part of Record 152 which contains a press release outlining the State's position on the appeal concerned. Furthermore, I can see that the State has made other documents available online which publicly set out its position on the appeal concerned and its main lines of argument. In short, the State's position on both the subject-matter of this appeal and the appeal itself is disclosed in public documents.
During the review, the Investigator invited the Department's submissions on the relevance of the public availability of such information. In response, the Department submits that Record 152 discloses tactical, strategic and factual details which are not in the public domain and which would be damaging to disclose. However, it does not identify any such "tactical, strategic and factual details". I am not satisfied that section 40(1) applies to the remaining parts of Record 152. I find that the Department is not justified in refusing access to this information under section 40(1) of the FOI Act. I am therefore not required to consider the public interest balancing test under section 40(3) in relation to this information.
In view of this finding, I am only required to consider the other five exemptions in relation to the remaining part of Record 152 (which I will refer to as Record 152).
The Department claims section 30(1)(c) of the FOI Act over Record 152. Section 30(1)(c) provides that an FOI body may refuse to grant an FOI request if access to the record could disclose positions etc. taken for the purpose of any negotiation carried on by or on behalf of an FOI body. It does not contain a harm test. However, FOI bodies should identify the relevant negotiations at issue and show that releasing the records could reasonably be expected to disclose positions taken or plans etc used or followed or to be used or followed for the purpose of any negotiations. In considering whether a position, plan etc. would be disclosed by the granting of access to the record, regard may be had to such matters as information already available or published.
The Department submits that disclosure would reasonably be expected to prejudice the effectiveness of a Court appeal. It says that Record 152 contains details of the Government's position and approach to that appeal. In weighing up the public interest, it submits that disclosing the record could result in a material financial impact on the company and/or the Irish economy and relations with the EU, the company and other multinational companies.
Section 30(1)(c) concerns the disclosure of positions to be used by FOI bodies in negotiations. While the Department refers to the effectiveness of the State's appeal, it refers to negotiations with the company rather than negotiations around the appeal and it does not specify any other negotiations. Importantly, neither does it point to positions taken for the purpose of any negotiations. As noted above, the Investigator invited the Department's submissions on the relevance of the public availability of information around the State's position on the appeal. The Department refers to tactical, strategic and factual details which would be damaging to disclose but does not identify them. I am not satisfied that, apart from the pages which I have already found to be exempt under section 40(1)(c), the record contains negotiation positions which are not already in the public domain. Moreover and as stated above, the Department does not point to positions taken for the purpose of negotiations. The fact remains that the State's position on both the subject-matter of this appeal and the appeal itself is disclosed in public documents.
I find that section 30(1)(c) of the FOI Act does not apply to Record 152 and the Department is not justified in refusing access to it under section 30(1)(c) of the FOI Act. In view of this finding, I am not required to consider section 30(2).
The Department claims section 31(1)(a) of the FOI Act (legal professional privilege) over Record 152. Section 31(1)(a) provides that an FOI body shall refuse to grant an FOI request if the record concerned would be exempt from production in proceedings in a court on the ground of legal professional privilege (LPP). In deciding whether section 31(1)(a) applies, I must therefore consider whether the record concerned would be withheld on the ground of LPP in court proceedings. The Department says that "while not legally privileged", Record 152 contains highly sensitive details in relation to a court appeal. However, it does not assert any basis upon which section 31(1)(a) applies and nor is this apparent to me from my examination of the record. I therefore do not propose to consider this point further. I find that the Department is not justified in refusing access to Record 152 under section 31(1)(a) of the FOI Act.
The Department claims section 33(1)(c) of the FOI Act over Record 152. It submits that Record 152 contains information which if disclosed would adversely affect the international relations of the State. I therefore take it that it intends to refer to section 33(1)(d) (section 33(1)(c) concerns matters relating to Northern Ireland). This is a harm-based exemption. An FOI body relying on section 33(1)(d) for its refusal to grant access to a record must satisfy me that harm to international relations could reasonably be expected to occur as a result of disclosure of the record concerned. It is important to note that this section is not a class exemption. Consideration should be given to the particular record at issue and its contents. Consideration may be given to information which is otherwise available or is in the public domain.
The Department says that the record relates to relations between the State and the EU regarding the case concerned. It says that the appeal could be materially impacted by the EU having access to this record. I accept that the record relates to the subject-matter of the appeal and the appeal itself. However, I do not consider that it necessarily follows that disclosing it could reasonably be expected to adversely affect international relations. The Department does not show how access to this record could reasonably be expected to have an adverse effect on international relations, nor show adequate grounds for its expectation of the adverse effect. As noted above, the State's position on both the subject-matter of this appeal and the appeal itself is in the public domain. I find that the Department is not justified in refusing access to Record 152 under section 33(1)(d) of the FOI Act.
The Department claims section 35(1)(a) of the FOI Act (confidentiality) over Record 152. As section 35(1) does not apply where the records fall within the terms of section 35(2), I should consider section 35(2) at the outset. Under section 35(2), the confidentiality exemption does not apply to a record which was prepared by a head, director or staff member of an FOI body or a service provider in the course of the performance of his or her functions unless disclosure would constitute a breach of a duty of confidence that is owed to a person other than an FOI body etc. The part of Record 152 which I am considering was prepared by an FOI body (the Department of Finance). The Investigator drew the Department of the Taoiseach's attention to section 35(2) when inviting its submissions. However, the Department does not address this provision in its submissions. Neither does it point to a breach of a duty of confidence to a person other than an FOI body etc. which is owed under an agreement or statute or otherwise by law. On the face of it, I can see no evidence of information in the record having been given in confidence by a third party to the Department. I find that section 35(2) disapplies section 35(1) and that the Department is not justified in refusing access to Record 152 under section 35(1) of the FOI Act.
The Department claims section 36(1)(b) of the FOI Act over Record 152. Section 36(1)(b) provides that an FOI body shall refuse to grant an FOI request if the record concerned contains financial, commercial, scientific or technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation. However, section 36(1) does not apply if the public interest would, on balance, be better served by granting rather than refusing the request (section 36(3) refers).
The Department says that releasing Record 152 could clearly result in a material financial impact on the company concerned and this would also apply to the financial position of the State. It says that the State's appeal could be materially impacted by disclosing these records. In my view, the Department's first point is an assertion which it does not substantiate. It does not go on to demonstrate how disclosing this record could result in the alleged harm. The High Court decision in Westwood Club v The Information Commissioner [2014] IEHC 375 makes it clear that it is not sufficient for the party relying on section 36(1)(b) to merely restate the provisions of the section, list the documents and say that they are commercially sensitive. The Department's second point does not refer to the harms provided for in section 36(1)(b). In the circumstances, I have no basis upon which to find that section 36(1)(b) applies to Record 152. In view of this finding, I am not required to consider section 36(3) and the public interest. I find that the Department is not justified in refusing access to Record 152 under section 36(1) of the FOI Act.
In conclusion, I find that the Department is not justified in refusing access to the remaining part of Record 152 under sections 30, 31, 33, 35 or 36 of the FOI Act.
The Department claims section 28(1)(a) over Records 85, 117 and 119. In order to be exempt from disclosure under this provision, the record must fulfil three criteria: that the record has been (or is/was proposed to be) submitted to the Government for its consideration; and has been (or is/was proposed to be) submitted by a Minister of the Government or the Attorney General; and was created for the purpose of submission to the Government for its consideration. Records 85, 117 and 119 contain memoranda for Government.
Having reviewed the records, subject to the following comments, I accept that they fulfil the criteria outlined above. However, the "covering" email correspondence in Records 85 and 117 does not satisfy the relevant criteria and I therefore do not accept that section 28 applies to these emails.
Section 28(3) disapplies section 28(1) if and insofar as the record contains factual information relating to a decision of the Government that has been published to the general public. In March 2017, it was announced that the Government had decided to hold a referendum on allowing Irish citizens resident outside the State to vote in Irish presidential elections. This decision postdated the applicant's FOI request. However, as noted above, my jurisdiction is to make a new decision, in light of the facts and circumstances as they apply on the date of the review. Therefore during the review process, the Investigator invited the Department's observations on whether the memoranda in Records 117 and 119 contain factual information relating to that decision. In response, the Department released the parts of Records 117 and 119 which it says are factual.
Having reviewed the parts of Records 117 and 119 which remain withheld, I consider that a small part qualifies as factual information. Section 2 of the FOI Act provides that "factual information" includes information of a statistical, financial, econometric or empirical nature, together with any analysis thereof. I consider that factual information would generally include, for example, material presented to provide a factual background to the central topic in a record. I also take the view that factual information is distinguishable from information in the form of proposal, opinion or recommendation.
Having regard to the above and section 18 of the FOI Act, I find that pages 2-3 of Record 119 (from "4" onwards) constitute factual information relating to a decision of the Government that has been published to the general public. This is on the ground that they constitute material presented to provide a factual background which informs Cabinet of the relevant facts and which can be distinguished from the proposals, opinions or recommendations contained within the memoranda. I find that section 28(3) disapplies section 28(1) in relation to this information and the Department is not justified in withholding access to it under section 28. I also find that the Department is not justified under section 28 in withholding access to the "covering" email correspondence in Records 85 and 117. I find that the Department is justified in withholding access to the remaining information in Records 85, 117 and 119 under section 28(1)(a) of the FOI Act.
The Department claims section 28(1)(a) and 28(2)(a) of the FOI Act over Record 9. I will consider section 28(2)(a) first. An FOI body relying on section 28(2) for its refusal to grant access to a record must show that the record concerned contains a statement made at a Government meeting or contains information which reveals the substance of such a statement or from which a statement may be inferred. The Department says that the record discloses statements made at a Cabinet committee meeting. Having reviewed Record 9, I accept that it meets the requirements of section 28(2)(a). I have considered section 28(2)(b) and am satisfied that Record 9 does not fall within either subparagraph (i) or (ii). I find that the Department is justified in withholding access to Record 9 under section 28(2)(a) of the FOI Act.
The Department claims sections 33(1)(d), 33(2)(b)(i) and 33(3)(c)(i) of the FOI Act over the withheld part of this record. It consists of speaking points prepared for a meeting between the former Taoiseach and the former Vice-President of China in 2012.
I will consider section 33(2)(b)(i) first. This is a mandatory and class-based exemption and there is no requirement to meet the harm test in subsection (1). It applies (among other things) to a record that contains a communication between a Minister of the Government or his or her Department or Office and a diplomatic mission or consular post in the State or of the State where such information was communicated in confidence.
During this review, the Investigator asked the Department to point to the part of Record 16 which shows that the information was communicated from a diplomatic mission or consular post in or of the State and that it was communicated in confidence. In response, the Department says that this record formed part of an email chain, the rest of which falls outside the scope of the FOI request and therefore was not provided to this Office. It says that the information it contains originated from a diplomatic mission. It also says that it is standard operating procedure for the relevant embassy to prepare and draft speaking points for the Taoiseach for high-level political discussions. In all such situations, including in respect of this record, communications from the Embassy of Ireland and the Department of Foreign Affairs and Trade include an email disclaimer to the effect that the record is confidential. The Department provided this Office with a copy of its departmental disclaimer.
I have no reason to doubt the Department's assertion that the speaking points emanated from a Diplomatic mission and is part of a communication between a Minister of the Government or his or her Department or Office and a diplomatic mission. However, I cannot accept that an automated email disclaimer of itself demonstrates that the information was communicated in confidence. This Office set out its position on such disclaimers and confidentiality as far back as 2000. In Case 98058 (Mr Phelim McAleer and the Minister for Justice, Equality and Law Reform), the late Mr. Kevin Murphy said in relation to confidentiality notes on fax communications: "I do not accept that the existence of the confidentiality note of itself is evidence that the information contained in the particular faxes is confidential and that it was understood that the information was given to the Department on the basis that it would be treated as confidential". I am surprised that the Department seeks to rely on the standard email confidentiality note in relation to several records in this review.
Leaving aside the disclaimer, I consider it appropriate to examine the record and the circumstances of its creation, with a view to establishing whether it was communicated in confidence. Having examined this record and the circumstances of its creation, I accept that it was communicated in confidence. I find that the Department is justified in refusing access to Record 16 under section 33(2)(b)(i) of the FOI Act. I am therefore not required to consider the other subsections of section 33.
These records consist of email correspondence between the Irish Consul General in Boston and the Department. The Department claims section 33(2)(b)(i) of the FOI Act over them. It says that section 33(2)(b)(i) provides for the mandatory withholding of records such as this, pertaining to matters of international relations. It says that the information was communicated in confidence, as clearly stated in the disclaimer within the email. As noted above, I do not accept that an automated email disclaimer of itself demonstrates that a record was communicated in confidence. However, the Department has pointed me to particular information within these records and circumstances around their creation which I cannot disclose, but which I accept demonstrate that these records were communicated in confidence. Having reviewed both records, I accept that they contain communications between the Department and a consular post of the State and that such information was communicated in confidence. I therefore find that the Department is justified in refusing access to Records 51 and 52 under section 33(2)(b)(i) of the FOI Act.
The Department claims section 33(3)(c)(i) and 33(1)(d) of the FOI Act over this record. I will consider section 33(3)(c)(i) first. The relevant test to apply in considering whether subsection (3) applies is whether the record meets the description of any of the classes or categories of records set out in subsection (3). In order for section 33(3)(c)(i) to apply, the record concerned must 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 Department says that this record contains communications between and within the Department of Foreign Affairs and the Department of the Taoiseach. It says that it pertains to Ireland's international relations with the Holy See and that it was communicated in confidence, as stated in the disclaimer. In addition to considering the other elements of section 33(3)(c)(i), I must consider whether this information was "expressed by the latter person to be confidential or to be communicated in confidence". I do not accept that an automated disclaimer of itself demonstrates that this information was expressed to be confidential or to be communicated in confidence. This record therefore does not meet the requirements of section 33(3)(c)(i).
I will now consider section 33(1)(d). As noted above, this is not a class exemption. The Department must satisfy me that harm to international relations could reasonably be expected to occur as a result of disclosure of the record concerned. The Department says that releasing this email would impact negatively on Ireland's international relations by undermining confidence in the confidentiality of communications on diplomatic or international issues. It says that the Taoiseach has a key role in promoting international relations and if confidentiality is compromised, this will negatively impact the effectiveness of conducting international relations. I do not doubt the importance of confidentiality to the conduct of international relations. However, the Department has not demonstrated how releasing the content of this particular email could reasonably be expected to affect adversely international relations, such that section 33(1)(d) would apply, and neither is this apparent to me from reviewing its content. I find that the Department is not justified in refusing access to Record 59 under section 33(1)(d) or section 33(3)(c)(i) of the FOI Act.
The Department claims section 33(2)(b)(i) and 33(1)(d) of the FOI Act over this record. It contains information communicated by the Embassy of Ireland in Berlin to the Department, the Department of Foreign Affairs and the Department of Finance. The Department has pointed me to particular information within these records and circumstances around their creation which I cannot disclose, but which I accept demonstrate that it was communicated in confidence. I also accept that it is a communication between a Department and a diplomatic mission of the State. I find that the Department is justified in refusing access to this record under section 33(2)(b)(i) of the FOI Act. I therefore do not need to consider section 33(1)(d) of the FOI Act.
The Department claims section 33(1)(d) of the FOI Act over this record. The Department says that releasing this record would adversely affect the State's international relations, as it reveals details of Ireland's approach to an EU meeting about a particular incident concerning international relations which remains live to this day. I cannot disclose the content of the record or the details of the Department's submissions. However, having reviewed both, I accept that it is reasonable to expect that releasing this record could affect adversely the international relations of the State. I find that the Department is justified in refusing access to this record under section 33(1)(d) of the FOI Act.
I find a small part of this record to be exempt under section 37 of the FOI Act below and therefore my consideration of section 33 applies to the remaining parts of the record. The Department claims section 33(2)(b)(i) of the FOI Act over the second part of this record, which is an email from the Irish Consul General in Chicago to the Department and the Department of Foreign Affairs about the introduction to a speech by a former President of the USA. The Department again relies on its email disclaimer in support of its contention that this record was communicated in confidence. I do not accept that such a disclaimer of itself demonstrates that it was communicated in confidence. Having reviewed the record and the circumstances of its creation, I am not satisfied that this part of Record 112 was communicated in confidence. I note from media reports that the facts which this email discloses were publicised at the time. I find that the Department is not justified in refusing access to this record under section 33(2)(b)(i) of the FOI Act.
The Department claims sections 33(1)(d) and 33(3)(c)(i) of the FOI Act over the first part of this record, which is an internal email of the Department. The Department says that releasing this email would impact negatively on Ireland's international relations by undermining confidence in the confidentiality of communications on diplomatic or international issues. It says that the Taoiseach has a key role in promoting international relations and if confidentiality is compromised, this will negatively impact the effectiveness of conducting international relations. As stated earlier, I do not doubt the importance of confidentiality to the conduct of international relations. However, the Department has not demonstrated how releasing the content of this particular email could reasonably be expected to affect adversely international relations, such that section 33(1)(d) would apply, and neither is this apparent to me from reviewing the record. Furthermore, the Department has not demonstrated that it contains information communicated in confidence or that it is expressed to be confidential or communicated in confidence, such that section 33(3)(c)(i) would apply. I find that the Department is not justified in refusing access to Record 112 under section 33(1)(d) or section 33(3)(c)(i) of the FOI Act.
The Department claims section 33(2)(b)(i) of the FOI Act over this record. The Department says that this section provides for the mandatory withholding of records such as this relating to international relations from a diplomatic mission of the State and communicated in confidence, as clearly stated in the email disclaimer. Again, I do not accept that the email disclaimer of itself demonstrates that this was communicated in confidence. The Department points to the fact that it discloses "diplomatic efforts". I cannot detail the diplomatic efforts here, but having reviewed the record and the circumstances of its creation, I am satisfied that it was communicated in confidence. I find that the Department is justified in refusing access to Record 118 under section 33(2)(b)(i) of the FOI Act.
The Department claims section 33(2)(b)(i) of the FOI Act over this record. The Department says that this section provides for the mandatory withholding of records such as this relating to international relations from a diplomatic mission of the State and communicated in confidence, as clearly stated in the email disclaimer. Again, I do not accept that the email disclaimer of itself demonstrates that this was communicated in confidence. The Department says that the information did in fact originate from a diplomatic mission of Ireland, which correspondence included the standard email disclaimer. It also points to the fact that it discloses engagement with a US politician. I have set out my position on the email disclaimer above. Having reviewed the record and the circumstances of its creation, I do not consider that it is a communication that was made in confidence. I find that the Department is not justified in refusing access to Record 137 under section 33(2)(b)(i) of the FOI Act.
The Department claims section 33 of the FOI Act over this record. It is a briefing pack prepared for Ministerial visits to Lebanon and Israel. The Department released the record in part. As noted above, the personal information within this record falls outside the scope of this review. Therefore I am only required to consider section 33 in relation to the remaining withheld information. The Department says that this information relates to tactics, strategy or operations of the Defence Forces in or outside the State and that releasing it could compromise military security and intelligence capability, as well as adversely affecting relations with armed forces in Lebanon. While I cannot give details of the withheld information, having reviewed it, I accept that access to it could reasonably be expected to adversely affect the security, defence and international relations of the State. I find that the Department is justified in refusing access to Record 141 under section 33(1) of the FOI Act.
As stated at the outset, I removed from the scope of this review the records which the Department withheld under section 37 of the FOI Act. However, the remaining records contain certain information which I consider appropriate to review under section 37 given their content.
Section 37(1) provides that access to a record shall be refused if it would involve the disclosure of personal information. The FOI Act defines the term “personal information” as information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or his/her family or friends, or information about the individual that is held by a public body on the understanding that it would be treated as confidential. The FOI Act details fourteen specific categories of information which is personal without prejudice to the generality of the foregoing definition. These categories include: "(xiii) information relating to property of the individual (including the nature of the individual's title to any property)".
While the Department claimed section 31(1)(b) over Record 53, I believe that the appropriate exemption to consider is section 37. It contains the names of individual landowners and information relating to their property, in addition to identifying information about individuals involved in a work inquiry. I consider this to qualify as personal information. I also consider the following to qualify as personal information, on the basis that it is information about an identifiable individual which is held by an FOI body on the understanding that it would be treated by that body as confidential: the last six lines on the first page of Record 5 (from "I have mailed" onwards) and the second sentence of the second email in Record 112. I find that this information is exempt from release under section 37(1) of the FOI Act. This finding is subject to the provisions of sections 37(2) and 37(5), which I examine below.
Section 37(2) of the FOI Act sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances in section 37(2) apply to the information concerned. That is to say, (a) it does not relate to the applicant; (b) the third parties have not consented to the release of the information; (c) the information is not of a kind that is available to the general public; (d) the information does not belong to a class of information which would or might be made available to the general public; and (e) the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual. I am then required to consider section 37(5) as it applies to the information.
Section 37(5) of the FOI Act provides that access to the personal information of a third party may be granted where the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or the grant of the request would benefit the person to whom the information relates. The FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies. On the other hand, however, the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy, which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution. Accordingly, when considering section 37(5)(a), privacy rights will be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy.
On balance, I do not consider that the public interest that the request should be granted outweighs the Constitutional right to privacy of the individuals to whom the information relates. I find that section 37(5)(a) does not apply in the circumstances. It has not been argued that releasing the records would benefit the people to whom the information relates and I find that section 37(5)(b) does not apply in the circumstances. I find that the Department is justified in refusing access to the information listed above under section 37(1) of the FOI Act.
The Department claims section 40(1)(c) of the FOI Act over Record 5. As noted above, section 40(1) provides that an FOI body may refuse to grant an FOI request if access to the record could reasonably be expected to result in specified harms to the financial and economic interests of the State. The Department says that Record 5 contains information which if released would have a negative impact on investment, expansion and on the effectiveness of the industrial development of the State and strategies of another state. It submits that disclosing this record could impact on future decisions by multi-national companies to invest in the State and would damage the State's foreign direct investment strategy, including by negatively impact(ing) the Government's ability to engage with companies regarding job creation and investment opportunities.
Record 5 consists of briefing notes on several matters including a proposed investment by a company in Ireland. I have found the last six lines of Record 5 to be exempt under section 37 and therefore I do not need to consider that part further. The briefing notes relate to infrastructure and taxation in connection with the investment. I am limited as to what I can say about their content, but I am satisfied overall that disclosing the detailed information contained in Record 5 could reasonably be expected to have a negative impact on decisions by enterprises to invest in the State and on the State's industrial development strategy. I therefore find that section 40(1)(c) applies to Record 5 overall.
As noted above, section 40(3) of the FOI Act then requires me to consider whether, on balance, the public interest would be better served by granting than by refusing the FOI request. I set out my approach to section 40(3) earlier. I have identified the harm that might be caused by disclosure. The positive public interest is transparency around the Government's engagement with investors on infrastructure and taxation, both of which concern public funds. Certain parts of Record 5 are quite detailed, while others are more summary and "high-level". I consider that the harm that might be caused by disclosure is greater in relation to the more detailed parts. Furthermore, I believe that the passage of time since the creation of this record and information about some of its subject-matter which is now in the public domain would diminish potential harm caused by releasing the more summary part of this record.
I consider that on balance, the public interest in transparency in relation to the following part outweighs the harm that might be caused by disclosure: the speaking points for the former Taoiseach at pages three and four (starting "proposed investment" and ending "on track"). I find that the Department is not justified in refusing access to this part of Record 5 under section 40(1)(c) of the FOI Act.
I consider that on balance, the public interest in protecting the specific financial and economic interests of the State which section 40(1)(c) provides for outweighs the public interest in transparency in relation to the remainder of Record 5. I believe that the public interest would not be better served by granting access to this information and therefore section 40(3) does not disapply section 40(1). I find that the Department is justified in refusing access to the remainder of Record 5 under section 40(1)(c) of the FOI Act.
The Department claims section 40(1)(c) of the FOI Act over the withheld part of Record 133. It says that Record 133 contains information supplied in confidence which if disclosed would negatively impact on the future provision of similar information to the Government by multinational companies, negatively impacting on Ireland's foreign direct investment strategy and future investment and employment opportunities. It also says that it contains certain information whose disclosure could undermine the existing relationship with companies and thereby the Government's foreign direct investment strategy.
Record 133 is a Departmental email from 2015 which discusses a possible meeting between the former Taoiseach and a representative of a company. I cannot disclose the details, but I am satisfied from the Department's submissions and the content of this record that releasing this information could reasonably be expected to have a negative impact on enterprises investing in the State or on the State's direct investment strategy. I find that section 40(1)(c) applies to Record 133. As noted above, section 40(3) of the FOI Act then requires me to consider whether, on balance, the public interest would be better served by granting than by refusing the FOI request. I consider that on balance, the public interest in protecting the specific financial and economic interests of the State which section 40(1)(c) provides for outweighs the public interest in transparency in relation to this record. I believe that the public interest would not be better served by granting access to this information and therefore section 40(3) does not disapply section 40(1).
I find that the Department is justified in refusing access to the withheld part of Record 133 under section 40(1) of the FOI Act. In view of this finding, I am not required to consider the exemption claimed under section 36 of the FOI Act.
The Department claims sections 36(1)(a), (b) and (c) over this record. Given my findings on Record 5 under sections 37 and 40 above, I am only required to consider this exemption in relation to the speaking points at pages three and four.
The Department says that Record 5 contains technical information, the disclosure of which could reasonably be expected to prejudice the competitive position of the company and also the Irish economy. It further submits that its disclosure could impact on future decisions by multi-national companies to invest in the State and would damage the State's foreign direct investment strategy, including by negatively impact(ing) the Government's ability to engage with companies regarding job creation and investment opportunities. I believe that most of its submissions under section 36 in fact relate to the harms claimed under section 40, which I have addressed above.
In relation to sections 36(1)(a), (b) and (c), the Department does not point to information within the part I am considering which is a trade secret; whose disclosure could reasonably be expected to result in a material financial loss or could prejudice the competitive position of the company; or which could prejudice the conduct or outcome of contractual or other negotiations. Neither is it apparent to me from the content of this information how these harms could arise from its disclosure. As noted above, the Courts have made it clear that it is not sufficient for the party relying on section 36(1) to merely restate the provisions of the section, list the documents and say that they are commercially sensitive. I find that section 36(1) does not apply to this part of Record 5. In view of this, I am not required to consider sections 36(2) or (3). I find that the Department is not justified in refusing access to this part of Record 5 under section 36 of the FOI Act.
The Department claims section 36(1)(b) and (c) over the withheld part of this record. It is a draft proposal from a venture capital firm regarding investment in Ireland. The Department says that it contains financial and highly commercially sensitive information which discloses key elements of the firm's competitive position and whose disclosure could result in a material financial loss to the fund managers and investors. Having regard to the content of the record and the submissions, I believe that the most relevant part of section 36 to consider is section 36(1)(b). The essence of the test in this section is not the nature of the information but the nature of the harm which might be occasioned by its release. The harm test in the first part of subsection (1)(b) is that disclosure of the information could reasonably be expected to result in material financial loss or gain. I take the view that the test to be applied in this regard is whether the decision-maker's expectation is reasonable. The harm test in the second part of subsection (1)(b) is whether disclosure of the information "could prejudice the competitive position" of the person concerned. The standard of proof necessary to meet this test is considerably lower than the standard to meet the test of "could reasonably be expected to" in the first part of subsection 36(1)(b). The record contains details of the firm's understanding of the Irish investment market, as well as the firm's unique selling points, investment strategy and growth. I accept that disclosing this information, which would not otherwise be available to competitors, could prejudice the firm's competitive position. I therefore find that section 36(1)(b) applies to this record.
Section 36(2) provides for the release of information to which section 36(1) is found to apply in certain circumstances. I am satisfied that none of the circumstances identified at section 36(2) arises in this case.
Section 36(3) of the FOI Act requires me to consider whether, on balance, the public interest would be better served by granting than by refusing the FOI request. Section 36(1) itself reflects the public interest in protecting commercially sensitive information. I recognise that there is a legitimate public interest in entities being able to conduct commercial transactions with public bodies without fear of suffering commercially as a result. On the other hand, the FOI Act recognises, both in its long title and in its individual provisions that there is a significant public interest in government being open and accountable, which is reflected in section 11(3) of the FOI Act.
I take the approach that in attempting to strike the balance between openness on the one hand and the need to protect commercially sensitive information on the other, it is legitimate to consider two things: the positive public interest which is served by disclosure; and the harm that might be caused by disclosure.
As a general principle, I do not believe that the FOI Act was designed as a means by which the operations of private enterprises were to be opened up to scrutiny. This is particularly relevant in this case, which concerns a draft proposal rather than involving, for example, the expenditure of public funds. I do not consider that disclosing the withheld part of this record would further achieve openness and accountability around public bodies. In relation to the harm which might be caused by disclosure, I have already identified the potential prejudice to the fund's competitive position. In the circumstances and on balance, I find that the public interest would not be better served by granting access to this record and therefore section 36(3) does not disapply section 36(1). Having regard to the above, I find that the Department is justified in refusing access to the withheld part of Record 27 under section 36(1)(b) of the FOI Act. I am therefore not required to consider the exemption claimed under section 35 of the FOI Act.
The Department claims section 36(1)(b) of the FOI Act over the withheld information in this record. It is a list of 87 companies which took part in a trade mission. The Department released the majority of it, but withheld details regarding the companies' numbers of employees, total export values and destination export markets. It says that disclosing these financial details could reasonably be expected to prejudice the competitive position of the companies concerned. I accept that disclosing this information could prejudice the companies' competitive position. I therefore find that section 36(1)(b) applies to the withheld information in Record 83. I am satisfied that none of the circumstances identified at section 36(2) arises in this case. Regarding section 36(3), as noted above, I do not believe that the FOI Act was designed as a means by which the operations of private enterprises were to be opened up to scrutiny. Bearing in mind that the majority of information on the trade mission has been released, I do not consider that disclosing the withheld information would further achieve openness and accountability around public bodies. In relation to the harm which might be caused by disclosure, I have already identified the potential prejudice to the firm's competitive position. In the circumstances and on balance, I find that the public interest would not be better served by granting access to the withheld information and therefore section 36(3) does not disapply section 36(1). Having regard to the above, I find that the Department is justified in refusing access to the withheld parts of Record 83 under section 36(1)(b) of the FOI Act.
The Department claims sections 36(1) of the FOI Act over the withheld parts of these records. They consist of email correspondence between a company, the Department and the Department of Jobs, Enterprise and Innovation about securing a meeting, the details of which are withheld. The Department says that it would be commercially damaging for the company were the information to be disclosed. It submits that the public interest is satisfied by the part already disclosed, which reveals that the purpose of the communication was to seek assistance in setting up a meeting. I cannot disclose the details of the withheld information, but accept that releasing them could prejudice the company's competitive position. I find that section 36(1)(b) applies to the withheld information. I am satisfied that none of the circumstances identified at section 36(2) arises in this case. Regarding section 36(3), as noted above, I do not believe that the FOI Act was designed as a means by which the operations of private enterprises were to be opened up to scrutiny. I do not consider that disclosing the withheld information would further achieve openness and accountability around public bodies. In that regard, I note that the information already released discloses the fact that the company approached the Department about securing a meeting. In the circumstances and on balance, I find that the public interest would not be better served by granting access to the withheld information and therefore section 36(3) does not disapply section 36(1). I find that the Department is justified in refusing access to the withheld parts of Records 93 and 94 under section 36(1)(b) of the FOI Act.
The Department claims section 35(1)(a) of the FOI Act over Record 5. Given my findings on Record 5 under sections 37 and 40 above, I am only required to consider this exemption in relation to the speaking points at pages three and four. As section 35(1) does not apply where the records fall within the terms of section 35(2), I should consider section 35(2) at the outset. These parts of Record 5 were prepared by the Department. Therefore, section 35(1) will not apply unless disclosing them would constitute a breach of a duty of confidence owed to a person other than an FOI body/service provider etc. under an agreement or statute or otherwise by law. The Investigator drew the Department's attention to section 35(2) when inviting its submissions. However, the Department does not address this provision in its submissions. It says that Record 5 contains commercially sensitive information provided by the company concerned. It does not point to the relevant information within the part I am considering, or to a breach of a duty of confidence to a person other than an FOI body etc. which is owed under an agreement or statute or otherwise by law. On the face of it, I can see no evidence of information in the record having been given in confidence by a third party to the Department. I find that section 35(2) disapplies section 35(1) and that the Department is not justified in refusing access to this part of Record 5 under section 35(1) of the FOI Act.
Having carried out a review under section 22(2) of the FOI Act, I vary the Department's decision as follows. I direct the Department to ask the former Taoiseach to confirm whether (apart from the 161 records identified), additional records within the scope of the applicant's FOI request are held and if they exist, to retrieve them so that the Department can consider their content and make a decision on any such records in accordance with the provisions of the FOI Act. I affirm its decision in relation to certain records under sections 28, 33, 36, 37 and 40 of the FOI Act. I annul its decision in relation to the remaining records and direct their release. For the avoidance of doubt, my directions on the withheld records are summarised in the appendix to this decision.
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.
Peter Tyndall
Information Commissioner