Decision
Mr X and Department of Enterprise, Trade and Employment
From Office of the Information Commissioner (OIC)
Case number: OIC-133731-J3X4M6
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-133731-J3X4M6
Published on
Whether the Department was justified in refusing access to records relating to a meeting held on 6 October 2022
13 July 2023
In a request dated 20 October 2022, the applicant sought access to the following records relating to a webex meeting held on 6 October 2022 between Leo Varadkar and Jacob Rees Mogg:
On 18 November 2022, the Department issued a decision. The Department identified two records which fall within the scope of the applicant’s request. It refused access to record one in part and to record two in full on the grounds that the refused information is exempt under sections 30(1)(c), 33(1)(c), 33(1)(d), 33(2) or 37(1) of the FOI Act. On 22 November 2022, the applicant requested an internal review of the Department’s decision. On 23 December 2022, the Department issued its internal review decision. The Department released additional parts of record one and it refused access to the remainder of record one and record two having regard to sections 30(1)(c), 33(1)(c), 33(1)(d), 33(2)(b)(i) or 33(2)(b)(ii) of the FOI Act. On 6 January 2023, the applicant applied to this Office for a review of the Department’s decision.
During the course of the review, the Department released further parts of record one to the applicant. The Department stated that while it had only relied on section 33(2)(b)(i) and (ii) in relation to record two at internal review stage, it now wished to rely on these provisions in relation to the information withheld from record one at pages 16-17 and 23-29. This Office notified the applicant of the Department’s revised position and provide him with an opportunity to make comments or observations. The applicant did not provide any comments or observations.
I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the correspondence between the applicant and the Department as outlined above and to the correspondence between this Office and both parties, as well as the content of the records at issue. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether the Department was justified in refusing access to record one in part and record two in full under sections 30(1)(c), 33(1)(c), 33(1)(d), 33(2)(b)(i) or 33(2)(b)(ii) of the FOI Act.
Before considering the exemptions claimed, I wish to note the following points. First, 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(3). This means that the extent to which I can describe the records and the level of detail I can discuss in my analysis are limited.
Secondly, with certain limited exceptions, the FOI Act does not provide for the limiting of access to records to particular individuals only. When a record is released under the FOI Act, it effectively amounts to disclosure to the world at large. The FOI Act places no restrictions on the type or extent of disclosure or the subsequent use to which the record may be put.
Section 33 – Security, defence and international relations
In my view, section 33(2)(b)(ii) of the FOI Act is the most relevant provision to consider at the outset.
Section 33(2)(b)(ii)
Where the record falls within the description of records at section 33(2)(b)(ii) and meets that harm test, it is subject to a mandatory exemption. Section 33(2)(b)(ii) applies 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, or a communication between the Government or an officer of a Minister of the Government or another person acting on behalf of such a Minister and another government or a person acting on behalf of another government, containing analysis, opinions, advice, recommendations and the results of consultations or information the release of which, in the opinion of the head, could reasonably be expected to affect adversely the international relations of the State.
The Department relied on section 33(2)(b)(ii) in relation to the information withheld from record one pages 16-17 and 23-29 and in refusing access in full to record two. It states that these records contain communications between a diplomatic mission of the State and an Irish Government Department which contain analysis, opinions and advice the release of which could reasonably be expected to affect adversely the international relations of the State. It states that release of conversations and notes about bilateral relations and Northern Ireland could be expected to damage Ireland’s relations with the Government of the UK. It states that these communications include information and perspectives provided in confidence to the Embassy officer who wrote it and sharing such content publicly could do damage to Ireland’s standing as a trusted international actor and the capacity of our diplomatic mission to provide frank assessments of UK political developments and UK political actors to the Government.
As outlined above, I am limited in the description of the records which I can provide as a result of section 25(3) of the FOI Act. However, I can say that these records contain communications between the Irish Embassy in London and the Department and they contain analysis on matters such as Irish-British Bilateral Relations, the Conservative Party, the Labour Party, the Protocol on Northern Ireland and the Retained EU Law Bill. The withheld information discloses developing opinions and views. I am satisfied that releasing these records could reasonably be expected to affect adversely the international relations of the State. It is my view that this adverse effect could reasonably be expected to occur, as release would disclose to the world at large sensitive information which was given by the Irish Embassy in London to the Department concerning political developments in the UK.
I find that the Department was justified in refusing access to these records under section 33(2)(b)(ii) of the FOI Act. Given this finding, I do not need to consider any other exemptions claimed over them.
Section 33(1)(d)
The Department relied on sections 33(1)(c) or (d) in relation to the remaining information withheld from record one. In my view, section 33(1)(d) is the more appropriate exemption to consider first. Section 33(1)(d) provides that an FOI body may refuse to grant access to a record if access could reasonably be expected to affect adversely the international relations of the State. Section 33(1)(d) 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 this Office 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. I do not have to be satisfied that the adverse effect will definitely occur. It is sufficient for the FOI body to show that it expects such an outcome and that its expectations are reasonable in the sense that there are adequate grounds for them.
When requesting focused submissions from the Department, this Office noted that there have been significant political developments since the records were created. It noted that release of parts of these records, which could reasonably have been expected to adversely affect the international relations of the State at the time the request was processed, may no longer be likely to cause this harm. In its reply, the Department stated that parts of record one can now be released on the basis that the risk associated with release has been surpassed by events or positions reflected have, since the time of the FOI request, entered into the public domain. The Department released information which was previously redacted from record one pages 4, 6, 7 and 9-15 to the applicant during the course of the review.
The Department contends that, despite the passage of time, release of the remaining information withheld from record one at pages 5-7, 10-15 and 18 could still reasonably be expected to adversely affect the international relations of the state. The Department contends that certain information concerning UK Government Policy could damage relations with the British Government at a sensitive time in bilateral relations. It states that release of certain redacted material about the Protocol on Northern Ireland would pose a risk to ongoing matters pertaining to the Windsor Framework and the restoration of the Executive in Northern Ireland. It states that while the Windsor Framework has been agreed in principle, there are remaining steps to be completed by both the EU and the UK to translate this into a legally binding instrument. Finally, the Department contends that release of certain information about the Retained EU Law Bill would pose risks to Ireland’s credibility as a trusted international actor especially in the UK.
Once again, I am limited in the description of the records which I can provide as a result of section 25(3) of the FOI Act. I accept that release of information containing an analysis of UK Government Policy could reasonably be expected to damage relations with the current British Government. In my view, release of material concerning the Protocol on Northern Ireland and in particular, positions related to the process which led to the Windsor Framework, risks having a negative impact on the finalisation of this work. I also accept that the positions reflected in the records in relation to the Retained EU Law Bill have not been articulated publicly. In my view, disclosing positions in relation to this bill could damage relations between the Irish and British Governments. I am satisfied that disclosing the remaining information withheld from record one could reasonably be expected to affect adversely the international relations of the State. Accordingly, I find that the Department was justified in refusing access to this information under section 33(1)(d) of the FOI Act.
Given these findings, it is not necessary for me to consider the Department’s submissions under sections 33(1)(c) or 30(1)(c) of the FOI Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department’s decision to refuse record one in part and record two in full under sections 33(2)(b)(ii) or 33(1)(d) of the FOI Act.
Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.
Jim Stokes, investigator