Cinneadh
Mr. H and Department of Justice
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-148997-B6G0N0
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-148997-B6G0N0
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Department was justified in refusing access, under section 33(1)(d) of the FOI Act, to certain information in a record relating to the designation of Algeria as a safe country of origin pursuant to section 72 of the International Protection Act, 2015
10 November 2025
On 31 January 2024, the applicant made a 6-part request to the Department of Justice, seeking all records taken into consideration by the Minister for Justice pursuant to section 72 of the International Protection Act 2015 when designating Algeria and Botswana as safe countries of origin, and the notifications to the European Commission pursuant to section 72(6) in relation to Algeria and Botswana.
For context, the International Protection Act 2015 provides for a single process to assess all applications for asylum seekers to this country. Section 72 of the Act is concerned with the designation of safe countries of origin. Subsections (2), (3) and (4) provide for the circumstances whereby the Minister may declare a country a safe country of origin, the issues which must be taken into account when designating a country a safe country of origin and the sources of information on which the Minister must base his or her assessment including, but not limited to, information from other European Member States, the European Asylum Support Office and the Council of Europe.
As the Department did not issue a decision within the required timeframe, the applicant applied for an internal review of the deemed refusal of his request. The Department again failed to issue a decision to the applicant. On 14 May 2024, the applicant sought a review by this Office. Following correspondence with this Office, the Department issued its effective position on the request wherein it part-granted the request. Of the seven records it identified as falling within the scope of the request, it released records 1, 4, 6 and 7 in full and records 2, 3 and 5 in part, with redactions made under section 37(1) of the Act. On 23 May 2024, the applicant applied to this Office for a review of the Department’s decision.
I have now completed my review in accordance with section 22(2) of the FOI Act. I have decided to conclude the review by way of a formal, binding decision. I wish to apologise to all parties for the delay in completing my review. In carrying out my review, I have had regard to the correspondence between this Office and both parties during the review and to the contents of the records at issue.
In his correspondence with this Office, the applicant confirmed that the review could be confined to the Department’s decision to redact certain information from page 19 of record 3. Moreover, during the review, the Department said it incorrectly relied on section 37(1) to redact the record and it should have relied on section 33(3)(a) of the Act. The applicant was informed of the Department’s position and was invited to make submissions to this Office in relation to the Department’s reliance on section 33(3)(a) of the Act, which he duly did.
Subsequently, during further correspondence between this Office and the Department, the Department confirmed that it relied on section 33(3)(a) in error and after consultation with colleagues in the Department of Foreign Affairs (DFA) (who provided the information in the record to the Department), the Department was now relying on section 33(1)(d) of the Act. In relying on section 33(1)(d) the Department said the DFA provided an assessment of the situation in Algeria. It said the State in question may not agree with this analysis and as such, it is the view of the Department that disclosing the information could reasonably be expected to negatively impact the State’s international relations, by disclosing to the world at large the DFA’s analysis of a State with which it maintains diplomatic relations. The applicant was informed of the Department’s revised position and was invited to make submissions on the matter which he duly did.
Accordingly, this review is concerned solely with whether the Department was justified in redacting certain information from page 19 of record 3 under section 33(1)(d) of the FOI Act.
Before I address the substantive issues arising in this case, I wish to note that the Department’s processing of the applicant’s request and engagement with the FOI process has fallen well short of what is expected of an FOI body that has been subject to the Act since it first came into operation in 1998. As noted above, at both stages of the decision-making process, the Department failed to issue a decision within the statutory timeframe. It is imperative for the functioning of the FOI process that the Department adheres to its statutory obligations under the Act and that its decisions on FOI requests are issued within the relevant statutory timeframes.
Furthermore, during the course of this review the Department changed its position twice with regard to the exemption it wished to rely on to refuse access to the information at issue, thus unnecessarily prolonging and complicating the review process. The Department should be fully aware of the resources available to it to support its decision making. This Office’s website has a wide range of previous decisions, as well as a suite of guidance notes and sample questions which are made available to assist FOI bodies in their decision making. Additionally, the Central Policy Unit of the Department of Public Expenditure, NDP and Reform hosts a webpage which can be used as an additional resource to FOI bodies. I urge the department to avail of the resources available to it to assist with timely and quality decision making.
Section 25(3) of the Act requires that I take all reasonable precautions in the course of this review to prevent the disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the record at issue is limited. It also means that I cannot provide full details of the submissions made by the Department outlining why it considers the information in question to be exempt.
Record 3 comprises a 22-page appendix entitled “Appendix 2 Algerian Country of Origin Information and Relevant Material” that was appended to a submission to the Minister seeking approval to designate Algeria as a safe country of origin for the purposes of the Internation Protection Act 2015. It is relevant to note that Algeria was designated as a safe country of origin by the Department as and from 31 January 2024. The redacted information at issue comprises comments provided by DFA on the then proposed designation.
Section 33(1) of the FOI Act relates to security, defence and international relations. Subsection (d) of section 33(1) provides that an FOI body may refuse to grant an FOI request if, in its opinion, access to the record(s) at issue could reasonably be expected to affect the international relations of the State. Section 33(1)(d) is a harm-based provision – in other words, where an FOI body seeks to rely on it, the body must be able to demonstrate grounds for its opinion that the release of the record(s) at issue would affect the international relations of the State. In so demonstrating, the FOI body should identify the potential adverse effect on the international relations of the State and outline the basis on which it considers the release of the record could result in that adverse effect. It should be noted that the FOI body is not required to demonstrate that the adverse effect it has identified will definitely occur. It is sufficient for the body to show that it expects such an outcome, and that its expectations are reasonable in the sense that there are adequate grounds for them.
The Commissioner has previously accepted that a loss of trust or confidence in Ireland could be damaging to the international relations of the State. This Office accepts that the expectation of the international community with regard to the information at issue is a relevant factor for consideration in determining whether access to the record could reasonably be expected to affect adversely the international relations of the State.
In submissions to this Office, the Department said the redacted information in record 3 relates to the assessment of a country, in this case Algeria, provided to the Department by the DFA. It said the assessments are highly sensitive in nature and are shared on the understanding of confidentiality between Government departments. It said the assessments often include internal comment on, and analysis of the security and human rights situations in countries which are not otherwise available or in the public domain. It said the assessments provided by DFA are vital to the process of designating a country as a safe country of origin under section 72 of the International Protection Act 2015.
The Department added that country of origin information is collated from various sources and is assessed for accuracy before being confidentially shared with various bodies such as Amnesty International, NGOs and other intelligence agencies outside this jurisdiction. It argued that disclosing the information received may serve to identify both the methods of collection and/or the individuals and organisations on the ground who are providing the sensitive information and place it in the hands of bad actors. It also noted that the FOI Act places no restrictions on the type or extent of disclosure or use to which the record may be put, noting that when a record is released under the FOI Act it is considered release to the world at large. It said it would therefore be reasonable to expect that disclosing the information would put at risk the networks and organisations who supply the information. The Department argued that this would affect the provision of sensitive country of origin information into the future and the reputation of the State with those organisations who are working to obtain information in challenging and dangerous situations. The Department further said it is reasonable to suggest that authorities in some countries may not always agree with the DFA analysis and the assessments could reasonably be expected to cause offence and negatively impact the State’s diplomatic relations. It said the assessments provided by DFA, to assist in the decision-making process of designating countries as safe countries of origin as per section 72 of the International Protection Act 2015, must continue to be provided to the Minister and that release of the confidential and sensitive information to the public would undermine its position and its relationship with the DFA.
In his submissions, the applicant said there must be some basis within the record for an objective observer to understand that relations between the State and another would be affected adversely and it must also be that the record is capable of adversely affecting the international relations of the State. He said the repeated change of identified basis to withhold the information undermines completely that the Department reasonably or legitimately expects the release of the record to adversely affect international relations. He added that any redaction must be limited to actual international relations-related records and nothing more. He said the current redaction clearly does not do so and is disproportionate.
While I am cognisant of the requirements of section 25(3) of the Act, I believe I am not in breach of those requirements by stating that the three redacted paragraphs contain information that pertains to the security, political, and human rights situation in Algeria. In my view, the information contained in the first two paragraphs is distinguishable from the type of information contained in the third paragraph. It is, in essence, factual information relating to the political and security situation in the country that is quite similar, if not identical, to much of the same type of information that is already in the public domain. I note, for example, that record 1, which was released to the applicant, contains commentary on the political situation and has hyperlinks to various articles pertaining to Algeria. Throughout record 3 there are multiple hyperlinks to reports that the Department reviewed which are in the public domain which consider amongst other issues the security situation in Algeria. From a cursory search online, there are reports available from agencies such as the US State Department who have published a report on Algeria for 2023 which reports on some of the issues the DFA reported to the Department. Similarly, the United Nations Human Rights Council published a report on Algeria in 2022, which contains content of a similar nature to that contained in paragraph 2 of the redacted information. I am satisfied that paragraphs 1 and 2 contain no commentary or analysis type information. I am also satisfied that disclosing the information would not serve to identify the methods of collection and/or the individuals and organisations on the ground who are providing sensitive information. Accordingly, I am not satisfied that the disclosure of paragraphs 1 and 2 could reasonably be expected to adversely affect the international relations of the State.
On the other hand, paragraph 3 contains information that can more accurately be described as analysis or opinion type information. While much of the information which informed these views and opinions are to some degree in the public domain the views and opinions in the paragraph are grounded in an analysis of such information by DFA. I should say that I have recently previously considered the release of this same information in Case OIC-150501 contained in a record held by DFA. In that case, DFA argued that the withholding of the record was based on its direct experience of the bilateral relationship with Algeria and the harm that could be caused by the release of the information in the record. It argued that the relationship with Algeria is one that it carefully managed across several areas, taking account of a range of issues, including matters where there was an awareness of sensitivity on the Algerian side. It argued that it was therefore incumbent on it to exercise caution in public statements by Ireland on the human rights situations in that country, so as not to prejudice the entirety of the relationship, including its political and economic dimensions. It also noted that it is important to distinguish between information concerning Algeria's security and human rights situation that is publicly available, and the Department's own analysis and conclusions, which are not. Given the fact that the paragraph contained value judgements made by DFA, and in light of the due deference I considered it appropriate to afford to the Department in terms of its greater knowledge of the bilaterial relationship between Ireland and Algeria, I accepted that the release of the information in the third paragraph could reasonably be expected to give rise to the harms provided for in section 33(1)(d). For the same reasons, section 33(1)(d) applies to the third paragraph at issue in this case.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Department’s decision. I find that the Department was justified in redacting, under section 33(1)(d) of the FOI Act, the information in the third paragraph of the record at issue. I find that it was not justified in redacting the first two paragraphs and I direct their release.
Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated by the requester not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.
Stephen Rafferty
Senior Investigator