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The Senior Investigator affirmed the decision of the Department that the records were exempt under section 22(1A) of the FOI Act.

Case Summary

Whether the Department's decision to refuse access to certain records relating to the Moriarty Tribunal of Inquiry is justified under the FOI Act.

Date of Decision: 17.01.2012

Review Application under the Freedom of Information Acts 1997 & 2003 (FOI Act) to the Information Commissioner

Background:

In a request dated 31 July 2009, the applicant sought access to all records held by the Department pertaining to the Legal Opinion of [an identified ] SC dated 9 May 2006. In its original decision, dated 1 September 2009, the Department relied upon sections 22, 23 and 46 of the FOI Act to refuse access to the 84 records identified as being relevant to the request. On 29 September 2009, the applicant sought an internal review of the Department's decision, which, in its internal review decision of 4 November 2009, the Department upheld.

With the authority delegated to me by the Commissioner, I have now completed my review in accordance with section 34(2) of the FOI Act.  I note that, in a letter dated 21 October 2011, Mr Ciaran O'Donohoe, Investigator, informed the applicant of his preliminary view that the records were exempt.  The applicant was given a period of three weeks in which to reply.  As no further response has been made by the applicant to date, I have decided to conclude the matter by way of a formal, binding decision.

Conducted in accordance with section 34(2) of the FOI Act by Stephen Rafferty, Senior Investigator, Office of the Information Commissioner (authorised by the Information Commissioner to conduct this review).

In its original request, the applicant sought copies of

"all records (to include documentation, memoranda, notes, correspondence and any and]all other such records) held by the Department pertaining to the Legal Opinion of [an identified], SC dated 9 May 2006 and the Sole Member's Ruling dated 25 February 2008 regarding such opinion.  In particular, and without prejudice to the generality of the foregoing, I request all correspondence exchanged between the Department of Communications Energy and Natural Resources and the Moriarty Tribunal in relation to the opinion and the Sole Member's ruling as aforesaid". 

Provision of a Schedule

In submissions to this Office, the applicant raised the issue that it was disappointed that the Department was not prepared to furnish it with a schedule of the records which were exempted. The applicant argued that this in effect restricted it to engaging in an academic discussion on the exemptions and, accordingly, there was no meaningful right of appeal available to it. The FOI Act does not require public bodies to provide schedules and, accordingly, the Commissioner cannot compel public bodies to provide schedules to the applicant where they have not done so. I wish to make the point that, while the Commissioner is required by section 34(10) of the FOI Act to give reasons for decisions, this is subject to the requirement of section 43(3) that she take all reasonable precautions during the course of a review to prevent disclosure of information contained in an exempt record.  This means that I am constrained in the references I can make to the content of the records at issue.

In a preliminary views letter, dated 21 October 2011, and having regard to the issues raised in the preceding paragraph concerning section 43(3) of the FOI Act, it was outlined to the applicant that the records comprised of:

• Submissions to Government,Government Decisions,
• Correspondence between the CSSO [Chief State Solicitor's Office] and the Tribunal,
• Correspondence between the Department and its legal team/CSSO/Office of the Attorney General,
• Correspondence between the applicant and the CSSO/Department/Tribunal,
• Draft submissions relating to the above,
• Internal Department records, and
• Publicly available records.

I note that the applicant confirmed with this Office that access to certain records already in its possession was not required. There are 11 such records and parts of four further records.  As such those records are outside the scope of the review. I also note that two records, one comprising a copy of a Tribunal ruling which is available on the Tribunal's website and the second comprising a press cutting relating to that ruling, are publicly available. The applicant was notified of this and informed, that unless this Office was notified to the contrary, those records would be considered to be outside the scope of the review. No further response in relation to these records was received from the applicant. Accordingly, I am proceeding to a formal binding decision on the basis that such records are outside the scope of the review.

In summary, therefore, this review is concerned with the question of whether the Department was justified in deciding to refuse access to the remaining 71 records at issue (four in part only).

Submissions

.

Findings

Section 22(1A)

Section 22(1A) was introduced through the Freedom of Information (Amendment) Act, 2003.  The section provides that a public body may refuse to grant a request if the record concerned:

"relates to the appointment or proposed appointment, or the business or proceedings, of", a tribunal and "the request is made at a time when ...the performance of the functions of the tribunal, ...has not been completed."

Section 22(1B) provides that subsection (1A) does not apply to "a record in so far as it relates to the general administration of, or of any offices of, a tribunal ...".

Based on my examination of the records at issue and the Commissioner's understanding of the term "relates to", it is clear that each of the records relates to the business or proceedings of the Tribunal.  I am also satisfied that the records in question do not apply to the general administration of the Tribunal or its Offices and I find, therefore, that section 22(1B) does not apply.

With regard to the issue of whether the performance of the functions of the Tribunal has been completed, the Tribunal has informed this Office that "while it is true that the Tribunal has published its Final Report, it is not true to say that it has completed its work".  It further stated that "the issues of costs remain to be dealt with in addition to which there are ongoing High Court proceedings and two Supreme Court challenges yet to be determined. This means that the performance of the functions of the Tribunal has not yet been completed".

The Act contains a number of class exemptions e.g. on grounds of legal professional privilege, to avoid contempt of court, or because the information is a trade secret.  The other exemptions involve a "harm" test of some nature. Once a record falls within a certain class or category, the Act provides that the record can be exempted by the Head without the need to show that the disclosure would be likely to lead to a particular harm.  In this case, the Department seeks to rely upon section 22(1A) of the FOI Act, on the basis that the records concerned relate to the business or proceedings of the Tribunal.  It argues that the performance of the functions of the Tribunal has not yet been completed and it refers to the Tribunal's concerns to ensure that the seal of confidentiality is at all times maintained by parties who have dealings with the Tribunal.

Section 22(1A) is clearly a class based exemption and, therefore, once the records relate to the business or proceedings of the Tribunal whose performance of its functions has not yet been completed, I am satisfied that the Department can seek to rely upon this exemption. Section 22(1A) does not provide for consideration of whether a harm is likely to occur upon release of the records in question.  Furthermore, unlike several other of the exemptions contained in the FOI Act, the provisions at section 22(1A) do not provide for the setting aside of that exemption where to do so would serve the public interest. Having considered the Department's arguments on the matter, I find that the Department's decision to exercise its discretion to refuse access to the records sought on the grounds that 22(1A) applies is justified.  

In addition to relying upon section 22(1A) of the FOI Act to seek the exemption of all of the records concerned, the Department also sought to rely upon other exemption provisions to exempt various records (i.e. 19, 22(1)(a) and 23(1)(a)(iv)). As I have found that section 22(1A) applies, it is not necessary for me to consider whether the other exemptions cited are applicable.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of the Department.

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision.  Such an appeal must be initiated not later than eight weeks after notice of the decision was given to the person bringing the appeal.

Stephen Rafferty

Senior Investigator

17 January 2012