Whether the Department was justified in refusing access to records relating to correspondence received by the Department on foot of an article written by Ireland's then ambassador to Israel and published in the web edition of The Jerusalem Post on 23 June 2021

21 December 2022

Background

In a request dated 21 July 2021, the applicant sought access to correspondence received by the Department in relation to an article written by Ireland's Ambassador to Israel and published in the web edition of The Jerusalem Post on 23 June 2021, records relating to any meetings held in or involving the Department in connection with the article, and correspondence sent to Ireland-�s embassies or representatives in Tel Aviv in Ramallah in relation to the article.

In a decision dated 13 August 2021, the Department identified four records as falling within the scope of the request. It withheld two of the records in full under section 33(1)(d) of the FOI Act, and granted partial access to the remaining two with the redaction of information under section 37(1). On 26 August 2021, the applicant sought an internal review of the Department-�s decision, in the course of which he argued that section 33(1)(d) had been incorrectly applied. He also queried whether the Department had correctly identified all the records relevant to his request. On 15 September 2021, the Department issued its internal review decision, wherein it varied its original decision. It affirmed its original decision in respect of the four records initially identified as falling within the scope of the request. It also identified six additional records which it considered to fall within the scope of the request. Of these, it withheld one record in full and part-granted access to five, citing sections 33(1)(d), 37(1) and 35(1)(a) of the FOI Act. On 29 September 2021, the applicant applied to this Office for a review of the Department-�s decision.

In the course of conducting this review, the investigator took the view that certain of the records at issue may potentially affect the interests of a number of third parties (two civil society organisations that either authored or are mentioned in a number of the records, in addition to two individuals who authored records 1 and 2). Accordingly, the third parties in question were invited to make any submissions that they wished to make on the matter. Submissions were subsequently received from one of the organisations and the third party individual who authored record 2. For the reasons outlined below, it was not ultimately necessary to consider the submissions received from the relevant civil society organisation. However, the submission received from the author of record 2 is considered below.

Furthermore, in the course of this review this Office formed the view that section 37(1) of the FOI Act may have application to other records besides those in respect of which the Department specifically cited it. Accordingly, we wrote to the applicant to put him on notice of the potential application of section 37(1) to certain other of the records at issue, and to invite him to make any further submissions that he wished. The applicant subsequently responded to indicate his view that a named individual, to whom he considered the records related, consented to their release.

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 Department and the applicant and to the correspondence between this Office and all affected parties on the matter. I have also had regard to the contents of the records at issue. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

In its initial decision, the Department numbered the four records it identified as coming within the scope of the request as records 1 to 4. When it subsequently identified six further relevant records, it numbered these 1 to 6. To avoid confusion, in this decision I will refer to the four initially identified records as records 1 to 4, and the further six records as records 5 to 10.

This review is concerned solely with whether the Department was justified in withholding, wholly or in part, the ten records it identified as coming within the scope of the applicant-�s request, under sections 33(1)d), 35(1)(a) and 37(1) of the FOI Act.

Preliminary Matters

In his application for review, the applicant expressed concerns about the fact that the official who conducted the internal review took part in some of the discussions on which the documents he sought were based. Under section 20 of the FOI Act, the head of an FOI body is entitled to delegate decision making functions to staff members as he or she sees fit. In any event, it is not unusual for an FOI body to assign decision making responsibilities to a staff member who has particular expertise in the subject matter of the request so that an informed decision may be taken on the request.

I should also say that at the outset that a review by this Office is considered to be -�de novo-�, which means that it is based on the circumstances and the law as they pertain at the time of the decision. Section 37 of the Act provides for the mandatory protection of third party personal information. Accordingly, in light of the -�de novo-� nature of our reviews, I consider it appropriate to consider the applicability of section 37(1) to a wider range of records than the Department initially sought to protect under that exemption.

Analysis and Findings

Section 37(1)

The Department cited section 37(1) of the FOI Act as a basis for the redactions it made to records 3 to 7, 9 and 10. Section 37(1) provides that, subject to the other provisions of the section, an FOI body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information relating to third parties. The effect of section 37 is that, generally speaking, access to a record shall be refused if it would involve the disclosure of personal information relating to individual(s) other than the requester, unless one of the other relevant provisions of section 37 applies.

Section 2 of the FOI Act defines personal information as information about an identifiable individual that either (a) would ordinarily be known only to the individual or to members of his/her family or to his/her friends, or (b) is held by an FOI body on the understanding that it would be treated by the FOI body as confidential. Furthermore, the Act details 14 specific categories of information that is personal information without prejudice to the generality of the foregoing definition, including;

(iii)       information relating to the employment or employment history of the individual,

(viii)     information relating to -� the political opinions or the religious or philosophical beliefs of the individual,

(xii)      the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to, establish that any personal information held by the FOI body concerned relates to the individual, and

(xiv)     the views or opinions of another person about the individual.

Paragraph (I) of section 2 of the FOI Act excludes certain information from the definition of personal information, including "... in a case where the individual holds or held office as a director, or occupies or occupied a position as a member of the staff, of a public body, the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or occupies or occupied that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of the functions aforesaid ...".

In its submissions, the Department said the material it had redacted pursuant to section 37(1) was information that would identify an individual, specifically their name, email address, mobile phone number and/or address. As outlined above, having examined the records, it seems to me that section 37 is also of relevance to other relevant parts of records 5, 6, 7, 9 and 10, and to record 8. I find that section 37(1) applies to all of the redactions from records 3 to 7, 9, and 10,apart fromthe name and work email address of the personal assistant to the Ambassador in record 3. I find that the exclusion in paragraph (I) serves to exclude that information from the definition of personal information. I also find that section 37(1) applies to record 8 in its entirety.

Section 37(2) provides that section 37(1) does not apply in certain circumstances. Section 37(2)(b) provides that section 37(1) does not apply if the individual to whom the information relates consents to its disclosure to the requester. In his correspondence with this Office, the applicant said he was aware that the records concern a named individual. He said the individual is happy for the information to be released and confirmed this to him. He said he would ask the applicant to contact this Office, presumably to confirm same.

The applicant did not provide the Department with consent of any individuals for the disclosure of their personal information when he made his request, nor has any such consent been forwarded to this Office. Moreover, it is not the role of this Office, in my view, to actively seek the consent of third parties to the release of their personal information. Accordingly, I find that section 27(2)(b) does not apply in this case. I am also satisfied that none of the other circumstances set out in section 37(2) apply in this case.

Section 37(5) provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the request would benefit the person to whom the information relates. I am satisfied that section 37(5)(b) of the FOI Act does not apply.

In relation to the applicability of section 37(5)(a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the individual or individuals to whom the information relates. In carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act, which provides that an FOI body must have regard to the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. It is important to note that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57, the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and -�there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure-�. Although the Court-�s comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.

In relation to the issue of the public interest, it is also important to have regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner [2011] IESC 26 ("the Rotunda case"). It is noted that a true public interest should be distinguished from a private interest.

The FOI Act recognises the public interest in the protection of the right to privacy both in the language of section 37 and the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with the right to privacy).  It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. Privacy rights will therefore 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.

It seems to me that the Department has attempted to strike a balance between enhancing transparency in relation to the subject matter of the records at issue whilst seeking to protect the privacy rights of the individual concerned. Having regard to the nature of the information at issue and to fact that the release of information under the FOI Act is, in effect, release to the world at large, I find that the public interest in granting access to the information at issue does not, on balance, outweigh the right to privacy of the relevant individual. I find, therefore, that section 37(5)(a) does not apply.

Accordingly, I find that the Department was justified in refusing access, under section 37(1) of the FOI Act, to all of the material it redacted from records 3 to 7, 9, and 10 (apart fromthe name and work email address of the personal assistant to the Ambassador in record 3), and to record 8 in its entirety. For the sake of completeness, I find that no other exemption applies to the name and work email address of the personal assistant to the Ambassador in record 3 and I direct its release.

As outlined above, the Department also cited section 35(1)(a) of the FOI Act as a basis to redact certain passages from records 5 to 7, 9 and 10. It also cited section 35(1)(a) as a basis for withholding record 8 in full. In circumstances where I have found that the Department was justified under section 37(1) of the FOI Act in withholding these records wholly or in part, it is not necessary for me to examine the applicability of section 35(1)(a) to those records or parts of records.

In addition, the Department cited section 33(1)(d) of the FOI Act as a basis for the redactions made to records 5, 7 and 8. It was in this context that this office sought submissions from civil society organisations whose interests we considered may be potentially affected by the release of the records (receiving in response submissions from one of the organisations). However, in circumstances where I have determined that the Department was justified in withholding the relevant information under section 37(1), again it is not necessary for me to consider the potential applicability of section 33(1)(d) of the FOI Act to records 5, 7 and 8.

Section 33(1)(d)

This leaves me to consider records 1 and 2, which comprise responses to the Jerusalem Post article. The Department refused access to these records under section 33(1)(d) of the FOI Act. That section provides for the refusal of a request where the FOI body considers that access to the record sought could reasonably be expected to affect adversely the international relations of the State. It is important to note that this provision is not subject to a public interest test.

An FOI body seeking to rely on section 33(1)(d) should identify the potential adverse effect that might arise from disclosure of the record and, having identified that adverse effect, consider the reasonableness of any expectation that the adverse effect will occur. In doing so, it must demonstrate how granting access to the specific records at issue could reasonably be expected to have the adverse effect identified. The body is not required to show that such effect will definitely occur. Rather, it is sufficient for it to show that it expects such an outcome and that its expectations are reasonable, in the sense that there are adequate grounds for them.

In its submissions, the Department said that the release of the records could be expected to adversely affect the relations of the State in two ways. First, it argued that there was an expectation that correspondence of this nature would be treated as confidential and that the release of such records could therefore damage the relationships built by the relevant Irish Government missions with the individuals concerned. The Department said that such relationships with institutional actors of foreign jurisdictions, as well as non-governmental organisations, were important for Ireland-�s international relations as they are key sources of information. It argued that the release of the records would also be likely to have an effect on how candid other actors from state institutions would be, and would overall damage the relationships involved. The Department argued that such relationships were necessary for Ireland to have an informed analysis of situations, in this case regarding the Middle East Peace Process and the human rights situation in the occupied Palestinian territory, so as to be able to carry out Ireland-�s objectives. It argued that the relations of the State with both Israel and the Occupied Palestinian Territory was likely to be adversely affected by the release of the records.

Secondly, the Department argued that the release of the records could reasonably be expected to have the effect of dissuading potential interlocutors of the Department from communicating frankly, therefore stymieing important sources of information which were provided in trust and in confidence to Irish diplomats. It said such information was essential for Irish diplomats in enabling Ireland to engage effectively with other states. It said this was particularly important in respect of Ireland-�s role on the UN Security Council.

The Department said that it would be required to inform the relevant interlocutors of the release of the records. It argued that not only did this have the potential to cause public embarrassment to Ireland-�s standing (and specifically the standing of Embassy Tel Aviv and the Representative Office, Ramallah), but it may also have adverse reputational and political effects for the correspondents themselves.

This Office has previously accepted that a loss of trust or confidence in Ireland could be damaging to the international relations of the State. Moreover, we have previously held 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. Other relevant issues include the sensitivity or confidentiality of the records in determining whether the harm test in subsection (1) of section 33 has been met.
As outlined above, the author of record 2 made a submission to this Office on the matter. The individual concerned objected to the release of the record. In particular, the individual said the record comprised a personal communication and said its publication would affect his/her future engagements with Irish diplomats. The individual also indicated that the organisation with which he/she is involved shared those views.

I have carefully considered the arguments above made by the Department and, in respect of record 2, the author of the record. On balance, I accept that the release of records 1 and 2, both of which contain the frank opinions of the authors in response to an article concerning a highly sensitive political topic, could reasonably be expected to give rise to the adverse effects that the Department has identified. I accept that the records were provided in confidence and that their disclosure could reasonably be expected to have an adverse impact on future engagements with Irish diplomats. In addition, I accept the argument that future interlocutors of the Department (besides the authors of the two specific records at issue) could reasonably be expected to be similarly dissuaded from communicating freely with Irish diplomats, should records 1 and 2 be disclosed. I accept the Department-�s argument that release of the records could reasonably be expected to therefore damage the relationships built by the relevant Irish Government missions with the individuals concerned and that such relationships with institutional actors of foreign jurisdictions, as well as non-governmental organisations, are important for Ireland-�s international relations. I find, therefore, that the Department was justified in refusing access to records 1 and 2 under section 33(1)(d) of the Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of the Department. I find that it was justified in withholding, under section 37(1) of the Act,  the information redacted from records 3 to 7, 9 and 10, as well as in refusing access to record 8 in its entirety,apart fromthe name and work email address of the personal assistant to the Ambassador in record 3, the release of which I hereby direct. I find that the Department was justified in refusing access, under section 33(1)(d) of the Act, to records 1 and 2.

Right of Appeal

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