Oifig on ChoimisinE!Ara Faisnelse Office of The

8/14/2019 Oifig on ChoimisinE!Ara Faisnelse Office of The

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In this case, while the Department adhered to the deadline in dealing with the originaldecision, it did not adhere to the deadline for issuing an internal review decision. Section14(4) provides for an internal review decision to be issued within 3 weeks and does notprovide for an extension to that timeframe. The applicant sought an internal review on 1December 2008 and the internal review decision was issued on 23 January 2009 (i.e. almost 8weeks after the request for a review).Furthermore, in view of the time taken to issue a decision and internal review decision, it isdisappointing that the Department did not issue a schedule of records with either its originaldecision or its internal review decision. While the provision of a schedule is not a legalrequirement in accordance with the provisions of the FOI Act, in its Decision Makers Manualdated October 2004, the Central Policy Unit of the Department of Finance, which advisespublic bodies on best practice when dealing with requests, states that "the use of a schedule tolist and describe the records identified as being within the ambit of the request is stronglyrecommended where more than a few records are involved". In this case, thisrecommendation was clearly not followed and it was not until 18 March 2009, some 5 monthsafter the original request, that schedules of records (A-F) were provided to this Office.Indeed, on 14 May 2009, the Department notified this Office that it had located two furtherrelevant records (these were not contained in any of the schedules but referred to as therecords of the meetings of 30 September 2008). When put to the Department by this Officethat these records were only located following a specific query on their existence from theapplicant, the Department disputed this and said that" the records were brought to theattention of the deciding officer by the officer who created them after he had discovered themin a notebook ". A further additional 14 records were then brought to the attention of thisOffice by the Department on 2 September 2009 (schedule Z 1-14). This Office has expressedits concern to the Department that a further 14 records have been disclosed 6 months after thisOffice has started its investigation. When the issue was raised by this Office with theDepartment, the Department said that "the omission of the records in schedule z was theresult of a simple oversight which was rectified as soon as it came to light". However'Jbelieve these two instances of additional records being disclosed calls into question theefforts made by the Department to fully identify all relevant records at the outset.

It is also noted that, in its submissions dated 11 June and 2 September 2009, the Departmentought-to rely 0 the following additional se tions of e FOI . t to wit old various records:19(2); O(I)(a); 24(2)(b) d (c);'31(1)(c); 46(1)(b '; 46(1)(d , 46(2)(a an~ ~ 1-1-I will make no further comment on this 0 er tha say that the FOI Act requires publicbodies to give an adequate statement of the reasons for refusal of a request to the appellant atthe outset and stating which provision of the Act they are invoking and the findings on anymaterial issues relevant to the decision as required under Section 8 (2)(d) of the FOI Act.

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~e of the ReviewThe scope of this review encompasses all records contained in the schedules (A, B, C, D, E, Fand Z) together with the two records ofthe meetings which took place on 30 September 2008.

In reviewing this case, I have had regard to the following: The decisions of the Department on the matter; The correspondence from the Department to this Office including letters/emails dated 18

March, 12 May, 14May, 11 June and 2 September, 11 September, 25 September and 21October 2009;

The correspondence from this Office to the Department including those letters/emailsdated 23 April, 22 June, 15 September, 17 September, 30 September and 1 October 2009.

The communications between you and the Department on the matter; Your communications with this Office; The communications between this Office and the third-parties involved; and The provisions of the FOI Act as amended by the FOI Amendment Act 2003.

I have dealt with the exemptions claimed under each section of the FOI Act rather than byrecord, apart from the two records ofthe meetings held on 30 September 2008. However, inthe interests of clarity, I have provided a schedule which outlines my position on each recordso that you have a comprehensive picture of this Office's position on the records, both in thetext of this letter and in the attached Appendix. In some cases, my view is that a part or partsof records are exempt under one or more provisions. Where this occurs, I have described therelevant portiones) of the record(s) to be exempt.Preliminary mattersSection 34(12)(b) of the FOI Act provides that, where a decision to refuse a request is beingreviewed by the Information Commissioner, there is a presumption that the refusal is notjustified unless the public body "shows to the satisfaction of the Commissioner that thedecision was justified". Thus, in this case, the onus is on the Department to satisfy this Officethat its decision is justified.

Preliminary viewsRecords o(meetings 0(30 September 2008Section 33AKTwo of the records relate to a meeting of 30 September 2008 involving the Taoiseach, theMinister, officials ofthe Department, personnel from the Central Bank and the FinancialRegulator, and senior executives of some of the main banks. The Department has contendedthat section 33AK of the Central Bank Act of 1942 applies to these records. Section 33AKprevents disclosure of official information by personnel from the Central Bank and theFinancial Regulator. Section 32 ofthe FOI Act provides that any non-disclosure provision inlegislation shall supersede the FOI Act unless such a provision is listed in column (3) of theThird Schedule to the FOI Act. As 33AK is not listed in that Schedule, I accept that itsprovisions supersede those ofthe FOI Act insofar as the records relate to information

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provided by personnel from the Central Bank and the Financial Regulator.I have considered the Department's contention that section 33AK of the Central Bank Act of1942 applies to statements made by persons other than personnel of the Central Bank or theFinancial Regulator as "the substance of the whole or part of the confidential informationimparted by such personnel is revealed or is capable of being inferred" from such statements.I can accept the principle that statements as they appear in the records made by those otherpersonnel that would reveal the contributions of personnel of the Central Bank or theFinancial Regulator would have the same effect if released as if such statements had beenmade by those personnel of the Central Bank or the Financial Regulator. Accordingly, I can ~accept that such statements would be within the terms of section 33AK and therefore notsubject to release under FO!.However, having considered the statements by those other personnel in detail, while I acceptthat some of the comments would have this effect, I am not satisfied that all of them wouldand therefore these statements would not be covered by section 33AK ofthe Central BankAct, 1942. To give two illustrative examples, my reading of the records is that a particularissue was first mentioned by the Secretary General of the Department, so the exchangebetween him, the Taoiseach and the Minister on that point would not be covered by 33AK.Also, as the contribution from the Governor of the Bank oflreland was the first recorded /contribution to the meeting recorded in the first record, I do not see how contributions madeby other people later in the meeting could be inferred from the Governor's contribution, so inmy view 33AK does not apply to that contribution. My preliminary view is that theremainder of the record is not covered by section 33AK, as in my view the remaining remarkswere not made by or would not reveal the whole or the substance of comments made bypersonnel of the Central Bank or the Financial Regulator.

Having considered the Department's most recent submission on this point, I do not accept thatstatements made by Central Bank or Financial Regulator personnel are capable of beinginferred from my proposed release of comments made at that meeting by other parties. Iaccept that all parties may have discussed the same topics, but in my view the portions on thetwo relevant records not highlighted as per my letter of 22 June to the Department can beclearly understood in their own right and it is not the case that statements made by Central j"Bank or Financial Regulator personnel can be inferred from release of those portions. As it ismy view that the portions can be understood in their own right, I do not accept that theirrelease would be misleading and therefore do not accept that section 13(2) applies to them. 'Section 19(1)(a)This section provides that a record shall be not be released pursuant to an FOI request wherethe record "has been, or isproposed to be, submitted to the Government for theirconsideration by a Minister of the Government or the Attorney General and was created forthat purpose ". It is contended that the meetings were held so that the Taoiseach, Minister forFinance and Attorney General could be briefed on an important matter in anticipation of theholding of an incorporeal Government meeting to consider the matter. It is also contendedthat the information imparted at the meeting was used to brief the Government on relevantissues. The Department of Finance provided the following description of the incorporealgovernment meeting as involving "Ministers being briefed, usually by telephone, about thematter to be decided upon. The Ministers contacted on 30th September were so briefed aboutthe discussion that had taken place at the earlier meetings involving the Taoiseach, Minister

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for Finance and the Attorney General. The decision of the Government in this, as inincorporeal meetings generally, was based on the agreement of each Minister to the terms ofthe specific draft decision" .While the Department has made the argument that the information was required for anincorporeal government meeting it has not provided any evidence to substantiate itscontention that the record was "submitted to the Government for their consideration by ajt{inister and was created for that purpose ". On the contrary, having examined the contentsof the records it appears to have been created to record the views ofthe senior banking

uti es on the difficulties that faced them and the response of the Taoiseach, Minister andthe Department to their views, rather that for the purpose of a Minister submitting a record toa Government meeting. Therefore my preliminary view is that a valid case has not been madethat 19(1)(a) applies to the records. Section 19(1)(aa)(i)This section provides that a communication, between two or more members of theGovernment relating to a matter that "is under consideration by the Government or isproposed to be submitted to the Government ", be withheld. The Information Commissioner'sunderstanding of this provision is that the words "communication, between two or moremembers of the Government" mean records of such members of Government communicating /with each other. Having re-read the records in this case, in the record of the first meeting Isee evidence of communication involving the Taoiseach but not the Minister or the AttorneyGeneral. On this basis communication "between" any of those parties does not arise so theexemption does not apply. " , 0 J . \In the second record, the first contribution of the Minister (BL) is in response t~ s~ is not ~a communication between members of the Government and not exempt under this provision _(I have previously accepted that the contribution from JF is exempt under 33AK). I can f 4 '


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Section 28(1)A reference is made to an official of a body not covered by the FOr Act. I am not aware of the ~ S ~ J I t ",~Aofficial having been previously publicly associated with their place of employment. .-. U ~ ifAccordingly, I am satisfied that details of this person are exempt under section 28(1) of the A~/j.f2 CL-FOr Act as the persons name, is personal information of that person. ~

Consultation with third partiesI have consulted with third parties on relevant records and I have considered their views. Ideal below with issues raised by the Banks concerning the record of the meeting of 30September 2008, and, also record numbers 22A and 23A. Record 23A is a submission to theDepartment from two of the financial institutions providing their views on how commercialterms for the guarantee might be determined. Record 22A is a copy of 23A with handwrittencomments from officials of the Department. As the substantive part of the record is avoluntary submission from a third party, I do not see how its release could reveal thenegotiating position of a public body.

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Section 26(1)(a)This section provides that a request for access to a record shall be refused if"the record concerned contains information given to the public body concerned inconfidence and on the understanding that it would be treated by it as confidential (includingsuch information as aforesaid that a person was required by law, or could have beenrequired by the body pursuant to law, to give to the body) and, in the opinion of the head, itsdisclosure would be likely to prejudice the giving to the body offurther similar informationfrom the same person or other persons and it is of importance to the body that such furthersimilar information as aforesaid should continue to be given to the body, ...."Specifically, for section 26(1)(a) to apply, it is necessary that four separate elements of thatprovision are satisfied:- that the information was given to the public body concerned in confidence, that the information was given on the understanding that it would be treated as

confidential, that the disclosure of the information would be likely to prejudice the giving to the body

of further similar information from the same person or other person in the future, and that it is of importance to the body that such further similar information continue to be

given to the body.The first question which arises here is whether the information given to the Department wasin fact given in confidence and on the understanding that it would be treated as confidential,covering the first two of the four elements highlighted above. On the basis of the context ofthe correspondence through which the information at issue was imparted to the Department,and having regard to the strong views of both the Bank and the Department as to its nature,including the content of correspondence to this Office, in the circumstances of this case I canaccept there was a mutual understanding of confidence on the matter. Accordingly, I canaccept that the first two elements above have been satisfied.

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The third element is that disclosure of a record "would be likely to prejudice the giving to thebody offurther similar information from the same person or other persons ". In this regard,the bank's contend that the openness and frankness of their future communications with theDepartment would be adversely affected in the context of this element of26(1)(a). Given thescale of State support provided to qualifying banks under the guarantee, I do not accept asrealistic a contention that release of the records would result in those banks being less thanopen and frank in response to any request by the Department to them for information onbehalf of the Minister. As it is my view that one (the third) ofthe elements of 26(1)(a) hasnot been met, as all four must be met to satisfy the provision, I do not accept that section26(1)(a) applies to the records considered in this review.The public interestSection 26(3) provides that, where records would otherwise fall to be exempted under26(1)(a), they should nevertheless be released where "on balance, the public interest wouldbe better served by granting than by refusing to grant the request .... concerned", and it iscontended that the public interest would not be better served by granting the request. As inmy view section 26(1)(a) does not apply to the records, it is not necessary for me to considersection 26(3) in the circumstances of this case.{JtOwever, if! was, I would find that thepublic interest in the Department being held to account for its decision to commit billions ofEuro to the banking sector in the context of the guarantee would outweigh any damage toconfidentiality in its dealings with the sector, damage which in any event I do not accept isthe case ..-JSection 26(1)(b)This section states that:

"(1) Subject to the provisions of this section, a head shall refuse to grant a request undersection 7 if(a) [ ..}, or(b) disclosure of the information concerned would constitute a breach of a duty ofconfidence provided for by a provision of an agreement or enactment (other than aprovision specified in column (3) of the Third Schedule of an enactment specified in that )Schedule) or otherwise by law.It is contended by some of the parties that release of the records, concerning the mee~ ~of 30 September 2008 and records 22A and 23A, would be a breach of contract law, but Ino evidence is provided to substantiate which particular aspect of contract law would bebreached by release. Therefore, in line with 34(12)(a), in my view this Office does nothave a sufficient basis on which to make a finding that withholding the records under26(1 )(b) is justified.It is also submitted that the Bank was not given any indication that what it contends wasthe confidentiality of its provision of information to the Department would not berespected. The FOI Act provides that any requested record shall be released unless it is /properly withheld in line with the exemption provisions set out in the Act.Non-provision of advance notification that records might be released is not among thoseexemption provisions, so this point of itself is not in my view a sufficient basis to justifywithholding the records in this case.For section 26(1)(b) to apply in this case, I accept the contention that disclosure ofthe

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should in my view be released, apart from the excerpts excluded under section 33AK of theCentral Bank Act, 1942, set out above and the comments on a third party made by one ofthesenior banking executives. ~

Exemptions cited for records in schedules, other than the recordsconsidered aboveI will now consider the exemptions cited by the Department in numerical order of the sectionof the Act concerned.Section 13(2)This section provides that a part of a record that is not otherwise exempt will not be releasedif release of that part of the record on its own would be misleading. This Office has takenthe view that release of parts of records that are meaningless by themselves could bemisleading in the context of exemption of other parts of the same records.

In this case, I am satisfied that release of parts of the records listed below in the absence ofinformation from those records that has been properly exempted would be meaningless andtherefore that 13(2) applies.Schedule A: 1 (covering email), 5 (other than IMF content), 34 (covering email), 37(covering email), 38 (covering email), 46 (covering email), 47 (covering email), 50 (coveringemail), 51 (remainder of email) and 54 (covering email).Schedule B: 6 (email apart from European Commission portion);Schedule E: 2 (email apart from text of draft statement), 5 (covering email), 6-8 (covering \ /emails), 1~(email apart from the portions of the record relating to the functions of the Z\President){16 (covering email), 19 (covering email), 20 (covering email), 22-23 (coveringemails), 25-27 (covering email), 31 (covering email), 36-38 (covering emails), 46 (coveringemails), 47 (covering email), 49-54 (covering emails), 57 (covering email), 68 (emailwithout IMF and Central Bank content).Schedule Z: 1-4 (covering emails), 8 (covering emails), 9-10 (covering emails), and 12(covering emails).----------Section 19Section 19(1)(a), 19(1)(c) and 19(1)(aa)(i) have been summarised above.Section 19(1)(b) provides that a record shall not be released pursuant to an FOI request whereit is "a record of the Government other than a record by which a decision of the Governmentis published to the general public by or on behalf of the Government ".Section 19(2) provides for the mandatory refusal of a record that is not a record by which adecision of the Government is published to the general public by or on behalf of theGovernment, and where the record contains "the whole or part of a statement made at ameeting of the Government, or information that reveals, or from which may be inferred, thesubstance of the whole or part of such a statement". This provision clearly provides for theprotection of Cabinet discussions. Furthermore, section 19(3)(a), set out below, does notapply to records coming within the scope of section 19(2).

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Section 19(3)(a) provides for the release of factual information that is contained in a record towhich section 19(1) applies, "if and in so far as it contains factual information relating to adecision of the Government that has been published to the general public ".The wording of 19(1)(a) means that, for example, Memoranda submitted for Governmentconsideration would be exempt. I accept that 19(1)(a) applies to exempt parts of thefollowing records:Schedule A: 10 (Memorandum for Government), 36 (Memorandum for Government), and 46(Memo for Government including Draft Heads).I informed the Department of my preliminary view that record 52A, a record of a GovernmentDecision of30 September 2008, falls for release in line with section 19(3)(a). I cited theCommissioner's decision on a previous case involving the Department (no.050380) where shestated "I consider that, in order for me to consider the extent to which records to whichsection 19( 1) applies contain factual information, all that is necessary is that there is onepublished Government decision, to which those records relate. I find as a matter of fact thatall the records at issue in this case (in so far as particular elements thereof are actuallycovered by the scope of the request) that I have found to be exempt under section 19(1) relateto the published decision of 18 May 2005, and that any factual information therein falls to bereleased under section 19(3)(a)". The Department continues to contend that, as the decisionin record 52A was not published, it is exempt under 19(1)(b).Mindful of the limitations of section 43(3), I can state that the decision in 52A refers to theGovernment's announcement to guarantee all deposits and certain creditors of specified Irishfinancial institutions. As that announcement, available on the Department's website, isevidence that a Government decision on the guarantee has been published, having examinedits contents I am satisfied that record 52A relates to that published decision, and thereforefalls for consideration under 19(3)(a).The Department contends that the text of the decision is so detailed that one can inferdiscussion at Government from it, and that it is therefore exempt under section 19(2). Inresponse to my request for elaboration on this point, the Department submitted that thecontents of the record makes it clear that there was discussion at Cabinet of three specifiedmatters, that these discussions can be inferred from the record, making it exempt under 19(2).I The record makes it clear that there was a Government decision on a matter that is subject to

- . five specified conditions. It does not give any indication of whether the decision followediscussion or was taken without discussion, as I understand can be the case on variousmatters. In the absence of such an indication, I do not see how the substance of a statement

made at that Government meeting is revealed or inferred. On that basis, it is my preliminaryview that section 19(2) does not apply to the record.The Department further contends that part of the text of the record relates to the President'sfunctions. I deal with this point under section 46(1)( d) below.For the above reasons, my preliminary view is that section 19(3)(a) dis-applies application ofsection 19(1) to the record, that it is not exempt under section 19(2) and therefore, with theexception of the part considered under section 46(1)(d) below, it should be released.

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Section 20(1)This section provides that "A head may refuse to grant a request. ..if the record concernedcontains matter relating to the deliberative processes of apublic body ". This means thatrecords relating to a public body's decision making processes fall for consideration under thissection. In order for such records to be exempt, however, the provisions of section 20(3)must be satisfied. Section 20(3) provides that "Subsection (1 ) does not apply in relation toa case in which.. the public interest would, on balance, be better served by granting than byrefusing to grant the request ". The Department contends that many of the records relate toan ongoing deliberative process and that the public interest would not be better served bytheir release. I accept that many of the records relate to the Department's ongoingdeliberations on measures being taken to maintain stability in the financial sector, and therebyfall for consideration under section 20. In a context where the relevant decisions have alreadybeen taken, in this case enactment of legislation for the provision of State support to specifiedbanks, that hlt,veresulted in commitment of massive amounts of public money, my viewremains that the public interest in the Department being accountable for its actions on thisJ.l1atteroyerrjde~ication of20(1) whIch, therefore does not provide a basis for exemptingthe records. /Section 21 (J)(c)This section provides that "A head may refuse to grant a request. .. if access to the recordcould.. disclose positions taken, or to be taken, for the purpose of any negotiations ..by or onbehalf of the Government or a public body". I accept that the records exempted under thisprovision may relate to the scheme that is in place or its possible extension beyond 30September 2010, but the test in 21(1)(c) is that access to any record being exempted mustdisclose the position of the Government or a public body in negotiations. In my view is that itis not clear that records exempted under this provision would reveal a negotiating position, asopposed to describing the Irish State's position on an issue.The Department contends that the records of the meetings of30 September 2008 and records22A and 23A in particular are exempt under this provision. Regarding the 30 Septemberrecords, it contends release could reveal the Department's position on negotiations regardingextension of the guarantee to the future issuance of debt securities with a maturity of up to 5years. Having examined the two records, I do not see anything in the portions I think shouldbe released that reveals the State's position on this matter and, accordingly, my preliminaryview remains that section 21(1)(c) does not apply.Records 22A and 23A have been described previously. As the substantive part of the recordsis a voluntary submission from a third party, I do not see how its release could reveal thenegotiating position of a public body. However, I can accept that the handwritten commentsreveal an exchange of thoughts between officials on the matter which could constitute theposition of the Department on future negotiations regarding the guarantee and that 21(1)(c)applies to those comments. I can also accept, given the nature and scale of futurenegotiations, that the public interest would not be better served by release of the comments.Accordingly, my preliminary view is that 23A should be released but that the handwrittencomments on 22A are exempt under 21(1)(c).

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With regard to the remainder of records, as set out above, I do not accept that they are exemptunder section 21(1)(c) and in any event the Department has not satisfied me that its decisionis justified in accordance with the burden of proof provisions of section 34(12)(b).

Section 22(1)(a)This section provides that "A head shall refuse to grant a request ... if access to the recordconcerned.. would be exempt from production in proceedings in a court on the ground oflegal professional privilege". In the context of this review, that provision has been appliedin relation to the provision of legal advice. I agree with exemption on this basis where thereis evidence that legal advice is being sought or received, but I do not agree where I find noevidence that this is the case. For example, the Department contends that records forwardingproposed amendments to the Bill from Labour and Fine Gael's legal advisors are exemptunder 22(1)(a) as they were prepared by the those parties' legal advisors. In the first instance,legal professional privilege attaches to records regarding requests for and the provision oflegal advice. For example, records 28A and 45A refer to proposed amendments submitted byFine Gael's legal advisor but make no reference to legal advice. Records 5Z and 6Z containtext of proposed amendments (which are publicly available) and I do not see how theseconstitute legal advice. Secondly, privilege resides with the client. The Labour and FineGael parties and not the Department are the clients in this case, so I do not see how theDepartment can validly seek to attach privilege to the records. In the absence of evidencefrom the Department that Fine Gael and Labour object to release ofthese records, mypreliminary view is that they should be released. This also applies to issues raised by the IriSh/Banker's Federation (lBF) (e.g. record A30) upon which legal advice was subsequentlyobtained by the Department. The legal advice received by the Department is subject to legalprofessional privilege, but emails from IBF raising issues are not covered and should bereleased.

, .

I accept that 22(1)(a) applies to exempt the following records:Schedule A: 9, 29 (except for CB email), 30 (except for IBF email), 31 (except for CBemail), 4211-42 (covering page), 43-44 (cover email), and 49 (advice from solicitors).Schedule E: 27 (legal advice portion), 28, 29, 30 (summary oflegal advice from AG), 33(advice from AG), 35 (legal advice portion), 41, 42 (legal advice only, not IBF content), 45(legal advice portion only, IBF part not exempt) and 48.

Section 22(1) (c)(ii) (1)The wording of 22(1)(c)(ii)(I) as it applies in this case is that the exemption applies to"opinions, advice, recommendations, or the results of consultations" considered by Oireachtasstaff for the purposes of Oireachtas procedures. The Department has contended that internalprocedural Bills Office emails, or similar procedural emails exchanged between officials ofthe Department and the Bills Office attaching, for example, proposed amendments to the Bill,are consultations considered by Oireachtas staff and therefore exempt under 22(1)( c)(ii)(I).The Information Commissioner found in case no.99279 (available on this Office's web site),that "the primary (but not exclusive) purpose of section 22(1)(c)(ii) (1) is to exempt advicefrom the Office to the Ceann Comhairle, the Leas-Cheann Comhairle, the Cathaoirleach, theLeas Cathaoirleach, and individual members of the House regarding procedural matters ".While that decision is not definitive as to any other purpose(s) of 22(1)(c)(ii)(I), in my

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opinion the thrust of that decision is that the provision is not intended as a basis for 'exempting internal correspondence conducted solely between officials, as opposed to /correspondence between officials and office holders. Accordingly, my outline position is thatI do not see a basis for exemption for these procedural emails between officials.

Section 24(1 )(c)This section provides for refusal of a request where access to a requested record "couldreasonably be expected to affect adversely ..the international relations of the State ''. TheDepartment contends that release of records of discussions among officials on aspects of theguarantee, including its scope and proposed strategies for dealing with publicity related to theguarantee, could have this effect. I accept that release of the records would reveal discussionsbetween officials on these matters. However, in a situation where legislation has beenenacted providing a statutory basis for the guarantee, in my opiniorfif there was to be anydamage to Ireland's international relations then such damage would have arisen as a result ofthe decision to put the guarantee in place.' Accordingly, I do accept as realistic a contentionthat revelation of discussions among officials would adversely affect Ireland's internationalrelations over and above any affect that the guarantee itself might have had on such relations.

In its latest submission, the Department contends that the above is an overly narrowinterpretation of the records as it fails to recognise that there could be reasons other thanrelating to the guarantee where release could adversely affect the international relations of theState. As the Department has not provided any evidence to justify this contention, in linewith section 34(l2)(b) my outline opinion is that I do not see a basis for exemption for theseemails between officials.

Sections 24(2)(b)-(c)These sections provide for refusal of access to records containing communications between aMinister and a diplomatic or consular post. The FOI Act makes various reference to theterms "Minister", "Department", "head", and "public body" separately throughout its variousprovisions, with each such term being separately defined in section 2(1) of the Act. TheDepartment contends that communications between the Department and diplomatic orconsular missions are exempt under these provisions and that no significance attaches to thefact that some sections in the Act refer to "Department" while others refer to "Minister". Insupport of this contention it cites the Carltona Doctrine: which recognizes the administrative- - _ .reality that most actions of a Minister are likely to have been taken by a public official on thatMinister's behalf, and concludes that accordingly any reference to a Minister can be taken tomean the Minister and the Department unless it is clear it could only mean the Minister. Onthese bases it contends that many records including E34, E39, E40, E65, and E67 are exemptunder 24(2)(b). -In my view, had the Oireachtas intended that the terms "Minister" and "Department" beregarded as synonymous it would not have separately defined and made separate provision forboth terms elsewhere in the Act. On that basis, in my opinion it is clear that where the Actrefers to "a Minister", it refers to a member of the Cabinet and not a "Department", "head", or"public body". Accordingly, it follows that communications with a diplomatic or consular

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mission that are engaged in by a party or parties other than a Government Minister are notcovered by these provisions, and this informs my outline position on the above records wherethe Department has cited those provisions.E34 consists of emails between officials within Finance and between Finance and ForeignAffairs, containing the view of a Finance official on a provision in the Bill, and a summary of .the briefing the D.Finance Permanent Representative in Brussels is providing to the ./international media on the guarantee. As these are communications between officials fromtwo Departments, I do not accept that section 24 is applicable and the record should bereleased.E39 is a record of emails between officials within Finance and between Finance and ForeignAffairs, containing in the first page of part of the Committee Stage briefing for the Minister,excluded under section 46(1)( db), then the view of a Finance official on a provision in theBill, and a summary of the briefing the D.Finance Permanent Representative in Brussels isproviding to the international media on the guarantee. As set out in E34 above, these arecommunications between officials from two Departments, and therefore I do not accept thatsection 24 is applicable and the record should be released.E40 is a repeat ofE39 apart from one page. That page is a communication between Irish andBritish officials so my outline position is I accept that page is exempt under 24(2)(b), .E65 is an email between Finance and DFA officials regarding briefing for EFCteleconference, including text of a draft speaking note for that teleconference. As set outabove regarding 24(2)( c), as this record does not contain communication to or from aMinister, in my view that provision does not apply. There is no evidence from the record thatit involves communication in a context of confidentiality. I take it that the teleconferencewas at official level, and that it has taken place. On that basis, the speaking note appears tome to explain the context behind and the reasons for the Irish Government's decisions on theguarantee, rather than seeking an agreed position among EU Member States before suchdecisions were taken. Therefore I do not see evidence from the text of the note that theteleconference was a negotiating rather than an explanatory discussion. For these reasons inmy opinion 24(2)( e) does not apply. I do not accept as realistic a contention that release oftext prepared for a discussion among officials on a matter on which legislation has beenenacted would damage Ireland's international relations, so in my view 24(1)( c) also does notapply and the record should be released in full.E67 is an email containing a request from DFA officials for briefing material for the IrishHonorary Consul in Greece, and the provision of such briefing by Finance. As there is noevidence from the record of communications to or from a Minister, in my view 24(2)( c) doesnot apply and my outline position remains that this record should be released in full.On this basis, I accept that the Department has properly applied 24(2)(b) to the followingrecords, but had not done so for those other records for which it cited those provisions:Schedule A: 4; andSchedule E: 40 (page 1 only);I also accept that the Department has properly applied 24(2)( c) to the following records, but

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had not done so for those other records for which it cited those provisions:Schedule Z: 8 (summary of comments by the Competition Commissioner on issues relating , )to the banking sector provided by a DFA official in the Permanent Representation in 2 " ' >Brussels).With regard to the remainder of records, as set out above, I do not accept that they are exempt /under section 24(2)(b) or (c) and in any event the Department has not satisfied me that itsdecision is justified in accordance with the burden of proof provisions of section 34(12)(b).

Section 24(2) (e)-(f)These sections provide for refusal of access to records containing information communicatedin confidence with an international or EU organisation (e); and information prohibited fromrelease by an international or EU organisation with whom there is communication (f).The Department contends that release of many of the records including Ell, E15, E63, andE65 would weaken the State's negotiating position with other EU Member States regardingextension of the bank guarantee beyond 30 September 2010. Having examined their contents,these records are mainly a draft of a proposed speaking note for use by the Taoiseach in aplanned meeting with President Sakorzy, with corresponding emails from officials on the textof the speaking note. There is also no evidence from the records that the meeting involved /negotiating rather than the provision of information as the text describes different aspects of /the guarantee and does not appear to me to seek to influence President Sakorzy to take anyparticular course of action on it. Accordingly, I see no basis for applying 24(2)( e) to theserecords. -;::;

The Department also contents that 24(2)( e) applies to records of correspondence between itand the European Commission and the European Central Bank regarding aspects of theguarantee, and that 24(2)(f) applies to correspondence between it and the InternationalMonetary Fund.Having reviewed these records, I can accept that such correspondence in the followingrecords consists of communication in confidence between the Department and institutions ofthe European Union and is therefore exempt under section 24(2)(e):Schedule A: 27; XSchedule B: 1-3,5,6 (correspondence conducted in confidence between the Department andthe Commission), and 7; .Schedule D: 3; andSchedule E: 68 (IMF portion only)I can accept that the following record contains information prohibited from release by aninternational organisation with whom there is communication and is exempt under 24(2)(f):Schedule A: 5 (IMF content).With regard to the remainder of records, as set out above, I do not accept that they are exemptunder section 24(2)(e) or(f) and in any event the Department has not satisfied me that its

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raised by the IBF concerning the Bill, would undermine the financial stability sought by theguarantee which would prejudice the competitive position of the banks covered by theguarantee, and that this would be against the public interest. I simply do not see how releaseof the IBF's view on the likely effects of particular clauses of the Bill would have this effect -the guarantee has been in place now for over ~a year. If the effects outlined by the IBF of / l i Bparticular clauses were to come about, I think it reasonable to conclude that this would ~already have happened, and therefore is not likely to happen by release of these two recordsunder FOl. Regarding the public interest, I see the circumstances as similar as outlined forsection 26 above. Furthermore, where a balance is to be struck between the commercialinterests of the sector whose activities led to the need for the guarantee on the one hand, andthe accountability for deployment of massive amounts of public money in times of economicrecession on the other, in my opinion the balance falls clearly on the side of accountability.For these reasons, my preliminary view is that section 27 does not apply to any of the recordsconcerned.With regard to record numbers 22A and 23A, it is contended that release of the records couldprejudice the Bank's competitive position or the conduct of contractual negotiations.However, no evidence had been provided to substantiate this contention as to how thisprejudice might reasonably be expected to happen. Having examined the records, I seenothing in their content that would prejudice the Bank's competitive position or the conductof contractual negotiations - an a e that may have occurred on those matters in my viewwould have been as a result of the crisis in the financIa sector giving rise to the intro uction~hhe guarantee, and I do not see how release of the records III this case would cause further'ctamage. 'Similarly as set out above for section 26(3), even ifI were to accept that section 27(1) applies(which I do not), it would be my view that the public interest would be better served byrelease of the records.In any event, in my view neither the Department nor the relevant third parties have shown tothe satisfaction of the Commissioner, as required by section 34(12)(b), that any of the records //are exempt under the provisions of section 27(1)( a), (b) or (c). /

Section 28(1)This section applies to exempt records that contain the personal information of people otherthan the applicant, and where the public interest in release does not override the right toprivacy of the person(s) to whom the information relates.I accept that 28(1) applies to exempt the following records:Schedule A: 12 (first sentence of email, personal information of the recipient), 14 (name andtelephone number of the person who made the query), 17 (as 14), 19 (name and contactdetails ofIBF official), 30 (name and contact details ofIBF official), and 56 (as 14).Schedule E: 32 (identity of the person who made the comment), 42 (name ofIBF official), 45(name and coiitaCt details of the IBF official), and 62 (first sentence of email, personalinformation of the recipient).

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Section 31 7It is contended that release of the records would negatively impact on the financial affairs of '.the State and thereby that they are exempt under section 31, As stated above, this contentionis in relation to the records as a whole as well as some specified requested record(s). TheDepartment has contended two particular issues fall for consideration under this section,namely:(1) Constructive ambiguity: the Department contends that it is the practice ofpractitionerslregulators/Governments not to set out in advance the likely response of publicbodies to financial crises, and that release of the records in this case. I can accept the pointthat constructive ambiguity in the context of this review is one component of consideration ofapplication of section 31, but it remains the case that the Department must justify any /decision it makes to exempt records in the context of the FOI Act. As constructive ambiguityin itself is not a basis for exempting records provided for in the FaI Act, further argumentsbased on the Act's exemptions would be required to justify exemption of records. Myreading of the records in this case is that they relate to a Government policy decision that hasbeen taken and implemented. Therefore, the issue of advance revelation of the likelyresponse of public bodies to financial crises does not arise when that response has alreadytaken place and has been put on the public record. Accordingly, it remains my preliminaryview that the concept of Constructive Ambiguity is not a basis for exempting the records inthis case.

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(2) EU States Memorandum of Understanding: It is contended that release of the records inthis case would be in breach of a Memorandum of Understanding between various EU Stateson agreed actions to be taken in the context of stabilising the financial sector in the differentMember States. I can accept that the EU Memorandum of Understanding (MoU) of2008 isrelevant to the consideration of applications of sections 26 and 31, and that the fact the FaIAct supersedes a non-binding agreement does not prevent those exemptions from applying,but it remains the case that the Department must justify any decision it makes to exemptrecords in the context of the FaI Act. My understanding of the Memorandum ofUnderstanding is that it is a voluntary code of practice agreed among the Member States. Aswith the concept of Constructive Ambiguity considered above, the Memorandum of itself is /not a basis for exempting records provided for in the FaI Act. Furthermore, myunderstanding is that an Act of the Oireachtas, such as the FaI Act in this instance, legallysupersedes a non-statutory arrangement such as the Memorandum of Understanding. On thisbasis, my preliminary view remains that the records are not exempt on the basis that releasewould breach the Memorandum.The Department has also contended that sections 31(1)(a) and (c) and 31(2) apply to many ofthe records. In particular, it has made reference to section 31(1) being applicable to records jE42 and E45. For reasons similar to those set out for section 27 above, I do not accept thatrelease of a third party's view on the impact of legislation that has been enacted for over a Iyear would bring about the adverse consequences for the national economy as provided for insection 31. Having examined all the records for which section 31 was claimed, mypreliminary view remains that, in line with section 34(12)(b), no valid basis for justifyingexemption of the records under section 31(1) or 31(2) has been made.Regarding the Department's comments that part release of the two records, concerning themeetings of 30 September 2008, for which exemption on the basis of 33AK has been claimed

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would result in speculation and conjecture regarded the exempted portions and that thiswould have the effects outlined in section 31 of the Act, I do not see how this is differentfrom exemption of the records in their entirely as I think it reasonable to conclude that fullexemption is at least as likely if not more likely to lead to speculation than would be partrelease. In any event, your Department has not provided any evidence to substantiate itscontention on this point.

Section 46(1)(b), (d), (db)These provisions exclude from the scope of the FOI Act records held by or created by theOffice of the Attorney General, relating to the President, or given by a public body to aMinister or Minister of State for the purposes of Oireachtas proceedings. I do not accept ithas been demonstrated that the exclusions apply to a number of records cited by theDep~.ment, and therefore my preliminary view is that section 46(1) doesn't apply to re70rd .20A, Q4A, 43A, 14E, 27E-29E, 32E, 41E, 48E, 57E (part).

" =I accept that 46(1 )(b) applies to exclude the following records:Schedule A: 3 (unpublished text of Bill created by Office ofthe Attorney General), 16 (as 3),21,25,33,42/1-42 (as 3), 44 (draft bill) and 49 (text of Bill).Schedule E: 5 (draft of Bill), 19-20 (draft of Bill) and 21Schedule Z: 2-4 (unpublished draft versions of the Bill). yaccept that 46(1)( d) applies to exclude the following records:Schedule A: 52 (reference to President).Schedule E: 10 (reference to functions of President).I accept that 46(1)( db) applies to exclude the following records:Schedule A: 37 (brief for Minister) and 38 (speaking note for Minister).Schedule C: 1.Schedule E: 4 (speaking note for Taoiseach), 6-9 (speaking notes), 11 (speaking notes), ;/15-16 (speaking notes for Minister), 22-23 (draft speech for Dail), 30-31 (speaking notes), 33(speaking notes for Minister), 35-37 (briefing notes for Minister), 38 (speaking note forMinister), 39 (Brief for Minister - 1st page only), 40 (brief for Minister), 44 (speaking notes),46 (speaking notes), 47 (draft speech), 49-54 (briefing and speaking notes), 56 (2ndparagraph only), 57 (speaking notes), 61 (brief for Minister) and E65 (same content as E61).Schedule Z: 1 (brief for Minister) and 12 (Committee Stage brief).With regard to the remainder of records, as set out above, I do not accept that they areexcluded under section 46(1) and in any event the Department has not satisfied me that itsdecision is justified in accordance with the burden of proof provisions of section 34(12)(b).

Section 46(2)This provision excludes from the scope of the FOI Act records that are publicly available. Ido not accept it has been demonstrated that this exclusion applies to a number of records citedby the Department, and therefore my preliminary view is that section 46(2)(a) doesn't apply to

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records 21A, 33A, 42A-44A, 49A, 6E-8E, 20E-21E, 27E, and 33E.'- - - -accept that 46(2)(a) applies to exclude the following records:

Schedule A: 1 (Proposed amendments to text of Bill from Labour spokesperson), 3 (final textof the Long Title to the Bill), 7,10 (Press Release), 28 (list of amendments), 34 (as 1),36(Press Release), 37 (Press Release), 45 (Fine Gael Amendments), 46 (Press Release), 47(Amendments to Bill), 50 (as 1),51 (list of amendments to the Bill proposed by Sinn Fein),53 (as 3), and 54 (as 1).Schedule D: 4.Schedule E: 2 (statement on guarantee), 25-26 (Proposed amendments to text of Bill fromLabour spokesperson), 60 (text of what the Minister said in the Dail as quoted in the first,third and fifth paragraphs of the first page of the record), 61 (statement made by the Minister),and 68 (statement from the Central Bank Governor).Schedule F: 1(extracts from Minister's statements).Schedule Z: 5-7 (Proposed amendments to text of Bill from opposition spokespersons) and9-10 (as 5-7).With regard to the remainder of records, as set out above, I do not accept that they areexcluded under section 46(2) and in any event the Department has not satisfied me that itsdecision is justified in accordance with the burden of proof provisions of section 34(12)(b).Records not exemptThe following records are in my opinion not exempt and should be released in line with thereasoning set out above for Schedules A-E and in the attached Appendix for Schedule Z:Schedule A: 3 (part), 6, 12 (part), 14 (part), 16 (part), 17 (part), 19 (part), 20, 22 (part), 23,24, 28 (part), 30 (part), 32, 39-41,52 (part), 53 (part) and 56 (part).Schedule E: 3, 11 (part), 12-14, 15 (part), 32 (part), 34, 39 (part), 40 (part), 42 (part), 43, 44(part), 45 (part), 56 (part), 58, 59,60 (part), 61 (part), 62 (part), 63-64, 65(part) and 66-67.Schedule F: 1 (part) and 2.Schedule Z: 5-7 (part), 11, 13 and 14.

Next stel!.Having regard to my analysis above, you may now accept my preliminary views as outlinedabove on whether records should be released or not. Alternatively, if you do not accept mypreliminary views you can make a submission outlining any new points that you considerwould be a basis for altering these views and for the release of the records in question. ThisOffice would have regard to any such submission before a fmallegally binding decision onyour application is made by this Office. Please let me know your decision by 8 December2009.If! do not hear from you by 8 December 2009, the Commissioner will proceed to a fmaldecision on your application as soon as possible after that date. In such an event, I will bemaking a recommendation in accordance with my preliminary views for the reasons which Ihave set out above.

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Yours sincerely," ff C L t1t.

Sean GarveySenior Investigator

Oifig on ChoimisinE!Ara Faisnelse Office of The

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