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Whether the Department has justified its decision to refuse to release certain records under section 19 and section 22(1)(a) of the FOI Act regarding its decision to place An Chomhairle um Oideachas Gaeltacha agus Gaelscolaíochta (COGG) under the National Council for Curriculum and Assessment (NCCA)

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

Background

The Department identified 36 records on foot of the applicant's FOI request of
3 December 2012 for access to records held by the Department regarding the decision to place COGG under the NCCA. The Department released four records given they were already in the public domain and refused the remaining 32 records under 19(1)(a) of the FOI Act stating they were the subject of a presentation made to a Cabinet Committee.

The applicant made an internal review application on 18 February 2013. The Department varied its decision at internal review stage and released records 25, 26 and 28 to 35. It affirmed its original decision to refuse records 5 to 24 under section 19(1)(a). Record 27 was refused under section 22(1)(a) as, according to the Department, it comprised legal advice. Record 36 was refused under section 20(1) on the basis that it concerned a matter relating to a deliberative process of the Department. On 15 April 2013, the applicant applied to this Office for a review of the decision.

In carrying out this review, I have had regard to correspondence between the Department and the applicant as set out above; to contacts between this Office and the Department and to correspondence between this Office and the applicant. In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997-2003 notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Scope of the Review

Following contact with the Department by Ms Stephanie O'Connell, Investigator, it agreed to release record 36 to the applicant given that the deliberative process had been completed and therefore section 20(1)(a) no longer applied to the record. The Department confirmed that the record was released to the applicant on 2 May 2014. Therefore, I need not deal with it further in this review.

As well as containing information within the scope of the FOI request, records 12, 15, 16, 17 and 23 contain information on a variety of other issues not covered by the applicant's FOI request. It appears that while the issue of COGG was under consideration, the Department was also dealing with recommendations and proposals in relation to other several other issues which information appears in parts of the records as presented. I consider that the scope of this review covers those sections regarding COGG only. Part of the introduction at 1 and section 6 of records 12, 15, 16 and 17 relate to COGG as does the information under the heading of COGG on pages 3 and 4 of record 23. Record 13 is an email circulating a summary report and background documents. While the attachments to the email are records which are within the scope of this review, the body of the email makes no reference to COGG and is therefore outside of the scope of this review.

Accordingly, the scope of this review is confined to records 5 to 11, 14, 18 to 22, 24, 27 and the parts of records 12, 15, 16, 17 and 23 described above.

Preliminary Matters

Before dealing with the exemptions claimed by the Department I should point out that, while I am required by section 34(10) of the FOI Act to give reasons for my decisions, this is subject to the requirement of section 43 that I take all reasonable precautions to prevent disclosure of information contained in an exempt record during the course of a review. I also have to refrain from disclosing information which a public body contends is contained in an exempt record so as to preserve that party's right of further appeal to the High Court.
These constraints mean that, in the present case, the extent of the reasons that I can give is limited. I would also draw attention to section 34(12)(b) of the Act which provides that, in a review, "a decision to refuse to grant a request under section 7 shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified."

Analysis and Findings

Section 22(1)(a) - Legal Professional Privilege
The Department refused access to record 27 on the basis of section 22(1)(a) of the FOI Act which provides that a 'head shall refuse to grant a request under section 7 if the record concerned (a) would be exempt from production in proceedings in a court on the ground of legal professional privilege'.

In considering this matter, I have to ignore the likelihood or otherwise of court proceedings taking place. The question comes down simply to whether or not the Department would succeed in withholding the documents on the ground of legal professional privilege in court proceedings. Legal professional privilege enables the client to maintain the confidentiality of two types of communication:

confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege), and
confidential communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation (litigation privilege).

Section 22(1)(a) is a mandatory exemption not subject to a public interest test. I have examined record 27 and I am satisfied that it contains legal advice for the Department given by its legal advisor and therefore attracts legal professional privilege. Accordingly, I find that it is exempt from release by virtue of section 22(1)(a) of the FOI Act.

Section 19 - Meetings of the Government
The Department initially claimed that section 19(1)(a) applied to records 5 to 24. Section 19(1)(a) provides that a record shall not be released pursuant to an FOI request where the record "has been, or is proposed to be, submitted to the Government for their consideration, by a Minister of the Government or the Attorney General, and was created for that purpose". It is a mandatory exemption and therefore must, subject to the provisions of section 19(3), be applied to records that meet the criteria therein.

Ms O'Connell sought clarification from the Department regarding its application of section 19(1)(a). The Department confirmed that the records were created for the purpose of a meeting of the Cabinet Committee regarding the Irish language on 5 November 2012. It stated that records 5 to 22 were either draft versions of record 24 or e-mails discussing its content. It further said that record 23 comprised the minutes of the Cabinet meeting. According to the Department, the records were submitted by the Secretary General and the Chief Inspector of the Department. In a message to the Department, on 13 May 2014, the Investigator set out her preliminary view that section 19(1)(a) did not apply as the records were not submitted or proposed to be submitted to the Government by a Minister of the Government or the Attorney General.

In response to the Investigator's preliminary views, the Department claimed that sections
19(1)(b), 19(1)(c) and 19(2)(a) applied to the records. It also drew the Investigator's attention to section 19(6) of the Act and specifically to the definition of "Government" therein which includes:

"a committee of the Government, that is to say, a committee appointed by Government whose membership consists of -

(i) members of the Government, or

(ii) one or more members of the Government together with either or both of the following:

(I) one or more Ministers of State,

(II) the Attorney General".

Ms O'Connell established that the Cabinet Committee was chaired by the Taoiseach and made up of the Minister for Arts, Heritage and the Gaeltacht, the Minister for Public Expenditure and Reform, the Minister for Education and Skills and the Minister of State at the Department of the Gaeltacht. The Department accepted that certain factual information relating to a decision of the Government that has been published to the general public fell to be released under section 19(3)(a). However, it took the view that release of any document on this issue originating either before or after the Cabinet Committee meeting would breach section 19 of the FOI Act.

Section 19(1)(b) applies to a record "of the Government other than a record by which a decision of the Government is published to the general public by or on behalf of the Government".
Section 19(1)(c) applies to a record containing "information (including advice) for a member of the Government, the Attorney General, a Minister of State, the Secretary to the Government or the Assistant Secretary to the Government for use by him or her primarily for the purpose of the transaction of any business of the Government at a meeting of the Government".
Section 19(2)(a) applies to a record that "contains the whole or part of a statement made at a meeting of the Government or information that reveals, or from which may be inferred, the substance of the whole or part of such a statement."

Records 5 to 11 are various draft versions of a document regarding the future of COGG created by a Departmental working group. The document was circulated for comments by email - records 18 to 22 refer - amongst the working group members prior to submission to the Secretary General of the Department. Records 12, 14, 15 and 16 are drafts of a summary report from the working group. The introduction section of the report specifies that it is "for the consideration of MAC in relation to key issues for Irish".

Having examined the records, I am satisfied that, with the exception of records 17, 23 and 24, they are records of the Department and not of the Government. I am further satisfied that none of the other provisions of section 19(1) or 19(2) apply to the parts of records 5 to 12, 14 to 16 and 18 to 22 within the scope of this review. Therefore, I find that the exemption claimed by the Department under section 19(1)(b) is not justified.

With the above in mind I do not accept the Department's contention that these records were created for the purpose of a meeting of the Cabinet Committee regarding the Irish language and the Gaeltacht on 5 November 2012. The context of the creation together with the contents of the documents indicate that they were intended for briefing within the Department and prepared outside of the cabinet process.

Record 17
Record 17 is a draft memorandum to Minister Ruairí Quinn dated 26 October 2012. I accept that this record contains information, including advice, for a member of the Government for use by him primarily for briefing purposes in relation to a Cabinet Committee meeting scheduled for 5 November 2012. Therefore, I find that section 19(1)(c) does apply.

Section 19(3)(a)
However, under the provisions of section 19(3)(a), section 19(1) does not apply to a record "if and so far as it contains factual information relating to a decision of the Government that has been published to the general public".

The first issue to be determined is what is meant by the term "factual information" for the purposes of section 19(3)(a). Section 2(1) of the FOI Act provides that "factual information includes information of a statistical, econometric or empirical nature, together with any analysis thereof". In previous decisions of this Office, (decision numbers 030714 and 050381 available on www.oic.ie), the view was taken that the use of the word "includes" in the definition means that while information of a statistical, econometric or empirical nature should be regarded as factual, regard must also be had to the ordinary meaning of the term when considering a case for review. Accordingly, this Office sees factual information as including material presented to provide a factual background to the central topic in a record.

Secondly, section 19(3)(a) clearly provides for the examination of a record "relating to a decision of the Government that has been published". I have interpreted this as requiring the release of factual information contained in any record that is exempt under section 19(1) and which relates to a decision of the Government the substance of which has been published to the general public. The records at issue in this case pertain to the decision of the Government regarding COGG and the NCCA and therefore are appropriate for consideration under section 19(3)(a). The parts of record 17 falling within the scope of this review include the authors, date and subject of the memorandum, its introduction and purpose insofar as COGG is concerned and item 6 of page 11. I consider the headings under Memorandum, the first paragraph of 1.1 and the reference to COGG in the list of issues together with the first paragraph of item 6 of the document to contain factual information. The remainder of record 17 within the scope of the review is, in my view, exempt under section 19(1)(c) and I find accordingly.

Finally, I understand that where a decision of Government is "published", such publication can take the form of a press release or a statement, describing the substantive content of the decision, issued by or on behalf of the Government - in which case the actual record of the decision concerned is not itself published. Ms O'Connell pointed out to the Department that both the press release of 23 November 2012 and the speech of the same date given by
Mr Seán Ó Foghlú, Secretary General of the Department had the effect of publishing the substance of the decision regarding COGG to the general public. I agree with this approach.

Records 23 and 24
Record 23 is a section of the draft minutes of the Cabinet Committee meeting and record 24 is a slide regarding COGG from the presentation at that meeting. Section 19(2) of the FOI Act, as amended, provides that access shall be refused where the record concerned meets two requirements i.e. if the record "(a) contains the whole or part of a statement made at a meeting of the Government or information that reveals, or from which may be inferred, the substance of the whole or part of such a statement, and (b) is not a record by which a decision of the Government is published to the general public by or on behalf of the Government".

Having examined records 23 and 24, I am satisfied that they meet the above requirements in that they contain the substance of statements made at the Cabinet Committee meeting attended by members of the Government and they are not records by which a Government decision was published. I should say here that there is no provision in this mandatory exemption under section 19(2) for consideration by the decision maker of the nature or content of any statement made, whether it is already in the public domain, whether release would be in the public interest or any other factors. In these circumstances, I find that section 19(2) applies to records 23 and 24. Given this finding, I do not need to consider the Department's claim for exemption under section 19(1)(b) in respect of these records.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby vary the decision of the Department and direct that:
Records 5 to 11, 14 and 18 to 22 be released in full;
Extracts relating to COGG in records 12, 15, 16 and information identified in this decision as factual in record 17 be released.

I affirm the decision of the Department to refuse access to records 23, 24 and 27 and part of record 17.

In the interests of clarity, the parts of records for release have been highlighted on the copies held by this Office which can be made available to 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 from the date on which notice of the decision was given to the person bringing the appeal.

Elizabeth Dolan
Senior Investigator