Whether the Department was justified in its decision to refuse access, under section 28(1)(c), to two records comprising copies of emails between the then Taoiseach and the Secretary General to the Government concerning arrangements for the appointment of members to the Future of Media Commission

28 April 2021

Background

In a request dated 17 December 2020, the applicant sought access to certain records relating to the appointment of members to the Future of Media Commission (the Commission), which was set up by the Government in September 2020 to examine the future of the media in Ireland. On 18 January 2020, the Department refused access to eight of the 11 records it identified as coming within the scope of the request and it granted partial access to the remaining three records, citing sections 28(1), 29(1) and 37(1) in support of its decision. In referring to the records at issue, I have adopted the numbering system used by the Department when processing the request.

On 1 February 2021, the applicant sought an internal review of the Department-�s decision. The Department issued its internal review decision on 1 March 2021, in which it varied its original decision, releasing further parts of a number of records, but affirming its decision not to release certain other records. In particular, it affirmed its decision not to release Records 5 and 6, comprising email correspondence dated 9, 10, and 13 January 2020 between the then Taoiseach and the Secretary General to the Government concerning arrangements for the appointment of members to the Commission, citing section 28(1)(c) of the FOI Act in support of its position.

On 4 March 2021, the applicant sought a review by this Office of the Department-�s internal review decision. In his request to this Office for a review of the Department-�s decision, he stated that: -�In my appeal, I wish to focus on the decision to withhold Records 5 and 6-�. In the course of a subsequent telephone call from this this Office to the applicant dated 15 April 2021 seeking clarification of the applicant-�s position, he confirmed that he was content for the review by this Office to focus on the Department-�s decision in relation to Records 5 and 6.

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

Scope of the Review

This review is concerned solely with whether the Department was justified in its decision to refuse access, under section 28(1)(c) of the FOI Act, to Records 5 and 6, comprising emails between the then Taoiseach and the Secretary General to the Government concerning arrangements for the appointment of members to the Commission.

Findings

Section 28(1)(c)

Section 28(1)(c) of the FOI Act states that access to a record may be refused where the record -�contains information (including advice) for a member of the Government, the Attorney General, a Minister of State, the Secretary General to the Government for use by him or her solely for the purpose of the transaction of any business of the Government at a meeting of the Government-�.

Record 5 comprises an email dated 9 January 2020 from the Secretary General to the Government to the then Taoiseach, and the then Taoiseach-�s response of 10 January 2020. In its submissions to this Office, the Department said that the email from the Secretary General informed the then Taoiseach that an important outstanding matter of Government business was the appointment of members to the Commission. It said the substantive element of the email is advice to the then Taoiseach from the Secretary General that proposals for the appointment of members of the Commission be advanced in a Memorandum for Government, ideally in time for the Government meeting scheduled for the following Tuesday 14th January, to be preceded by a discussion between the then Taoiseach and the Minister for Communications. It said those proposals included appointing a named individual as Chairperson of the Commission, establishing a Secretariat, and proposing broad selection criteria for the appointment of other members of the Commission. It said in his email dated 10th January, the then Taoiseach replied that he agreed with the Secretary General-�s proposed approach, and offered some suggestions as to criteria for selecting additional members of the Commission.

Record 6 comprises an email dated 13 January 2020 from the Secretary General to the Government to the then Taoiseach, and his response of the same date. The Department said Record 6 is related to the correspondence in Record 5, in which the Secretary General informed the then Taoiseach that a named individual had agreed to chair the Commission, and proposed that he update the Cabinet at the Government meeting the following day.

The Department argued that it is clear that Records 5 and 6 were created for the sole use of transacting Government business at a meeting of Government, and served no other purpose.

Section 28(1)(c) of the FOI Act is concerned with the contents and use of the record. For the exemption to apply, two criteria must be met:

• the record must contain information (including advice) for a member of the Government, the Attorney General, a Minister of State or the Secretary General to the Government,and
• the information must be for use by that personsolelyfor the purpose of the transaction of any business of the Government at a meeting of the Government.

The category of records covered by this exemption would include departmental briefing notes for individual ministers attending a Government meeting and notes prepared for the Secretary to the Government for the purposes of such a meeting and the agenda of such a meeting. The sole reason for the creation of such records is to assist the Government in the conduct of one or more of its meetings and the record ceases to have a purposeful existence after the conclusion of the meeting.

I do not accept the Department-�s argument that Record 5 was created for the sole use of transacting Government business at a meeting of Government, and served no other purpose. In my view, the primary purpose of the email of 9 January 2020 from the Secretary General to the then Taoiseach was to obtain approval to get the business of appointments to the Commission underway, including the appointment of a named individual as chairperson, the putting in place of a secretariat, and proposing broad selection criteria for the appointment of other members of the Commission. The then Taoiseach-�s email of 10 January 2021 comprised his response to those proposals.

While I fully accept that the Secretary General also proposed that the matter could be advanced in a memorandum for Government for the next scheduled meeting, the purpose of his email was not to provide information for use by the then Taoiseach solely for the purpose of the transaction of any business of the Government at that meeting or any future such meeting. I find, therefore, that section 28(1)(c) does not apply to Record 5.

On the other hand, I am satisfied the relevant part of Record 6, comprising the email from the Secretary General, does, indeed, contain information for the then Taoiseach for use by him or her solely for the purpose of the transaction of business of the Government at a meeting of the Government and that section 28(1)(c) applies. Section 28(1)(c) does not, however apply to the then Taoiseach-�s response.

Section 28(3)

However, the fact that section 28(1)(c) applies to part of Record 6 is not the end of the matter. Subsection (3)(a) of section 28 provides that subsection (1) does not apply to a record if and so far as it contains factual information relating to a decision of the Government.  For the purposes of section 28, -�decision of the Government-� includes the noting or approving by the Government of a record submitted to them. In the first sentence of the main body of the Secretary General-�s email of 13 January 2020, the Secretary General informed the then Taoiseach that a named individual had agreed to chair the Commission. I understand that this was subsequently noted by Government. The identity of the chairperson of the Commission is factual information that has been published to the general public. As such, I find that subsection (1) does not apply to this sentence.

Conclusion

In conclusion, therefore, I find that section 28(1)(c) applies to that part of Record 6 comprising an email dated 13 January 2020 from the Secretary General to the Government to the then Taoiseach, apart from the first sentence in the body of that email. I find that section 28(1)(c) does not apply to the then Taoiseach-�s response in Record 6 or to any part of record 5.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of the Department in this case. I find that the Department was justified in refusing access, under section 28(1)(c), to that part of Record 6 comprising an email dated 13 January 2020 from the Secretary General to the Government to the then Taoiseach, apart from the first sentence in the body of that email. I find that it was not justified in refusing access to record 5.

I direct the release of Record 5 in its entirety and to both the first sentence in the body of the Secretary General-�s email of 13 January 2020 in Record 6, and to the then Taoiseach-�s email response of the same date in the Record.

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 applicant 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