Whether the Department was justified in refusing access to records relating to the Immigrant Investor Programme under sections 28, 33 and 42 of the FOI Act

07 March 2024

Background

In a request dated 27 March 2023, the applicant sought access to any briefings, reports, memos, submissions, or other such high-level documents prepared for either the Minister or the Secretary General with regard to the decision to cease the Immigrant Investor Programme (IIP). On 5 May 2023, the applicant sought an internal review on the basis that the Department had failed to issue a decision within the statutory timeframe set down in the FOI Act. On 1 June 2023, the Department issued its internal review decision. The Department refused access to the records it identified as falling within the scope of the request under sections 28, 29, 33 and 42 of the FOI Act. On 1 June 2023, the applicant applied to this Office for a review of the Department's decision.

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 submissions made to date. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

During the course of the review, the Department provided this Office with a schedule listing 10 records it identified as falling within the scope of the applicant's request. These 10 records contain email correspondence. Records 1, 3, 4, 5, 8 and 9 also contain one attachment and records 6 and 7 contain two attachments. The attachment to record one is titled "Risk Profile IIP". The attachment to record eight is titled "Briefing Material Note for the Minister for Justice on Closure of the IIP" The remaining attachments are Draft Memoranda for Government on Closure of the IIP.

Following communications with this Office, the Department provided the applicant with full or redacted versions of the emails contained in records 1-10. The Department redacted mobile phone numbers from a number of the emails under section 37 of the FOI Act. It redacted parts of the emails in records 1, 6, 8, and 9 under section 28 of the Act. It refused access to the Draft Memoranda for Government attached to records 3, 4, 5, 6, 7 and 9 under section 28 of the Act. The Department redacted the "Risk Profile IIP" attached to record 1 under section 33 of the Act. The Department also refused access to the Briefing Material Note for the Minister for Justice attached to record 8 under sections 28 and 42 of the Act. Finally, the Department confirmed that it no longer wished to rely on section 29 of the Act. Following an update from this Office, the applicant confirmed that he was happy to exclude the mobile phone numbers redacted under section 37 of the Act from the scope of this review. Accordingly, the scope of this review is confined to whether the Department was justified in:

• refusing access to parts of the emails in records 1, 6, 8, and 9 and refusing access in full to the Draft Memoranda for Government attached to records 3, 4, 5, 6, 7 and 9 under section 28(1)(a)/(b)/(c) of the Act;
• refusing access in part to the "Risk Profile IIP" attached to record 1 under section 33(1)(a)/(d) of the Act;
• refusing access in full to the Briefing Material Note for the Minister attached to record 8 under sections 28(1)(a)/(b)/(c) or 42(1) of the Act.

Preliminary Matters

As outlined above, the Department failed to issue an original decision. In the circumstances, it is important for me to emphasise to the Department that its obligation to issue decisions on FOI requests within the periods set out in the FOI Act is clear and unequivocal. The Department should take steps to ensure that its decisions on FOI requests issue within the relevant statutory timeframes.

Although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the records at issue is limited.

Finally, it is important to note that section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request under section 12 shall be presumed not to have been justified unless the head of the relevant FOI body shows to the Commissioner's satisfaction that its decision was justified. This means that the onus is on the Department to satisfy this Office that its decision to refuse access to the records sought was justified.

Analysis and Findings

Section 28 Meetings of the Government

The Department has sought to rely on sections 28(1)(a)/(b)/(c) in relation to the records outlined above. However, having regard to the content of these records, it seems to me that sections 28(1)(a) and (c) are the relevant subsections to consider.

Section 28(1)(a)

Section 28(1)(a) of the FOI Act provides that an FOI body may refuse to grant an FOI request if the record concerned has been, or is proposed to be, submitted to the Government for its consideration by a Minister of the Government or the Attorney General and was created for that purpose. It is not a harm-based exemption such that release of a record would lead to particular consequences specified in the particular provision. There is no 'public interest override' in this exemption. The section provides for a class based exemption of certain records regardless of their contents. Previous decisions by the Information Commissioner have accepted that section 28(1)(a) applies to records such as Memoranda for Government and preliminary or draft versions of the whole or part of such documents.

Section 28(1)(a) is concerned with the status of a record, i.e. its submission to the Government by a Minister or the Attorney General for consideration and its creation for that purpose. For section 28(1)(a) to apply, a record must fulfil the following three criteria:

• The record has been (or is/was proposed to be) submitted to the Government for its consideration,
• The record has been (or is/was proposed to be) submitted by a Minister of the Government or the Attorney General, and
• The record was created for the purpose of submission to the Government for its consideration.

The attachments to records 3, 4, 5, 6, 7 and 9 are Draft Memoranda for Government on the Closure of Immigrant Investor Programme. I am satisfied that the Memoranda for Government were proposed to be submitted to the Government for its consideration by the Minister for Justice. I find that section 28(1)(a) applies to these records. The Department has also sought to rely on section 28(1)(a) in relation to the information redacted from the emails contained in records 1, 6, 8 and 9.  Given that section 28(6) provides that "record" includes a preliminary or other draft of the whole or part of the material contained in the record, I have considered whether the text redacted from these emails is part of the material contained in the Draft Memoranda for Government. These emails were prepared in the context of the process of drafting the Memoranda for Government. I am satisfied that the text in question was created for the purpose of forming part of the Memorandum for Government. I find that section 28(1) applies to the information redacted from the emails contained in records 1, 6, 8 and 9.

Section 28(1)(c)

Section 28(1)(c) provides that an FOI body may refuse to grant an FOI request if the record concerned contains information (including advice) for a member of the Government, the Attorney General, a Minister of State, or 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. In order for the section to apply,

• 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 person solely for the purpose of the transaction of any business of the Government at a meeting of the Government.

Section 28(1)(c) is concerned with the contents and use of the record. 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 records would cease to have a purposeful existence after the conclusion of the meeting. The mere fact that a record contains information for discussion at a meeting of the Government does not, of itself, mean that section 28(1)(c) applies.

The Department has relied on section 28(1)(c) in relation to the attachment to record 8.

The attachment to record 8 is a Briefing Note for the Minister for Justice on Closure of the IIP. The note was created for the purpose of a Government Meeting. This note briefs the Minister on closure of the Immigrant Investor Programme and the contents of the Memorandum for Government. I am satisfied that this note contains information for the Minister for Justice and the purpose of the note is solely for the purpose of the transaction of business of the Government at a meeting of the Government. I am satisfied that section 28(1)(c) applies to the Briefing Note for the Minister for Justice attached to record 8.

Section 28(3)

A record to which section 28(1) applies is releasable in certain circumstances set out in section 28(3) of the FOI Act. It is necessary, therefore, to consider whether any of the records which I have found section 28(1) applies to are releasable under section 28(3).

Section 28(3) provides that section 28(1) does not apply to a record -"

a. if and in so far as it contains factual information relating to a decision of the Government that has been published to the general public, or

b. if the record relates to a decision of the Government that was made more than 5 years before the receipt by the head concerned of the FOI request concerned.

The term factual information is defined in section 2 of the Act as including information of a statistical, financial, econometric or empirical nature, together with any analysis thereof. The Commissioner takes the view that the use of the word "includes" in the definition of factual information means that while information of a statistical etc. nature should be regarded as factual, regard must also be had to the ordinary meaning of the term when considering its scope. The Commissioner considers that factual information would generally include, for example, material presented to provide a factual background to the central topic in a record. He also takes the view that factual information is distinguishable from information in the form of proposal, opinion or recommendation.

The effect of section 28(3)(a) is that factual information relating to a decision of the Government that has been published to the general public in a record to which section 28(1) applies is not exempt under section 28(1). Section 18(1) of the Act provides that if it is practicable to do so, access to an otherwise exempt record shall be granted by preparing a copy, in such form as the body concerned considers appropriate, of the record with the exempt information removed.

Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). This Office takes the view that neither the definition of a record under section 2 of the Act nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, I am not in favour of the cutting or "dissecting" of records to such an extent. Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.

The Cabinet Handbook (2006) contains guidance on the layout and contents of Memoranda for Government. It suggests that every memorandum should present factual information so that it can be easily extracted for FOI Purposes. Based on the format and layout of the information contained in the Draft Memoranda for Government attached to records 3, 4, 5, 6, 7 and 9, I am satisfied that Section 2 of each record, entitled "Background/Reason for Memorandum" comprises factual information relating to a decision of the Government that has been published to the general public and that section 28(1) does not apply to this information.

Having regard to this Office's approach to the application of section 18, I do not consider that any other information contained within the Draft Memoranda for Government, the Briefing Note for the Minister or the information withheld from emails 1, 6, 8 and 9 falls for release under section 28(3).

Section 33 Security, Defence and International Relations

The Department relied on sections 33(1)(a) and (d) in relation to the information withheld from the attachment to record one which is titled "Elevated Risk Profile Immigrant Investor Programme".  In my view, section 33(1)(d) is the more appropriate exemption to consider given the content of the withheld information.

Section 33(1)(d) provides that an FOI body may refuse to grant access to a record if access could reasonably be expected to affect adversely the international relations of the State. Section 33(1)(d) is a harm-based exemption. An FOI body relying on section 33(1)(d) for its refusal to grant access to a record must satisfy this Office that harm to international relations could reasonably be expected to occur as a result of disclosure of the record concerned. It is important to note that this section is not a class exemption. Consideration should be given to the particular record at issue and its contents. Consideration may be given to information which is otherwise available or is in the public domain. I do not have to be satisfied that the adverse effect will definitely occur. It is sufficient for the FOI body to show that it expects such an outcome and that its expectations are reasonable in the sense that there are adequate grounds for them.

When requesting focused submissions from the Department, this Office noted that there are articles in the media referring to the closure of the Immigrant Investor Programme and which appear to include some information contained in the Elevated Risk Profile report. This Office asked the Department to explain how release of the report could reasonably be expected to harm the international relations of the State in circumstances where information contained in the report is publically available.

In its submissions, the Department said that following a further review, it had decided to part grant the record in question. The Department released parts of the Elevated Risk Profile report including the background, changes in project and applicant profile, concerns at international level and UK Scheme Closure. The Department withheld certain information including information in relation to Factors Contributing to Significant Risk Elevation. In its submissions, the Department stated that release of the redacted information could reasonably be expected to have an adverse effect on Ireland's international relations. It stated that the redacted material highlights concerns relating to the extent to which IIP investment could potentially give rise to certain specified concerns.

I am very limited in the description of the withheld information which I can provide as a result of section 25(3) of the FOI Act. I can state that the withheld information sets out specified concerns for the Government to reflect on and also information in relation to why the Department states that the risk level associated with these concerns and the IIP has elevated. The redacted information contains references to the international context and the report refers to a certain named state. In my view, release of information about specified concerns and elevated risks posed by the IIP in conjunction with references to the international context and a named state could reasonably be expected to harm international relations and in particular relations with the state named in the report. While there is a certain amount of information in the public domain about the IIP, the particular information at issue goes beyond what is publically available. I am satisfied that disclosing the remaining information withheld from the attachment to record one could reasonably be expected to affect adversely the international relations of the State. Accordingly, I find that the Department was justified in refusing access to this information under section 33(1)(d) of the FOI Act.

Finally, it is not necessary to consider whether section 42 of the FOI Act applies to the Briefing Note for the Minister attached to record 8 as I have found that this record is exempt under section 28(1)(c).

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Department's decision. I find that the Department was justified in:

• refusing access to the information redacted from the emails contained in records 1, 6, 8 and 9 under section 28(1)(a) of the Act;
• refusing access to the attachment to record 8 titled Briefing Note for Minister under 28(1)(c) of the Act;
• refusing access to the attachments to records 3, 4, 5, 6, 7 and 9 titled Draft Memoranda for Government under 28(1)(a) of the Act with the exception of Section 2 of each record titled "Background/Reason for Memorandum" which I direct for release to the applicant;
• refusing access to the information redacted from the Elevated Risk Profile attached to record one under Section 33(1)(d) of the Act.

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.

Jim Stokes
Investigator