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Review Application Under the Freedom of Information

Review Application Under the Freedom of Information

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Published by mtighe2
Information Commissioner decision on Irish bank guarantee meetings memos
Information Commissioner decision on Irish bank guarantee meetings memos

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Published by: mtighe2 on Jan 26, 2010
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02/26/2010

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Review Application under the Freedom of Information Acts 1997 & 2003(theFOI Act)to the Information CommissionerCase Number: 090028Applicant: The Sunday Times, c/o Mr. Mark Tighe (theapplicant)Public Body: Department of Finance (the Department).Issue: Whether the Department is justified in its decision(inreliance variously on sections 19(1)(a), 19(1)(aa)(i),19(1)(c), 20(1), 21(1)(c), 26(1)(a), 26(1)(b),27(1)(b),28(1), 31 and 32 of the FOI Act) to refuse accesstorecords sought in a request under section 7 of theFOIAct.Review: Conducted in accordance with section 34(2) of theFOI Actby Ms. Emily O'Reilly, Information Commissioner.Decision: The Commissioner affirmed the Department's decisionthatsection 19(1)(c) applied to the records. In view ofthisshe found it was not necessary to consider whethertheother sections cited by the Department applied.Right of Appeal: A party to a review, or any other person affectedby adecision of the Information Commissioner followingareview, may appeal to the High Court on a point oflawarising from the decision. Such an appeal must beinitiated not later than eight weeks from the dateofthis decision.
 
BackgroundThe applicant, in his request of 3 October 2008, sought copies of thefollowing records:1. All internal documents, emails, briefing notes, records ofmeetings andmemos created by the Department which relate to the decisionannounced on30 September for a Government guarantee of Irish Banks;2. All external correspondence received from banks, EU institutionsand theBritish Government relating to this same decision;3. All internal documents relating to efforts to bring thislegislationthrough the Dail;4. All documents relating to the decision to raise the guarantee forbankdeposits to EUR 100,000.The Department, in its decision of 27 November 2008, refused torelease anunspecified number of records, while it released some recordsrelating tothe Government decision which it said had been "placed in the publicdomain".In refusing access to the records the Department relied upon sections19(5), 22(2), 24(3), 26(4), 27(4) (all concerning refusal to discloseexistence or non-existence of records); 19, 20, 21, 21(1)(c), 22,24,26(1)(a), 26(1)(b), 27, 28, 31(2)(c), 31(2)(a), 31(2)(e), 31(2)(f)and 46of the FOI Act. The applicant sought an internal review of thedecision on1 December 2008, and on 23 January 2009, the Department affirmed itsoriginal decision. On 27 January 2009, the applicant applied to thisOfficefor a review of the Department's decision.In this case, while the Department adhered to the statutory timeframesetdown in the FOI Act in dealing with the original decision, it did notadhere to the deadline for issuing an internal review decision.Section14(4) provides for an internal review decision to be issued within 3weeksand does not provide for an extension to that timeframe. Theapplicantsought an internal review on 1 December 2008 and the internal reviewdecision was issued on 23 January 2009 (i.e. almost 8 weeks after therequest for a review). In this regard, I note that the applicant wasmade
 
aware of the delays by the Department and the points made by theDepartmentregarding what it refers to as "unprecedented pressures" in thebankingarea since September 2008.On 14 May 2009, the Department notified this Office that it hadlocated twofurther relevant records (these were not contained in any of theschedulesbut referred to as the records of the meetings of 30 September 2008).Whenit was put to the Department by my Office that these records wereonlylocated following a specific query on their existence from theapplicant,the Department disputed this and said that "the records were broughtto theattention of the deciding officer by the officer who created themafter hehad discovered them in a notebook". A further additional 14 recordswerethen brought to the attention of my Office by the Department on 2September2009 (schedule Z 1-14). My Office has expressed its concern to theDepartment that a further 14 records have been disclosed 6 monthsafter ourinvestigation started. When the issue was raised with the Department,theDepartment said that "the omission of the records in schedule z wastheresult of a simple oversight which was rectified as soon as it cametolight". However, I believe these two instances of additional recordsbeingdisclosed calls into question the efforts made by the Department tofullyidentify all relevant records at the outset.Between its submissions of 18 March, 11 June, 2 September, and 21October,2009, the Department sought to rely on the following specificsections ofthe FOI Act: 19(1)(a)-(c); 19(2); 20(1), 20(1)(a); 22(1)(a);22(1)(c)(ii)(I); 24(1)(c); 24(1)(e); 24(2)(b), (c), (e), and (f);27(1);27(1)(b); 28(1)31(1); 31(1)(a) and (c); 32(1); 32(2); 46(1)(b), (d)and(db); and 46(2)(a) and (b).Scope of the ReviewThis FOI request encompassed approximately 100 records amounting toinexcess of 800 pages. The Department made several lengthy submissionsoutlining why it contended that each and every page of the recordsconcerned should be withheld. Several exemptions were quoted inrespect ofeach record, all of which had to be dealt with by my Office as partof ourreview.

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