Review Application under the Freedom of Information Acts 1997 & 2003

(the
FOI Act)
to the Information Commissioner

Case Number: 090028

Applicant: The Sunday Times, c/o Mr. Mark Tighe (the

applicant)

Public Body: Department of Finance (the Department).

Issue: Whether the Department is justified in its decision

(in
reliance 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 access
to
records sought in a request under section 7 of the
FOI
Act.

Review: Conducted in accordance with section 34(2) of the

FOI Act
by Ms. Emily O'Reilly, Information Commissioner.

Decision: The Commissioner affirmed the Department's decision

that
section 19(1)(c) applied to the records. In view of
this
she found it was not necessary to consider whether
the
other sections cited by the Department applied.

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
of
this decision.
Background

The applicant, in his request of 3 October 2008, sought copies of the

following records:

1. All internal documents, emails, briefing notes, records of

meetings and
memos created by the Department which relate to the decision
announced on
30 September for a Government guarantee of Irish Banks;

2. All external correspondence received from banks, EU institutions

and the
British Government relating to this same decision;

3. All internal documents relating to efforts to bring this

legislation
through the Dail;

4. All documents relating to the decision to raise the guarantee for

bank
deposits to EUR 100,000.

The Department, in its decision of 27 November 2008, refused to

release an
unspecified number of records, while it released some records
relating to
the Government decision which it said had been "placed in the public
domain
".

In refusing access to the records the Department relied upon sections

19(5), 22(2), 24(3), 26(4), 27(4) (all concerning refusal to disclose
existence 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 46
of the FOI Act. The applicant sought an internal review of the
decision on
1 December 2008, and on 23 January 2009, the Department affirmed its
original decision. On 27 January 2009, the applicant applied to this
Office
for a review of the Department's decision.

In this case, while the Department adhered to the statutory timeframe

set
down in the FOI Act in dealing with the original decision, it did not
adhere to the deadline for issuing an internal review decision.
Section
14(4) provides for an internal review decision to be issued within 3
weeks
and does not provide for an extension to that timeframe. The
applicant
sought an internal review on 1 December 2008 and the internal review
decision was issued on 23 January 2009 (i.e. almost 8 weeks after the
request for a review). In this regard, I note that the applicant was
made
aware of the delays by the Department and the points made by the
Department
regarding what it refers to as "unprecedented pressures" in the
banking
area since September 2008.

On 14 May 2009, the Department notified this Office that it had

located two
further relevant records (these were not contained in any of the
schedules
but referred to as the records of the meetings of 30 September 2008).
When
it was put to the Department by my Office that these records were
only
located following a specific query on their existence from the
applicant,
the Department disputed this and said that "the records were brought
to the
attention of the deciding officer by the officer who created them
after he
had discovered them in a notebook". A further additional 14 records
were
then brought to the attention of my Office by the Department on 2
September
2009 (schedule Z 1-14). My Office has expressed its concern to the
Department that a further 14 records have been disclosed 6 months
after our
investigation started. When the issue was raised with the Department,
the
Department said that "the omission of the records in schedule z was
the
result of a simple oversight which was rectified as soon as it came
to
light". However, I believe these two instances of additional records
being
disclosed calls into question the efforts made by the Department to
fully
identify all relevant records at the outset.

Between its submissions of 18 March, 11 June, 2 September, and 21

October,
2009, the Department sought to rely on the following specific
sections of
the 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 Review

This FOI request encompassed approximately 100 records amounting to
in
excess of 800 pages. The Department made several lengthy submissions
outlining why it contended that each and every page of the records
concerned should be withheld. Several exemptions were quoted in
respect of
each record, all of which had to be dealt with by my Office as part
of our
review.
Mr. Sean Garvey, Senior Investigator with my Office, issued
preliminary
views letters to both the applicant and the public body on 17
November
2009. This preliminary view letter dealt with all records (i.e. in
excess
of 800 pages) and expressed the view that some records and parts of
records
had been properly exempted by the Department, but that many of the
records
withheld by the Department should be released. The applicant notified
my
Office that he accepted these preliminary views. The Department also
notified my Office that, having consulted with the relevant third
parties
where appropriate, it agreed to release the records in accordance
with the
preliminary views expressed by Mr. Garvey, in his letter of 17
November
2009, with the exception of two records concerning minutes of
meetings held
on 30 September 2008. These meetings were held during the night of 29
September through to the morning of the 30 September. They were date
stamped 30 September 2008 by the Department and will be referred to
for the
purpose of this review as meetings of "29/30 September 2008". The
records
consist of the following:

Record 1 - This meeting involved the Taoiseach, the Minister for

Finance, the Attorney General, senior staff of the Departments of
the
Taoiseach and Finance, the Chairman and Chief Executive of the
Irish
Financial Services Regulatory Authority (IFSRA) and the Director
General
of the Central Bank.
Record 2 - This meeting involved the Taoiseach, the Minister for
Finance, the Attorney General, senior staff of the Departments of
the
Taoiseach and Finance, the Chairman and Chief Executive of the
Financial Regulator, a legal advisor, the Governor and the
Director
General of the Central Bank, the Governor and Chief Executive of
the
Bank of Ireland and the Chairman and Chief Executive of Allied
Irish
Banks (AIB).

Neither Bank of Ireland nor Allied Irish Banks objected to the

release of
any of the records which affected them, apart from record numbers 1
and 2
above. The Department has informed my Office that it has released all
records in accordance with Mr. Garvey's preliminary views letter of
17
November 2009, apart from the two records in question. That means
that this
review will only deal with exemptions raised in respect of the two
records
referred to above. While I welcome the decision of the Department and
the
affected parties to agree to release many of the remaining records, I
regret that an inordinate amount of time and resources was
unnecessarily
spent in processing this request. I say this because the released
records
were not contentious and of a routine administrative nature and
therefore,
in my view, could never have been properly exempted. The fact that
the
Department subsequently agreed to administratively release the
records some
9 months after its first submission to my Office on the matter
demonstrates
that it accepts that no harm would follow such release. It is
disappointing that it took 9 months and extensive correspondence
before the
central Government Department with overall responsibility for
implementing
FOI policy in the public service finally accepted that most of the
records
it had strenuously maintained were extremely sensitive and exempt
were, in
fact, suitable for release.

The Department has assured my Office that it has undertaken

comprehensive
searches for any further relevant records not previously disclosed
and that
they did not exist or could not be found after all reasonable steps
have
been taken to ascertain their whereabouts. Accordingly, at this stage
and
notwithstanding my earlier comment on the flaws in the Department's
original searches for relevant records, I am satisfied that section
10(1)(a) would apply, i.e. that refusal of any further records on the
basis
that they do not exist or cannot be found is justified.

This review is concerned with the original handwritten notes of the

meetings. The Department has submitted that these notes were
hurriedly
written, contemporaneous, partial and informal notes entered in an
official's personal notebook. It is noted that the Department created
a
typed version of the record as an aid to processing this FOI review.

Therefore, this review will solely concern whether the Department is

justified in withholding the two records concerning these meetings.
This
means that the exemptions which remain to be considered in this
review are
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. and I do not intend to deal with
the
other exemptions as part of this review.

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 my Office including
letters/emails dated 18 March, 12 May, 14 May, 11 June and 2
September,
11 September, 25 September, 21 October and 16 December 2009;
The correspondence from my Office to the Department including
those
letters/emails dated 23 April, 22 June, 15 September, 17
September, 30
September, 1 October and 17 November 2009.
The communications between the applicant and the Department on the
matter;
The applicants communications with my Office;
The communications between my Office and AIB and Bank of Ireland;
and
The provisions of the FOI Act as amended by the FOI Amendment Act
2003.

Preliminary matters
Section 34(12)(b) of the FOI Act provides that, where a decision to
refuse
a request is being reviewed by me, there is a presumption that the
refusal
is not justified unless the public body "shows to the satisfaction of
the
Commissioner that the decision was justified". Thus, in this case,
the onus
is on the Department to satisfy me that its decision is justified.

While the FOI Act requires me to provide reasons for my decisions,

section
43 of the FOI Act requires that I take all reasonable precautions to
prevent disclosure of information contained in an exempt record
during the
course of a review. Thus, I can only give a limited description of
the
records at issue in this case.

Findings
Records of meetings of 29/30 September 2008
The Department has contended that the records are exempt in
accordance with
sections 19(1)(a), 19(1)(aa)(i), 20(1), 21(1)(c), 26(1)(a), 26(1)(b),
27(1)(b) 28(1), 31 and 32 of the FOI Act. Firstly, I will deal with
section
19(1)(c) of the FOI Act.

Section 19(1)(c)
Before considering the Department's submission on section 19(1)(c) of
the
FOI Act in particular, I think it is worthwhile to comment on the
application of section 19 in general. Unlike most other exemption
provisions, section 19 does not contain any harm tests. This means
that a
public body does not have to justify a contention that release of the
records would lead to particular consequences specified in the
exemption
provision, and all that is required to properly invoke section 19 is
to
demonstrate that a record comes within any of the categories
specified in
the section (with the exception of 19(3) which provides in certain
circumstances for release of factual information contained in section
19
records, but those circumstances do not apply in this case).
Furthermore,
unlike most of the other exemption provisions, section 19 does not
contain
a public interest override, meaning that I do not have the statutory
authority to find that a record covered by the section 19 exemption
should
nevertheless be released on public interest grounds.

Accordingly, my decision in this case is based solely on whether or

not the
two records at issue fall within the provisions of section 19, and I
do not
have the statutory power to require the Department to go further than
that
in contending that the records are exempt.

Section 19(1)(c) provides that a record shall be not be released

pursuant
to an FOI request where the record "contains 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 ".

Department of Finance position

The Department submitted to my Office that an incorporeal Government
meeting was held in the early hours of 30 September at which the
information in the records was used as the basis for the Government's
decision to introduce the guarantee. In response to an enquiry from
my
Office about incorporeal meetings, the Department stated that it
understood
from the Government Secretariat that "the procedures used for
incorporeal
meetings of the Government are used very sparingly and only in
circumstances where a decision of the Government is urgently required
and
the circumstances preclude the convening of a normal meeting of the
Government. Incorporeal meeting involve Ministers being briefed,
usually
by telephone about the matter to be decided upon".

In support of this point, the Department submitted that "in

circumstances
where an incorporeal meeting is clearly unavoidable for urgent
national
reasons and therefore there is no time for papers to be submitted to
Ministers - as was very notably and unavoidably the case on 30
September
2008 - it would be contrary to the purposes of section 19 to release
details of discussions of highly confidential and sensitive national
issues
that formed the basis of the briefing for Ministers. The information
imparted by the participants at the meetings with representatives of
the
banks, etc., was used to brief Ministers on the proposed response by
the
Government to the extremely urgent national issue arising and to
formulate
the terms of the specific decision then taken. The records contain
information that was clearly intended to be the basis for urgent
consideration and decision by the Government and are therefore
subject to
mandatory exemption under sections 19(1)(a), 19((1)(aa)(i) and 19(1)
(c). Of
particular relevance is the exemption under section 19(1)(c) relating
to
records containing information for a member of Government for use
primarily
at Cabinet. The information imparted and discussed at the two
meetings
concerning banks, including on possible courses of action, was
relayed to
members of the Government during the incorporeal Government meeting.
Accordingly the records of those meetings fall under section 19(1)(c)
and
are therefore prohibited from release".

Issues
The two issues for me to consider are (i) whether the records contain
information for use by a member of the Cabinet for the purpose of the
transaction of any business at a meeting of Government and (ii)
whether the
information in question was for use "primarily" for the purpose of
transacting business of a Government at a meeting of Government.

In conducting my review of this case, I think that it is important to

bear
in mind the unprecedented circumstances and extraordinarily tight
timelines
in which the process of conducting these meetings and the making of a
decision by Government was required to be undertaken on an issue of
such
national importance.

I note that the importance of the role the meetings played in

providing the
necessary information which the Government required to make a
decision was
referred to by the Taoiseach during proceedings in Dáil Éireann, in
the
immediate aftermath of the Government decision, on 30 September 2008
when
he said "regarding the risks, the greatest risk to the stability of
the
financial system of this country was, undoubtedly, on the basis of my
very
detailed discussions, looking at all the issues with the Minister for
Finance and others yesterday evening after close of business, until
the
decision was made in the early hours of this morning, to do
nothing.........On the advice of the relevant people who have the
competent
authority in this area, I had to make that decision. Government made
that
decision with the impact that it has since had. That was the
situation".

It is apparent from the Taoiseach's comments to the Dáil that the

very
detailed discussions with the Minister for Finance and others to
which he
referred, and which happened after close of business on 29 September
and
into the early hours of 30 September, included information contained
in the
records under this review. I take it that the Taoiseach, on the
public
record at the time, made a connection between the information
contained in
these records and the Government decision that was taken in the early
hours
of 30 September 2008. In view of this, and after examining the
records in
question, I find the Department's position that the information
contained
in these records was used for the conduct of an incorporeal meeting
of
Government to be sustainable. That said, in cases such as this it is
not
even so much the quality of the information contained in the records
which
is important, but rather the circumstances surrounding it and the
evidence
that some of the information contained in the records in question was
indeed used for the purpose of transacting business at a meeting of
the
Government.

I will now consider the issue of whether the information in question

was
for use primarily for the purpose of transacting business of a
Government
at a meeting of Government. There is no doubt as to the exceptional
urgency
of the situation which led to a decision being taken at an
incorporeal
meeting of Government. The extraordinarily tight timelines have been
well
documented and extensively commented upon in the media. It is also
evident
that a number of senior Ministers were put on notice that an
incorporeal
meeting of Government would be held in the early hours of the
morning. I
think that, in view of the unprecedented circumstances of this case,
the
only correct conclusion is to find that the primary use of the
information
was indeed to transact business of the Government at that incorporeal
Government meeting. It could be argued that the purpose of recording
the
information was simply to have a record of what the participants at
the
meetings said. However, in view of the timelines and the connection
between the information and the incorporeal briefing of the Cabinet,
I am
satisfied that the information contained in the records was used
primarily
for transacting Government business at a Government meeting.

Therefore, I find that the meetings were held primarily for the
purpose of
the transacting of an incorporeal meeting of Government and it
follows that
the records concerned, being notes taken of these meetings, contain
information for use primarily for the conduct of business of the
Government. The fact that the incorporeal meeting of Government and
the
meetings in question took place on the same night, copperfastens my
belief
that the primary purpose of the information exchanged at the meeting
was
for the conducting of the incorporeal meeting of Government.

It should also be noted that section 19(1)(c) of the FOI Act is a

mandatory
exemption, so once make a finding that section 19(1)(c) is
applicable, I
cannot take into account issues such as whether release of the
records is
in the public interest or not.

In view of the unprecedented circumstances of this case, as outlined

above,
I find that section 19(1)(c) of the FOI Act is applicable to the
records
and therefore that the two records remaining in this review are
exempt in
their entirety.

Decision
Having carried out a review under section 34(2) of the FOI Act, I
hereby
affirm the decision of the Department that the two records are exempt
under
section 19(1)(c) of the FOI Act. In view of my finding in relation to
section 19(1)(c), I do not need to consider any other sections of the
FOI
Act which the Department put forward as being a basis for exemption
of the
two records in question.

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 four weeks from the date of this letter.
--------------------------
Emily O'Reilly
Information Commissioner

January 2010