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Case 98194. Request for access to the list of titles of files held in the Department of Foreign Affairs relating to the Vatican, San Marino, Liechtenstein, Israel and Andorra - whether such access can reasonably be expected to affect adversely the security of the State - section 24(1)(a) - whether such access can reasonably be expected to affect adversely the international relations of the State - section 24(1)(c) - whether such access can reasonably be expected to affect adversely matters relating to Northern Ireland - section 24(1)(d) - whether the information in the file titles is information given in confidence - section 26(1)(a)

Case Summary

Facts

Mr X sought access to the list of titles of files held in the Department of Foreign Affairs relating to the Vatican, San Marino, Liechtenstein, Israel and Andorra. The Department refused access under section 24(1)(a), (c) and (d).

Decision

The Commissioner directed that access be granted to all of the file titles.

The Department argued that release of the file titles could indicate the broad basis on which political intelligence regarding individual countries is organised and the Department's priorities in regard to political intelligence. As a result, it argued, international relations and bilateral relations with the countries concerned could be adversely affected..

The Commissioner did not accept that there was a reasonable expectation of the harm envisaged by the Department occurring from release of the file titles in question. He added that inferences about priorities in international relations can be drawn from a number of sources such as the location of embassies, trade figures and visits to and from other countries. While acknowledging that some of the information in the files themselves may have been given in confidence he did not accept that the file titles could be regarded as information received or given in confidence.

Date of Decision: 17.10.2000

Our Reference: 98194

17.10.2000

Dear Mr X

Dear Mr X

I refer to your application for a review of the decision of the Department of Foreign Affairs to refuse you access to a list of file names and numbers in respect of the Holy See (Vatican), San Marino, Liechtenstein, Israel and Andorra.

Background

I have now completed my review of the Department's decision. In carrying out that review, I have had regard to the meeting between the Department and officials of this Office and the submissions made by the Department during the course of the review. I have also examined a list of file names which was forwarded to this Office on 19 January 1999.

I note that Mr. Fee, Investigator, wrote to the Department on 15 June 2000 outlining his preliminary views on the review. Having noted the contents of the reply I have decided to conclude my review by issuing a formal decision.

Scope of Review

My review is concerned solely with the question of whether the decision of the Department to refuse you access to a list of file names and numbers in respect of the countries mentioned above was correct.

Findings

The Department has refused you access to the file list under sections 24 and 26 of the Freedom of Information Act.

Section 24

Section 24(1) provides that access to a record may be refused "....if, in the opinion of the head, access to it could reasonably be expected to affect adversely -

(a) the security of the State,

(b) the defence of the State,

(c) the international relations of the State, or

(d) matters relating to Northern Ireland."

The Department has relied on section 24(1)(a), (c) and (d) in refusing access to the file list.

In case number 99273 (Mr ABL and the North Western Health Board), I explained my approach to section 21 which provides that a head may refuse to grant a request if access to the records could reasonably be expected to have a significant adverse effect on functions of public bodies:

"It seems to me that in arriving at a decision to claim a section 21 exemption, a decision maker must firstly identify the potential harm to the functions covered by the exemption that might arise from disclosure and having identified that harm, consider the reasonableness of any expectation that the harm will occur."

In a similar vein, I am satisfied that a public body claiming an exemption under section 24 must identify the potential adverse effect on international relations or other matters covered by the exemption and having identified that effect, consider the reasonableness of any expectation that the effect will occur.

The Department claims that the release of the list of file names could have an adverse effect on both Irish international relations and on bilateral relations with the named countries. It claims that the acknowledgement of the existence or non-existence of details of files and records could indicate the broad basis on which political intelligence regarding individual countries is organised, as well as priorities in this regard. It claims that this indication would undermine the Department's capacity to effectively conduct international relations in the national interest.

I do not accept that the release of the list of files in this particular case would, in fact, indicate the existence or non-existence of particular records. I note that the list of files as requested does not indicate the number of records on any file although I can accept that the release of the list of files could give a rough indication of the volume of records held in respect of particular countries. I also accept that the fact that there are only a small number of files relating for example to Liechtenstein in comparison with Israel may give an indication of priorities in Irish international relations.

The Department has identified two effects that the release of the list of files may have. These are, that the release could indicate the broad basis on which political intelligence regarding individual countries is organised, and that the release could indicate the Department's priorities in regard to political intelligence. The Department also referred to the sensitivity of files in relation to Israel and to the possibility that files relating to other countries could become sensitive depending on events. However, I do not agree that either of these effects or the sensitivity or potential sensitivity of relations with particular countries could reasonably be expected to undermine the Department's capacity to effectively conduct international relations. Inferences about priorities in international relations can be drawn from many aspects of information already in the public domain, e.g. location of embassies, trade figures and visits to and from other countries. I am not satisfied that any possible indications about priorities which might be inferred from the file titles would undermine the Department's capacity to effectively conduct international relations. Similarly, I am not satisfied that possible indications about the basis on which political intelligence is organised in the Department's files would undermine the Department's capacity to effectively conduct international relations.

Turning to the specific case of Israel, the Department claims that the release of the list of files would disclose matters relating to the international relations of the State. Beyond the indications mentioned above, it is not clear what other matters would be disclosed. The Department claims that the release of the list of files could adversely effect international relations because of the sensitive nature of the political and security situation in the region. However I do not agree that there is a reasonable expectation of such an adverse effect.

The submission also refers to UN peacekeeping missions in the Middle East and to section 24(2)(a)(ii)(I) which allows for the non-release of a record that contains information that relates to the "....tactics, strategy or operations of the Defence Forces in or outside the State,..".I would point out that section 24(2) lists particular types of records to which the exemption applies, without prejudice to the generality of section 24(1). It may be that some of the records on these files contain information that relates to the tactics, strategy or operations of the Defence Forces but none of the file names on the list actually contain such information.

In conclusion, I find that the Department has not shown that release of the file names could reasonably be expected to affect adversely any of the matters referred to in section 24(1).

Section 26

This section of the FOI Act provides an exemption for records containing information obtained by a public body in confidence. The Department states that much of the information contained in the files concerned would fall under the category of information given to the Department in confidence and on the basis that it would be treated as confidential. It adds that its disclosure, or the acknowledgement of the existence or non-existence of files and records containing such information, would be likely to prejudice the supply of further similar information.

While some of the information contained in the files concerned may have been obtained in confidence, I do not accept that the list of file names sought contains such information. It appears from its submission of 10 July 2000 that the Department may be concerned that release of the file titles in this case would lead persons, who might supply information in confidence to it, to believe that such information might come into the public domain. It seems to me that such ill founded beliefs, should they exist, are not something which can properly be taken into account in considering the question of the application of section 26 in this case. The names of the files at issue in this case do not give sufficient description to allow them (the file names) to be described as containing information obtained in confidence. Therefore, I find that section 26 does not apply. In addition, I would also point out that section 26 does not contain a provision which permits a public body to refuse to acknowledge the existence or non-existence of records.

One file title, "Return of Prisoners", also contains the name of an individual. Section 28(1) of the Act relates to the disclosure of personal information. I consider that the release of this name would involve the disclosure of personal information about this individual and that the public interest that the request be granted does not outweigh the right to privacy of this individual. Therefore, I decide that the name should be deleted in accordance with section 13 before the release of the list of file names.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act, 1997, I have decided to annul the decision of the Department and make a new decision to grant access to the list requested with the deletion of the name of an individual from file name "Return of Prisoners".

A party to a review, or any other person affected by a decision of the 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 4 weeks from the date of this letter.

Yours sincerely

Information Commissioner