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Whether the Department was justified in refusing the applicant's request for access to certain records relating to the export of aviation parts.

Review Application to the Information Commissioner under the Freedom of Information Acts 1997 & 2003 (FOI Act)

Background

In a request dated 26 October 2010, the applicant sought access to the following under the FOI Act:

• copies of all notes, records and correspondence sent and received by the Department concerning aviation companies and the export of aviation parts and technology in the past decade;
• copies of all documentation sent and received by the Department and Conor Lenihan, the former Minister of State at the Department, concerning aviation export licences in the relevant period.

In its original decision dated 26 November 2010, which was issued from the Licensing Unit, the Department refused the request in full under sections 21(1)(a) (functions of public bodies), 23(1)(a)(i) and (ii) (law enforcement), 26(1)(a) (information given in confidence), 27(1)(b) (commercially sensitive information), and 31(1)(a) (financial and economic interests of the State). On 1 December 2010, the applicant requested an internal review of the Department's decision. In a decision dated 21 December 2010, the Department affirmed its original decision to refuse access to the records requested. On 7 February 2011, the applicant applied to this Office for an external review of the Department's decision.

I have now completed my review in accordance with section 34(2) of the FOI Act. In carrying out my review, I have had regard to the oral and written submissions made by the applicant, the Department, the Attorney General's Office (via the Department), and the solicitor representing the affected third parties, consisting of a registered aviation company and two of its directors. I have also had regard to various publications relating to the alleged business activities of the affected third parties and to the undisputed fact that there are on-going investigations by United States (US) authorities which are of some relevance to this case. In addition, I have examined the records forwarded to this Office for the purposes of this review.

Scope of the Review

The Department identified 193 records as relevant to the applicant's request as originally formulated. However, the Department had surmised that the applicant was particularly interested in a certain company that has been the subject of extensive publicity and controversy. Although the Department did not invoke any of the "neither confirm nor deny" provisions under the FOI Act (e.g., sections 23(2) and 26(4)), at no point was a schedule of records made available to the applicant. In the circumstances of this case, however, I accept that it would have been difficult to prepare a meaningful schedule for the applicant which would not have involved a substantial risk of disclosing information in violation of section 43(3) of the FOI Act (see below).

During the course of the review, Ms. Melanie Campbell, Investigator, gave the applicant, by telephone, a very general description of the records then at issue in order to determine whether he would be willing to facilitate the review by narrowing the scope of his request. In response, the applicant agreed to limit the scope of his request, and thus this review, to the first 50 records listed in the schedule of records made available to this Office. Accordingly, my review is concerned solely with the question of whether the Department's decision to refuse access to records 1 to 50 was justified.

Preliminary Matters

Before setting out my findings, I should point out that while I am required by section 34(10) of the FOI Act to give reasons for my decisions, this is subject to the requirement of section 43(3) that I take all reasonable precautions to prevent disclosure of information contained in an exempt record or matter that, if it were included in a record, would cause the record to be exempt. This constraint means that, in the present case, the extent of the reasons that I can give is limited. However, I am mindful of the burden of proof under section 34(12)(b) of the Act, which requires the Department to show to my satisfaction that its decision to refuse to grant the request was justified.

I should also explain my approach to the granting of access to parts of records. Section 2 of the FOI Act defines "record" as including "anything that is a part or a copy" of a record. Section 13 of the FOI Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. However, I take the view that neither the definition of a record nor the provisions of section 13 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.

Analysis and Findings

The records at issue fall, very broadly, into three categories: (1) records of communications with authorities in other States; (2) records of communications between the Department and the affected third parties, including submissions made by the affected third parties, as well as records of communications made on behalf of the affected third parties; and (3) records of internal communications and communications with other public bodies. In its submissions to this Office, the Department has raised additional claims for exemption under section 24(1)(c) of the FOI Act, which relates to the international relations of the State. The affected third parties, through their solicitor, have presented arguments in support of the Department's decision to refuse access to the records concerned under sections 26 and 27 of the FOI Act. In addition, they argue that sections 23(1)(a)(iv), relating to the fairness of criminal or civil proceedings, and section 28(1), relating to personal information, also apply.

I note that this case involves complex issues of international law, particularly in relation to various export control arrangements between Ireland and other States. A further complicating factor in this case is the indication that the foreign policy implications of the export control arrangements do not always fit comfortably with Ireland's constitutional status as a neutral country. On the other hand, the Department has explained that at the core of Ireland's foreign policy is the State's visible engagement in peacekeeping and in non-proliferation activities and policies.

Based on the Department's submissions and my examination of the records forwarded to this Office, I accept that the effective administration of the export control regime requires a high level of intelligence-sharing between States, especially Member States of the European Union (EU), and well as between public bodies such as the Department concerned in this case and the Department of Foreign Affairs and Trade. It also requires that, where relevant, companies engaged in the international trade of goods are willing and able to provide the competent authorities with detailed information regarding their proposed business transactions. From what I understand, EU-based exporters normally engage with the competent licensing authorities with respect to military and dual-use goods which appear on the relevant control lists, such as Annex I of Council Regulation (EC) No 428/2009. However, in certain circumstances, questions can arise with respect to what would otherwise be considered to be "non-controlled goods". Sometimes the exporting companies, especially smaller companies with insufficient understanding of export controls, raise such questions in a proactive manner in order to ensure that there is no problem with a proposed transaction. The Department describes this as the "'trade facilitation' aspect of [its] licensing function that is sometimes a very useful service for some exporters". The Department explains: "Many SMEs [small and medium enterprises] come to the Department with these pre application queries because they wish to be compliant with export controls and also because they do not want to engage in a business transaction that could have long-term negative effects on their corporate reputation." In other cases, however, the questions arise because certain risk factors and related intelligence indicate that there may be a need for additional controls to be attached to the movement of the goods concerned.

Moreover, as referenced above, there are on-going investigations by US authorities which are of some relevance in this case. These investigations have already resulted in multiple-count indictments against the affected third parties. Given the complex nature of international law, the full significance under Irish and EU law of the US investigations and charges remains unclear to me. However, I am mindful of the fact that the affected third parties consist of a private company and two of its directors, who are not public officials and who are entitled to a presumption of innocence under Irish law.

In this context, I accept that certain law enforcement exemptions under section 23 are of particular relevance in this case. (Section 21(1)(a) is also of relevance, but for reasons that are more pertinent to section 23.) In addition, section 28(1) is of particular relevance insofar as the personal information of the directors of the affected company is at issue. However, given the complexities involved and the constraint imposed by section 43(3) in relation to the reasons that I may give for my decision, I am of the view that sections 24 and 26 are the most relevant exemptions to consider in this case.

Section 24
Under section 24(1)(c) of the FOI Act, a public body may refuse access to grant a request if it considers that access to the record concerned could reasonably be expected to affect adversely the international relations of the State. The degree of harm required for an adverse effect under section 24(1) is relatively low, but some showing of harm is nevertheless required. Section 24(2) of the Act, on the other hand, provides a mandatory class exemption for certain categories of records, including at subparagraph (d) any record that "contains information communicated in confidence to any person in or outside the State from any person in or outside the State and relating to a matter referred to in subsection (1) or to the protection of human rights and expressed by the latter person to be confidential or to be communicated in confidence". Under section 24, there is no public interest test to be applied.

I do not think that I would be revealing exempt information in violation of section 43(3) of the FOI Act by explaining that the records at issue relate to the proposed transport of certain goods from another EU Member State to destinations outside Europe. The Department's Licensing Unit became involved in the matter because the exporting company was registered in Ireland. As indicated above, many of the records at issue contain communications with authorities in other States. I am satisfied in the circumstances that the communications were held on a confidential basis and that they relate to relate to the international relations of the State. Accordingly, I find that section 24(2)(d) applies.

In addition, I accept that certain other records contain sensitive information relating to EU foreign policy and international relations more generally. I accept that the international community, particularly the EU, expects information of this nature to remain confidential. I find that the release of these records could reasonably be expected to result in a loss of trust or confidence in Ireland among the international community and thus be damaging to the international relations of the State; therefore, section 24(1)(c) applies.

Section 26
The background of the remaining records at issue is as follows: There were questions regarding certain proposed transactions of the affected third parties that needed to be addressed to the Department in its capacity as the competent licensing authority. In this context, the affected third parties supplied the Department with detailed information regarding their business, the goods concerned, and the intended recipients of the goods. Other parties also made queries and/or supplied information on behalf of the affected third parties. On foot of the information supplied, the Department carried out investigations which led to further communications with the affected third parties, as well as internal communications and communications with other public bodies relating to the matter. Release of any of the records concerned, however, would directly or indirectly disclose information which had been communicated by or on behalf of the affected third parties in relation to the queries made.

Section 26(1) states that "Subject to the provisions of this section, a head shall refuse to grant a request under section 7 if-
(a) the record concerned contains information given to a public body in confidence and on the understanding that it would be treated by it as confidential (including such information as aforesaid that a person was required by law, or could have been required by the body pursuant to law, to give to the body) and, in the opinion of the head, its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and it is of importance to the body that such further similar information as aforesaid should continue to be given to the body, or (b) disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment (other than a provision specified in column (3) of the Third Schedule of an enactment specified in that Schedule) or otherwise by law".

The confidentiality exemption generally does not apply to a record prepared by a staff member of a public body, or a person who is providing a service for a public body under a contract for services, "unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than a public body or head or a director, or member of the staff of, a public body or a person who is providing or provided a service for a public body under a contract for services" (section 26(2) refers). In addition, section 26(1)(a) does not apply if the public interest would, on balance, be better served by granting rather than by refusing to grant the request (section 26(3) refers).

Both the Department and the affected third parties have claimed that section 26(1)(a) applies in this case. The Department says that it "operates a strict policy of confidentiality in all its dealings" in relation to the administration and enforcement of the export control regime. The affected third parties through their solicitor also maintain that all of their dealings with the Department were carried out in "absolute confidence". However, many of the records concerned were created by staff members of the Department and therefore it must be determined whether disclosure would constitute a breach of a duty of confidence that it owed to the affected third parties. In Mahon v. Post Publications [2007] IESC 15, Fennelly J confirmed that the requirements for a successful action based on a breach of an equitable duty of confidence, at least in a commercial setting, are found in the judgment of Megarry J in Coco v. A. N. Clark (Engineers) Ltd. [1969] R.P.C. 41, at 47:
"[T]hree elements are normally required if, apart from contract, a case of breach of confidence is to succeed. First, the information itself ... must 'have the necessary quality of confidence about it'. Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it."

Fennelly J restated the requirements of the equitable doctrine of confidence as follows:

"The information must in fact be confidential or secret: it must, to quote Lord Greene, 'have the necessary quality of confidence about it';
It must have been communicated by the possessor of the information in circumstances which impose an obligation of confidence or trust on the person receiving it;
It must be wrongfully communicated by the person receiving it or by another person who is aware of the obligation of confidence."

Having regard to the submissions and the contents of the records concerned, I am satisfied that the information has the necessary quality of confidence about it. I note that, as a result of the US indictments, certain alleged business activities of the affected third parties have received extensive publicity. Of particular relevance in this case is a published article written by the applicant, a journalist, entitled, "Minister aided wanted trader". However, the source of some of the information in the applicant's article is unclear and the former Minister named in the article declined to comment.

I accept that published information which has not been retracted must be regarded as being in the public domain. However, not all information in the public domain is necessarily accurate and reliable. Thus, there is a distinction to be drawn between published newspaper accounts based on undisclosed or anonymous sources of information, on the one hand, and primary documentation relating to the matters concerned, on the other. Moreover, disclosure of the records at issue in this case would provide details and a new context for certain information that are not reflected in the applicant's article and which I am satisfied are not otherwise publicly available.

I note that no evidence has been presented that any explicit assurance of confidentiality was ever given to the affected third parties or the other parties who communicated with the Department on their behalf. However, I accept that the information concerned is inherently sensitive and that it was communicated for the limited or restricted purpose of addressing the questions which had arisen regarding the proposed business transactions of the affected third parties. Given the nature of the information, and the context in which the communications were made, I also accept confidentiality would have been expected by all of the parties involved. As noted above, the applicant's published article indicates that one of the parties involved was a former Minister of State. I acknowledge that the direct involvement of a Minister of State in a licensing matter would generally tend to undermine the reasonableness of any expectation of confidentiality insofar as it relates to information about the Minister's involvement. In this case, however, I accept that the sensitivities were such that no reasonable person could have failed to understand that confidentiality was expected. Moreover, there is no evidence of any undue influence on the manner in which the Department carried out its licensing functions. In the circumstances, I am satisfied that an obligation of confidence exists. I am also satisfied that disclosure of the information under FOI would result in an unauthorised or wrongful use of the information that would be detrimental to the interests of the affected third parties. Accordingly, I find that the requirements for an equitable duty of confidence are met in this case and that section 26(1)(b) therefore applies.

Section 26(1)(b) is not subject to the general public interest balancing test under section 26(3), but as noted in previous cases, the existence of an equitable duty of confidence is still subject to public interest considerations. However, it has also been acknowledged in previous cases (e.g., in Case 090163, The Sunday Times and Office of the Revenue Commissioners (10 Sept. 2010), available at www.oic.gov.ie), that the public interest grounds which may justify or excuse a breach of a duty of confidence are quite narrow and include, for example, the revelation of wrongdoing or danger to the public. Moreover, while certain information may be of interest to the public in the sense that it may satisfy public curiosity, this does not necessarily this mean that there is a public interest in disclosing the information (e.g., Case Number 030624, The Sunday Times and the Office of the Revenue Commissioners(11 Aug. 2005)). Again, I note that there are on-going investigations by US authorities which are of some relevance in this case. However, that is not to say that any public interest grounds exist which would permit disclosure of the records concerned under FOI, which is regarded as being to the "world at large". On the contrary, it suggests to me that justice should be allowed to run its course through the normal law enforcement and judicial channels without the added complications that granting the applicant's FOI request may entail. I conclude that the Department's decision to refuse access to the records concerned was justified.

As I have found that all of the records at issue are exempt under sections 24 or 26, it is not necessary for me to determine whether the applicant's request also falls to be refused under the other exemptions claimed, including section 27(1)(b) of the FOI Act.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of the Department in this case.

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 after notice of the decision was given to the person bringing the appeal.

Peter Tyndall
Information Commissioner