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Case Number: 170305

Whether the Department was justified in refusing access to records concerning a Letter of Formal Notice (the Notice) issued to the State by the European Commission (the Commission) in relation to "compliance of working conditions for social care workers under the responsibility of the Irish Health Service Executive"

Conducted in accordance with section 22(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

The applicant's solicitor acted on her behalf at all stages in the FOI process in this case.

On 15 March 2017, the applicant made a request to the Department for all records relating to the Notice. The Department's decision of 13 April 2017 refused to grant access to the five relevant records. The applicant sought an internal review of this decision on 28 April 2017, which the Department affirmed on 9 June 2017. On 15 June 2017, the applicant sought a review by this Office of the Department's refusal to grant her request.

I have now decided to conclude my review by way of a formal, binding decision. In carrying out my review, I have had regard to the above and to correspondence between this Office, the Department, and the applicant. I have had regard also to copies of the withheld records (provided to this Office for the purposes of this review) and to the provisions of the FOI Act.

Scope of the Review

This review is concerned with whether the Department has justified its decision to refuse to grant access to the five records it identified as coming within the scope of the applicant's request.

Findings and Conclusions

The Department refused access to the records at issue under sections 29(1) and 33(3)(c)(ii) of the FOI Act. As section 33(c)(ii) seems most appropriate in the circumstances of this case, I will consider that exemption at the outset.

Section 33(3)(c)(ii) provides for the mandatory refusal of a request if the record concerned contains information communicated in confidence "from, to, or within an international organisation of states or a subsidiary organ of such an organisation or an institution or body of the European Union, or relates to negotiations between the State and such an organisation, organ, institution or within or in relation to such an organisation, organ, institution or body, or is a record of such a body containing information the disclosure of which is prohibited by the organisation, organ, institution or body ... ".

In considering whether section 33(3)(c)(ii) applies, the question is whether the records meet the description of any of the classes or categories of records set out in the provision, and whether the information in them was communicated in confidence. There is no requirement on the FOI body to identify a potential harm that might arise from disclosure of the records, nor is the public interest required to be considered.

All of the records relate to ongoing infringement proceedings taken by the Commission against the State concerning the application of the Working Time Directive to HSE social care workers. Infringement Notice 2014/4131 refers.

Record 1 is an email from the Permanent Representation of Ireland to the EU, to the Department and others, giving advance notice of the Notice. Record 2 is also an email from the Permanent Representation of Ireland to the EU, to the Department and others, attaching the Notice. Both records also refer to other infringement cases that are outside the scope of the applicant's request and this review.

Record 3 is a letter sent by the Permanent Representation of Ireland to the EU, to the Secretary General of the Commission, containing Ireland's observations on the Notice. Records 4 and 5 are letters sent by the Permanent Representation of Ireland to the EU, to the Commission, providing updates on relevant matters.

The Department says that EU Member States must be able to confidentially engage with the Commission in relation to alleged infringements of EU law, so that, where possible, a mutually agreeable outcome can be achieved that avoids the matter being referred to the European Court of Justice. It says that the Commission considers correspondence between it and a Member State in the course of an infringement case to be confidential, and also that the European Court of Justice has determined that documents concerning an infringement case during its pre-litigation state (as is the case here) enjoy a general presumption of confidentiality. Finally, the Department also refers to other decisions of this Office that accepted such arguments in similar circumstances, including Case Nos. 100030, 110146 and 160392.

Having examined the records, I agree with the Department's contention that the records concern communications to and from an institution of the European Union (i.e. the Commission). I also accept the Department's arguments that the information in them was communicated in confidence. Although it is not necessary for me to consider the other classes of records covered by section 33(3)(c)(ii), I note the Department's argument that the records form a substantial part of the negotiations in the ongoing infringement case. I can also accept that they relate to confidential negotiations between the State and the Commission concerning the infringement proceedings, with the aim of preventing the matter from escalating further to the European Court of Justice and/or avoiding the imposition of various financial penalties.

The applicant argues that this Office's decision in Case No 110146 says that the release into the public domain of a similar document to the records at issue could be taken into account. She has referred me to an entry on the Commission website concerning Infringement Notice 2014/4131.

I should clarify that the decision in Case No 110146 simply noted the fact that "no similar records appeared to have been made publicly available by the Commission (such as on the internet)" as a factor relevant to the finding that the information in the records under review in that case was communicated in confidence. The entry on the Commission website simply makes public the fact of its decision to take the relevant infringement proceedings against Ireland. Even if the website contained copies of the withheld records, the information communicated does not, of itself, have to retain a quality of confidence in order for section 33(3)(c)(ii) to apply. The key issue is whether the information in the records was communicated in confidence at the time it was communicated (as was also made clear in the decision in Case No 110146), which I have accepted is the case.

For the sake of completely addressing the applicant's argument regarding the Commission website entry, the Department acknowledges that the subject matter of the proceedings could be considered to be in the public domain. However, it says that while the Commission publishes summary details of its decisions to issue Notices, it does not publish the text of such documents. It also says that neither the Commission nor the State publish the details of such records. The entry on the Commission website contains no information about the proceedings concerned, or copies of any records relating to the Notice. I do not consider it to provide any basis on which I can find that the communications the subject of the withheld records in this case were not in confidence.

Having regard to the above, I find that the Department has justified its refusal to grant access to the withheld records under section 33(3)(c)(ii). There is no need for me, accordingly, to consider the Department's application of section 29 of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department's refusal to grant access to the five withheld records under section 33(3)(c)(ii) 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 not later than four weeks after notice of the decision was given to the person bringing the appeal.

Elizabeth Dolan
Senior Investigator