Whether the Department was justified in refusing access to certain information relating to a new preclearance procedure to facilitate and streamline entry to the State of Ministers of Religion from non-EEA states under sections 31(1)(a), 33(1)(a) and 42(f) of the FOI Act

18 December 2019

Background

In April 2018, the Department introduced a new preclearance procedure to facilitate and streamline entry to the State of Ministers of Religion from non-EEA states. In a request dated 19 February 2019, the applicant, a firm of solicitors, sought access to all relating to the amendment of the policy. On 28 March 2019, it sought an internal review of the deemed refusal of his request as he did not receive a decision within the statutory time-frame.

On 14 May 2019, the Department issued a late decision in which it part granted the request. Of the 42 records it identified as coming within the scope of the request, it granted access to 35 records, six of which contained redactions as a result of the redacted information falling outside the scope of the request. It granted partial access to two records and withheld five records in full. The applicant sought a review by this Office of the Department’s decision on 21 August 2019.

I note that in its application for review to this Office, the applicant stated for the first time that it is a solicitor firm on record for a named client. Upon notification from this Office, the Department stated that it was unaware that the applicant was on record for another individual. In the circumstances, therefore, the applicant in this review is the solicitor firm.

I have now completed my review of the Department’s decision. In conducting the review, I have had regard to the correspondence between the Department and the applicant as outlined above and to the correspondence between this Office and both the Department and the applicant on the matter. I have also had regard to the contents of the records at issue. In referring to the records at issue, I have adopted the numbering of the Department the schedule when processing the request.

Scope of Review

In a submission to this Office, the applicant noted that while the Department cited section 35 of the Act as a relevant exemption in its decision letter, the specific provision was not relied upon in relation to any record listed in the schedule. It went on to say that it was therefore under the assumption that the Department was relying on section 35(4) of the FOI Act in refusing access to an unknown amount of further records. Section 35(4) is commonly referred to as a ‘neither confirm nor deny’ provision. It provides for the refusal of a request and for the refusal to disclose whether or not the record sought exists, provided the requirements of the exemption are met. During the review, the Department confirmed that it has not sought to rely on section 35 in relation to any of the 42 records it identified as coming within the scope of the review nor are there any further records for which it is seeking to rely on section 35(4) to refuse access.

The Department redacted certain information from records 2, 17, 19, 24, 37 and 42 on the ground that the redacted information fell outside the scope of the request. Having examined the redacted information, I am satisfied that the information was appropriately redacted and does not form part of this review.

The Department also redacted parts of records 1 and 11 and withheld records 6, 8 to 10 and 25 in their entirety. As records 6 and 10 are exact duplicates of the draft regulations contained in record 8, I have excluded them from the scope of this review. Furthermore, I have also excluded the copy of the draft scheme attached to record 25 as the Department confirmed during the course of the review that it can be released.

I further note that during the course of the review, Ms Hannon of this Office informed the applicant of her view that while the Department redacted record 11 under section 42(f), she considered section 31(1)(a), a mandatory exemption, to be the more appropriate exemption given the nature of the information at issue.  A review by this Office is considered to be de novo, which means that it is based on the circumstances and the law as they pertain at the time of the decision. As such, I consider it appropriate to examine the applicability of section 31 (1)(a) to record 11 notwithstanding the fact that the Department did not originally refuse access to the information on that basis.

In summary, therefore, this review is concerned solely with whether the Department was justified in granting only partial access to records 1, 11 and 25 and in refusing to grant access to records 8 and 9, under sections 31(1)(a), 33 (1)(a) and 42 (f) of the FOI Act.

Analysis and Findings

The Department refused access to records 8, 9, 11 and 25 in whole or in part under sections 31(1)(a) and 42(f). As the effect of section 42 is to exclude records from the scope of the Act altogether, I will address that section in the first instance.

Section 42 (f)- Records of the Attorney General

Section 42 (f) of the FOI Act provides that the Act does not apply to a record held or created by the Attorney General, other than a record relating to general administration. While the Act is silent on the meaning of general administration, this Office considers it clearly refers to records which have to do with the management of the relevant Offices, such as records relating to personnel, pay matters, recruitment, accounts, information technology, accommodation, internal organisation, office procedures and the like. I am satisfied that it does not refer to records relating to matters concerning the core business of the Office, such as advising on legislation or litigation.

The Department argued that section 42(f) applies to records 8, 9, 11 and 25. Record 8 is a letter from the Department to the Office of the Attorney General (the AGO) with a copy of draft regulations attached. Records 9 and 25 comprise a series of emails between the Department and the AGO. Record 11 is an internal Departmental memo, the redacted elements of which contain details of the Department’s exchanges with the AGO.

I am satisfied that section 42(f) applies to the various emails contained in records 9 and 25 that the AGO sent to the Department on the ground that those emails were created by the AGO and do not relate to general administration. The Department argued that the section 42(f) also applies to the remaining records on the ground that the AGO holds both the letter and the emails that the Department sent to it and that it also holds records containing the information redacted from record 11. I do not accept that argument

Under section 2 of the Act, a record is defined as including a copy of a record. In other words, a copy of a record is, of itself, a record for the purposes of the Act. The definition ensures that a copy of a record held by an FOI body is, of itself, subject to the provisions of the Act and must be released unless it is found to be exempt under Part 4 or Part 5.

I am satisfied that section 42(f) does not serve to exclude copies of records held by public bodies other than the AGO on the ground that the AGO holds the originals of the records, nor does it exclude original records held by public bodies other than the AGO on the ground that the AGO holds copies of such records. I am also satisfied that the exemption does not apply to records on the ground that the information in the records is also contained in records held by the AGO.  I find, therefore, that section 42(f) does not apply to any other parts of records 8, 9, 11 and 25. However, I will now proceed to consider whether the information at issue is exempt under section 31(1)(a).

Section 31 (1)(a)- Legal Professional Privilege

Section 31 (1)(a) provides that an FOI body shall refuse to grant a request if the record concerned would be exempt from production in proceedings in a court on the ground of legal professional privilege (LPP). In deciding whether section 31(1)(a) applies, I must therefore consider whether the record concerned would be withheld on the ground of LPP in court proceedings. LPP enables the client to maintain the confidentiality of two types of communication:

• Confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege) ; and
• Confidential communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation (litigation privilege).

The concept of “once privileged always privileged” applies to advice privilege, and thus, unless otherwise lost or waived, lasts indefinitely. The Commissioner also takes the view that privilege attaches to records that form part of a continuum of correspondence that results from an original request for advice. Section 31 (1)(a) does not require consideration of the public interest.

Having examined the records at issue, I am satisfied that the Department was justified in claiming advice privilege in respect of record 8 and the remainder of records 9 and 25. The information withheld from record 11 consists of notes that relate/refer to the correspondence between the Department and the AG setting out the content of the request to AG. I am satisfied it also falls to be exempt under section 31(1)(a).

Section 33(1)(a)- Security, Defence and International Relations

The Department withheld information from record 1 under section 33(1)(a). That section provides for the refusal of a request where the FOI body considers that access to the record sought could reasonably be expected to affect adversely the security of the State. For an FOI body to succeed in its arguments that section 33(1) applies, the Commissioner has to be satisfied that granting access to the record in respect of which the exemption is claimed could reasonably be expected to have the adverse effect identified.

In its submission to this Office, the Department stated that to release the redacted information could cause an adverse effect to the security of the State by identifying the potential issues acknowledged regarding the scheme in terms of potential misuse of the scheme. It said the release of this element of the record potentially highlights an avenue to be explored/exploited by those who may wish to travel to the State to promote radical views. It said this may lead to an increase in those with more radical/extreme views potentially increasing the threat to the security of the State.

The difficulty I have with this argument is that the record at issue goes on to explain that the Department had decided to introduce a pre-clearance procedure in respect of Ministers of Religion to address such perceived problems. Indeed, that procedure is now operational. In the circumstances, I find that the Department was not justified in redacting the information at issue from record 1 and hat section 33(1)(a) does not apply.

In conclusion, therefore, I find that the Department was justified in granting only partial access to records 11 and 25 and in refusing to grant access to records 8 and 9 under sections 31(1)(a) and 42(f) of the FOI Act but that it was not justified in redacting certain information from record 1 under section33(1)(a).

Decision

Having carried out a review under section 22 (2) of the FOI Act, I hereby vary the decision of the Department in this case. While I find that it was justified in refusing access, in whole or in part, to records 8, 9, 11 and 25, I find that it was not justified in granting only partial access to record 1 and I direct its release in full.

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

 

 

Stephen Rafferty
Senior Investigator