Whether the Department was justified in refusing access to records relating to meetings about human rights issues in Bahrain under sections 15(1)(d), 29, 33(1)(d), 33(2)(b)(i), 33(2)(b)(ii) and 35(1)(a) of the FOI Act

12 May 2021

Background

On 22 May 2020, the applicant made an FOI request to the Department for four categories of specified documents relating to meetings between the Irish Ambassador to Bahrain and the Bahrain Foreign and Interior Minister; between Irish officials and non-governmental organisations about human rights issues in Bahrain; between the Irish Minister for Foreign Affairs and Trade and the Minister for Foreign Affairs in Bahrain; and between Irish officials and officials of the Embassy of Bahrain in London to Ireland about human rights in Bahrain. On 13 July 2020, the Department issued a decision. It refused access to the 25 records it had identified on the grounds that they were exempt under sections 15(1)(d), 29, 33(1)(d), 33(2)(b)(i), 33(2)(b)(ii), and 35(1)(a) of the FOI Act. On 19 July 2020, the applicant applied for an internal review. On 14 August 2020, the Department issued an internal review decision, in which it affirmed its original decision. On 9 October 2020, the applicant applied to this Office for a review of the Department-�s decision.

In conducting my review, I have had regard to the correspondence between the applicant and the Department as outlined above and to the correspondence between this Office and both parties, as well as the content of the records that were provided to this Office by the Department for the purposes of this review.

Scope of this Review

The scope of this review is confined to whether the records are exempt under sections 15(1)(d), 29, 33(1)(d), 33(2)(b)(i), 33(2)(b)(ii), and 35(1)(a) of the FOI Act. I have adopted the numbering used in the Department-�s schedule to identify the records.

Preliminary Matters

Before considering the exemptions claimed, I wish to note the following points. First, while I am required to give reasons for my decision under section 22(10) of the FOI Act, I am also required to take reasonable precautions to prevent disclosure of information in an exempt record, under section 25. This means that the extent to which I can describe the records and the level of detail I can discuss in my analysis are limited.

Second, section 18 of the FOI Act provides that if it is practicable, records may be granted in part, by excluding the exempt material. Section 18 shall not apply if the copy of the record provided would be misleading. This Office takes the view that the provisions of section 18 do not 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, this Office is not in favour of the cutting or "dissecting" of records to such an extent. Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.

Finally, with certain limited exceptions (e.g. section 37(2), which I consider below), the FOI Act does not provide for the limiting of access to records to particular individuals only. When a record is released under the FOI Act, it effectively amounts to disclosure to "the world at large" (H.(E.) v Information Commissioner [2001] IEHC 58). The FOI Act places no restrictions on the type or extent of disclosure or the subsequent use to which the record may be put.

Analysis and Findings

Section 15(1)(d) -� Information in the public domain

Section 15(1)(d) of the FOI Act provides that an FOI body may refuse to grant a request where the information is already in the public domain. The Department refused access to parts of Records 2(8) and 2(9) under section 15(1)(d).  The Department provided this Office with internet links to where certain information can be found online. Some information comprises United Nations documents and other information comprises documentation prepared by the applicant. I am satisfied that the attachments to Records 2(8) and 2(9) in respect of which there are internet links are already in the public domain. The United Nations-� Official Document system is available at the following link:https://documents.un.org/prod/ods.nsf/home.xsp. I therefore find that the Department was justified in refusing access to this information under section 15(1)(d). I consider the remaining parts of Records 2(8) and 2(9) below.

Section 37 - Personal information

Having examined the records, I consider it appropriate to consider section 37 of the FOI Act.  Section 37(1) provides that access to a record shall be refused if it would involve the disclosure of personal information. The FOI Act defines the term -�personal information-� as information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or his/her family or friends, or information about the individual that is held by a public body on the understanding that it would be treated as confidential. The FOI Act details fourteen specific categories of information which is personal without prejudice to the generality of the foregoing definition.

Record 2(12) contains information relating to identifiable individuals other than the applicant. It relates to matters such as those individuals-� legal status, political activity and family members. Having examined this record, I am satisfied that access to it would involve the disclosure of personal information about third parties. I find that section 37(1) applies to this information. This finding is subject to other provisions of section 37, which I examine below.

Section 37(2)

Section 37(2) of the FOI Act sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances in section 37(2) apply to the information concerned. That is to say, (a) it does not relate to the applicant; (b) the third parties have not consented to the release of the information; (c) the information is not of a kind that is available to the general public; (d) the information does not belong to a class of information which would or might be made available to the general public; and (e) the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.

Section 37(5) - The Public Interest

Section 37(5) of the FOI Act provides that access to the personal information of a third party may be granted where (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the request would benefit the person to whom the information relates. It has not been argued that releasing the records would benefit the individuals to whom the information relates and I find that section 37(5)(b) does not apply in the circumstances. I will therefore consider section 37(5)(a).

In carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. Section 11(3) provides that an FOI body must have regard to the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. It is important to note that inThe Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors[2020] IESC 57, the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and -�there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure-�. Although the Court-�s comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.

The language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy, which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution. Also, the strong protection afforded to privacy rights under FOI is consistent with Article 8 of the European Convention on Human Rights. It is noteworthy that unlike other public interest tests provided for in the FOI Act, there is a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. Accordingly, when considering section 37(5)(a), privacy rights will be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy. It is also relevant to note that release of the information must effectively be regarded as release to the world at large.

As a general submission, the applicant says that the public needs to know that despite the applicant-�s efforts, the Department has not been responsive in tackling human rights issues it brought to them. The record concerned comprises the notes of a meeting which was arranged by an organisation other than the applicant-�s organisation. As noted above, it discloses highly sensitive and personal information relating to individuals other than the applicant. I find no relevant public interest in granting access to this information that, on balance, outweighs the public interest in upholding the privacy rights of the individuals whose personal information would be disclosed by releasing the information. In the circumstances, I find that section 37(5)(a) does not apply. I find that the Department is justified in refusing access to Record 2(12) under section 37(1). Given this finding, I do not need to consider the other exemptions claimed over this record.

Section 33 -� Security, defence and international relations

Section 33(2)(b)(i)

The Department says that Records 2(10), 3(2), 4(1) 4(2), 4(4) and 4(5) are exempt under section 33(2)(b)(i) of the FOI Act. This is a mandatory and class-based exemption and there is no requirement to meet the harm test in subsection (1). It applies (among other things) to a record that contains a communication between a Minister of the Government or his or her Department or Office and a diplomatic mission or consular post in the State or of the State where such information was communicated in confidence.

The Department says that the information in these records was communicated in the expectation that it would be treated in confidence. Record 2(10) is a communication between the Department and a diplomatic mission of the State in Geneva. Record 3(2) is a communication between a diplomatic mission of the State in New York and the Department.  Records 4(2) and 4(5) are communications between the Department and diplomatic missions in Riyadh and Geneva. Record 4(5) attaches a report supplied to the Department by a delegation from the Bahrain. The communications disclose the nature of meetings with the applicant organisation as well as the Embassy of Bahrain and discussion of certain diplomatic and human rights matters. As noted earlier, I cannot disclose the content of exempt records. Having examined their content and considered the circumstances of their creation, I am satisfied that these records contain communications between the Department and a diplomatic mission of the State and that the information in those communications was communicated in confidence. I therefore find that the Department was justified in refusing access to Records 2(10), 3(2), 4(2) and 4(5) under section 33(2)(b)(i) of the FOI Act. Given this finding, I do not need to consider the other exemptions claimed over these records.

However, Records 4(1) and 4(4) comprise reports of meetings rather than records containing communications between a Minister of the Government or his or her Department or Office and a diplomatic mission or consular post in the State or of the State. I am therefore not satisfied that section 33(2)(b)(i) applies to them, as claimed by the Department. I find that the Department was not justified in refusing access to those records under section 33(2)(b)(i). I consider them below under section 33(1)(d) of the FOI Act.

Section 33(1)(d)

The Department says that the remaining records (except Record 2(11)) are exempt under section 33(1)(d) of the FOI Act. Section 33(1)(d) provides that an FOI body may refuse to grant access to a record if access could reasonably be expected to affect adversely the international relations of the State. Section 33(1)(d) is a harm-based exemption. An FOI body relying on section 33(1)(d) for its refusal to grant access to a record must satisfy me that harm to international relations could reasonably be expected to occur as a result of disclosure of the record concerned. It is important to note that this section is not a class exemption. Consideration should be given to the particular record at issue and its contents. Consideration may be given to information which is otherwise available or is in the public domain. I do not have to be satisfied that the adverse effect will definitely occur. It is sufficient for the FOI body to show that it expects such an outcome and that its expectations are reasonable in the sense that there are adequate grounds for them.

I accept that the expectation of the international community with regard to the information at issue is a relevant factor for consideration in determining whether access to the record could reasonably be expected to affect adversely the international relations of the State. I will have regard to this and to issues such as the sensitivity or confidentiality of the records in determining whether the harm test in subsection (1) has been met.

The Department says that releasing the records could have a negative impact on the bilateral relations between the State and the Kingdom of Bahrain and other states. It says that disclosing information supplied in confidence by Bahraini officials would compromise the mutuality of trust between Ireland and Bahrain. It says that this trust allows Ireland to raise sensitive matters, such as human rights concerns, with the government of Bahrain. It submits that releasing these records could also be reasonably expected to damage the mutuality of trust which exists between Ireland and other countries, as it may call into question the ability of Ireland to maintain confidentiality with regard to information supplied in confidence in any bilateral, or multilateral relations.

Certain records disclose details of, and briefing notes for, meetings and discussions between the Department and the King of Bahrain and between the Department and the Embassy of Bahrain. As set out above, I cannot disclose the content of exempt records. However, I have examined the records and considered the nature and context of the meetings and discussions. I accept that the exchange of information between the Department and Bahrain was carried out on an understanding of confidentiality. I further accept that disclosing this information could reasonably be expected to compromise a mutuality of trust and thereby jeopardise international relations between the two states. I am satisfied that disclosing the records concerned could reasonably be expected to affect adversely international relations between the State and Bahrain. I am satisfied that section 33(1)(d) applies to the following: Records 1(1) (first email from the top only), 2(13) (second email from the top only), 3(1), 3(3), 3(4), 4(1), 4(3), 4(4) and 4(6). I find that the Department was justified in refusing access to these records under section 33(1)(d) of the FOI Act.

Other records comprise email correspondence between the Department and diplomatic missions, which enclose and discuss correspondence from, and details of a meeting with, the applicant. The Department says that these records reveal Ireland-�s engagement on the human rights situation in Bahrain and its particular engagement with one non-governmental organisation. It says that circulating them could limit its ability to credibly pursue human rights issues of concern in its bilateral relations with Bahrain and damage the mutuality of trust between Ireland and other countries and may call into question Ireland-�s ability to maintain confidentiality. I have examined these records. As well as disclosing the applicant-�s communications to the Department, they disclose the nature of discussions between the Department and the applicant, and the Department-�s internal comment on and analysis of human rights issues arising. I am satisfied that disclosing such information could reasonably be expected to adversely affect the State-�s international relations by disclosing to the world at large the Department-�s own discussions and analysis of certain human rights issues in a state with which it maintains diplomatic relations. In reaching this conclusion, I have had regard to section 18 of the FOI Act and considered the records as a whole. I am satisfied that section 33(1)(d) applies to the following: Records 1(1) (three remaining emails) 2(1), 2(2), 2(3), 2(4), 2(5), 2(6) 2(7), 2(8), 2(9), 2(13) (four remaining emails) and 2(14). I find that the Department was justified in refusing access to these records under section 33(1)(d) of the FOI Act.

Given these findings, I do not need to consider the other exemptions claimed over these records.

Section 33(2)(b)(ii)

The Department says that Record 2(11) is exempt under section 33(2)(b)(ii) of the FOI Act. Where the record falls within the description of records at section 33(2)(b)(ii) and meets that harm test, it is subject to a mandatory exemption. Section 33(2)(b)(ii) applies to a record that contains a communication between a Minister of the Government, or his or her Department or Office, and a diplomatic mission or consular post in the State or of the State, or a communication between the Government or an officer of a Minister of the Government or another person acting on behalf of such a Minister and another government or a person acting on behalf of another government, containing analysis, opinions, advice, recommendations and the results of consultations or information the release of which, in the opinion of the head, could reasonably be expected to affect adversely the international relations of the State.

The Department says that Record 2(11) contains sensitive analysis on human rights issues. Record 2(11) is a communication between the Department and a diplomatic mission of the State in Geneva. Once more, I cannot disclose the content of exempt records. Having examined Record 2(11), I am satisfied that it contains analysis, opinions and the results of consultations or information the release of which could reasonably be expected to affect adversely the international relations of the State. It is my view that this adverse effect could reasonably be expected to occur, as its release would disclose to the world at large the Department-�s own discussions and analysis of certain human rights issues in a state with which it maintains diplomatic relations. I find that the Department was justified in refusing access to Record 2(11) under section 33(2)(b)(ii) of the FOI Act. Given this finding, I do not need to consider the other exemptions claimed over this record.

Decision

Having carried out a review under section 22(2) of the FOI Act, I affirm the Department-�s decision under sections 15(1)(d), 33(1)(d), 33(2)(b)(i), 33(2)(b)(ii) and 37(1), as outlined above.

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.

Deirdre McGoldrick

Senior Investigator