Whether the Department was justified in refusing access, under section 33(2)(b)(ii) of the FOI Act, to a record the Ukrainian Ambassador to Ireland sent to the Department, comprising a list of Irish companies alleged to be continuing to trade with Russia

28 September 2022

Background

It was reported in the media in March 2022 that the Ukrainian Ambassador to Ireland had sent to the Department a list of Irish companies that she claims continue to trade with Russia. In a request dated 17 March 2022, the applicant sought access to the list and any correspondence received or sent by to the Department with regard to the list.

In a decision dated 20 May 2022, the Department part-granted access to three records (with personal information withheld under section 37(1) of the FOI Act) and withheld access in full to the list of companies sought, citing section 33(2)(b)(ii) as its basis for doing so. On 26 May 2022, the applicant sought an internal review of the Department-™s decision. In its internal review decision dated 24 June 2022, the Department affirmed its original decision. On 27 June 2022, the applicant applied to this Office for a review of the Department-™s decision.

I have now completed my review in accordance with section 22(2) of the FOI Act.  In carrying out my review, I have had regard to the applicant-™s comments in his application for review and to the submissions made by the FOI body in support of its decision.  I have also had regard to the contents of the records concerned.  I have decided to conclude this review by way of a formal, binding decision.

Preliminary Matters

In correspondence with the applicant in the course of this review, he confirmed that he had no objection to the records that were released with redactions made under section 37(1) of the FOI Act being removed from the scope of the review. As such, this review will have as its focus the one remaining record that was withheld in full by the Department.

Scope of Review

This review is solely concerned with whether the Department was justified in refusing access, under section 33(2)(b)(ii) of the Act, to the list of companies sought.

Analysis and Findings

Section 33(2)(b)(ii)

The language and construction of section 33 of the Act is quite complex. Subsection (1) comprises a harm based exemption which provides for the discretionary refusal of a request for a record relating to the security, defence and international relations of the State where the FOI body considers that release of the record could reasonably be expected to give rise to certain specified harms.

Subsections (2)(a) and (2)b) contain non-exhaustive categories of records that may qualify for exemption under subsection (1). However, subsection (2) also provides for the mandatory refusal of certain exceptions to the records falling within subsections (2)(a) and (2)(b). Records listed in subsection (2) may qualify for exemption as follows:

• records falling within subsection (2), with the exception of those referred to at subsection (2)(b)(i) and (ii), may be refused under subsection (1) provided that the harm test at subsection (1) is met -“ this is a discretionary exemption
• records falling within subsection (2)(b)(i) must be refused and there is no harm test -“ this is a mandatory exemption
• records falling within subsection (2)(b)(ii) must be refused where they meet the harm test within that provision -“ this is a mandatory exemption.

Subsection (2) provides as follows

-œ(2) This subsection applies to a record that-”

a) contains information that relates to the tactics, strategy or operations of the Defence Forces in or outside the State, or

b) 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-”

i. other than where such information was communicated in confidence or relates to negotiations between the State and the other state in question or in relation to such a state, or is a record of that other state containing information the disclosure of which is prohibited by that state, or

ii. other than a record 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,

in which case (that is to say, either of the cases falling within subparagraph (i) or (ii)), the request shall be refused.-

It is important to note that the exemptions in section 33 are not subject to a public interest balancing test.

The Department cited subsection (2)(b)(ii) in support of its refusal of the record at issue in this case. For subsection (2)(b)(ii) to apply, the record must;

• contain 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,and
• contain analysis, opinions, advice, recommendations and the results of consultations or information the release of which, in the opinion of the FOI body, could reasonably be expected to affect adversely the international relations of the State.

In order to meet the second criterion, the Department must satisfy this Office that granting access to the record could reasonably be expected to affect adversely the international relations of the State. We 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. We expect the body to show how access to the record could reasonably be expected to give rise to the harms identified.

In its submissions to this Office, the Department said the record at issue was handed over in hard copy directly by a diplomatic representative of a foreign government to a senior official of the Department. It said the record was not transmitted in electronic form by the diplomatic representative and only a single copy of the document was provided. I accept that the record meets the first criteria outlined above for subsection (2)(b)(ii) to apply.

On the matter of whether release of the record could reasonably be expected to affect adversely the international relations of the State, the Department said the confidentiality of communications between a host State and a diplomatic mission was a long-standing custom and practice, which had been codified in 1961 in the Vienna Convention on Diplomatic and Consular Relations. The Department referred to Article 27(2) of that Convention, which provides that -œ-¦the official correspondence of the mission shall be inviolable. Official correspondence means all correspondence relating to the mission and its functions.- The Department also noted that the preamble to the Convention stated -œ-¦that the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions as representing States.-

The Department argued that it was vital to the conduct of international relations generally that representatives of governments who are accredited as diplomats were able to communicate with the authorities of the host state to present the position of their own government to the host government. It argued that the ability to do so in confidence was crucial as the position being conveyed may not be public knowledge in the sending state and its disclosure could prejudice the positions of the government of the sending state in negotiations to which it is a party.

The Department further stated that the recipient of the document was asked to treat it in confidence and that, while the document-™s existence and the nature of its contents had been made public, the provider of the record had not, to the best of the Department-™s knowledge, chosen to make the contents available to any other party.

The Department noted that the document in question contained the results of analysis carried out by the foreign government, and that neither the methodology employed nor the agencies which may have been involved to carry out this analysis had been disclosed to the Department.

I accept the Department-™s argument that it is vital to the conduct of international relations generally that representatives of governments who are accredited as diplomats are able to communicate confidentially with the authorities of the host state to present the position of their own government to the host government. It is worth noting that this Office has previously accepted that a loss of trust or confidence in Ireland could be damaging to the international relations of the State, and I consider that the release of the record at issue in this case could reasonably be expected to have a chilling effect on the willingness of foreign diplomats or representatives to communicate freely and openly with the relevant Minister or department of the Irish State. I find, therefore, that the second criterion is satisfied in this case.

In conclusion, therefore, I find that the Department was justified in refusing, under section 33(2)(b)(ii), the record at issue.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Department. I find that it was justified in refusing access, under section 33(2)(b)(ii) of the FOI Act, to the record at issue.

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.

Stephen Rafferty
Senior Investigator