Whether the Department was justified, under sections 33(1)(d) and 33(3)(c)(ii) of the FOI Act, in refusing access to certain records relating to the European Space Agency and the decision to suspend cooperation with Russia on the ExoMars project

14 September 2023

Background

The European Space Agency (ESA) is an international organisation established in 1975. It is governed by the ESA Convention, to which Ireland is a signatory. On 22 February 2022, the ESA issued a statement saying that it was fully implementing the sanctions imposed on Russia by its member states in response to the war of aggression against Ukraine. It specifically referenced the ExoMars programme, whose mission is to address the question of whether life has ever existed on Mars, and said that the sanctions made a 2022 launch very unlikely. On 17 March 2022, it confirmed that the ExoMars programme was being suspended.

In an FOI request dated 2 November 2022 the applicant sought access to:

-�Documents papers, correspondence and communications circulated within the Department, between the Department and European Space Agency in both directions, between the Department and other state organs, in the period from 24th February to 24th March 2022 concerning the decision to suspend cooperation with Russia on the ExoMars project (to land a rover on Mars). My request includes papers concerning ExoMars circulated in advance of the ESA 206th Council meeting of 17th March 2022.-�

When the applicant did not receive a response within the statutory timeframe, he contacted the Department seeking an internal review of the deemed refusal. The Department said that it had no record of having received the FOI request. The applicant agreed, on 6 December 2022, that the Department would process it as a new request. On 23 December 2022, the Department part-granted the request, identifying 23 relevant records. It released, in part, two records (22 and 23) with personal information redacted under section 37(1) of the FOI Act. It refused to release the remaining records under sections 29(1), 33(1)(d) and 33(3)(c)(ii). The applicant sought an internal review of this decision. On 30 January 2023, the Department affirmed its decision to refuse access to the records at issue but altered the basis for doing so. It said that it no longer considered section 29(1) to be applicable but said that the records were exempt from release under sections 33(1)(d) and 33(3)(c)(ii) of the FOI Act. It also said that record 18 listed on the original schedule was not relevant to the request

On 8 February 2023, the applicant applied to this Office for a review of the Department-�s decision to refuse access to records 1-17 and 19-21. He challenged the legitimacy of the Department-�s altering of the basis for refusal of the records at internal review stage and made a number of detailed arguments in relation to the exemptions relied on by the Department in refusing access to the records sought.

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 submissions made by the Department and by the applicant. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with whether the Department was justified in refusing access, under sections 33(1)(d) and 33(3)(c)(ii) of the FOI Act, to records 1-17 and 19-21.

Preliminary Matters

Before addressing the substantive matters in this case, I wish to make some preliminary comments.

First, I am required by section 25(3) of the Act to take all reasonable precautions in the course of a review to prevent the disclosure of exempt material. Therefore, while I am required by section 22(10) of the FOI Act to give reasons for decisions, the description I can give of the records at issue and of the reasons for my decision is somewhat limited.

Secondly, in his application for review, the applicant noted that the Department had changed the basis for its decision on his FOI request following internal review. He challenged the legitimacy of the Department doing so and said that it was not clear if the Department had the legislative or administrative right to, as he put it, -�change the rules-� in this manner.

The statutory basis for the conduct of an internal review is provided for at section 21 of the FOI Act. Section 21(2)(b) provides that having carried out such a review, the reviewer may:

-�-�as he or she considers appropriate -�

1. affirm or vary the decision, or
2. annul the decision and, if appropriate, make such decision in relation to the matter as he or she considers proper,

in accordance with this Act-�

The Act therefore gives the internal reviewer the latitude to make an entirely new decision on the FOI request. He or she is not confined to considering only the exemptions relied upon in the original decision. I am satisfied that the approach taken by the Department in this case, wherein the reviewer essentially affirmed the decision not to release the records but amended the exemptions relied upon in refusing to release them, is entirely in keeping with what is provided for in section 21.

Analysis and Findings

Section 33(3)(c)(ii) -� confidential communications with international organisation of states

Section 33(3)(c)(ii) provides that an FOI request shall be refused 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 the subsection applies, the relevant test to apply is whether the record meets the description of any of the classes or categories of records set out therein. There is no requirement on the FOI body to identify a potential harm that might arise from disclosure of the record. In addition, there is no public interest override which would allow for the consideration of whether the public interest would be better served by release of the record. Nevertheless, in order for subsection (3)(c) to apply, it is an overarching requirement that the record concerned must contain information communicated in confidence.

The Department-�s submissions

In its submissions, the Department said that the requested records fall into two categories, both of which are prohibited from disclosure by section 33(3)(c)(ii). It said that records 4, 5, 6, 7, 8, 9, 10, 11, 12, 16, 17, and 19 contain information communicated -�from, to, or within an international organisation of states-�-�, namely the European Space Agency, and that records 1, 2, 3, 13, 14, 15, 20, and 21 relate -�to negotiations between the State and such an organisation-�, again, the European Space Agency. In relation to the latter records, it said that there is no exclusion from section 33(3)(c)(ii) for concluded negotiations.

The Department said that, as a signatory state to the ESA Convention, Ireland has agreed to be bound by the rules of the organisation. This includes its Security Directives and the ESA Council Rules of Procedure. It said that the ESA-�s rules on handling documents, even unclassified documents, prohibit their disclosure, unless they have been explicitly marked as -�releasable to the public-�.

It said that the Irish delegation to the ESA comprises staff from the Department and Enterprise Ireland and therefore no breach of confidentiality arises in sharing ESA documentation with Enterprise Ireland. Likewise, it said that the Department of Foreign Affairs retains the general competence of Ireland-�s foreign relations, and is a Department of State and that therefore sharing of ESA information with that Department is not a breach of confidentiality either.

The applicant-�s submissions

The applicant said that regardless of ESA Security Regulations, Ireland is a sovereign state with its own right to make law. He said that there is nothing in the FOI Act which specifies that Irish law or administrative practice be legally subordinate to ESA security or other regulations. He also said that the negotiation had ceased to be live some time ago and that the FOI Act was never intended to withhold documentation on processes that had concluded.

Furthermore, he said that some of the records (1, 13, 20, 21) are Departmental documents whose provenance is not the ESA and that, logically, ESA security regulations cannot apply. He also said that records 2, 3, 14, 15 are documents between the Department and the Department of Foreign Affairs and that similarly ESA security regulations cannot reasonably be applied to correspondence between third parties of which it may not even be aware.

My Analysis

To address the applicant-�s point about the sovereignty of the Irish state, I note that the Oireachtas, in enacting section 33(3)(c) of the FOI Act saw fit, in certain specified circumstances, to protect communications with international organisations of states. I am satisfied that any references to ESA security or other regulations are only in the context of establishing whether the required conditions of section 33(c)(ii) of the FOI Act have been met.

Having examined the records under review, I note that they fall into two categories. The first category consists of emails with their associated attachments sent by the ESA to the relevant Heads of Delegation in each of its member states. The second category consists of communications (emails, texts and a note) within the Department, and between the Department and Enterprise Ireland, and the Department of Foreign Affairs, for the purposes of agreeing Ireland-�s position or response in relation to the ESA proposals communicated in the first category of records. It is not apparent to me from the records that any of them relate to negotiations between the State and the ESA.

I am satisfied that the ESA is an international organisation of states for the purposes of section 33(3)(c)(ii). The categories of records set out in the mandatory exemption include -�information communicated in confidence from, to, or within an international organisation of states-�. In order for section 33(3)(c) to apply, it is an overarching requirement that the record concerned must contain information communicated in confidence. Having regard to the ESA Security Directives, as well as to the specific content of the records themselves, I am satisfied that records 4, 5, 6, 7, 8, 9, 10, 11, 12, 16, 17, and 19 all form part of a confidential exchange of correspondence between the ESA and the Heads of Delegation in each of the relevant member states.

Furthermore, while records 1, 2, 3, 13, 14, 15 and 20 consist of internal Departmental communications about the ESA proposals, as well as communications with Enterprise Ireland and the Department of Foreign Affairs, I am satisfied that the records also contain information communicated in confidence by the ESA, by virtue of discussing and agreeing Ireland-�s position in response to the ESA-�s proposals.

Record 21 is an internal Departmental note prepared for the December 2021 meeting of the ESA Council. Technically, this falls outside the scope of the FOI request which was for records between 24 February and 24 March 2022. However, for completeness I will say that the record contains notes on two agenda items (numbered 5 and 6, page 11) that relate to the Ukraine situation and the question of the ExoMars programme continuation. I note that these items were discussed at a -�restricted-� session of the ESA Council, which is provided for at rule 8.5 of the ESA Council-�s Rules of Procedure -�to deal with matters of particular confidentiality-�. In these circumstances and having regard to the specific content of these notes, I find that the relevant part of record 21 contains information communicated in confidence from and to the ESA.

I am satisfied that section 33(c)(ii) applies to all of the records at issue and that the Department was justified in refusing to release them. Accordingly, there is no need for me to consider the applicability of section 33(1)(d) to the records.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department-�s decision. I find that it was justified in refusing access to records 1 to 17 and 19 to 21 under section 33(c)(ii) of the FOI 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.
 

Stephen Rafferty

Senior Investigator