FOI and International Relations
Notice No. 18
In today's business environment, the activities of public bodies bring them into contact with bodies from outside this jurisdiction. A number of public bodies have received requests from journalists in other jurisdictions for access to records held by these bodies in relation to dealings between public bodies here and in other countries. In this context, some concerns have been expressed about the impact of the Freedom of Information Act on Ireland's dealings with the Governments and administrations of other countries. Also, requests on a purely Irish matter may involve records where other countries have commented or made contacts with us in the context of EU and other working groups, etc.
When processing such requests FOI deciding officers should be aware of the damage that might be done to Ireland's international relations if public bodies in Ireland (and Government Departments in particular) are seen to be overly relaxed in releasing material regarding our international relations, particularly material which would, directly or indirectly, disclose details of non-public positions and views of a foreign authority.
Damage to international relations could arise from release of records containing material which was understood to be confidential. Damage could also arise if other administrations form the view, even though incorrect, that our FOI laws and practices are lax in protecting the interests and sensitivities of partner countries. Such a perception could cause another administration to be less open and more guarded in its future dealings with us, which would itself be an adverse effect on our international relations.
As with all FOI issues, it is necessary to remember that the intention of the Act is to provide access to records of public bodies to the greatest extent possible consistent with the protection of privacy and the public interest. However, the relevant exemptions in the FOI Act, in particular section 24, must be considered and where appropriate applied. Following the enactment of the Freedom of Information (Amendment) Act 2003, FOI deciding officers need to be aware that certain categories of records relating to international affairs, Northern Ireland (and defence and security) are subject to a mandatory exemption. These are set out in paragraphs (a)-(f) of subsection (2) of Section 24 of the Act.
Deciding whether to release under the Freedom of Information Act, material in relation to interactions with public bodies in other countries.
The following sections of the Act may be of particular interest in relation to material regarding international relations:-
|Long Title of the Act||When implementing the Act, decision makers must be acutely aware of the purpose of the Act, expressed in the long title:-
"An Act to enable members of the public to obtain access, to the greatest extent possible consistent with the public interest and the right to privacy, of information in the possession of public bodies….."
Given the purpose and spirit of the Act, it is essential that decision makers should refuse access to records only after careful consideration of the records concerned and relevant exemptions, and that where public interest arguments are used to justify refusal, that these be based on real and significant concerns about the damage to the public interest that could arise from release of the records concerned.
|Section 24*||Subsection (1) of this section allows (but does not require) the deciding officer, in certain circumstances, to refuse access to a record if access to it "could reasonably be expected to affect adversely"
(a) the security of the State,
It should be noted that there is no separate public interest test in this subsection. The only test that must be met is that there be a reasonable expectation of an adverse effect. This expectation should be based on real considerations, to meet the "reasonable" test.
Subsection (2) requires a head to refuse to grant a request under section 7 for a record if the record concerned was " obtained or prepared for the
There is also special mention of information -
§ regarding the matters at (a) to (d) above or the protection of human rights, where the information was communicated in confidence or
Where a deciding officer is unsure whether an adverse effect of the sort mentioned above might arise or if a record is within subsection (2), consideration should be given to consulting the Department of Foreign Affairs, in relation to external relations matters, or the local FOI officer or FOI Central Policy Unit in relation to any difficulties of interpretation of the Act. Where a deciding officer is dealing with records outside his/her own area of work, the staff member in the appropriate area might also be consulted and kept informed.
|Section 23*||This section deals with records relating to Law Enforcement and Public Safety – issues which may sometimes arise in international relations. The deciding officer may refuse access to records which might "reasonably be expected to prejudice or impair" such matters as law enforcement, public safety or the life or safety of a particular individual, the fairness of criminal proceedings and the security of the various forces of law and order, or which would reveal the identity of an informant or facilitate the commission of an offence.
There is no additional public interest test.
|Section 25||This section provides for the issue, in certain circumstances, of Ministerial certificates, underpinning a decision not to release material covered by sections 23 or 24. These should be required only in very exceptional circumstances.|
|Section 26*||This section requires that a decision maker "shall" refuse access to information received in confidence, in certain circumstances.
Of particular interest in the context of international relations may be section 26(1)(b) which provides that a person shall not release information where there is a legal duty to protect the confidentiality of that information. The Act does not provide any explicit public interest test in this regard. A decision maker should consider, in particular, whether international or EU law would apply to prevent access to particular documents.The EU has recently updated its rules regarding access to its documents. Decision makers dealing with EU documents should familiarise themselves with the new arrangements. Full details are provided in an appendix to this note.
Even where there is no enactment or law or agreement requiring confidentiality, section 26(1)(a) requires a decision maker to refuse access to "information given to the public body concerned in confidence and on the understanding that it would be treated by it as confidential", but only where
"it is of importance to the body that such further similar information as aforesaid should continue to be given to the body" and
where the decision maker does not consider that there is any overriding public interest requiring release.
It is important to remember that there are a number of tests outlined above, each and all of which must be met before records should be exempted from release under 26(1)(a). Where it is proposed to release material to which 26(1)(a) applies, in the public interest, there is an obligation to consult the person who provided the confidential information concerned.
|Section 31||Some international activities of public bodies deal with the financial interests of the State or with economic issues such as exchange rates or the operation or supervision of financial markets. These and other matters are covered by Section 31. However, release of records can be refused under this section only if
§ there would be a serious adverse affect on the financial interests of the State or on the ability of the Government to manage the national economy,
§ premature disclosure of information contained in the record could reasonably be expected to result in undue disturbance of the ordinary course of business generally, or any particular class of business, in the State and access to the record would involve disclosure of the information that would, in all the circumstances, be premature, or
§ access to the record could reasonably be expected to result in an unwarranted benefit or loss to a person or class of persons.
In general, therefore, it is necessary to show a substantial or significant damage, rather than a trivial one, before refusing access to records under this section. Moreover, the section 31 exemption is subject to a public interest test, which must be considered by the decision maker
|Other sections||Other exemptions may, in appropriate circumstances also be applied to matters regarding international relations. Protections for records relating to deliberations of public bodies (section 20), or negotiating positions adopted by public bodies (section 21) may also apply, subject to public interest tests.|
The decision maker is placed in the position of balancing the rights of the party seeking access to records with the confidentiality rights and the potential damage to the public interest or to international relations which might arise from release of a record. However, the Act is constructed so as to provide guidance to the decision maker, and manuals, guidance notes and legal advices are available or can be sought where there is a difficulty.
Steps to ensure that interactions with public bodies in other countries are not prejudiced by FOI
1. Widen your horizons
In considering the possible damage arising from release of records, or the public interest benefits of release, you should consider them not just from the point of view of your own public body, but of the international relations of the State in general. Could release of records in one instance, while not damaging to your relations with a particular counterpart abroad, prejudice the ability of other Irish public bodies to maintain appropriate working relationships with their counterparts? For example, would release of information received from a foreign government in confidence, while not likely to cause particular difficulty for your public body, prejudice the ability of other public bodies to obtain information from that foreign Government?
2. Consider explaining to public bodies in other countries how the Irish FOI Act works, and what its implications are.
Ireland is relatively new to the FOI community. Bear in mind that most of the foreign Government bodies with which you deal will have their own FOI or access legislation, or even if they do not, will be well used to dealing with other countries with FOI legislation. For example, the UK has enacted a Freedom of Information Act and most of the developed countries with whom it has dealings already have FOI legislation. For that reason, many UK authorities are well used to dealing with FOI, but they may not be familiar with the details of the Irish system.
3. Reassure bodies with which you deal, that there are very significant protections for genuinely sensitive material in the Irish FOI Act, while stressing that non-sensitive material must be released.
The law requires us to release records to the greatest extent possible etc. However, where there is a real damage to be done by release of records under FOI, there is almost certainly an appropriate exemption which may be applied. Foreign authorities need not fear Irish FOI, but they can no longer expect that all their dealings with Ireland will routinely be protected from public view. The are entitled, however, to feel that Ireland will treat information received from abroad with care, and not release material without due consideration. Reassure your counterparts in other jurisdictions that there are mandatory exemptions for certain types of records and that, in situations where there is discretion, consideration will be given to their sensitivities and concerns before releasing records.
If you have substantial ongoing dealings with particular authorities abroad, consider giving them an appropriate explanatory document, or arranging a presentation for them which explains how FOI works in Ireland, and the care that is taken before documents are released.
4. When FOI requests are received, ensure you use the exemption provisions to prevent release of records, where this is appropriate within the terms of the Act.
The Act is about release of information wherever appropriate, but also gives considerable guidance as to how to deal with situations where release is not appropriate.
5. Get to know the concerns and sensitivities of your counterparts abroad – consult them for greater understanding
In certain circumstances, you are required to consult a foreign party who has provided information in confidence, before release of information. Even where formal consultation is not required by the Act a decision maker is required to consider, for example, whether release of particular record could be expected to adversely affect international relations. This requires not just an understanding of the particular record, but also of the likely reaction to its release. Appropriate informal consultations may clarify for the decision maker the impact of release of a document, and give him/her a greater understanding of the importance of that document to the authorities in the relevant other country. Consultation may also give the decision maker an opportunity to reassure the authorities in the other country that he/she is in a position to take their concerns on board when deciding whether to release a record.
Sometimes it will be apparent that there was a clear understanding of confidentiality about particular information, or the sensitivity of non-public positions or views of a foreign authority will be clear. Where an exemption is appropriate, in such cases, it may not be necessary to consult the foreign authority in advance. In deciding whether to consult, we should remain aware of the need to avoid giving the impression to a foreign authority that material which is clearly appropriate for exemption might be considered for release.
6. Communicate with the requester
A public body has an obligation to assist a requester. This is especially the case where not all records can be made available. The decision maker should, where appropriate, communicate with the requester to ensure that as much as possible of the requesters requirements can be met, without releasing information to which the exemptions within the Act should appropriately be applied.
7. Release appropriate material routinely, outside of FOI
FOI requests are often received from people who are unable to obtain information they require through other means. Consider whether there is particular material in your public body which can be made available routinely, from time to time. The placing of information in the public domain can help to ensure a better informed public, while reducing the amount of time and effort required to process formal FOI requests.
Further guidance for public bodies dealing with the EU institutions is appended following the coming into force in December 2001 of EU Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents.
FOI Central Policy Unit
Regulation 1049/2001 on public access to European Parliament, Council and
Information note for public bodies dealing with EU institutions
This appendix sets out the main provisions of Regulation 1049/2001 on public access to European Parliament, Council and Commission documents. It also identifies the specific implications for officials in public bodies who either handle requests under national Freedom of Information legislation or who deal with the institutions of the European Union on a regular basis.
A guide informing the public of the rights they enjoy under Regulation 1049/2001 has been jointly produced by the European Parliament, Council and Commission. This guide is available at:
The Regulation came into force on 3 December 2001, pursuant to Article 255 of the Treaty of Amsterdam, the purpose of which was to increase the openness and transparency of EU institutions. A copy of the full text of the Regulation is available at:.
Each of the three institutions (Council, Parliament and Commission) is responsible for its own implementation of the Regulation and for administering requests for access to documents held by it. Each of the institutions has now made internal arrangements (via amendments to their Rules of Procedure) for implementing the Regulation.
III PROVISIONS OF THE REGULATION – SUMMARY
Regulation 1049/2001 applies to documents held by the European Parliament, Council and Commission, i.e. documents created or received by these institutions and in their possession. A document is defined as: "any content whatever its medium concerning a matter relating to the policies, activities and decisions falling within the institution's sphere of responsibility". The Regulation also provides (Recital for agencies established by the Institutions to apply the principles laid down in the Regulation.
2. Implications for requests made under the FOI Act
The Regulation (Recital 15) says that it is neither its object nor its effect to amend national legislation on access to documents. In Ireland, the provisions of the Freedom of Information Acts 1997 and 2003 continue to apply and Irish public bodies will continue to take decisions on FOI requests for access to EU documents under these Acts.
In this regard, access to records which fall within the categories listed in Section 24 (2) of the Act must be refused. Records covered by Section 24 (2) include:-
· records communicated in confidence from, to or within an international organisation, including EU institutions or relates to negotiations between the State and such an organization (24)(2)(e); and
· records of such an organisation containing information the disclosure of which is prohibited by the organisation concerned (24)(2)(f);
The provisions of section 24(1) and other FOI exemptions (including section 26 – information obtained in confidence) may also be relevant to EU documents in the possession of Irish public bodies. Further guidance in this area is provided in the FOI Decision Makers Manual.
While the Regulation does not seek to interfere with national legislation, Article 5 requires Member States to avoid taking decisions which undermine the objectives of the Regulation. Under Article 5, where an Irish public body receives a request for a document originating from an EU Institution under the FOI Act the relevant Institution should be consulted unless the status of the document concerned is already clear.
The Central Policy Unit recommends the following approach:
1) If a record covered by a FOI request originates from an EU Institution and it is clear that the record shall not be disclosed, the relevant subsection of section 24 should be invoked and access to the record refused.
2) If a record covered by a FOI request originates from an EU Institution and it is clear that the record shall be disclosed (e.g. there is clear instructions from the Institution concerned that such a document can be released or where the record is already in the public domain), then in line with the Long Title of the Act and the spirit of Regulation 1049/2001, consideration should be given to how best to provide access to this record. If the record is covered by Section 24 (2), then access should be refused under the FOI Act but consideration given to releasing the record outside the Act or directing the requester to the location of the record.
3) If a record covered by a FOI request originates from an EU Institution and it is unclear whether or not the document shall or shall not be released, the public body should consult with the relevant European Institution and, based on the response from that institution, follow the advice provided at 1) or 2).
Under its Rules of Procedure, the Council is required to respond promptly to such a request and must have regard to any timescale laid down in the laws of the member state for a decision to be made. The Commission and the European Parliament have adopted similar rules. Addresses and contact numbers for such consultation are set out in Part V.
In order to justify the non-release of a particular document the institutions must be able to prove that its release would be harmful. The regulation sets out specific exceptions as grounds for refusal to disclose a document (or part of a document).
Article 4.1 of the Regulation states:
"The institutions shall refuse access to a document where disclosure would undermine the protection of:
(a) the public interest as regards
-defence and military matters
- international relations
- the financial, monetary or economic policy of the Community or a Member State
(b) privacy and the integrity of the individual, in particular in accordance with Community legislation regarding the protection of personal data."
Other exceptions, where access is refused are subject to a public interest test, i.e. if the public interest in release of the document is of greater weight than the harm which its release would cause, the institution is obliged to release the document. This applies to: (i) commercial interests of a natural or legal person, including intellectual property, (ii) court proceedings and legal advice, (iii) the purpose of investigations, inspections and audits (Article 4.2) and (iv) documents for internal use (Article 4.3)
4. Third Party Consultation
The Institutions are obliged to consult with third parties prior to releasing third-party documents (See Articles 4.4 and 4.5). The definition of the third party includes Member States. See also Section V below.
5. Partial Access
If only parts of requested documents are covered by the exceptions, the remaining parts must be released. (This is the first time that an explicit right of partial access to EU documents has been introduced).
6. Sensitive Documents
Since the autumn of 2000, the Council's rules on public access to official documents have generally not included documents classified as Top Secret, Secret and Confidential and which concern European Security and Defence Policy (ESDP). This has now changed. All documents – including those pertaining to ESDP – are covered by the new rules.
However, under the Regulation, special processing rules apply to what are termed 'sensitive documents' (see Article 9). A document is sensitive if it is classified "Top Secret", "Secret" or "Confidential", in order to protect the vital interests of the Union or the Member States, in the areas covered by Article 4.1. (a). Only a very small percentage of documents are expected to fall within these categories. Applications for access to sensitive documents are handled only by personnel within the Institutions who have the required security clearance to handle such documents. In relation to the handling of EU classified information in Irish government departments, the Department of Foreign Affairs has recently produced Guidelines for the classification and protection of official information, (Addendum No. 1 to A.O. Circular 7/99) based on the requirements of the Council Security Regulations.
When dealing with applications for sensitive documents, Member Sates must take appropriate measures to ensure that the principles or Article 11 and Article 4 are respected.
When access to a sensitive document has been refused, the reasons given for this decision must be given in a manner which does not harm the interests protected in Article 4. In this regard, Decision Makers may also wish to have cognizance of the sections of the Act which provide for the ability to neither confirm nor deny the existence of a record.
7. Processing, rights of appeal, fees
Applications for access to documents must be processed promptly by the institution and not later than within 15 working days. Within this time the institution must provide access to a requested document, or refuse the request for access in a written reply giving reasons. If access is refused, the applicant has the right within 15 working days to ask the institution to reconsider its position (so-called "confirmatory application").
The applicant is only required to pay the actual cost of copies and postage. Access is free of charge when the applicant studies the document on the premises, via direct access in electronic form, or if copies do not exceed 20 A4 sheets.
The Commission is obliged to publish a report on the implementation of the Regulation no later than 31 January, 2004 and, if necessary, to submit proposals for its revision.
V. IMPLICATIONS FOR MEMBER STATES
1. Specific FOI context for FOI Decision Makers
National rules on access to records, notably under FOI, continue to apply, as do the principles to be followed vis-à-vis international relations and FOI contained in CPU Guidance Notice No. 18. The obligation (contained in Article 5 of the Regulation) on a Member State in receipt of a request for a document originating from an institution to consult with that institution, "unless it is clear that the document shall or shall not be disclosed" is consistent with the FOI Act.
Contact points for consultation with the three institutions are as follows:
Council of the European Union:
Fax: 00 32 2 2856361
Fax: 00 32 2 2967242
(These are interim contact details and are likely to change in the coming months).
Fax + (352) 43 00 22 978
2. Officers handing EU documents/communicating with the institutions
As mentioned above, the Regulation applies to all documents held by an institution, i.e. documents drawn up by it or received by it and in its possession, in all areas of activity of the European Union. This means that access can also be requested to documents sent to the institutions by the Member States.
The Regulation provides for third-party consultation and includes a provision which is specific to the Member States as third parties (Article 4.5). Article 4.5 states that:
"A Member State may request the institution not to disclose a document originating from that Member State without its prior agreement".
This is essentially a "belt and braces" approach, which was introduced during the negotiations on the Regulation, because some Member States wished to make it explicit that their prior agreement would be sought by the institution before the disclosure of the document.
Even if a Member State does not explicitly request that a document is not disclosed without its prior agreement, the institution is obliged to consult the Member State as a Third Party (Article 4.4), with a view to assessing whether or not the exceptions laid down in the Regulation apply, before deciding whether or not to release a document.
The provision in Article 4.5 exists as an option for a Member State, when communicating with the institutions, to request the institution not to disclose a document without its prior agreement. It does not specify further how this should be done, leaving it up to the Member States to decide their own procedures. Also, practices may differ slightly between the three institutions as to their approach.
From an Irish perspective, it is suggested that an approach be adopted which is consistent with the spirit underlying the Freedom of Information Act and that requests to an institution for non-disclosure of a document be made on a case by case basis when the relevant documents are being sent to the institution.
Suggested language to be included in cover letter :
"Pursuant to EP/Council regulation 1049/2001, article 4, paragraph 5, I hereby request that the [insert Institution] not disclose the attached document(s) originating from [name of public body] without our prior agreement".
Queries/requests for clarification in relation to the above material can be
addressed to the following:
Caitriona O' Brien, CPU, Department of Finance,
Tel: 01 6045454
Sinéad Ryan, Permanent Representation Brussels,
Tel: 00 32 2 2823233
Adrian Farrell, EU Division, Department of Foreign Affairs
Tel: 01 4082954
VII USEFUL WEBSITES
Council of the European Union