The Banking Inquiry published its final report on 27 January 2016. One of its recommendations is that the freedom of information (“FOI”) exemptions should be reviewed with a view to increasing public access to advice provided by civil servants and special advisors. We consider the extent to which such advice is currently accessible under FOI law.
Under the Freedom of Information Act 2014 (“FOI Act”), the current position is that, generally, such advice is exempt from release, as explained below.
The right of access under FOI
The FOI Act provides a right of access, on request, to records held by or under the control of all public bodies not specifically excluded from the remit of that Act (“FOI bodies”). However, exemptions under the Act allow or require refusal of access to records in certain circumstances, including records relating to meetings of the Government and to deliberations of FOI bodies.
Meetings of the Government
The confidentiality of discussions at meetings of the Government is enshrined in the Constitution (Article 28.4.3). The rationale is clear: Governments need to be able to deliberate on issues freely, frankly and confidentially. Dissenting views, if aired publicly, could undermine the Government’s obligation to act collectively.
However, the FOI Act seeks to strike a balance between what could, and should, be protected in this regard. Access may be refused to certain records relating to meetings of the Government, and must be refused to others.
FOI bodies may refuse access to:
(a) records prepared by Government Ministers or the Attorney General for submission to and consideration by the Government;
(b) internal Government records, other than records of published Government decisions; or
(c) records containing information, including advice, for Government members, Ministers of State, the Secretary General to the Government and the Attorney General, for the sole use of Government business or meetings.
However, this discretion does not apply to factual information relating to published Government decisions, or to records relating to a decision made over 5 years ago.
Further, FOI bodies must refuse access to records containing statements or parts of statements made at Government meetings, or information that would reveal or infer the substance of those statements, where those records are not covered by (a) or (c) above, or are not records of published Government decisions.
Interestingly, by comparison, the Access to Information on the Environment Regulations 2007 and 2011 provide for an absolute bar on access to cabinet records. This was contested in An Taoiseach v Commissioner for Environmental Information1, but ultimately upheld by the High Court. A question remains as to the compatibility of this mandatory exemption with the underlying EU directive.
Deliberations of FOI bodies
In addition to the exemption for advice provided to the Government, or advice prepared for that purpose, the FOI Act also provides an exemption for records containing matter relating to the deliberative processes of FOI bodies, including Departments of State.
This provides that access may be refused to records relating to the deliberative processes, of an FOI body, including advice considered for that purpose, where granting access would be contrary to the public interest. The FOI Act indicates, by way of non-exhaustive example, that it may be contrary to the public interest if granting access to the record would reveal a significant decision that an FOI body proposed to make. Certain matters are excluded from the application of the exemption, including any factual information contained in the record(s), and the reasons for the making of a decision by an FOI body. Subject to these restrictions and exclusions, however, advice being considered by FOI bodies will be covered by this exemption, and access may be refused by FOI bodies.
Notwithstanding the above exemptions, FOI bodies are not prohibited or restricted under the FOI Act from publishing or giving access to records, including exempt records, outside of the FOI process, provided that such publication, disclosure or access-provision is not otherwise unlawful. In appropriate cases, therefore, FOI bodies could decide voluntarily to publish or disclose materials relating to important matters of public interest, if they so wished, and were otherwise not prohibited by law from doing so.
In FOI terms, it is clear that access to advice provided to the Government may, or must, be refused, depending on the circumstances. Access to advice under consideration by FOI bodies, including Departments of State, may also be refused if contrary to the public interest.
It is questionable whether any attempt to widen the exemption concerning meetings of the Government would be possible in light of the constitutional protection for the confidentiality of discussions at Government meetings in all circumstances.