Case number: 020277
Dear Mr ABC
I have now completed my review of the Department's decision. In carrying out that review, I have had regard to your correspondence with the Department, correspondence between my Office and the Department and to documentation provided by the Department of Finance on the matter.
The Department identified two records as coming within the scope of your request and it decided to refuse access to one of those records, described as "Appendix 4 - Underground Issues paper". Accordingly, my review is concerned solely with the question of whether the Department was justified in deciding to refuse access to the record in question.
The Department explained, in its original decision, that the record at issue was part of a submission to the Cabinet Sub-Committee on Infrastructure and Public Private Partnership on 2 May, 2002. I have been advised that the date notified to you was incorrect and that it should have read 2 May, 2001. The Department originally refused access to the record pursuant to the provisions of section 19(1)(b) of the FOI Act. In its decision on internal review, however, it refused access pursuant to the provisions of section 19(1)(a). During recent correspondence with my Office, the Department also claimed that the provisions of section 19(1)(c) apply to the record. Accordingly, I have set out below my findings in respect of the applicability of sections 19(1)(a) and 19(1)(c) to the record at issue.
Section 19(1)(a)
Section 19(1)(a) of the FOI Act provides that a public body may refuse access to a record if the record has been, or is proposed to be, submitted to the Government for their consideration by a Minister of the Government or the Attorney General and was created for that purpose. Section 19(6) provides that "Government" includes a committee of the Government.
Before I address the question of whether the Department's claim for exemption is justified, I consider it useful to provide a brief description of the record and of the background to its creation. The record at issue in this case is a nine page document entitled "Issues of Importance when considering the use of underground High Voltage cables and a comparison with overhead transmission lines". The record was included as an appendix ("appendix 4") to a report which was submitted to the Cabinet Committee on Infrastructure and PPPs (Public-Private Partnerships) on 2 May, 2001. The report in question was submitted to the Cabinet Committee under cover of a summary note of 2 May, 2001 which indicates that it was prepared by the Legal Issues Group and approved by the Cross-Departmental Team on Infrastructure and PPPs. In January, 2000, the Legal Issues Group was authorised to reconvene by the Cross-Departmental Team as a sub-group of the Team whose function was to support the Cabinet Committee on Infrastructure and PPPs established by the Government in June 1999.
The Department's argument is that the report and appendices were prepared by the Department of Finance and submitted to the Cabinet Committee by the Minister for Finance for the purpose of transacting business at a meeting of the Cabinet Committee. I note that the Department holds a copy of appendix 4 only and that it does not hold a copy of the actual report. It is clear, therefore, that appendix 4 is a record in its own right and that I must consider the applicability of the exemptions claimed by the Department to appendix 4 only in this review. For the exemption contained in section 19(1)(a) to apply, a number of conditions must be met, viz.
· the record must have been, or be proposed to be, submitted to the Government for their consideration
· it must have been, or be proposed to be, submitted by a Minister of the Government or the Attorney General and
· it must have been created for the purpose of submission to the Government for their consideration.
In examining the question of whether a record can be said to have been created for the purpose of submission to the Government for their consideration, I have looked to the interpretation of the Queensland Information Commissioner of section 36(1)(a) of the Queensland FOI Act which is broadly similar to section 19(1)(a) of the Irish Act. Section 36(1)(a) of the Queensland FOI Act provides that
"matter is exempt if - (a) it has been submitted, or is proposed by a Minister to be submitted, to Cabinet for its consideration and was brought into existence for the purpose of submission for consideration by Cabinet.."
In the case of Hudson (on behalf of Fencray Pty Limited) and the Department of the Premier, Economic and Trade Development (1993) 1 Q.A.R 123, the Queensland Information Commissioner made the following comment, at paragraph 26, on the question of the purpose for the creation of a record which has been, or is proposed to be, submitted to Cabinet:
"This means that a document is not exempt merely because it has been submitted to Cabinet. Inquiries must be pursued into the "genealogy" of such a document, to establish the purpose for which it was brought into existence. The time of the creation of the document is the time at which the purpose for its creation is to be ascertained. The fact that it was subsequently decided to annex to a Cabinet submission, a document that was brought into existence for a purpose other than submission to Cabinet for cabinet consideration, will not bring the document within s.36(1)(a). A document which is created for the purpose of assisting in the preparation of a draft or final Cabinet submission (or some other kind of document that is being created for the purpose of submission to Cabinet) would not itself have been brought into existence for the purpose of submission for consideration by Cabinet."
The Department says that appendix 4 was among papers prepared by the Department of Finance for the Minister for Finance at the request of the Cabinet Committee on Infrastructure and PPPs. On this point, I note that the summary note prepared for the Cabinet Committee indicates that "At its March meeting, the Cabinet Committee asked for a report on options to streamline the planning process for extension/upgrading of the electricity transmission network". This would suggest that the report was prepared following the request made by the Cabinet Committee in March 2001. However, it appears that appendix 4 was created before that date.
An internal memo of 31 January 2001 between two officials of the Department of Finance, which is held on that Department's "Legal Issues Group" file, indicates that the Cross Departmental Team authorised the reconvening of the Sub-Group on legal issues to "review and report on current procedures for the planning and development of Electricity Transmission/Distribution Network and to provide recommendations on how the planning process might be expedited". The memo recommends that Eirgrid be asked to provide a presentation to the group by way of introduction to the issue relating to electricity infrastructure and that a paper should be provided in advance (by Eirgrid) so that the issues can be considered in more depth by the group. Furthermore, the report which was submitted to the Cabinet Committee indicates that "Attached at Appendix 4 is a paper which the Group asked Eirgrid to prepare comparing the physical and costs aspects of both methods [Under Vs Over Ground]" (my emphasis). It would appear, therefore, that the purpose of the creation of the record was to allow for the Legal Issues Group to obtain a greater understanding of the issues relating to electricity infrastructure as opposed to having been created for the purpose of its submission to the Government for their consideration by a Minister of the Government or the Attorney General. In the circumstances, I find that the Department is not entitled to rely upon section 19(1)(a) to refuse access.
Section 19(1)(c)
Section 19(1)(c) of the FOI Act provides that a public body may refuse access to a record if it contains information (including advice) for a member of the Government, the Attorney General, a Minister of State, the Secretary to the Government or the Assistant secretary to the Government for use by him or her solely for the purpose of the transaction of any business of the Government at a meeting of the Government. Section 19(1)(c) is clearly concerned with the contents and use of records. The types of records to which I would expect this exemption to apply includes departmental briefing notes for individual ministers attending a government meeting, notes prepared for the Secretary to the Government or Assistant Secretary to the Government for the purpose of such a meeting, the agenda of such a meeting etc. The sole reason for the creation of such records is to assist the Government in the conduct of one or more of its meetings and the record ceases to have a purposeful existence after the conclusion of the meeting.
In this case, there is nothing either in the contents of the record at issue or in the circumstances of its preparation to suggest that it was intended solely for use at a meeting of the Cabinet Committee. As I have indicated above, it seems to me that the purpose of the creation of the record was to allow for the Legal Issues Group to obtain a greater understanding of the issues relating to electricity infrastructure which would, in turn, assist the group in achieving its objectives. I find, therefore, that the Department is not entitled to rely upon section 19(1)(c) to refuse access.
Having carried out a review under section 34(2) of the FOI Act I hereby annul the decision of the Department of the Environment & Local Government in this case and I direct that access be granted to the record sought.
A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than four weeks from the date of this letter.
Kevin Murphy
Information Commissioner