Case number: OIC-126683-M6J2P5
1 February 2023
In a request dated 29 April 2022, the applicant sought access to copies of all records relating to the decision to set up the Global Ireland Media Challenge Fund (GIMCF). In a decision dated 27 June 2022, the Department refused access to three records it identified as relevant to the request under sections 28(1)(a) and 28(2)(a) of the FOI Act. On 4 July 2022, the applicant sought an internal review of the number of records identified by the Department as falling within the scope of the request and of the refusal to release the three identified records. On 19 July 2022, the Department informed the applicant that a comprehensive search was completed and that no other records falling within the scope of the request were found. It also affirmed its original decision to refuse to release the three records located under section 28(1)(a) and 28(2)(a). The applicant applied to this Office for a review of the Department's decision on 20 July 2022.
During the course of the review, the Department cited section 15(1)(a) of the Act as a basis for refusing access to any other relevant records, on the ground that no other relevant records exist. As the applicant had not previously had an opportunity to consider the applicability of this provision of the Act, we wrote to him to bring it to his attention and invited him to make additional submissions. He made a brief submission in response.
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 his submission and to the submissions made by the Department 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.
My review in this case is concerned with the question of whether the Department was justified in refusing access to the three records at issue under section 28(1)(a) and 28(2)(a) of the Act and whether it was justified, under section 15(1)(a), in refusing access to any further relevant records on the basis that no further records exist.
Section 28(1)(a) – Meetings of the Government
The Department refused records 1 and 2 under Section 28(1)(a) of the Act. That section provides for the discretionary refusal of a record if it has been, or is proposed to be, submitted to the Government for its consideration by a Minister of the Government or the Attorney General and was created for that purpose. For the purposes of section 28, a record is defined as including a preliminary or other draft of the whole or part of the material contained in the record. There is no public interest balancing test to be applied in section 28. However, a record to which section 28(1) applies is releasable in certain circumstances set out in section 28(3).
Section 28(3) provides that section 28(1) does not apply to a record if it contains factual information relating to a decision of the Government that has been published to the general public or if the record relates to a decision of the Government that was made more than five years before the receipt of the FOI request.
For section 28(1)(a) to apply to a record, three requirements must be met, namely that the record:
The exemption extends to records that were prepared for submission to the Government but were not actually submitted to Government.
Section 6 provides that ‘‘Government’’ includes a committee of the Government, that is to say, a committee appointed by the Government whose membership consists of members of the Government, or one or more members of the Government together with either or both of the following:
(i) one or more Ministers of State;
(ii) the Attorney General.
In its submissions to this Office, the Department explained that Records 1 and 2 comprise a Memorandum for Information that was submitted to Cabinet by the MInister for Foreign Affairs on 15 December 2020 and a draft of that Memorandum. It said the Memorandum was created for the purpose of submission to Government and solely to brief the Government on Ireland’s priorities for United Nations Security Council (UNSC) membership as well as the preparations underway to ensure that Ireland’s term on the UNSC was successful. It explained that appended to these preparations was the establishment of the GIMCF.
On the matter of whether section 28(3) serves to disapply section 28(1)(a), the Department argued that section 28(3)(a) does not apply as the records do not contain factual information relating to a decision of the Government that has been previously published to the general public. It further argued that section 28(3)(b) does not apply as the records do not relate to a decision of the Government that was made more than five years before the receipt of the FOI request. Having examined the contents of the records, I am satisfied that section 28(1)(a) applies and that section 28(3) does not apply. I find, therefore, that the Department was justified in refusing access to the records under section 28(1)(a) of the Act.
Section 28(2)(a) – Discussions at Cabinet meetings
The Department refused access to Record 3 under section 28(2)(a). Section 28(2) provides as follows:
(2) A head shall refuse to grant an FOI request if the record concerned –
(a) contains the whole or part of a statement made at a meeting of the Government or information that reveals, or from which may be inferred, the substance of the whole or part of such a statement, and
(b) is not a record –
(i) referred to in paragraph (a) or (c) of subsection (1), or
(ii) by which a decision of the Government is published to the general public by or on behalf of the Government.
The section is concerned with the protection of Cabinet discussions or deliberations at Government meetings, as distinct from Government decisions. An FOI body relying on section 28(2) for its refusal to grant access to a record must show that the record concerned contains a statement made at a Government meeting or contains information which reveals the substance of such a statement or from which such a statement may be inferred.
Record 3 comprises speaking notes provided for the Minister ahead of the Cabinet meeting of 15 December 2020. I am satisfied that section 28(2)(a) applies to this record and that the exemptions set out in section 28(2)(b) do not apply. As such, I am satisfied that the Department was justified in refusing to grant access to record 3 under section 28(2) of the Act.
Section 15(1)(a) – further records exist / adequacy of search
Section 15(1)(a) of the FOI Act provides that access to records may be refused if the records concerned do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The role of this Office in such cases is to decide whether the decision maker has had regard to all of the relevant evidence and, if so, whether the decision maker was justified in coming to the decision that the records do not exist or cannot be found, after all reasonable steps to ascertain their whereabouts have been taken. The evidence in such cases includes the steps actually taken to search for records. It also comprises miscellaneous other evidence about the record management practices of the FOI Body, on the basis of which the decision maker concluded that the steps taken to search for records were reasonable.
In his correspondence with this Office, the applicant said it seemed unlikely that the only records that actually exist in the Department are the Memo to government/draft Memo and speaking points. He said it strikes him as odd that there is not, for example, a single email discussing the move by the Department to introduce a policy that requires the allocation of significant sums of public money to specific media organisations.
In its initial submissions to this Office, the Department said the decision to establish the GIMCF was made in a series of in-person discussions between the then Secretary General, then Deputy Secretary General, Minister for Foreign Affairs, and the Director General of Global Ireland. It said these meetings discussed the wider Global Ireland communications strategy, an element of which was the concept of establishing the GIMCF.
The Department explained that at its inception, the GIMCF fell under the remit of the Communications Unit. Following the handover of the project from the Communications Unit to the Global Ireland Unit (GIU) in 2021 all documents were transferred to the GIU shared drive. The Department said that to ensure a thorough response to the FOI request, colleagues in the Communications Unit were requested to once again transfer all documents they held relating to the GII to make certain that no documents had been unintentionally omitted in the original transfer. It said no documents were unaccounted for.
The Department went on to explain that extensive searches of the GIU digital shared drive, the Communications Unit shared drive, and the UNSC Task Team shared drive were conducted. It said searches were carried out primarily using key words including but not limited to ‘Global Ireland Media Challenge Fund’, ‘Media Challenge Fund’, and ‘The Fund’. In the case of the UNSC Task Team, it said searches were confined to correspondence around the submission of the Memo for Information in December 2020 and all related speaking points. It said all documents within the Media Challenge Fund digital folder were manually reviewed to ensure no records were overlooked.
The Department said no relevant records were located following searches by, or in the Offices of;
Given the scarcity of relevant records located, this Office sought, on a number of occasions, to clarify a number of matters with the Department and subsequently met with relevant officials from the Department in an effort to better understand why so few records exist relating to the decision to establish the GIMCF.
In essence, the Department’s position is that the scarcity of records relating to the decision is primarily based on the fact that the decision did not involve the development of new policy but instead was essentially one of the measures designed to deliver on previously agreed policy as set out in the policy document “Global Ireland 2025”. It said that document included the Government’s commitment to “Examine opportunities to expand Ireland’s communication and digital impact around the world and awareness of it at home through partnerships or collaborations with relevant media outlets”. It said the decision did not require a usual business case one might expect to find in relation to the formulation of a new policy as the decision to set up the GIMFC already sat within the overarching Government policy.
The Department added that the decision to establish the GIMCF was made in a series of in-person discussions between the then Secretary General, then Deputy Secretary General, Minister for Foreign Affairs, and the Director General of Global Ireland. It said these meetings discussed the wider Global Ireland communications strategy, an element of which was the concept of establishing the GIMCF. It said no record or minutes were created of the discussions in question. It added that before any substantive action was taken in relation to the establishment of the new fund, the details of same were included in a Memorandum of Information submitted to the Government.
The Department explained that the Memorandum related primarily to Ireland’s term on the UNSC and included details of the proposal to establish the GIMCF. It said the decision to notify Government of the intention to establish the GIMCF was the first stage implementation of an existing Government commitment and was taken in the course of the discussions between the Minister, the Secretary General, and officials of the Department. It said the matter was dealt with at a senior level within the Department and that the discussions did not require any further analysis of the proposal as they related solely to implementation of previously agreed policy. It said that following the Cabinet meeting of December 2020, the Department commenced operationalising the Government decision to create the GIMCF, and that all substantive decisions regarding the operationalisation of the GIMCF have been published by the Department.
It is important to note that the role of this Office is limited to determining whether the Department has taken all reasonable steps to ascertain the whereabouts of relevant records. Quite often, the steps that a body might reasonably take in its search for relevant records are determined by the particular circumstances. While I make no comment on the appropriateness, or otherwise, of the manner in which the decision to establish the GIMCF was taken in this case, it seems to me that, having regard to the Department’s description of that decision making process, the Department has carried out comprehensive searches for relevant records. I am satisfied that all reasonable steps to ascertain the whereabouts of relevant records have been taken by the Department.
Accordingly, I find that Department was justified in refusing access, under section 15(1)(a) of the Act, to any further relevant records relating to the decision to establish the GIMCF on the ground that no further records exist.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department’s decision. I find that the Department was justified in refusing access to the three records at issue under section 28(1)(a) and 28(2)(a) of the Act and that it was justified in refusing access, under section 15(1)(a), to any further relevant records on the basis that no further records exist.
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.