Whether the Department was justified in refusing access to records concerning damage to Irish aid funded projects in the occupied Palestine territory
12 November 2021
The applicant’s FOI request of 8 March 2021 sought access to records concerning damage to Irish aid funded projects in the occupied Palestine territory (oPt) since 2018, including briefing material on such matters for the Minister for Foreign Affairs (the Minister) from Department staff and the Irish Representative in Ramallah.
The Department’s decision of 15 April 2021 concerned 175 records, of which it fully withheld 162 and released 11 in part and two in full. It relied on various provisions of the FOI Act in relation to the withheld records, including section 33(1)(d) (international relations of the State). It also referred the applicant to relevant information that was not covered by his request i.e. recent EU 6-monthly reports on demolitions, statements by the Minister and answers to recent Parliamentary Questions.
On 27 April 2021, the applicant sought an internal review of the decision on the 162 fully withheld records. The Department’s internal review decision of 26 May 2021 affirmed its refusal of the request under section 33(1)(d) and the other exemption provisions relied on in its initial decision. On 5 July 2021, the applicant applied to this Office for a review of the Department’s decision.
I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges and correspondence between this Office, the Department and the applicant, as well as the contents of the records at issue and the provisions of the FOI Act.
Scope of the Review
The applicant did not appeal the decision on the partially released records (i.e. the redaction of contact details of persons who made representations) and this matter does not fall to be considered. The scope of this review is confined to whether the Department’s decision to fully withhold the remaining 162 records was justified under the FOI Act.
The applicant has informed this Office that he is a freelance writer for a leading foreign news agency, and that the Minister’s public statements and correspondence received from the Irish Representative in Ramallah would be of significant interest to its readership. Section 13(4) of the FOI Act requires me not to take into account any reasons the applicant gives for his request.
Section 25(3) requires this Office to take all reasonable precautions to prevent the disclosure of exempt material in the performance of its functions. I am therefore required to limit the level of detail I can give in describing the withheld records. Equally, I must limit my description of the Department’s submission regarding why the records are exempt.
Disclosure under FOI is accepted as equivalent to publication to the world at large.
The Department applied section 33(1)(d) of the FOI Act to all of the withheld records and I will consider this at the outset.
Section 33(1)(d) provides that a head may refuse to grant an FOI request in relation to a record if, in the opinion of the head, access to it could reasonably be expected to affect adversely the international relations of the State. It does not require consideration of the public interest.
The Commissioner does not have to be satisfied that the adverse effect will definitely occur. It is sufficient for the FOI body to show that it expects such an outcome and that its expectations are reasonable, in the sense that there are adequate grounds for them. While an FOI body may have particular expertise in an area, the Commissioner has made it clear that, unless it is readily apparent how or why a harm could occur, he expects an FOI body making the claim to provide a specific and coherent explanation in support of its position.
Relevant factors include whether information is in the public domain or is otherwise available, the circumstances in which the record was compiled and developments since the date it was created. In considering other cases involving section 33(1)(d), the Commissioner has had regard to the expectations of the international community with regard to the information at issue, the sensitivity or confidentiality of the records and whether release of the records could result in a loss of trust or confidence in Ireland. However, I stress that each case is treated on its own merits.
According to the Department’s schedule, the withheld records comprise West Bank Protection Consortium (WBPC) incident reports, live reporting/situation reports and demolition alert emails; monthly demolition reports from the United Nations Office for the Coordination of Humanitarian Affairs (OCHA) to the EU and other OCHA correspondence; briefing materials for the Minister, and correspondence with Community, Energy and Technology in the Middle East (COMET-ME), Coordinator of Government Activities in the Territories (COGAT), the Israeli civil authorities, European External Action Service (EEAS) and the European Union’s (EU’s) Humanitarian Agency (ECHO).
I can see from internet searches that COMET-Me is an Israeli-Palestinian organization providing basic energy and clean-water services to off-grid communities using environmentally and socially sustainable methods. Most of its budget sources are donations from foreign governmental entities, including Ireland. COGAT implements the Israeli government's civilian policy within the territories of Judea and Samaria and towards the Gaza Strip and reports to Israel's Minister of Defence. The EEAS is the EU’s diplomatic service and helps the EU’s High Representative for Foreign Affairs and Security Policy carry out the EU’s Common Foreign and Security Policy.
The Department says that the WBPC was established at the initiative of ECHO and includes a number of donor countries, such as Ireland, and international non-governmental organisations. It says that the WBPC plays a leading role in supporting threatened communities from forcible transfer and in coordinating the provision of essential services to them e.g. material, humanitarian assistance and legal aid. The names of the other organisations referred to above are self-explanatory.
The Department stresses that the security and political climate in the oPt is an area of significant sensitivity for Ireland, the EU and many other international partners and interlocutors, and that the international community’s ongoing efforts to broker a resolution to the conflict are severely hampered by events on the ground. It says that the practice of demolition and confiscation of humanitarian assets is contrary to Israel’s obligations under International Law. It says that Ireland has engaged directly with Israel on this issue, through the WBPC and the Embassy in Tel Aviv, and called on it to halt demolitions and allow for legal construction for Palestinian residents. It says that WPBC donors have raised the issue of compensation directly with the Israeli authorities and that the compensation sought (over €650,000 regarding confiscated or demolished assets to date) represents costs for the whole WBPC and is not attributable per donor.
The Department says that the UN Security Council, of which Ireland is currently an elected member, regularly discusses all aspects of the situation in the Middle East. It says that Ireland works to uphold international humanitarian law, and to support and protect the critical role of civil society, in a very constrained and pressurised environment. It stresses that Ireland’s relationships with governments, international organisations and other actors take place in this fragile and fluid context. It says that the Minister regularly answers questions on the topic in the Oireachtas, and has made Ireland’s position clear through speeches and engagements with the media.
The Department refers to a customary expectation that records such as those at issue will be handled by the State in a confidential manner. It says that many of the records are correspondence with international organisations (I also note that correspondence with WBPC is treated as correspondence with other states or international organisations, given that WBPC comprises a consortium of states). It says that the records are more detailed than information that is generally made publicly available by the EU or national governments. The Department is of the view that their disclosure could result in international partners adopting the position that Ireland can no longer be trusted to handle sensitive information, especially information that might be obtained through informal information exchange or discussions. It says that the continued receipt of such information is important to inform the State’s position on highly sensitive issues and to advance Ireland’s foreign policy objectives in the region.
Similarly, the Department says that disclosure of the nature of analysis contained in Ministerial briefings and other records would have the potential to limit the effectiveness of Ireland’s dialogue, and cause difficulties in Ireland’s relations, with other states. It says that the release of the small number of records that relate to grant management contain information about funding, project proposals and work plans that partner organisations understand to be politically sensitive and confidential. It also refers to the particular context in which donor organisations operate.
The applicant says that he understands the Department’s position and has no interest in damaging relations between Ireland and another state. However, he believes the public has a right to know when Irish-funded aid is deliberately destroyed or damaged, and ultimately wasted, by another state on land that he says is illegally occupied. He says that the public should also know what information is given to Irish representatives about such matters. He says that destruction of Irish aid relates to abuse of international law, which he believes Ireland is dedicated to upholding, and that transparency is paramount to assure the public that Ireland’s commitments are being fulfilled. He says that these matters should be of greater importance than concerns about commercial interests. He refers to recent statements in the Dáil and by the Minister and to general Irish public opinion on and sympathy for the people of Palestine. He says that if the public is to have any confidence in the Government’s position, then full transparency is required.
Analysis and Findings
Mindful of the requirements of section 25(3), I can confirm that I have examined the records and have had regard to the entirety of the Department’s submission, the key points of which I have set out above. I note that comments have been made in the Dáil and by the Minister and that certain information is in the public domain. However, I do not believe that the information contained in the withheld records is in the public domain and that this is the case due to the sensitivity of the matters discussed and described. I accept the Department’s position as to how disclosure of the records to the world at large, in the overall circumstances, could cause difficulties between Ireland and other states, including in relation to the flow of information that is necessary for Ireland’s foreign policy purposes. I am satisfied that granting access to the records could reasonably be expected to affect adversely the international relations of the State. I find that the records are exempt under section 33(1)(d) of the FOI Act.
The applicant’s various arguments as to why the records should be released appear to me to reflect his views on the public interest in this case. However, as set out above, section 33(1)(d) does not require the consideration of such matters. Furthermore, in the circumstances, there is no need for me to consider the Department’s application of other provisions of the FOI Act to the records.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department’s decision on the basis that the 162 fully withheld records are exempt under section 33(1)(d) 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.