Whether the Department was justified in refusing access to records relating to an investigation into the "leaking" or unauthorised disclosure of details from a Cabinet Memorandum in April 2017 under sections 30(1), 32(1), and 35(1) of the FOI Act
11 March 2019
In a request dated 20 June 2018, the applicant sought access to all records related to an inquiry carried out by the Secretary General to the Department into the "leaking" of details from a Cabinet Memorandum related to the National Broadband Plan (NPB) in April 2017. In a belated decision that issued on 14 September 2018, the Department explained that it holds 36 relevant records consisting of emails that issued from the Secretary General to the Government on 6 April 2017 and 27 April 2017, respectively, and the replies that were received from 17 Departments and Offices on each occasion. The Department refused access to the records on the basis of sections 30(1), 32(1), and 35(1) of the FOI Act. On 2 October 2018, following the applicant's request for internal review, the Department affirmed its original decision. On 16 October 2018, 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. In carrying out my review, I have had regard to the submissions made by the applicant and the Department. In addition, I note that a senior official from my Office, together with the Investigator assigned to the case, examined the investigation file containing the relevant 36 records on-site at the Department's premises. The on-site examination of the records at issue was considered appropriate in this case because of the sensitive and unusual nature of the matter. I have now decided to conclude this review by way of a formal, binding decision.
Scope of the Review
This review is concerned with the question of whether the Department was justified in refusing access to the 36 records it holds relating to the investigation into the leaking or unauthorised disclosure of details from a Cabinet Memorandum in April 2017.
Before setting out my findings, I should point out that while I am required by section 22(10) of the FOI Act to give reasons for my decisions, this is subject to the requirement of section 25(3) that I take all reasonable precautions to prevent disclosure of information contained in an exempt record or matter that, if it were included in a record, would cause the record to be exempt. This constraint means that, in the present case, the extent of the reasons that I can give is limited.
I also wish to explain the approach of this Office to the granting of access to parts of records. Section 18 of the FOI Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. However, this Office takes that the provisions of section 18 do not envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, this Office is not in favour of the cutting or "dissecting" of records to such an extent. Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.
Analysis and Findings
Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant access to a record "shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified." It should also be noted that a review by this Office under section 22 of the FOI Act is de novo in that it is based on the circumstances and the law as they apply on the date of the decision.
The Department's position
In its decision, the Department described the apparent leaking of a confidential Government Memorandum as a "very serious matter" and stated that it "should not disclose documentation either relating to the incident, to the subsequent investigation or to its methods of inquiry or investigation". The Department also stated that, "as the investigation has not reached any definitive conclusion, the matter is not yet considered closed".
In its submission, the Department emphasises that it has the essential function of ensuring that Cabinet procedures are followed. It notes that the enforcement of Cabinet confidentiality is a matter of constitutional as well as statutory law. It maintains that the investigation, which is not yet complete, is of a sensitive and confidential nature and that disclosure of the records at issue would destroy confidence in the procedures and methods employed and undermine their effectiveness. According to the Department, the participants in the inquiry expect the relevant records to be treated as confidential and thus disclosure would destroy their trust in the process. The Department considers it unlikely that relevant individuals would cooperate voluntarily in future investigations in the event of disclosure. The Department adds:
"Finally, the possibility of an investigation into leaks - whether successful or otherwise - does represent somewhat of a deterrent to future such leaks. If this is no longer feasible, this would further weaken the protection afforded to cabinet confidentiality."
In relation to the public interest, it is the Department's position that information about how such a serious matter has been handled can be disclosed without releasing the details of the investigation file.
The applicant's position
The applicant argues that it is highly unlikely that the investigation carried out in April 2017 has not been completed and remains active. He points out that the investigation would have been of a limited scope, involving as it did "the leaking of details of one document to one journalist by potentially a finite number of people which . . . could be less than 100". He also argues that there is an overriding public interest in granting access to the records concerned because of the potential impact of such an investigation on journalistic freedom. He states:
"[T]his matter concerns the leaking of information to a journalist and the pursuit of this leak by the most senior civil servant in the country. I believe there is an overriding public interest in knowing more about this process of investigating this given it potentially represents a threat to the legitimate work of journalists in this country.
If an official believes the leak of information that is of public importance - and the troubled national broadband plan has assumed even greater importance in recent times - is likely to be investigated by the country's most senior civil servant at the direction of the Taoiseach it is likely to have a severe chilling effect on the legitimate process of journalists pursuing and obtaining information in the public interest."
Having regard to the submissions and the subject matter of the request, I find that section 32(1)(a)(i) is the most relevant exemption to consider in this case. Section 32(1)(a)(i) provides that a request may be refused if access to the record sought could reasonably be expected to prejudice or impair the prevention, detection or investigation of offences, the apprehension or prosecution of offenders or the effectiveness of lawful methods, systems, plans or procedures employed for the purposes of such matters. Where an FOI body relies on section 32(1)(a), it should, firstly, identify the potential harm to the functions covered by the exemption that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur. To justify its decision to refuse access to a record under section 32(1)(a), the FOI body must show how or why releasing the record concerned could reasonably be expected to cause the harm which it has identified.
The records at issue concern an investigation into suspected wrongdoing by an individual in what I accept is a serious and sensitive matter. The unauthorised disclosure of official information is an offence under section 4 and section 13 of the Official Secrets Act. The disclosure in this case undermined Cabinet confidentiality. The investigation file includes discussion of the contents of the Cabinet Memorandum at the centre of the controversy and the sensitivity of the issues arising. Moreover, while the Department has disclosed the broad outline of the Secretary General's investigation, the records at issue detail the particular methods that were employed in carrying out the investigation and also the narrow pool of candidates who may have been responsible for the leak.
I accept in the circumstances that the investigation was carried out on an understanding of confidence. While it is difficult to accept that Secretaries General and Heads of Office would refuse to cooperate with the Secretary General to the Government in the event of a future investigation, I accept that disclosure of the records at issue, in full or in part, would be likely to hinder the flow of information such that less detail would be provided in correspondence relating to any future inquiries. I further note that both the Department and the applicant agree that maintaining the confidentiality of the details of the investigative process in this case is likely to have a deterrent effect on future leaks. On the other hand, if, as the applicant contends, not knowing the "process" or details of the investigation is likely to have a "severe chilling effect" on future leaks, it is reasonable to expect that the more that is known about the methods of investigation used, the more likely it is that future leaks will occur without detection of the source.
In Case 99232
, which is available on our website www.oic.ie
, this Office accepted that records showing how the Office of the Revenue Commissioners carried out its investigations in one case could reasonably be expected to prejudice the effectiveness of other investigations. I agree with this approach and find that it should be followed in the circumstances of this case in relation to the investigation carried out by the Secretary General to the Government into the unauthorised disclosure of a Cabinet Memorandum. Accordingly, I am satisfied that disclosure of the details of the Secretary General's investigation could reasonably be expected to prejudice or impair the prevention, detection or investigation of offences or the effectiveness of lawful methods, systems, plans or procedures employed for the purposes of such matters. I therefore find that section 32(1)(a) applies to the 36 records contained in the Department's investigation file.
The public interest test in section 32(3) is limited to certain circumstances specified in paragraph (a)(i) or (a)(ii). I am satisfied that none of these circumstances apply. Accordingly, as I find that the Department was justified in refusing access to the records concerned under section 32(1)(a)(i) of the Act, it is unnecessary for me to consider whether section 30(1) or section 35(1) may also apply.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department's decision in this case on the grounds set out above.
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.