Case number: 190047

Whether the Department was justified in refusing to grant a record concerning the legal costs reimbursed to a third party at the Smithwick Tribunal who had been granted representation

28 May 2019


The relevant part of the applicant's FOI request to the Department, dated 27 August 2018, sought access to all records concerning payments made to a specific individual (Mr Y) and/or his legal representatives, relating to meetings with or attendance at the Smithwick Tribunal (the Tribunal) from 2005 to 2014. 

The Department's decision of 31 October 2018 granted full and partial access to seven records and refused access to one (record 2, a bill of costs). It said that record 2 is covered by section 42(e)(i)(II) of the FOI Act, which provides that the Act does not apply to records relating to a Tribunal. The Department acknowledged that records relating to a Tribunal's financial and administrative records are subject to the FOI Act. However, it said that it nonetheless considered record 2 to be outside the scope of the Act because it details the interactions between the Tribunal and Mr Y's solicitors.

The Department's decision also said that, even if the Act applies to record 2, it would be subject to substantial redactions of information attracting legal professional privilege (section 31(1)(a) of the FOI Act). Finally, it said that the record contains detailed information about Mr Y's whereabouts and contacts, which it said was exempt under section 32(1)(b) of the FOI Act (information endangering the life or safety of any person). 

On 2 November 2018, the applicant sought an internal review of the Department's decision on record 2. The Department's internal review decision of 21 December 2018 affirmed its refusal to grant access to the record on the grounds summarised above. It also said that, having consulted with the State Claims Agency, it was relying on sections 36(1)(b) and (c) (commercially sensitive information and information concerning negotiations). On 28 January 2019, the applicant applied for a review by this Office of the Department's decision.

I have now decided to conclude my review 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. I note that this Office informed the applicant of certain material issues on 22 March 2019, and that the applicant has not made submissions on those matters. I have had regard also to the provisions of the FOI Act and to a copy of record 2.

Scope of the Review

The scope of this review is confined to whether the Department is justified in refusing to grant access to record 2. 


In making my decision, I must comply with section 25(3) of the FOI Act, which requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. Accordingly, I can give little detail in my description of the record and in my analysis and reasons for the decision. 

The applicant says that she has no interest in ascertaining Mr Y's whereabouts. However, I must take account of the fact that the grant of access to a record under the FOI Act is understood, effectively, to be equivalent to the record's release to the world at large. 

Section 42(e)(i)
Section 42(e)(i) provides that the FOI Act does not apply to "a record relating to an inquiry into any matter by a tribunal to which the Tribunals of Inquiry (Evidence) Act 1921, is applied, whether the record concerned (I) is held by the tribunal of inquiry, or (II) is deposited with a person, or at a place, in compliance with the requirements of a notice under section 46(1) of the Civil Law (Miscellaneous Provisions) Act 2011 given to the chairman or former chairman, as the case may be, of the tribunal of inquiry ... other than ... (B) a record relating to the expenses of the tribunal ... or other matters concerning the general administration of the tribunal ...". 

The Smithwick Tribunal was established in 2005, further to the Tribunals of Inquiry (Evidence) Act 1921-2004, to enquire into suggestions that members of An Garda Síochána or other employees of the State colluded in the fatal shootings of RUC Chief Superintendent Harry Breen and RUC Superintendent Robert Buchanan on the 20 March, 1989. The sole member of the Tribunal was His Honour Judge Peter Smithwick. In April 2014, Judge Smithwick made orders for the legal costs of third parties at the Tribunal who had been granted representation, which included Mr Y. 

I am limited in the description I can give of record 2. It is 266 pages long and was prepared and submitted by Mr Y's solicitors further to Judge Smithwick's orders for legal costs. It details how Mr Y's legal costs were incurred by reference to the workings of the Tribunal. 

The applicant argues that the FOI Act applies to record 2 because it relates to the expenses of the Tribunal. The Department accepts that the record relates to the Tribunal's expenses. However, it says that it also details the extensive legal correspondence between Mr Y, his solicitors and the Tribunal, as well as the conduct and modus operandi of the Tribunal including its closed hearings. It says that, given the substance of the Tribunal and the security situation concerning many of the witnesses, Record 2 deals with issues that are far beyond what is generally understood to be "general administration".  

It is clear from section 42(e)(i) that the expenses of a Tribunal are a subset of matters concerning its general administration. While the Act is silent on the meaning of general administration, this Office considers that it clearly refers to records which have to do with the management of a Tribunal, such as records relating to personnel, pay matters, recruitment, accounts, information technology, accommodation, internal organisation and procedures and the like. I am satisfied that the term does not refer to records relating to matters concerning the core business of a Tribunal. While the record in this case contains financial information, it does not reflect payments for matters such as services provided to the Tribunal. Rather, it is concerned with the State's payment of legal costs of a third party who had been granted representation on foot of orders made by Judge Smithwick. I am satisfied that it also goes into much detail about the conduct of the Tribunal. Given the particular characteristics of the information in the record at issue in this case, I am satisfied that it does not relate to general administration.

In the particular circumstances of this case, I accept that record 2 comes within section 42(e)(i). I find that it is not subject to the FOI Act. 

Accordingly, I am not required to make findings on whether the record is covered by the exemption provisions in the Act as also claimed by the Department. However, from my examination of the record, I formed the view that if it was subject to the Act, it would most likely qualify for exemption under section 36(1)(b) and/or section 37(1) given the commercially sensitive and personal information in it. 


Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department's decision. I find that record 2 comes within section 42(e)(i) of the FOI Act and that it is therefore not subject to the 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. 



Elizabeth Dolan
Senior Investigator