1. FOI requests may be directed to government departments for board papers held in respect of State bodies not currently subject to FOI.

2. Subject to certain exceptions, board papers held by an official of a department are generally likely to be deemed to be records of that department and subject to the FOI Act - the internal circulation within a department (albeit limited) of many such papers and the usual role adopted by officials as departmental representatives on boards argue in favour of such interpretation. In any event, the exemptions of the FOI Act can be invoked to appropriately protect many board papers given their inherent sensitivity.

3. In considering an FOI request for board papers of a State body not subject to the Act, and which are held by a department, the decision maker should have regard to:

i. Section 26(i)(a)
Where board papers contain sensitive information a department may wish to invoke section 26(1)(a). There are a number of criteria which must be cumulatively met when applying this provision i.e.:
Ÿ The record must contain information given in confidence and on the understanding that it would be treated as confidential, and
Ÿ Its disclosure would be likely to prejudice the giving of further similar information, and
Ÿ It must be of importance to the department that such further similar information should continue to be given to it.

Particular issues to bear in mind when invoking section 26(1)(a) are: that the information itself must have the necessary quality of confidence (i.e. it must not be low grade or trivial) and that its handling by the department is consistent with its confidential nature. Appendix 1 sets out further guidance on these and related issues.

ii. Sections 27 and 31(1)(c) . These provisions offer protection against disclosure of sensitive financial, negotiation, or commercial information. Further guidance on these and other provisions of the FOI Act of possible relevance is outlined at Appendix 2.



Consultations with the State Body concerned
4. It is recommended that, at the outset, the State body be consulted informally so as to assist the decision maker in assessing whether the records may contain sensitive information.

5. A State body, which is not subject to the FOI Act, constitutes a third party for the purposes of consultation under section 29. Accordingly, formal consultation with that body, in accordance with section 29, is also appropriate if its board papers fall within sections 26, 27 or 28 of the Act and release in the public interest is being contemplated. Full guidance on appropriate consultation arrangements is set out in CPU Notice 13.

Records not subject to the Act
6. The Information Commissioner has outlined some circumstances in which board papers, although held by an official of a department, were not deemed to be held by the department and were found to be outside FOI - Appendix 3 refers .

Further advice
7. Any department involved in an appeal concerning board papers to the Office of the Information Commissioner may contact the FOI Central Policy Unit, Department of Finance, for guidance and input to their submission. Guidance is also available from the Civil Service Users' Network.

Departments are strongly advised not to seek to use section 26, or any other exemption, to withhold low grade or trivial material in board papers.

Information in Confidence- Guidance on Application of Section 26(1)(a)

Criteria to be satisfied to meet the requirements of section 26(1)(a)
There are four cumulative criteria to be met in applying section 26(1)(a) of the Act. Reasonable arguments must be put forward to demonstrate that all 4 elements have been met:

1&2. "the record concerned contains information given to the public body in confidence and on the understanding that it would be treated as confidential":

i) inherently confidential: The information must not be something which is public knowledge and must have some significance i.e. not contain solely trivial or inconsequential material

ii) circumstances importing an obligation of confidence: The following may be relevant:
Ÿ whether the information was communicated in confidence i.e. the circumstances surrounding the receipt of the information (e.g. any instructions from the board, etc.)
Ÿ the nature/sensitivity of the information itself
iii) treatment of the information: The conduct of both the department and the board towards preserving the secrecy of the information is relevant in supporting any claim of confidentiality. It should be noted, however, that the fact that material might be subject to limited internal circulation and be availed of by a department in developing an overview of issues, or in the management of its operations does not disbar its liability for protection under section 26(1)(a) (Ref: B v. Brisbane North Regional Health Authority Qld No. 94011- para 71)


3. "its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons"

Decisions makers may wish to consider:
Ÿ whether problems have arisen in the past in the supply of board papers to support concerns of disruption in the supply of information from the board of a State body to a department.
Ÿ the likelihood of the supply being disrupted through a combination of the following:
Ÿ civil servant members, under pressure from boards, reverting to the position previously held of being separate and independent of their departments in their performance of board functions
Ÿ civil servant members being absented from discussions on and receipt of papers on key issues
Ÿ possible reluctance to appoint civil servants to boards where discretion exists.
Ÿ the absence of general statutory provision in this jurisdiction compelling the provision of board papers to Ministers (the Australian Commonwealth Authorities and Companies Act, 1997 (s16) guarantees the provision of such information to Ministers)

4. "it is of importance to the body that such further similar information should continue to be provided"

Decision makers may wish to have regard to the following:
Ÿ the importance of departmental board members getting full and timely information to enable them to effectively discharge their functions,
Ÿ the likely adverse public interest arising from any disruption to the supply of board papers, most particularly in relation to the management of public expenditure and the maintenance of coherence in public policy across Government bodies.
Ÿ the importance of such information in developing an overview of issues, or in broader management by a department of its operations

Public interest considerations: Having established that the confidentiality provisions of section 26(1)(a) appropriately apply, decisions makers must then consider the public interest arguments for and against release and consult formally with the body, if appropriate.

In this regard, it should be noted that the presence of civil servants on boards has traditionally been regarded as advantageous to the public interest. The Review Group on Higher Remuneration recommended that each board of commercial state companies should have a suitable senior civil servant appointed to it. In addition, the Telecommunications, Energy and Communications Task Force established in 1995, found as follows: "Chairpersons and Chief Executives are of the view that senior civil servants may bring a breadth of experience to the boards of commercial State companies, not only experience of relevant sectoral developments nationally and internationally, but also of Government and EU policies".

1. Management Functions

Section 21(1)(b) - Information may be protected where disclosure would cause significant adverse affect to the management functions of the department.

Effective management of the State sector is one of the most complex and sensitive management functions of Ministers and their respective departments. Decision makers should have regard to the extent to which disclosure would significantly damage the exercise by a department of its management functions such as:
Ÿ Implementing Government policy through the State Body involved
Ÿ Securing appropriate information to enable the relevant Minister to discharge his/her accountability to the Oireachtas
Ÿ Maintaining an effective working relationship between the department and the body
Ÿ Effective co-ordination and management of the sector and issues for which the department holds responsibility.

In invoking this exemption, decision makers must advance reasonable arguments as to how such adverse effects would arise. Where the provisions of section 21(1)(b) apply, public interest arguments for and against release must also be considered.

2. Commercially sensitive information

Section 27 - This exemption provides protection for commercially sensitive information.
In applying this exemption departments might consider:
Ÿ whether the records would disclose trade secrets
Ÿ whether the body operates in a commercial environment and the likely damage to its commercial position
Ÿ whether disclosure of the records could prejudice the conduct or outcome of negotiations of the body or other person to whom the information relates

Public interest considerations: Having established that the provisions of section 27(1) appropriately apply, decisions makers must then consider the public interest arguments for and against release and consult formally with the body, if appropriate.


3. Economic interests of the State and public bodies

Section 31 - Information may be protected where its release could cause damage to the financial or economic interests of the State. In applying this exemption departments might consider factors such as:
Ÿ the role of the body in promoting the economic interests of the State i.e. the body may be in competition with other similar organisations abroad e.g. bodies in the tourism sector, industrial development, etc. Consequently, disclosure of information damaging to that body may also have wider implications for the economic interests of the State
Ÿ whether disclosure of the information may result in an unwarranted loss to the company
Ÿ whether disclosure of the information may be premature, and would be likely to cause undue disturbance to a particular sector of the economy or of business.

Public interest considerations: Having established that the provisions of section 31 appropriately apply, decisions makers must then consider the public interest arguments for and against release

4. A decision to invoke any of the foregoing exemptions must have regard to the content of the record involved and identify the damage which would flow from release.

5. Secrecy provisions in other enactments

Section 32. This provision requires that a public body refuse to grant a request in two circumstances:

Ÿ firstly, if disclosure of the record concerned is prohibited by any other enactment and,
Ÿ secondly, if non-disclosure is allowed by another enactment.

Enactment provisions listed in the Third Schedule to the FOI Act cannot, however, be considered for the purposes of this section.

Key considerations addressed by the Information Commissioner in determining that board papers, although held by an official, were not in fact held or under the control of a department were:
1. whether the independence of the board/commission is set out in statute/fundamental to its functions (IC finding 98041 re. Dublin Electoral Area Boundary Committee)
2. whether the official is appointed to the board virtue of expertise or skill, (rather than as a representative of his or her department). (IC finding 98098 re. Management Board assessing the National Conference Centre Project)