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4. 2. Meetings of the Government
Table of Contents
Text of Section 19
19.- (1) A head shall refuse to grant a request under section 7 if the record concerned-
(a) has been, or is proposed to be, submitted to the Government for their consideration by a Minister of the Government or the Attorney General and was created for that purpose,
(aa) consists of a communication-
(i) between two or more members of the Government relating to a matter
that is under consideration by the Government or is proposed to be
submitted to the Government, or
(ii) between two or more such members who form, or form part of, a group of such members to which a matter has been referred by the Government for consideration by the group and the communication relates to that matter,
(b) is a record of the Government other than a record by which a decision of the Government is published to the general public by or on behalf of the Government, or
(c) contains information (including advice) for a member of the Government, the Attorney General, a Minister of State, the Secretary to the Government or the Assistant Secretary to the Government for use by him or her primarily for the purpose of the transaction of any business of the Government at a meeting of the Government.
(2) A head shall refuse to grant a request under section 7 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 by which a decision of the Government is published to the
general public by or on behalf of the Government.
(3) Subject to the provisions of this Act, subsection (1) does not apply to a record referred to in that subsection-
(a) if and in so far as it contains factual information relating to a decision of the Government that has been published to the general public, or
(b) if the record relates to a decision of the Government that was made more than 10 years before the receipt by the head concerned of the request under section 7 concerned, or
(c) if the record relates to a communication to which subsection (1)(aa) applies and the communication was made more than 10 years before the receipt by the head concerned of the request under section 7 concerned.
(4) The Secretary General to the Government shall, in each year after the year 2003, furnish to the Commissioner a report in writing specifying the number of certificates issued by him or her in the preceding year under paragraph (b) of the definition of 'Government' in subsection (6).
(5) Where a request under section 7 relates to a record to which subsection (1) applies, or would, if the record existed, apply, and the head concerned is satisfied that the disclosure of the existence or non-existence of the record would be contrary to the public interest, he or she shall refuse to grant the request and shall not disclose to the requester concerned whether or not the record exists.
(6) In this section-
"decision of the Government" includes the noting or approving by the Government of a record submitted to them;
"record" includes a preliminary or other draft of the whole or part of the
material contained in the record;
"Government" (except in paragraphs (a) and (b)) includes-
(a) a committee of the Government, that is to say, a committee appointed by the
Government whose membership consists of-
(i) members of the Government, or
(ii) 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,
and
(b) a committee of officials-
(i) that is appointed by the Government for the purpose of assisting the
Government in relation to a particular matter that has been submitted to the Government for their consideration,
(ii) that is requested by the Government to report directly to them in
relation to the matter, and
(iii) in relation to which the Secretary General to the Government
certifies in writing at the time of its appointment that it is a
committee of officials falling within this paragraph;
"officials" means two or more of the following persons:
(a) a person holding a position in the Civil Service of the Government or the
Civil Service of the State;
(b) a special adviser within the meaning of section 19 of the Ethics in Public
Office Act 1995;
(c) a person who is a member of any of such other (if any) classes of person
as may be prescribed.
2.1 Introduction to Section 19
The head of a public body must refuse to grant access to a record if the record
(i) was submitted, or is intended to be submitted to Government,
(ii) is a Government record other than a published Government decision,
(iii) contains information for a member of the Government attending a meeting of the Government or
(iv) consists of a communication between two or members of the Government concerning a matter that at the time of the creation of the record is before or is expected to come before Government.
The head must refuse access if the record concerned contains all or part of a statement made at a Government meeting or information from which the substance of all or part of such a statement may be inferred.
"Government" in this section includes a committee of the Government as defined in subsection (6).
Material other than that relating to statements at Government meetings are not protected by this exemption if:
- it relates to a Government decision taken more than ten years prior to the receipt of the request,
- if it consists of a communication between two or members of the Government made more than 10 years prior to the receipt of the request or
- if it constitutes factual information and the Government decision to which it relates has been published.
2.2 KEY WORDS AND PHRASES IN SECTION 19
Government – "Government" includes a committee of the Government (including a committee of officials) as defined in subsection (6).
Submitted to Government – Includes bringing the matter to Government meetings, irrespective of the purpose of the matter, how submitted or the position taken by Government. The definition of "Government" includes Government committee.
Decision of the Government – This would appear to capture both formal and informal decisions as well as noting or approval by Government of material considered by it.
Published Government Decision – means any record incorporating all or part of a Government decision that has been published in an authorised manner – examples are press releases [This does not include a record of a Government decision where the record itself was not published, even if knowledge of all or part of the decision is in the public domain].
Statement made at a meeting of the Government – This constitutes a record which contains the whole or part of comments or exchanges made at a Government meeting, or from which may be inferred such comments or exchanges of the Government. Such material is subject to the constitutional protection of Cabinet confidentiality.
Factual information – Factual information is defined in section 2 of the Act as including information of a statistical, econometric or empirical nature, together with any analyses thereof. [It does not include, for example, expressions of opinion, assertions, advice, proposals or observations].
2.3 ELEMENTS OF THE SECTION
2.3.1 Section 19(1)
The head of a public body must refuse to grant access to a record if that record meets any one of the following conditions:
19(1) (a)
A record submitted or intended to be submitted to the Government. Records in this category include final or draft versions of memoranda, aides memoir etc. In the case of material submitted to or in preparation for Government, where a doubt arises the format, structure, and content of the record would normally provide clear indications as to its purpose. Evidence that a record had been submitted to Government, or is being circulated as a draft memorandum, should suffice to enable decision makers to claim this exemption.
This is a class exemption i.e. a request for a record meeting the necessary criteria must be refused subject only to subsection (3). There is no reasonable expectation, injury or public interest test. The key factor in attracting the protection of Section 19(1) (a) is that the record in question was prepared for the purpose of being submitted to the Government or a committee of the Government within the meaning of section 19(6) for their consideration. While Government memoranda would inevitably fall into this category, records attached to a Government memorandum will only enjoy protection if it can be shown that they were created for the purpose of being submitted to Government.
In the case of disputed documents, a sworn statement by the relevant Minister or senior official might be of particular assistance to confirm that such a record was indeed destined for Government. The absence of such a statement would oblige the Information Commissioner to make a decision on the Minister's intentions in this area.
19(1)(aa)
The record consists of a communication (i) between two or more members of the Government relating to a matter that is under consideration by the Government or is proposed to be submitted to the Government for their consideration or (ii) between two or more such members who form part of a group to which a matter has been referred by the Government for consideration by the group and the communication relates to that matter.
If at the time of its creation a communication of this kind relates to a matter that is at that time or is expected at that time to come before Government, it is exempt for a period of 10 years, subject to section 19(3). This provision also applies to a record that, at the time of its creation, relates to a matter that is intended to be brought to Government but which, for whatever reason, was ultimately not submitted to Government.
19(1)(b)
The record is a Government record other than a published Government decision. This provision offers protection to material such as an agenda for a Government meeting, informal Government decisions, notations and confidential decisions.
19(1)(c)
The record contains information (including advice) for a member of the Government, the Attorney General, a Minister of State or the Secretary General or Assistant Secretary General to the Government for use by such a person primarily for the purpose of the business of the Government at a Government meeting. The use of the word 'primarily' in this context extends protection to records which may have also been created or used for other incidental purposes.
All elements of Section 19(1)(c) have to be satisfied before the exemption can be applied i.e. the material must have been prepared for the ultimate use of a person attending a Government meeting and be intended for the transaction of business at a Government meeting.
2.3.2 Section 19(2)
A head is required under subsection (2) to refuse access to a record relating to a meeting of the Government where the record contains all or part of a statement made at a Government meeting and/or information from which the substance of all or part of such a statement may be inferred.
This provision reflects the overriding constitutional principle that any record which explicitly or by implication reveals Cabinet discussions must not be disclosed.
While automatic protection for records to which subsection (1) applies lapses after 10 years, a request for a record to which subsection (2) applies must be refused at any time.
2.3.3 Section 19(3)
This provides that Section 19(1) does not apply to a record if
- it relates to a Government decision or to a communication to which Section 19(1)(aa) applies which is more than 10 years old by reference to the date of the receipt of the request or the date of the communication or
- insofar as the record constitutes factual information and the Government decision to which it relates has been published to the general public.
In the case of factual information, the protection lapses as soon as the relevant Government decision is published. However, it should be noted that it is very rare for the record of an actual Government decision to be published.
Particular care needs to be taken by decision-makers in relation to the identification of material in memoranda etc as factual. Factual information is defined in section 2 of the FOI Act as: "including information of a statistical, econometric or empirical nature together with any analysis thereof" and would generally comprehend things which are known to have occurred in the sense of being tangible facts and figures providing a factual background to a topic.
Material which may qualify as factual will nevertheless need to be considered in the context of section 19 as a whole and by reference to the Act's other exemptions. Any information which could reveal either explicitly or by implication discussions at a meeting of the Government cannot be disclosed in accordance with subsection (2). Any other information which, while ostensibly factual, may carry the potential the damage the operation of Government or the administration of the public service would need to be considered by reference to the Act's other exemptions including, in particular, section 20 (deliberations of public bodies), section 21 (functions and negotiations of public bodies), section 23 (law enforcement and public safety), section 24 (security, defence and international relations) and section 31 (financial and economic interests of the State and public bodies).
The separation of factual information and analyses thereof from other material, such as advice, may not always be readily achieved. Two areas of critical overlap are:
(i) Summaries of factual information which are of such a character as to disclose a process of selection involving opinion, advice or recommendation
(ii) Statements of conclusions reached while apparently factually based, frequently involve opinions or advice.
In some circumstances factual material may be "inextricably intertwined" with exempt records. In such cases, where reasonable effort has been made by a public body to separate exempt material from other material (consistent with section 13), the exemption may be claimed.
2.3.4 Section 19(4)
This subsection requires the Secretary General to the Government to notify the Information Commissioner on an annual basis of the number of certificates issued by him or her under Section 19(6).
2.3.5 Section 19(5)
This subsection provides for the head to refuse to disclose whether or not a particular record covered by section 19(1) exists (or would be so covered if it existed) if he or she is satisfied that such disclosure would be contrary to the public interest. This provision is most likely to be invoked in respect of sensitive records coming within the scope of sections 22 (Legal professional privilege only), 23 (Law enforcement), 24 (Security, defence and international relations), 26 (Information given in confidence), 27 (Commercially sensitive information) or 28 (Personal information).
This provision, which is subject to particular criteria, gives the public body the option of responding to a request in an equivocal fashion and thus not "giving the game away". By not confirming that a record exists or does not exist, a requester can be prevented from drawing inferences which might otherwise be available. Such a response is justifiable in this section on the grounds that disclosure of the existence or non-existence of the record would be contrary to the public interest.
Clearly, this provision lessens the duty to provide reasons for the decision to the requester. Where a refusal to confirm or deny provision in the Act is invoked, there is no obligation to quote the provision in the decision nor to provide findings on material issues of fact nor particulars of the public interest (s 8(2)(d)(ii)).
However other aspects of the decision making process described in Part I of this Manual must be followed. Decisions to refuse to confirm or deny constitute a refusal to give access to a record under the Act and the decision to use the provision is reviewable. The records must be examined by a reviewer (if they exist) to enable him to form his or her own view about whether the application of the provision was appropriate.
A range of possible responses that may be provided to a requester when a refusal to confirm or deny provision in the Act is invoked is contained in the section of the manual concerning sections 22, 23, 24, and 26-28.
2.3.6 Section 19(6)
This subsection defines the following terms as used in Section 19:
"decision of the Government" includes the noting or approving by the
Government of a record submitted to it;
"record" includes a preliminary or other draft of the whole or part of the
material contained in the record;
"Government" (except in paragraphs (a) and (b)) includes-
(a) a committee of the Government, that is to say, a committee
appointed by the Government whose membership consists of-
(i) members of the Government, or
(ii) 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,
and
(b) a committee of officials-
(i) that is appointed by the Government for the purpose of assisting
the Government in relation to a particular matter that has
been submitted to the Government for their consideration,
(ii) that is requested by the Government to report directly to
them in relation to the matter, and
(iii) in relation to which the Secretary General to the
Government certifies in writing at the time of its
appointment that it is a committee of officials falling
within this paragraph;
"officials" means two or more of the following persons:
(a) a person holding a position in the Civil Service of the Government or the Civil Service of the State;
(b) a special adviser within the meaning of section 19 of the Ethics in Public Office Act 1995;
(c) a person who is a member of any of such other (if any) classes of person as may be prescribed.
The inclusion in the definition of Government of committees of the Government and of certified committees of officials extends the protections of sections 19 to records related to the business and work of such committees. This would include memoranda or other records submitted to such a committee for their consideration and to information, advice etc. for a member of the committee for the purpose of the transaction of the business of the committee at any of its meetings.
2.4 Central Policy Unit advises:
· The preparation of memoranda, aides memoire, inter-ministerial communications etc. in a way that enables access to any factual information underlying published decisions;
· That Departments remember that the entire record could, subject to other FOI exemptions, be accessed ten years following the relevant Government decision or date of the inter-ministerial communication;
· That each Department should actively seek out, own and deal with FOI requests relating to memoranda etc. it has sponsored. Notice to this effect setting out particular access arrangements might be given when publicising a particular Government decision.
· That the Cabinet Secretariat or CPU be advised of any issues arising which may have implications for issues of general interpretation of the provisions relating to Cabinet records.
· That consideration be given to the issuing of contextual statements when announcing Government decisions on significant policy issues setting out the detailed pros and cons of the issues considered to be made routinely available outside of FOI. Experience suggests that this approach can work to obviate the need for the public to make FOI requests in relation to Government decisions.
· That Departments be aware that for a committee of officials to have the protections of section 19, the committee must have been certified by the Secretary General to the Government at the time of its appointment as a committee that meets the criteria set out in subsection (6).
· That arrangements are in place in Departments to ensure that records being refused under section 19 are not released inadvertently in response to particular requests.
· Any Department wishing for further advice as to the status of a record potentially covered by Section 19 of the Act can contact the Cabinet Secretariat at ph: 6194089 for further guidance.
Case Precedents
1. (a - 1d)Re Little and Ors and Department of Natural Resources (Information Commissioner, Queensland, Decision No.96002, 22 March 1996) (Re Little)
2. Ryan v US Department of Justice 617F 2nd 781 (DC CIR 1980)
3. Mead Data Central Inc v Department of US Air Force