Slovenia – Information Denied

Background of case:

A journalist requested the Minutes of the Ministry’s Working Body on Technical Coordination of Foreign Policy Activities. He also requested the Programme of anticipated foreign visits of the President of the Republic, the President of the Parliament, the Prime Minister, the President of the National Council, the ministers and heads of the Government services for the year 2007. The reason for the request was a perceived lack of coordination between the President of the Republic and the Prime Minister regarding their respective international visits and meetings with foreign dignitaries.

The Ministry rejected the request.

Programme of trips/vists: the Ministry invoked the exception of classified data (Article 6(1)(1)). It reasoned that it would be inappropriate to release the Programme, as foreign states could find out from the media about a planned visit and it would also be inappropriate that public would know about the visits public before all arrangements are concluded and confirmed by both sides. This could have important consequences for the economic and political relationships between the states.

Minutes of the meeting: the Ministry relied on the exception of “internal operations” (Article 6(1)(11)). The Ministry emphasised that the Minutes contains value judgments of those present at the meeting, which could harm the relations between Slovenia and the states involved.

Decision of Information Commissioner:

The requester’s appeal was denied based on the exception of protection of “internal operations” of the Ministry of Foreign Affairs (Article 6(1)(11) of APIA).

Slovenia – Ongoing

Background of case:

The applicant requested access to minutes and resolutions adopted by the College of the Minister of Education, Science and Sport and several of its Directorates in the period from 1 January 2012 to 1 September 2014.

The Ministry rejected the application, claiming that the requested documents in large part do not exist. In the part where they do exist (minutes and resolutions of the “Office for Youth”, an office under the Ministry), the Body invoked the exception of protection of “internal operations” (Article 6(1)(9)).

The applicant did not explain the arguments for disclosure or they are not noted down in the Commissioner’s decision.

Decision of Information Commissioner:

The Commissioner upheld the decision of the Ministry that it did not hold the information requested.

Poland – Information Denied

Background of case:

An NGO wanted to obtain full minutes of the Council of Ministers (CoM) session during which the EU Treaty on Stability, Coordination and Governance in the Economic and Monetary Union was discussed.

The Prime Minister refused to disclose such information as according to the 1996 Act on the Council of Ministers the minutes are protected from dissemination.

Decision of the Court:

The court upheld this decision explaining that:
“The merits of the case concerned the interpretation of Article 22 section 1 of the Act on the Council of Ministers of August 8, 1996. Pursuant to the abovementioned legal provision, Council of Ministers sessions are closed door meetings.”

Poland – Information Denied

Background of case:

An NGO wanted to obtain full minutes of a meeting held by the Standing Committee of the Council of Ministers (which prepares final drafts before a Council of Ministers session) concerning the discussion on the draft report on financial market supervision.

The Prime Minister informed that full minutes in the form of a protocol constitute an internal working document and do not fall under the FOI Act.

Decision of the Court:

The Court agreed with this statement arguing that:

“The fundamental fact to be established in this case is whether the information requested by the Association in the form of records (minutes) of the Standing Committee meeting of March 13, 2014 referred to in § 10 section 1 of Order No. 86 of the Prime Minister of November 28, 2013 on the Standing Committee of the Council of Ministers constitutes public information within the meaning of the Act on Access to Public Information.

Poland – Information Released

Background of case:

A citizen requested for access to the minutes of meetings (in the form of recordings) held between the government and Catholic Church representatives concerning consultations on various draft laws. The Minister of Administration and Digitization, who was the host of the meeting, denied access claiming that the recordings constitute a working, internal document.

Decision of Court:

The Regional Administrative Court in Warsaw did not agree with such a position and decided that:
“The information requested by the claimant concerning Joint Commission sessions, both in the form of minutes and draft documents or electronic records, meets the criteria of being classified as public information as it concerns the performance of public tasks by a public administration authority (the Minister of Administration and Digitization) by documenting the authority’s public activity.”

United Kingdom – Information Partially Released

Background of case:

Friends of the Earth asked for what meetings and correspondence there have been between Ministers and/or senior civil servants and employees from the Confederation of British Industry (CBI) one of whose main aims is to lobby government on behalf of its members. On 26 July 2005 the DTI provided some information but refused to supply other information held on the basis it was exempt under Sections 35 (policy formulation), but also 36 (prejudice to the conduct of public affairs) and 41 (confidential information) and Section 40 (Personal Data) of the UK FOI Act.

This is a particularly important case in the history of the UK FOI Act due to its relatively early arrival at the Tribunal level; it is one of the first cases to discuss lobbying and the effects of lobbying in detail and the depth to which the balancing of the public interest test was considered.

Due to the wide ranging nature of section 35, being interpreted broadly as anything that ‘relates to’ policy, and the Tribunal agreeing with the DTI’s reliance on the Department for Constitutional Affairs (DCA)’s guidance which states “a suggestion or advice received from a third party in the course of policy development will be covered by the exemption”, the case was not based on whether or not the information was subject to section 35 but on the balancing of the public interest test.

The Decision of the Tribunal:

Due to the complexity of the case, the number of exemptions and having to apply the public interest argument “in all the circumstances of the case”, the Tribunal largely upheld the Decision Notice, but have also upheld the appeal in part.

United Kingdom – Information Released

Background of case:

On 21 December 2009 the complainant made a freedom of information request to the Department of Health for information related to plain packaging on tobacco products. The request was refused under section 35(1)(a), information which relates to the formulation or development of government policy. The public authority concluded that the public interest in maintaining this exemption outweighed the public interest in disclosure.

The Decision of the Information Commissioner:

Mindful of the presumption in favour of disclosure the Commissioner decided that, in all the circumstances of the case, the public interest in maintaining the exemption does not outweigh the public interest in disclosure.

United Kingdom – Information Released

Background of case:

Dominic Hayes was and is the education correspondent of the Evening Standard newspaper. He submitted a request for information to the Department for Education and Skills (DFES) concerning the minutes of senior management meetings around a supposed funding crisis in schools. The information was denied subject to exemption 35(1) Policy Formulation.

The ICO ordered disclosure after considering the strength of the public interest in disclosure of the documents but the DFES appealed to the tribunal.

The Decision of the Tribunal:

The Tribunal upheld the Information Commissioner`s decision, to disclose the information as the public interest in disclosure outweighs the public interest in withholding the information.

Poland – Information Denied

Background of case:

This case is connected with the state described in the case with ref. no. II SAB/Wa 295/11.

The NGO asked the Prime Minister to deliver information on who decided to perform informal consultations via a mailing list with selected NGOs. The Prime Minister responded that there was no information as such a decision was not taken.

The Decision of the Courts:

The Regional Administrative Court in Warsaw, in its judgment of December 6, 2011 (ref. no. II SAB/Wa 260/11), acknowledged the existence of such an informal consultation process and therefore concluded that someone had to take the decision. Unfortunately after the appeal of the Prime Minister to the Supreme Administrative Court, the latter decided that:
“The Supreme Administrative Court hereby states that the fact that the draft law was discussed by the members of a closed mailing list is no proof of any formal decision of the body and, as a negative answer to the question was given, it would be difficult to say that the Prime Minister remained inactive.”

Finland – Ruled in favour of requester

Background of case:

The Supervisory Council argued that the recorded conversations in the minutes fall under Section 6(1)(6) of the Act on Openness as they were kept for the preparation of a matter or for the internal use of the authority.

The Supervisory Council had also invoked Section 5(4) of the Act on Openness. The argument used was that the authority had archived the conversations only for internal purposes and they had no duty to archive the documents. Moreover, the authority argued that it had pursuant to Section 5(4) ordered that access to the information can only be granted by permission of the authority. The authority also argued that to ensure that opinions can be formed freely, it is important that access to the conversations is limited.

The applicant argued in the Supreme Administrative Court that the Supervisory Council had not been credible in explaining that the conversations had been recorded only for preparation of the matter or for internal purposes.

The Decision of the Court:

The Supreme Administrative Court found that the minutes, including records of conversations, of the Supervisory Council were documents prepared by the authority. When the conversations had been recorded in writing, scrutinized and signed in an appropriate manner, they were not deemed to be internal documents or documents prepared for the preparation of a matter.

The Court ruled in favour of the requester, rejecting the authorities reasoning based on sections 5(4) and 6(1)(6) regarding the fact that the documents had been prepared for internal use or preparation of a matter. The court found that the authority could not justify its refusal on these grounds and give information only on the permission of the Supervisory Council, and therefore asked the authority to reconsider its decision.

Finland – Ruled in favour of requester

Background of case:

There were several exceptions invoked by the Ministry of Defense (Sections 24(1)(2), 24(1)(7)-24(1)(10)). In general, these exceptions relate to protection for international relations, security arrangements, public safety and military matters. The government had decided to prolong the period for secrecy of these documents in 1983 by 15 years. The Ministry also argued that even though the documents are fairly old, they contain information that is still pertinent with regard to defense.

As a second point, the Ministry of Defense argued that parts of the information can be deemed to be drafted for internal purposes according to Section 5(4) of the Act on Openness. The Ministry also argued that it is not possible to disclose parts of the documents without disclosing parts that come under the secrecy obligations. Moreover, the Ministry argued with reference to Section 16(1) of the Act on Openness that due to the big amount of documents (minutes from almost 100 meetings), partial disclosure is not possible without causing unreasonable inconvenience to the authority.

The Decision of the Court:

The court found that the secrecy obligation under Section 24(1)(10) applies to the documents requested and it is not obvious that disclosure will not violate or compromise the interests of defense. Nevertheless, the court found that not all parts of the documents come under the secrecy obligations.

Ireland – Information Released

Background of case:

The requester wrote to the Department of Justice requesting records relating to a particular investigation concerning herself and other family members, including minutes of meetings between herself and Department officials and the representative body for lawyers, and the police force. The Department decided to release 12 records and withhold 10, citing various exemptions under the FOI Act 1997-2003, including the deliberative process exemption.

The Decision of the Court:

Records 1, 2 and 3 consisted of a minute drafted by the Department of Justice of a meeting between the requester and her representatives and officials of the Department, attached to covering letters from the Secretary General of the Department to the Director General of the Law Society of Ireland, to the Commissioner of An Garda Síochána (the Irish police force), and to the Director of Public Prosecutions (the Irish public prosecutor) respectively on the attached minute of the meeting.

The Department argued against release of the records as it claimed it would undermine the confidentiality of communications between senior officials of the Department and of other bodies and that this would negatively impact upon the deliberative process.

The Information Commissioner’s Decision:

The Commissioner did not accept that there can be a blanket exemption on meetings held between Departmental officials, elected representatives and the people they represent. She ruled that each case must be judged on its merits.

United Kingdom- Information Denied

Background of case:

The complainant wrote to the public authority requesting copies of emails between officials and representatives of insurance organisations relating to the government’s proposed reforms to civil litigation funding and costs in England and Wales

The public authority however redacted information from the disclosed emails on the basis of the exemption at section 40(2), 35(1)(a) and 41(1)(a). The public authority submitted that the withheld information in the email chains ‘relates to the formulation of government policy in the area of referral fees, insofar as it relates to provisions in Part 2 of the Legal Aid, Sentencing and Punishment of Offenders Bill which is currently before Parliament’.

The Decision of the Information Commissioner:

The Commissioner found that in all the circumstances of this case, the public interest in maintaining the exemption at section 35(1)(a) outweighed the public interest in disclosing the withheld information.

Slovenia – Information Denied

Background of case:

The requester asked for the following information in relation with the construction of the “northern ring road” in Lenart v Slovenskih Goricah: the entire study on traffic which indicates the economic viability of the project, documents indicating the course of action, the project as part of the budget of the Republic of Slovenia.

The authority denied the request for access to the study which indicates the economic viability of the construction of the northern ring road pursuant to Sub-paragraph 9, Art 6 of the Access to Public Information Act (ZDIJZ), since the documentation was still in the process of being drawn up and subject to consultation within the authority. According to the opinion of the authority, the internal review within the authority may only be concluded after an expert review of the documentation and after the adoption of the final version of the documentation which is than subject to further reviews and assessments performed by other bodies or public.

The requester appealed only against the denial of access to the entire study on traffic which indicates the economic viability of the construction of northern ring road. The Applicant pointed out that the authority failed to prove the how disclosure of the requested document would lead to misunderstanding of its content.

The Decision of the Information Commissioner:

The Information Commissioner noted that the application of the exception to access because the documents are still in the process of being drawn up (Subpara 9, Par 1, Art. 6) contains three elements which must be taken cumulatively: – the document must be in the process of production, – the document must be subject of consultation by the authority, – specific harm test (the disclosure would lead to misunderstanding of its contents).

List of participants on a seminar (Finland) – Information Released

Background of case:

The Prime Minister’s office mainly argued that the participant list was drafted for the communication between the authority and participants and it was not archived. Pursuant to Section 5(4) the document was prepared for internal activities and therefore the Act on Openness was not applicable in the case.

The applicant argued that participant lists of events that are publicly funded should always be public, particularly with regard to the participating NGOs and lobbyists. If the lists are not public, these organisations can be deemed to represent the political parties that are in power. Furthermore, the applicant argued that the organizer needs to know the participants for taxation purposes. As information in the possession of the tax authority, this information would be public.

The Decision of the Court:

The document was considered to be public. The court emphasized that presentations and a video clip from the event are on the government’s website. The court found that it cannot be construed that the 300 participants would somehow be acting on behalf of the authority and therefore Section 5(4) was not applicable. The list was not considered to have been drafted for internal communication purposes and it was considered to be an official document. It had become a public official document at the time the seminar was organised. The court also considered the issue from the perspective of protection of personal data. The Court found that participation to the seminar does not fall in the sphere of protection of privacy. The list did not consist a register of personal data.

Private statistical information for public use (Finland) – Information Released

Background of case:

The Ministry of Finance argued that a condition for the use of the information was that it would be kept confidential as a business secret. The Ministry also argued that as statistical information voluntarily given to the authority the documents are secret (reference to Section 24(1)(16) of the Act on Openness). To reinforce this argument the Ministry stated that without the understanding that the information is confidential, most likely, it would not have been possible for the authority to receive the information at all since the price for the information would have been too high.

The Decision of the Court:

The Court found that all the information the applicant had asked was public i.e. the contract memo made between the Ministry and the company on providing the information, the price information provided by the company and the calculations made by the official for the preparation of the government proposal.

Education and Skills Report (Ireland) – Information Denied

Background of case:

The requester made a request to the Department of Education and Skills seeking access to all records in relation to the qualification called the “Secondary School Teacher’s Drawing Certificate”. This included records, briefing notes etc. created before and after a meeting the requester had with a senior official of the Department, other records, reports and minutes of meetings of the Department’s Management Advisory Committee (MAC) which contain records concerning the requester’s meeting with the senior public official.

The Decision of the Court:

Among other exemptions, the Department refused to release certain portions of a report (“Mr Byrne’s report”), citing deliberative processes (Section 20) still underway. The Department has released the report to the requester with the exception of material which it has redacted on pages 18-21, 24-27, 32, 35, 117-119 (and material which contains personal information or the names of examiners).

The Information Commissioner’s Decision:

The Information Commissioner did not ordinarily consider a report which was authored in 2007 to be eligible for exemption under section 20(1) as it would be expected that the decision making process in relation to the future of the “TS” examinations should have been finalised. The Commissioner requested that the Department provide evidence that the records in question form part of a decision-making process. The Department provided clarification in relation to both the delay in carrying out its review of the examinations and the current position in relation to the review.