The High Court ruled that a 2001 draft memorandum prepared by the Minister for Education and Science was exempt from disclosure under the Freedom of Information Act, even though it was never submitted to Government.
The appeal concerned Record No. 32, a draft Memorandum for Government about religious congregations’ proposed contribution to the Residential Institutions Redress Scheme for victims of institutional child abuse. The Information Commissioner had decided that the record was not exempt under section 19(1)(a), in part because it was not sent to Government. The Minister appealed on a point of law under section 42(1).
Mr Justice Brian McGovern delivered judgment on 31 July 2008. The court considered whether the record had been “proposed to be” submitted to Government and created for that purpose, as required by section 19(1)(a). The Commissioner had also considered section 19(1)(c), but the judge noted that the Minister had not argued that exemption before the Commissioner. He said a new argument on appeal should generally be treated with caution and decided the case under section 19(1)(a).
The court accepted that Record No. 32 was never sent. But it found that, when prepared, it had been created for submission to Government. The judge said it discussed negotiations over congregations’ contributions and the Minister’s views on the possible rejection of a proposal. A later memorandum, Record No. 114, concerned the same subject after an agreement had been reached and was to be put formally to Cabinet.
The judge held that section 19(1)(a) covered a record proposed for submission even when it was not ultimately submitted. He concluded that the record fell within the exemption and that this rebutted the Act’s presumption that a refusal of access was unjustified unless the public body established otherwise.
The court held that the original refusal of the access request was correct and that the Commissioner had erred in law in interpreting and applying section 19(1)(a) to Record No. 32. The judgment did not determine the Minister’s section 19(1)(c) argument.