Case 98127. Policy papers - whether records submitted to Government are exempt - section 19 - whether records for use solely at Government meeting are exempt - section 19 - whether records were part of the deliberative process and release contrary to the public interest -section 20 - factual elements of records not exempt - whether records reveal strategy - whether access should be granted to pre-commencement records amended after commencement.

Case Summary

Facts

Ms Fitzgerald requested copies of minutes and a policy paper prepared for the Interdepartmental Strategy Group on Employment and Unemployment. Access was refused on the grounds that the records contained matters relating to the deliberative processes of the Department within the meaning of section 20 and that the deliberative process was ongoing. It was also claimed that section 19(1) applied to one record, a Background Paper on Unemployment prepared for the Cabinet Committee on Social Inclusion by the Strategy Group.

Decision

The Commissioner found that the background paper was not submitted to the Government by a Minister of the Government or the Attorney General. Therefore, the exemption in section 19(1)(a) could not apply.

The paper was prepared for the information of the Cabinet Sub-Committee but there was nothing, either in its contents or in the circumstances of its preparation, to suggest that it was intended for use solely at meetings of the Sub-Committee. Therefore, the Department was not entitled to rely upon section 19(1)(c) to refuse access.

The Commissioner decided that the bulk of the paper was factual but that it contained matter relating to the Department's deliberative process. That process was ongoing and final decisions as a result of these deliberations had not yet been made. He rejected the argument that release in this case would affect the frankness and candour of participants in future deliberative processes. He also decided that release in this case would not reveal future Government strategy. The Commissioner pointed out that section 20 is not a class exemption and that where public bodies seek to rely on it any arguments against release must be supported by the facts of the case and a specific harm to the public interest flowing from the release must be identified.

In relation to the minutes, the Commissioner decided that although one meeting was held before the commencement of the FOI Act, the minutes were amended after the next meeting of 19 May 1998 and the revised minutes were therefore created after the commencement of the Act. He decided that access should be granted to factual information and to some non-factual information where no harm to the public interest was identified. He decided that access to some information that revealed the substance of the whole or part of a statement made at Government meetings could be refused.

Date of Decision: 30.04.1999

DECISION

Background:

On 23 August 1998, Ms Eithne Fitzgerald made a request to the Department of the Taoiseach, under the Freedom of Information (FOI) Act, for copies of "minutes and policy papers prepared for the Interdepartmental Strategy Group on Unemployment chaired by Dermot McCarthy since 21 April last". On 23 September 1998, the Department decided to release two records but refused access to six other records on the basis that the exemption in section 20 (deliberations of public bodies) applied.

Ms Fitzgerald sought an internal review of this decision on 1 October 1998, asking that she be given detailed reasons for any refusal and any considerations of the public interest which were taken into account in arriving at the decision. On 21 October 1998, the internal reviewer decided to release two further records but affirmed the decision to refuse access to the remaining four records on the grounds that they contained matters relating to the deliberative processes of a public body within the meaning of section 20 and that the deliberative process was ongoing. He also argued that section 19(1) of the FOI Act applied to one record. Ms Fitzgerald applied to my Office for a review of this decision in a letter received on 29 October 1998. She argued that the public interest issue was not adequately examined and also questioned whether there was any material in the withheld documents to which section 20(2)(b) would apply (factual information and analyses thereof) and whether the document excluded under section 19(1) was created for the purpose of submission to a Government subcommittee.

Having considered the matter, I decided to review the decision of the Department and invited submissions from the relevant parties.

The records in question were initially considered by the Department to comprise a Background Paper on Unemployment prepared for the Cabinet Committee on Social Inclusion by the Strategy Group on Employment and Unemployment and minutes of three meetings of the Strategy Group held on 19 May, 12 June and 9 July 1998. During the course of the review, it emerged that the minutes of a meeting held on 7 April 1998 were amended after the meeting of 19 May 1998 and these amended minutes were thus created after the commencement of the FOI Act. In reviewing the decision, I examined the records involved. I have also considered the arguments made by Ms Fitzgerald and the Department and, in particular, the latter's submissions to me dated 27 November 1998 and 26 February 1999. My officials pointed out to the Department that the records contained factual information and endeavoured to effect a settlement by asking the Department to agree to release parts of the records concerned and Ms Fitzgerald agreed to the suspension of the review in accordance with section 34(7) of the FOI Act. The Department decided against partial release and, therefore, I have proceeded to this decision.

Submissions

Ms Fitzgerald

Ms Fitzgerald did not make a submission but her application for review contained her arguments in favour of release. She pointed out that section 20(1)(b) "explicitly calls for an evaluation to be made of whether the release of matters relating to uncompleted deliberations would be contrary to the public interest". She argued that the internal reviewer's decision "would make a nonsense of the public interest override provisions which were a very deliberate counterbalance to the exemptions".

The Department

The Department's initial submission accepted that it is necessary to show the existence of public interest considerations which would warrant application of the exemptions provided for under the Act. It pointed out that the operation of policies and programmes to tackle unemployment are of strategic importance because of the scale of resources involved, their implications for the operation of fiscal policy and their significance for the social partnership embodied in Partnership 2000. It further pointed out that commitments in regard to these policies and programmes are the subject of current and continuing discussion with sixteen social partners and that the position adopted by Government has implications, not only for the direct costs of programmes but also for the maintenance of social partnership and the vital economic interests of the State. It argued that disclosure of material which would inhibit the development of a co-ordinated position on these matters across government departments and agencies or prejudice the Government's position vis-à-vis discussions and negotiations with the social partners could be contrary to the public interest.

In relation to the public interest considerations, it argued that the Background Paper on Unemployment was prepared for the purpose of informing future actions and decisions in addressing unemployment, particularly in the context of the Budget and also the implementation of the present Partnership 2000 Agreement and in the negotiation of its successor. It argued that the paper represents a base input to the ongoing deliberative process. It claimed that the release of the paper would put into the public domain information on strategies which the Government may adopt in negotiating the successor to the Partnership 2000 Agreement and would be contrary to the public interest in that it would prejudice those negotiations. It also argued that the paper contains proposals for strategies and policies which have not yet been agreed and that the premature release of information about these sensitive deliberations would be contrary to the public interest.

A further factor against the release of the contents of the paper put forward was that the process relied upon the willingness of participants to contribute in an open and frank manner and that early disclosure of the deliberations would prejudice the willingness of participants to contribute in this free fashion. The Department argued that the meetings, the minutes of which were sought, relate predominantly to the draft paper and similar public interest considerations arise in relation to the release of the minutes.

The submission also argued that the Background Paper is a document submitted to the Government within the meaning of section 19(1)(a) and access was also refused on that ground.

My officials wrote to the Department stating that it appeared that the Background Paper was submitted to the Cabinet Committee by the Strategy Group rather than by a Minister or the Attorney General and asking for its observations as to why the record would be exempt under section 19(1)(a). The Department was also asked to address the issue of whether the records concerned relate to the deliberative processes of the Department of the Taoiseach as the public body concerned with this request or whether the deliberative process in this instance was broader than the Department of the Taoiseach. The Department was asked to identify the specific aspects of the Background Paper which would put information into the public domain on strategies the Government may adopt in negotiating the successor to the Partnership 2000 programme. The Department was asked to identify the specific proposals contained in the Background Paper which were not finalised or agreed and whether the Department was willing to release the paper after these proposals are agreed.

The attention of the Department was drawn to section 20(2)(b) which provides that the exemption does not apply to

"factual (including statistical) information and analyses thereof"

and it was pointed out that the Background Paper contains a great deal of factual information. The Department was asked to consider whether it might be possible to release parts of the record.

The Department's arguments against the release of the minutes of the meetings were similar to those relating to the Background Paper and it was invited to address these issues in the context of the minutes and also to consider partial release of these minutes.

The Department made a further submission in response to these queries. It pointed out that section 19(1)(c) provided for refusal of access in appropriate circumstances and that the Cabinet Committee on Social Inclusion is a part of the Government decision-making mechanism which transacts business on its behalf in the broad area of social inclusion policy. It argued that "the interpretation of 'public body' should be read as wider than the Department of the Taoiseach, comprising two levels. First, a number of Departments and FÁS, through their memberships of the Strategy Group on Employment and Unemployment, contribute to the exploration and progression of labour market policy issues, including the compilation of policy papers (as in the case of the Background Paper) for Government consideration. And second, Government, through the members of the Cabinet Committee on Social Inclusion, progress the deliberative process in whatever way is considered most appropriate".

In response to the query on the specific aspects of the Background Paper which would reveal strategies which the Government may adopt in negotiations on a successor to Partnership 2000, it pointed to a number of actions that had been taken on foot of consideration of the paper by the Cabinet Committee on Social Inclusion. It argued that the Background Paper represents a base input to an ongoing deliberative process and that "as a principle, that process, until completed, should be given full protection and that is the purpose of Section 20 of the Act".

With regard to the question as to whether section 20(2)(b) was applicable, the Department contended that "'factual (including statistical) information and analyses thereof' would frequently form part of any ongoing deliberative process, particularly under the umbrella of Government consideration". It argued that section 19(3)(a) was the more relevant provision of the Act and that there has been no publication of a decision of the Government relating to this matter. It indicated that the Department was willing in principle to release both the Background Paper and subsequent papers, yet to be produced, when the deliberative process has been completed.

The Department also claimed that the same arguments applied to the minutes of the meetings which were sought.

Findings

There are five documents at issue in this review as follows:

• Background Paper on Unemployment
• Minutes of the meetings of the Strategy Group on Employment and Unemployment held on 7 April, 19 May, 12 June and 9 July 1998.

Background Paper

Section 19

This paper was prepared for the Cabinet Committee on Social Inclusion by the Strategy Group on Employment and Unemployment. Section 19(6) provides that

' ''Government" includes a committee of the Government, that is to say, a committee appointed by the Government whose membership consists of (a) members of the Government, or (b) 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'.

Membership of the Cabinet Committee on Social Inclusion comprises the Taoiseach, the Tánaiste, various Ministers and Ministers of State and the Attorney General. Thus the Cabinet Committee complies with the definition of "Government" in the section.

The Department has argued that it is entitled to refuse to grant access to this record under Section 19(1). This section provides that

"A head may 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,

(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 solely for the purpose of the transaction of any business of the Government at a meeting of the Government".

I should note at this point that there is an important distinction between section 19(1)(a) and section 19(1)(c). Section 19(1)(a) is concerned with the status of a record, i.e. was it submitted or will it in the future be submitted, to the Government for its consideration by a Minister or the Attorney-General and was it created for that purpose. The normal category of records covered would be formal memoranda for Government including Aides Memoire. Needless to say many such memoranda are not prepared solely for the purpose of the transaction of any business of the Government at a meeting of the Government. While their dominant purpose may be to get a Government decision or to bring certain matters to the attention of Government for noting or approval as appropriate, such memoranda may also be used for other purposes after the conclusion of the meeting of the Government, for example, draft legislation.

Section 19(1)(c) is concerned with the contents and useof records and, unlike section 19(1)(a) applies to records which are given to an individual member of Government for use by him or her solely for the purpose of transaction of the business of the Government at a meeting of the Government. This category of records would clearly cover departmental briefing notes for individual ministers attending a Government meeting, and indeed, notes prepared for the Secretary to the Government or Assistant Secretary to the Government for the purposes of such a meeting. In case number 9840, I ruled that section 19(1)(c) applied to the agenda of a Government meeting. The sole reason for the creation of such records is to assist the Government in the conduct of one or more of its meetings and the record ceases to have a purposeful existence after the conclusion of the meeting.

The Department appears to have accepted that this paper was not submitted to the Government by a Minister of the Government or the Attorney General and it did not pursue this claim in its second submission. Section 19(1)(a) can only apply to records submitted by a Minister of the Government or the Attorney General. In other words, the means by which the record is submitted to Government is of concern. The Department has not claimed that the Strategic Group on Employment and Unemployment submitted the Background Paper to the Cabinet Committee through any Minister. It is obvious in the circumstances of this case that the exemption in section 19(1)(a) would have applied had the record been submitted to Government by a Minister, but this did not, in fact, occur. While the failure to submit the paper to the Government by a Minister of the Government or the Attorney General might seem a rather technical point, it is one which I cannot ignore, given the clear wording of section 19(1)(a). I find that the Department is not entitled to rely upon section 19(1)(a) to refuse access.

The Department also relied upon section 19(1)(c) to refuse access. As noted above, for this exemption to apply, the record in question must contain 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, and this information must be for use by him or her solely for the purpose of the transaction of any business of the Government at a meeting of the Government.

The information is, according to the Department, the base input to an ongoing deliberative process. It has argued that commitments in regard to policies and programmes to tackle unemployment are the subject of current and continuing discussion with sixteen social partners and that disclosure of the material in this record would prejudice the Government's position vis-à-vis discussions and negotiations with the social partners. It is thus clear that the Background Paper forms part of a process which goes beyond meetings of the Government and includes meetings with the social partners. The information in this record is mainly factual and statistical. It is essentially an overview of existing Government policy in relation to tackling unemployment. It describes the measures in place or being put in place to implement this policy and it highlights a number of priority issues for attention by the Strategy Group on Employment and Unemployment over the following year. It was used to brief the Committee but I think that it is important to note that the document contains no discussion of policy options nor does it put forward policy recommendations.

The Department's claim for exemption is based on the premise that the information in this record is for use by the members of the Cabinet Sub-Committee solely for the purpose of transacting business at their meetings. I can accept that, in many cases, the information in a document submitted to such a committee will be intended for use only at the meetings of the committee. This might be the case where, for example, the information was of a sensitive nature or where it contained discussions of future policy options. However, this is not the case here. The Background Paper was prepared for the information of the Cabinet Sub-Committee and there is nothing either in its contents or in the circumstances of its preparation, to suggest that it was intended for use solely at meetings of the Sub-Committee. It seems to me that, as an information paper, its purpose was to inform the members of the Sub-Committee for whatever purposes they thought fit and that its use could not be confined to the transacting of business of the Government at a meeting of the Government. Indeed, the very nature of the process described by the Department - involving future discussions and negotiations with the social partners - appear to me to make it unlikely that the members of the Cabinet Sub-Committee would not make use of the information in subsequent discussions and negotiations.

Taking account of the type of information involved and the process as a whole, I would not accept that the soleuse which members of the Cabinet Committee on Social Inclusion would make of this information would be the transacting of business at its meetings.

Therefore, I find that the Department is not entitled to rely upon section 19(1)(c) to refuse access.

Section 20

The Department also sought to refuse access under section 20. Section 20(1) provides that

"A head may refuse to grant a request under section 7

(a) if the record concerned contains matter relating to the deliberative processes of the public body concerned (including opinions, advice, recommendations, and the results of consultations, considered by the body, the head of the body, or a member of the body or of the staff of the body for the purpose of those processes), and

(b) the granting of the request would, in the opinion of the head, be contrary to the public interest,

and, without prejudice to the generality of paragraph (b), the head shall, in determining whether to grant or refuse to grant the request, consider whether the grant thereof would be contrary to the public interest by reason of the fact that the requester concerned would thereby become aware of a significant decision that the body proposes to make".

Section 20(2)(b) provides that subsection (1) does not apply to a record if and in so far as it contains "factual (including statistical) information and analyses thereof,......".

As my officials pointed out to the Department, the Background Paper contains factual information and the exemption in section 20 cannot be relied upon to refuse access to this information. Having examined the paper, I have decided the bulk of it is factual. The paper does contain some comment, some interpretation and some suggestions as to future actions and predictions of future events as identified below:

• Page 9 Third paragraph, the sentence following "other employability support" (Comment)
• Page 9 Fifth paragraph and
• Page 10 Everything before "The National Action Plan" ( Suggested future actions)
• Page 12 All of the fifth paragraph except the first sentence. (Prediction of future events)
• Page 13/14 Last sentence of paragraph on Youth Progression (Interpretation)
• Page 17 First paragraph, the two sentences after the phrase "range of programmes available." (Suggested future actions)

Therefore I have decided that, having regard to section 20(2)(b), the only parts of the paper which are capable of qualifying for exception under section 20(1) are the parts identified above. Having made that decision, I must consider whether the remainder of the record, as detailed above, qualifies for exemption under section 20(1).

As a preliminary point, I considered whether the Background Paper is part of the deliberative processes of the Department of the Taoiseach as the public body concerned with the request. Deliberative processes involve the consideration of various matters with a view to making a decision on a particular matter. In this case, the Department of the Taoiseach, as part of a Group comprising a number of other Departments and agencies, is considering various options in relation to tackling unemployment. While I do not accept the Department's contention that the interpretation of "public body" should be read as wider than the Department itself, I accept that the Background Paper contains matter relating to the Department's deliberative process in that the Department considered the paper for the purpose of deciding on its input into policy and strategy in relation to unemployment. I also accept that this process is ongoing and that final decisions as a result of these deliberations have not yet been made.

Before dealing with the detailed arguments which the Department has made, I would like to make two general observations on the exemption in section 20(1) and how it should be applied. The first point to note is that for the exemption to apply, two requirements must be met. The first is that the record must contain matter relating to the deliberative process; the second is that disclosure must be contrary to the public interest. These are the two independent requirements. The fact that the first is met carries no presumption that the second is also met. I should add that I do not accept the view put forward by the Department that "as a principle, the [deliberative] process, until completed, should be given full protection and that is the purpose of section 20". I can discern no such principle in the terms of section 20 and if, indeed, the purpose of the section was to protect matter relating to the deliberative process until that process had been completed, it would have been a simple matter for the Oireachtas to have enacted a specific provision along these lines.

The second point is that the exemption must be applied and the public interest considered having regard to the contents of the record or records at issue in each particular case. This view is supported by comments of Deputy President Hall in the Australian case of Re Fewster and the Department of Prime Minister and Cabinet (1986) 11 ALN N266 which were quoted with approval by the Queensland Information Commissioner in the case of Eccleston and the Department of Family Services and Aboriginal and Islander Affairs (Decision No. 93002). Dealing with the arguments that disclosure of certain documents would undermine confidentiality, inhibit the proper expression and exchange of views on matters relating to government policy and inhibit the frank and open expression of advice, opinion and recommendation by senior officers to the Prime Minister, the Deputy President stated:

"..... the substance [of the argument] was that to release the particular document (or part of document) would "increase the expectation that such documents would be released in the future" and would thus prejudice either the necessary "confidentiality" that must exist in high level communications between Ministers or the necessary "candour and frankness" with which advice to Ministers must be expressed. In other words, so the argument ran, the need to ensure confidentiality and candour and frankness in future "similar" documentsis of such overriding importance in the public interest, that the present documents should not be disclosed. Such an argument, if accepted by the Tribunal, would lead inevitably to the conclusion that all deliberative process documents of the kind in question are exempt from disclosure under the Act. To disclose one such document would be likely to destroy the climate of confidentiality and candour and frankness which is essential to communication between and with Ministers. (38) In my view, a proposition in those broad terms cannot be sustained for the purposes of s.36(1)(b) of the FOI Act. ... no justification is to be found within the language of s.36 of the Act for a "class" claim of exemption".

In other words, section 20 is not a 'class' exemption designed to protect all records related to a deliberative process, regardless of contents.

I turn now to the specific arguments made by the Department. The Department has not argued that the granting of the request would be contrary to the public interest by reason of the fact that the requester concerned would thereby become aware of a significant decision that the body proposes to make. It has instead pointed to a number of general factors which it feels would render the granting of the request contrary to the public interest, viz.

• that the disclosure of the material would inhibit the development of a co-ordinated position on these policy matters across Government Departments and agencies,
• that the disclosure of the material could prejudice the Government's position vis-à-vis discussions and negotiations with the social partners and that the release of the Background Paper would put into the public domain information on strategies which the Government may adopt in negotiating the successor to the Partnership 2000 Agreement and would prejudice those negotiations,
• that the paper contains proposals for strategies and policies which have not yet been agreed and that the premature release of information about these sensitive deliberations would be contrary to the public interest.

In support of the first of these arguments, the Department contended that the process relied upon the willingness of participants to contribute in an open and frank manner and that early disclosure of the deliberations would prejudice the willingness of participants to contribute in this free fashion. This would in turn inhibit the development of a co-ordinated position. I do not accept this as a factor against the release of this information. The FOI Act has introduced a new regime in respect of records held by public bodies and, while I accept that open and frank discussion is often required in order to evaluate and assess policy options, I do not accept as a general proposition that the Act would have the effect of preventing public servants from properly carrying out their functions.

I should make it clear that I have rejected this argument in the light of the actual contents of the record concerned. As will be appreciated from the general description which I gave earlier, the record is in the nature of an information paper. While it undoubtedly deals with a matter of public importance, there is nothing in it which I can imagine its authors would have omitted if they had known from the outset that it would be the subject of a request under the FOI Act.

I should also make it clear that, in exceptional cases, an argument regarding frankness and candour mightbe sustainable in the context of the public interest test in section 20(1)(b). Two examples are given in the Eccleston case to which I have already referred. The first, in paragraph 128, concerns the furnishing of a report on the suitability of an officer for appointment to high office; the second, in paragraph 135, relates to a public servant who is responsible for advising the Minister in a particular area, and who needs to be acceptable to a number of parties who have competing interests - preservation of confidentiality of the official's views may be the only way of preserving the relationship of frankness between the official and all parties. However, I should reiterate that arguments about inhibiting frankness and candour must be supported by the facts of the case and specific harm to the public interest flowing from that inhibition must be identified.

In relation to its second argument, detailed above, my officials asked the Department to explain how the disclosure of the material could reveal strategies that the Government may adopt in negotiations to the successor to Partnership 2000 but, beyond describing the Paper as a base input to an ongoing deliberative process and outlining how the process is expected to develop, the Department did not specify what elements of the paper could reveal these strategies.

In a general sense, I accept that in certain circumstances disclosure of future Government strategies may not be in the public interest. No detailed arguments were put to me as to why disclosure of future strategy in negotiating the successor to Partnership 2000 would be against the public interest. However, I find that I must reject the Department's argument, in any event, because there is no evidence before me as to how the paper could, in fact, reveal the strategy.

The third argument is that "premature" release of the information is not in the public interest. The term "premature" release is not contained in section 20. The Department did not explain what it meant by premature but I think that it is clear from its submissions that it considers release to be premature until such time as the strategies and policies in question have been finalised or agreed or, as it also put it, until the deliberative process has been completed. The difficulty with this argument is that even if I were willing to accept that the concept of "premature" release was a valid one, the Department did not explain how such release could be against public interest. (I consider the provision for deferral of access to records in section 11 does not apply and the Department has not referred to that section).

Of course, it is obvious that release of matter relating to a deliberative process prior to the conclusion of that process may very well entail a degree of inconvenience for public bodies. Disclosure may spark further public debate, challenges to the views or facts contained in the material or criticisms of the public body or its officials. In theory, of course, such inconveniences may also arise if the material is released after the deliberations have been completed. However, it is tempting to conclude that the delay will work in the interests of the public body in the sense that matters will have moved on and the public will concern itself more with the decision which has emerged and less, if at all, with the detail of the process which resulted in the decision.

As I have already indicated, I do not accept that section 20 requires, as a matter of principle, that material should be withheld until the conclusion of a deliberative process. It is open to a public body to argue, in any particular case, that the public interest requires no disclosure until the process has been completed. However, as with the arguments in relation to inhibiting frankness and candour, any arguments on this ground must be supported by the facts of the case and a specific harm to the public interest flowing from the release must be identified. I find that this has not been done in this case and therefore I must reject this argument.

In summary, I have decided that the release of the Background Paper in its entirety would, in fact, not be contrary to the public interest and I do not accept that the Department is entitled to rely upon section 20 to refuse access.

Minutes of the meetings of the Strategy Group on Employment and Unemployment

The minutes of the four meetings are broadly similar in structure. I will make some initial observations which apply to all four records before dealing with each record separately. The Department's submissions argued that the same public interest considerations pursuant to section 20 applied to these minutes as to the Background Paper.

Generally speaking, minutes are a brief summary of the proceedings at meetings and, by their very nature, are bound to contain some factual information. They may also contain elements of a non-factual nature. It might be argued that minutes are entirely factual on the basis that they record matters of facts i.e. the events which occurred, the decisions reached and the contributions made, at a meeting. In my view this is too wide an interpretation of the term "factual information" in section 20(2)(b). In particular, in considering whether a report of the contributions made by attendees at a meeting is factual information, it is necessary to look beyond the fact that the contribution was made and examine the contents of each contribution. Thus, for example, the reporting of the fact that opinions, advice or recommendations were proffered at a meeting does not mean that those opinions, advice or recommendations are factual information. Having examined the minutes in question, I have decided that they consist almost entirely of non-factual information. However, the attendance lists for these meetings are factual information and are attached to the minutes as an appendix. The Department is not entitled to rely on section 20(1) to refuse access to these lists.

As stated above, two requirements must be met before the Department is entitled to rely upon section 20 to refuse access. The first is that the record must contain matter relating to the deliberative process; the second is that disclosure must be contrary to the public interest. I accept that all these meetings are part of the deliberative process and it is clear that minutes of such meetings relate to this deliberative process.

The Department made three general arguments in relation to the public interest which I dealt with when considering the release of the Background Papers. I should make it clear that I have considered the application of these arguments to each of the sets of minutes and I have rejected them for the same reasons as I rejected the claim for exemption in relation to the Background Paper.

I will now deal with each record in turn.

Meeting held on 7 April 1998

While this meeting was held before the commencement of the FOI Act, the minutes were amended after the meeting of 19 May 1998 and the revised minutes were therefore created after the commencement of the FOI Act. The first, second and final items are factual and the Department is not entitled to rely on section 20 to refuse access to them.

The third and fourth items record the views of the attendees. This part of the record does not contain factual information. However, I have decided that its release would not be contrary to the public interest, for the reasons outlined in relation to the Background Paper.

Meeting held on 19 May 1998

The first two items are factual and the Department is not entitled to rely on section 20(1) to refuse access to them.

The third and fourth items record the discussion of the group on two draft papers prepared by Departments represented on the Group. As with the third and fourth items of the minutes of 7 April and for the same reasons, I have decided that the release of this part of the record would not be contrary to the public interest.

The last sentence of the fifth and final item is factual information. The Department is not entitled to rely upon section 20 to refuse access. The remainder of the fifth item is non-factual. It deals with a then forthcoming meeting with the social partners and outlines the approach that is proposed to be adopted by members of the group. The Department did not point to the fifth item on this record as something which it specifically sought to withhold. However, I have carefully considered this item in the light of the Department's insistence that it would not be in the public interest to reveal the Government's strategies in future negotiations with the social partners. Even if I were to accept this, in principle, as a reason for non-disclosure, I have decided after examining the contents of the record, that no damage to the Government's negotiating position could result from its release. In coming to this view I have taken into account the fact that the meeting in question took place many months ago, there is no evidence on the record that the matters under discussion were the subject of controversy between the Government and the social partners and the meeting appeared to be more for the purpose of exchanging views than for the purpose of negotiating an agreement.

Therefore, I have decided that the Department has not shown that release in this case would be contrary to the public interest. Indeed, having regard to the public interest in upholding the rights of access under the Act, it could be argued that the public interest is better served by release.

Meeting held on 12 June 1998

The first two items are factual and the Department is not entitled to rely on section 20(1) to refuse access to them.

I have decided that it would not be contrary to the public interest to release the balance of the record, for the reasons outlined in relation to the Background Paper.

Meeting held on 9 July 1998

The first, second, fifth and sixth items are factual and the Department is not entitled to rely on section 20 to refuse access to them.

The third item contains references to a discussion held at the Cabinet Committee on Social Inclusion and to a meeting of the Government. Section 19(2) of the FOI Act provides that

"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 (i) referred to in paragraph (a) or (c) of subsection (1), or (ii) by which a decision of the Government is published to the general public by or on behalf of the Government". After consideration, I have decided that all of this item with the exception of the fourth paragraph contains information that reveals, or from which may be inferred, the substance of the whole or part of a statement made at these meetings. These parts are not a record referred to in section 19(1)(a) or 19(1)(c), nor are they a record by which a decision of the Government is published to the general public. Therefore, there is an obligation on the Department to refuse to grant access to the third item with the exception of the fourth paragraph.

I find that the release of the fourth paragraph would not be contrary to the public interest, for the reasons outlined in relation to the Background Paper.

The third sentence of the second paragraph of the fourth item contains information that reveals or from which may be inferred, the substance of the whole or part of a statement made at a Government meeting. The first sentence of the second last paragraph of this item also contains similar information. For the reasons outlined in relation to the third item, there is an obligation on the Department to refuse to grant access to these sentences. I find that the release of the balance of this item would not be contrary to the public interest, for the reasons outlined in relation to the Background Paper.

Decision

Having considered the decision of the Department, both initially and on internal review, I have decided to annul the decision of the Department not to grant access to the records concerned and to make a new decision granting access in full to the Background Paper and the minutes of the meetings of the Strategy Group on Employment and Unemployment held on 7 April, 19 May and 12 June 1998 and granting partial access to the minutes of the meeting of 9 July 1998. Access is granted to all of the latter record except paragraphs 1,2 3, 5 and 6 of item 3; the third sentence of the second paragraph and the first sentence of the fourteenth paragraph of item 4.

Information Commissioner

30 April 1999