Case 030622. Request for records relating to drafts of the National Spatial Strategy (NSS) - whether records have been, or were proposed to be, submitted to Government for their consideration - 19(1)(a) - records of communication between members of Government - 19(1)(aa) - records of Government - section 19(1)(b) - whether records contain information for use primarily at a meeting of Government - 19(1)(c) - statement made at a meeting of Government - 19(2) - whether a committee of officials meets the definition of "Government" - section 19(6)(b)

Case Summary

Facts

This case involved a request by a member of the Oireachtas for access to records relating to drafts of the National Spatial Strategy (NSS). The Department refused the request under section 19. During the course of the review, the Deputy agreed to exclude from the scope of his request the draft versions of the NSS, because section 19 clearly applied. He also agreed to narrow his request to the non-factual information in the remaining records at issue. The records at issue included Government Memoranda and other submissions, records that contributed to drafts which were submitted to the Government, records of the Government, briefing material, notes of a discussion at a Government meeting, records relating to the Inter-Departmental Steering Committee (IDSC), and records of communication between members of the Government.

Decision

The Commissioner accepted that, while not all of the Memoranda for Government were actually submitted to the Government, all of the documents were at least proposed to be submitted to the Government and were created for that purpose. She therefore found the Memoranda for Government to be exempt under section 19(1)(a). She found that an appendix that was created as an attachment to a Memorandum for Government was also exempt under section 19(1)(a). However, the Commissioner observed that another appendix that was circulated with a Memorandum for Government was almost identical to a record that had previously been prepared for the purpose of a presentation to the Minister. She therefore was not satisfied that this appendix was created for the purpose of submission to the Government and found that it was not exempt.

As the definitions at section 19(6) specify that a "'record' includes a preliminary or other draft of the whole or part of the material contained in a record", the Commissioner accepted that section 19(1)(a) also applied to draft Memoranda for Government and drafts of material contained in a Memorandum for Government. In addition, she accepted that a submission to the Government seeking to have consideration of certain documents placed on the agenda for a meeting of the Government was likewise exempt under section 19(1)(a).

The Department sought to withhold records comprising of comments from various sources on the basis that they also qualified as drafts of material contained in a record submitted to the Government. In accordance with the decision in Case Number 99450, the Commissioner accepted that submissions from Ministers and/or Departments made in response to the Department's invitation for observations on a draft Memorandum for Government and a draft of the NSS were exempt under section 19(1)(a). The Commissioner observed, however, that other documents were prepared outside the Cabinet process referred to in Case Number 99450. One such document was a submission from an Inter-Agency Planning Managers Group to the Department of Enterprise, Trade and Employment. Another document was a separate submission from a member of the Inter-Agency Group, IDA Ireland. The file showed that both the draft Memorandum and the draft of the NSS had been circulated to a representative of the Inter-Agency Group for observations. The Commissioner noted that a submission from the Department of Enterprise, Trade and Employment incorporating the views of the Inter-Agency Group or the IDA could be exempt under section 19(1)(a). However, she did not accept that the Cabinet Handbook provides for the direct solicitation of observations or views on matters being submitted to the Government from parties other than Ministers or Departments except in limited circumstances not present in this case. She also noted that the relevant final Memorandum included no reference to consultation with any parties other than Ministers and Departments. She concluded that the submissions from the Inter-Agency Group and the IDA, as well as the other documents prepared outside the Cabinet process, did not qualify for exemption.

The titles of two other records suggested that they were also related to Memoranda for Government. The Commissioner noted, however, that the contents of the records showed them to be merely lists of recipients of copies of the Memoranda for Government referred to. The Commissioner was not satisfied that these records were exempt.

Records of the Government were found to be exempt under section 19(1)(b). In addition, the Commissioner found that section 19(1)(c) applied to records containing information for use by the Minister primarily for briefing purposes in relation to Cabinet meetings and a meeting of a Cabinet Sub-Committee. However, the Commissioner was not satisfied that section 19 applied to general briefing papers, i.e. where no evidence had been presented to show that the records contained information for use by the Minister primarily for the purpose of the transaction of Government business at a meeting of the Government. She was also not satisfied that section 19 applied to a draft of an "easy guide" to the NSS that was intended for publication as part of the communications strategy.

A record consisting of notes of a discussion held at a meeting of the Government, which included statements made by individual members of the Government, was found to be exempt under section 19(2).

The Department claimed that records relating to the IDSC were exempt on the basis that the IDSC met the definition of "Government" under section 19(6)(b). The Commissioner rejected this claim. While it was apparent that the IDSC was established with Government approval to direct the preparation of the NSS, the Commissioner found no evidence that the IDSC was certified in accordance with section 19(6)(b)(iii), which requires the Secretary General to the Government to issue the necessary certificate at the time of the appointment of the committee.

Lastly, the Department invoked section 19(1)(aa) with respect to a record consisting of communications between members of the Government relating to the preparation of the NSS. Section 19(1)(aa) provides, in pertinent part, a mandatory exemption for records consisting of a communication between two or more members of Government relating to a matter that is under consideration by the Government or is proposed to be submitted to the Government. The Commissioner observed that section 19(1)(aa) only refers to matters under consideration currently or prospectively; unlike section 19(1)(a), it does not include a matter that has been submitted to or under consideration by the Government. As the NSS had been published and the Department had presented no evidence to show that the matter referred to in the record remained under consideration by the Government or was proposed to be submitted again to the Government, the Commissioner was not satisfied that section 19(1)(aa) applied.

The Commissioner varied the decision of the Department.

Date of Decision: 24.08.2004

Our Reference: 030622

24.08.2004

Deputy O'Dowd

Dear Deputy O'Dowd

I refer to the review of the decision of the Department of Environment, Heritage and Local Government to refuse your request for access to records relating to drafts of the National Spatial Strategy (NSS). Please accept my apologies for the delay which has arisen in bringing this review to completion.

Background

I have now completed my review of the Department's decision. As you previously have been advised, this review has been carried out in accordance with the provisions of the Freedom of Information (FOI) Act, 1997, as amended by the Freedom of Information (Amendment) Act, 2003. Accordingly, all references in this letter to particular sections of the FOI Act, except where otherwise stated, refer to the 1997 FOI Act as amended. In carrying out my review, I have had regard to your communications with the Investigators assigned to this case and to the submissions made to this Office by the Department. I have also examined the records at issue.

Scope of Review

During the course of this review, you agreed to exclude from the scope of your request records to which section 19 clearly applied. You stated that you were not interested in the factual information in such records (section 19(3) refers). Therefore, the draft versions of the National Spatial Strategy, identified as records number 1 to 26 in the Departments original schedule of records, were excluded from the scope of the review.

As Ms. Sarah Kember explained to you, the remaining records, which were originally numbered 27 to 38, actually consisted of groups of records. You agreed that any of these records to which section 19 also clearly applied would likewise be excluded from the scope of the review. At Ms. Kember's suggestion, the Department created a comprehensive schedule setting out the records individually. It is my understanding that a copy of the comprehensive schedule has been provided to you. Following further discussions with Ms. Kember, the Department agreed to release some of the records to you. The Department refused to release the remaining records under section 19 of the FOI Act.

Section 19 clearly applies to many of the remaining records. Although you have agreed that such records may be excluded from the scope of this review, for the sake of convenience, I will nevertheless address these records in the findings section of this letter decision. However, as you have indicated that you are not interested in having the factual information extracted from records that otherwise fall within the ambit of section 19, this review will not address the question of whether parts of such records are subject to release pursuant to section 19(3).

Accordingly, using the numbering system adopted by the Department in its comprehensive schedule of records, this review is now concerned solely with the question of whether the Department is justified in refusing access under section 19 to the non-factual information in records number 27A-27O; 28B- 28X; 29B-29I; 30B-30Q; 31A-31H; 32A-32T; 36A-36O; 38A-38C, 38E; 38Y-38Z; 38AB; 38AI-38BG; and 38BO.

Findings

Preliminary Matters

Before dealing with the relevant exemptions, I wish to make two points. The first is that, while I am required by section 34(10) of the FOI Act to give reasons for my decisions, this is subject to the requirement of section 43 that I take all reasonable precautions to prevent disclosure of information contained in an exempt record during the course of a review. I also have to refrain from disclosing information which a public body contends is contained in an exempt record so as to preserve that party's right of further appeal to the High Court. These constraints mean that, in the present case, the extent of the reasons that I can give is limited. The second point that I wish to make is that, where a public body refuses access to records under the FOI Act, then in any subsequent review by me that refusal is presumed not to have been justified unless the public body satisfies me to the contrary (section 34(12)(b) of the FOI Act).

Section 19 As Amended

I believe it is useful to set out the amended provisions of section 19 in full:

(1) "A head shall refuse to grant a request (...) 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 an 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 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 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 advisor 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.

As can be seen from the above, section 19 is now a mandatory exemption, and no public interest test is included.

Records Submitted to Government

The Department claims that the following records were submitted to the Government, or consist of "documents contributory to drafts which were submitted to Government":

• 27A-27O
• 28B-28X
• 29B-29I
• 30B-30Q
• 38A-38C, 38Y-38Z, 38AB, 38AI-38BG

Government Memoranda and Submissions

Records number 27A, 27C/D, 27F, 27L, 27M/N, 28D, 28E/H, 29B, 29D/E/I, 30H, 30I/N, 38C, 38AI, and 38AJ consist of Memoranda for Government. The file indicates that not all of these documents were actually submitted to the Government. For instance, records number 27A and 27L were prepared for submission to the Government, but either were not placed on the agenda for the then upcoming meeting of the Government or were not submitted because of a postponement. Nevertheless, I accept that all of the documents were at least proposed to be submitted to the Government and were created for that purpose, and I find that they are exempt under section 19(1)(a).

Record number 29F is a copy of an appendix that is included in records number 27L and 27M/N. Although record number 29F is included with other documents relating to a meeting of the Government in July 2002, it appears that this document was actually created as an attachment to the Memorandum for Government that was prepared for an October 2002 meeting of the Government. This meeting was postponed and another, almost identical Memorandum was prepared in November 2002 that also included the appendix. Both the October and November Memoranda include reference to the appendix, and I am satisfied that the appendix is also exempt under section 19(1)(a).

Records number 27H and 29C are also identical copies of an appendix that was circulated with a Memorandum for Government, apparently in July 2002. However, the appendix is almost identical to record number 37C, which was prepared in June 2002, apparently for the purpose of a presentation to the Minister. Moreover, record number 28R, which purportedly was prepared in advance of a Government meeting in March 2002, appears to be a draft of the appendix. Having compared the documents, and having regard to an unpublished decision in Case Number 020277, in which the Department was a party, I am not satisfied that records number 27H and 29C were initially created for the purpose of submission to the Government. Accordingly, I find that these records are not exempt.

Records number 38A, 38B, and 38AB are draft Memoranda for Government, or in the case of record number 38AB, a draft of material contained in a Memorandum for Government. As the definitions at section 19(6) specify that a "'record' includes a preliminary or other draft of the whole or part of the material contained in a record", I accept that section 19(1)(a) applies to these records.

Record number 27G is actually dated July 2002 rather than June 2002, as the schedule states, but is also a Memorandum for Government and is exempt under section 19(1)(a). Record number 27B is a submission to the Government, as stated on the schedule, seeking to have consideration of certain documents placed on the agenda for a meeting of the Government; I accept that it is likewise exempt under section 19(1)(a).

Contributory Documents

The Department also seeks to withhold records number 38AK to 38BE and 38BG under section 19(1), apparently on the basis that they contributed to drafts which were submitted to Government. As stated on the schedule, these records are comprised of comments from various sources, including, but not limited to, other Departments.

In Case Number 99450, Mr. X and the Department of Justice, Equality and Law Reform (21 Nov. 2000), available at www.oic.ie, the former Commissioner, Mr. Kevin Murphy, accepted that observations from the Department of Finance relating to the Government decision to relocate the Legal Aid Board to Cahirciveen constituted "a preliminary or other draft of the whole or part of the material" contained in a final Memorandum for Government and were therefore exempt under section 19(1)(a). In reaching his decision, Mr. Murphy referred to the Cabinet Handbook from which he determined that part of the material in any Memorandum for Government is the observations supplied by other Ministers or Departments. However, Mr. Murphy made it clear that not every comment from one Department to another is likely to meet the provisions of section 19(1)(a). In Case Number 99450, he attached considerable importance to the fact that the records contained the Minister's views or at least a draft of what the Minister's views would possibly be. Subsequently, in an unpublished decision in Case Number 020554, Mr. Murphy found that a submission from the Department of Justice, Equality and Law Reform containing, amongst other things, the views of the Data Protection Commissioner that was made to the Department of Environment and Local Government in response to its invitation for observations on a draft Memorandum for Government on the Electoral (Amendment) Bill, 2000 also fell within the ambit of section 19(1)(a). I concur with Mr. Murphy's decisions in Case Numbers 99450 and 020554.

In this case, the file shows that various sources provided comments in relation to the NSS, which resulted in revised drafts of the NSS. More specifically, it appears that prior to February 2002, a draft of the NSS was prepared by the Inter-Departmental Steering Committee (IDSC) that was based, at least in part, on the results of the widespread consultation that had taken place in relation to the NSS Public Consultation Paper. This draft was circulated on or about 11 February 2002 for observations. Some of the parties consulted in February 2002 were also invited to make observations on a draft Memorandum for Government (records number 38A and 38B), but other parties only received a copy of the draft of the NSS. Following further revision, the Memorandum for Government and the draft of the NSS were submitted to the Government on 25 February 2002.

The following documents consist of submissions from Ministers and/or Departments in response to the Department's invitation for observations on the draft Memorandum for Government dated February 2002 and the draft of the NSS: records number 38AM; 38AP; 38AQ; 38AR; 38AS, page 2; 38AW; 38AX; 38AZ; and 38BB. The observations of the Ministers and Departments are expressly referred to in the Memorandum for Government dated 25 February 2002 (records number 28E/H, 38AI) and the Memorandum for Government dated 6 March 2002 (records number 27C/D, 28D, and 38AJ - see below), which is a supplementary note to the earlier memorandum. I accept that these records were prepared through the Cabinet procedures referred to in Case Number 99450 and are therefore exempt under section 19(1)(a).

However, it appears that the remaining documents were prepared outside the Cabinet process through, for instance, internal Departmental memoranda, submissions to the IDSC, or were made by non-Departmental sources. One such document, record number 38AT, is a submission from an Inter-Agency Planning Managers Group to the Department of Enterprise, Trade and Employment. In addition, a member of the Inter-Agency Group, IDA Ireland, made a separate submission a day earlier, identified as record number 38BA(2). The file shows that both the draft Memorandum and the draft of the NSS were circulated to Ms. Marie Bourke of Forfás on behalf of the Inter-Agency Group for observations. In accordance with the decision in Case Number 020554, I would accept that a submission from the Department of Enterprise Trade and Employment incorporating the views of the Inter-Agency Group or the IDA could be exempt under section 19(1)(a). However, it does not seem to me that the Cabinet Handbook provides for the direct solicitation of observations or views on matters being submitted to the Government from parties other than Ministers or Department except in limited circumstances not present in this case. I further note that the final Memorandum dated 25 February 2002 includes no reference to consultation with any parties other than Ministers and Departments. I conclude that records number 38AT and 38BA(2) are not exempt. I am also not satisfied that the following documents qualify for exemption: records number 38AK; 38AL; 38AM 38AN; 38AO; 38AS, page 1; 38AU; 38AV; 38AY; 38BA; 38BC; 38BD; 38BE; and 38BG.

Other

Records number 27E, 27I, 27J, 27O, 28B-C, 29G/H, 30L/P, 30M/O, 38Y, and 38Z are records of the Government and are exempt under section 19(1)(b). I accept that the following documents contain information for use by the Minister primarily for briefing purposes in relation to Cabinet meetings: records number 28F, 28G/W, 28I, 28V, 28X, 30D, 30F, 30G, and 30K. These records are exempt under section 19(1)(c).

Record number 30J consists of notes of the discussion held at the Government meeting on 16 November 2002. It includes the statements made by individual members of the Government and is therefore exempt under section 19(2).

Record number 27K is entitled, "Memorandum of 31st October, 2002 Sent to Government". Record number 30Q is entitled, "Memorandum to Government of 13 November, 2002 - Gone to Whom." The contents of these records, however, show them to be merely lists of recipients of copies of the Memoranda for Government referred to. The Department has agreed to release similar records of this nature (e.g., record number 28A, 29A, 38BQ), which in my view do not fall within the ambit of section 19. I am not satisfied that records number 27K and 30Q are exempt.

Records number 28J to 28U, 30B, 30C, and 30E resemble the records that I have found to be exempt above under section 19(1)(c) in that they appear to have been prepared for the purpose of providing the Minister information relating to the NSS. However, they seem to be general briefing papers, i.e., I have been presented with no evidence to show that the records contain information for use by the Minister primarily for the purpose of the transaction of Government business at a meeting of the Government. In the absence of such evidence, I am not satisfied that section 19 applies.

Records Relating to the IDSC - 19(6)(b)

Records number 31A-I and 32A-T are documents relating to the Inter-Departmental Steering Committee (IDSC) on the National Spatial Strategy. Included are minutes of meetings of the IDSC, attendance lists, submissions to the IDSC, and correspondence relating to the IDSC. The Department claims that the IDSC may meet the new definition of "Government" under section 19(6)(b) and that the records would be exempt under section 19(1) on this basis. In support of this claim, the Department has presented a copy of the Aide Memoire, dated 17 January 2000, that was submitted to the Government in relation to the establishment of the IDSC and a copy of the subsequent Government decision.

While it is apparent that the IDSC was established with Government approval to direct the preparation of the NSS, I find no evidence that the IDSC was certified in accordance with section 19(6)(b)(iii), which requires the Secretary General to the Government to issue the necessary certificate at the time of the appointment of the committee. Indeed, it does not seem possible for such certification to have occurred since the establishment of the IDSC predated the FOI (Amendment) Act that introduced section 19(6)(b) into legislation. No other exemption has been claimed in relation to records number 31A-I and 32A-T. I conclude that the Department has not met its burden of showing that these records are exempt.

Records Relating to a Committee of the Government - 19(6)(a)

In contrast, it is apparent that records number 36A, 36B, 36C, 36D, 36E, and 36H-O contain information for use by the Minister primarily for briefing purposes in anticipation of a meeting of the Cabinet Sub-Committee on Housing, Infrastructure, and PPPs that was held on 22 October 2002. I accept that the Cabinet Sub-Committee qualifies as a committee of the Government as defined in section 19(6)(a). Accordingly, I am satisfied that these records are exempt under section 19(1)(c).

However, included among the records relating to the Cabinet Sub-Committee is record number 36G, which appears to be a draft of an "easy guide" to the NSS that was intended for publication as part of the communications strategy. The easy guide seems to have been derived from the appendix at records number 27L, 27M/N, and 29F. The final page of the document gives directions for obtaining a copy of the easy guide free of charge. Unlike the appendix at records number 27L, 27M/N, and 29F, there is no evidence that the easy guide or its draft was created for the purpose of being submitted to Government, including the Cabinet Sub-Committee. I also find no evidence that the easy guide or the draft was intended for use by the Minister primarily for the transaction of Government business at a meeting of the Cabinet Sub-Committee. I conclude that record number 36G is not exempt.

I also note that record number 36F, which is almost identical to record number 30E, closely resembles the easy guide. The file indicates that these documents were prepared at about the same time, and there are only marginal differences between them. It therefore appears that record number 36F was prepared primarily for general briefing purposes, for the Minister and others, and I am not satisfied that it is exempt.

Records of Communication - 19(1)(aa)

The Department has invoked another new exemption under section 19 with respect to records number 38E and 38BO. Section 19(1)(aa) now provides, in pertinent part, a mandatory exemption for records consisting of a communication between two or more members of Government relating to a matter that is under consideration by the Government or is proposed to be submitted to the Government. Record number 38E is letter dated 7 February 2002 from the then Minister for the Environment and Local Government to the Taoiseach relating to the preparation of the NSS. Its contents are of a routine nature, referring briefly to the process of preparing the NSS and the circulation of a finalised draft of the Strategy. Nevertheless, I accept that it is a communication between two members of Government relating to a matter that was under consideration by the Government. However, section 19(1)(aa) only refers to matters under consideration currently or prospectively; unlike section 19(1)(a), it does not include a matter that has been submitted to or under consideration by the Government. The NSS has now been published and the Department has presented no evidence to show that the matter referred to in record number 38E remains under consideration by the Government or is proposed to be submitted again to the Government. In the circumstances, I am not satisfied that section 19(1)(aa) applies.

Record number 38BO, on the other hand, is a response from the Minister for the Environment and Local Government to the observations of the Minister for Agriculture, Food and Rural Development. The observations of the Minister for Agriculture, Food and Rural Development are found in draft form at record number 38AB and in final form at records number 27C/D, 28D, and 38AJ. The observations were provided in response to the draft Memorandum for Government dated February 2002 (records number 38A and 38B), but too late to be included in the final Memorandum for Government dated 25 February 2002 (records number 28E/H, 38AI). I have found the observations and the draft observations to be exempt under section 19(1)(a) as a Memorandum for Government and a draft Memorandum for Government, respectively. The response of the Minister for the Environment and Local Government was incorporated into the Memorandum for Government found at records number 27C/D, 28D, and 38AJ. It is apparent that number record 38BO, like record number 38AB, is a draft of part of the material contained in record number 27C/D. Accordingly, I find that record number 38BO is also exempt under section 19(1)(a).

For your convenience, I enclose a chart summarising my findings in relation to access to the records at issue.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby vary the decision of the Department as described above.

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date of this letter.

Yours sincerely

Emily O'Reilly
Information Commissioner