Case 031109. Request for records relating to consultant's report and Ministerial decision to close St. Catherine's College of Education for Home Economics, Sion Hill, Blackrock, Co. Dublin - whether release would have adverse effect on performance by Department of any of its functions relating to management - section 21(1)(b) - whether release could disclose positions to be taken for the purpose of any negotiations to be carried on on behalf of the Government or a public body - section 21(1)(c) - public interest - section 21(2).

Case Summary

Facts

The requester sought access to records relating to the decision to close St. Catherine's College of Education for Home Economics. The request included virtually all the records the Department held relating to the decision to close the College. The Department refused access to the records on the grounds that they were exempt under sections 21(1)(b) and 21(1)(c) of the FOI Act. The Department upheld this decision following internal review. At no stage did the Department deal with the public interest provisions in section 21 which must always be considered where section 21(1) is invoked as the basis for refusing an FOI request.

Decision

In arriving at a decision to claim a section 21 exemption, a decision maker must, firstly, identify the potential harm to the functions covered by the exemption that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur. The Department did not specify the potential harm nor was it clear to the Commissioner that the Department did exercise what might reasonably be described as "functions relating to management" in relation to the College.

In relation to the claimed exemption under section 21(1)(c) the Commissioner found that the records in question related solely to the closure of the College and did not disclose negotiations in respect of that decision. In the circumstances the Commissioner found that neither the exemptions in sections 21(1)(b) nor 21(1)(c) apply in this case. While it was not necessary for the Commissioner to consider the public interest considerations as required in section 21(2) in light of the above finding, nevertheless, for the sake of completeness she considered the public interest provisions of section 21(2).

There is a significant public interest in members of the public knowing how a public body ensures that its decisions are predicated on ensuring value for money; in members of the public knowing how a public body performs its functions particularly in a context where a decision has consequences for existing employees and their families and, in ensuring openness, transparency and accountability in relation to the expenditure of public money. The Commissioner found that the records sought concern a decision to close a third level college and it is a decision which has very significant implications for existing staff and for potential future students; and is a decision, also, which seems likely to have significant financial implications into the future for the Exchequer. In these circumstances, the Commissioner believed the public interest arguments in favour of openness and accountability were particularly strong and, had it been necessary to apply the public interest test, the public interest in granting the request would have prevailed .

The Commissioner annulled the decision of the Department and directed that the Department grant the requester access to the records in question.

Date of Decision: 10.08.2004

Our Reference: 031109

10.08.2004

Ms. Madeleine Mulrennan

Dear Ms. Mulrennan

I refer to your application to my Office under the Freedom of Information (FOI) Act, 1997 for a review of the decision of the Department of Education & Science (the Department) on your FOI request of 2 October 2003.

Background

In your FOI request of 2 October 2003 you sought access to the following records:

• "DES Consultant's Report of Future of St. Catherine's College of Education for Home Economics 2002 (Prepared by Mr. Jack O'Brien)
• Report/recommendations prepared by the Higher Education (Colleges) Section for the Minister for Education & Science in relation to the above report - 2002
• All reports, minutes of meetings and correspondence in respect of the Minister's decision to close St. Catherine's College announced 29 September 2003."

The Department in its initial decision, dated 19 November 2003, refused access to the records in question on the grounds that they were exempt under sections 21(1)(b) and 21(1)(c) of the FOI Act. Following your application on 24 November 2003 for an internal review, the Department affirmed its original decision on 11 December 2003. You then applied to my Office on 16 December 2003 for a review of the Department's decision. In its submission to this Office, dated 20 January 2004, the Department included a copy of the records in question and set out its view in relation to the sections of the FOI Act relied upon to exempt the records from release.

In reviewing this case, I have had regard to the following matters:

• the application for review;
• the correspondence / communications between the parties involved and this Office;
• the contents of the records in question (copies of which have been provided to this Office by the Department for the purposes of this review); and,
• the provisions of the Freedom of Information Act, 1997, as amended by the Freedom of Information (Amendment) Act, 2003.

All references in this decision to particular sections of the FOI Act, unless otherwise stated, refer to the FOI Act, 1997 as amended by the FOI Act 2003.

Scope of Review

For the purposes of this review, the Department provided my Office with 26 records as well as two tables describing these records. Attached to this decision is a single table - amalgamating the Department's two tables - which describes the records as provided by the Department. Records 1 - 10 (inclusive) in this table were all created after the receipt by the Department of your FOI request and thus fall outside the scope of the request and of this review.

The sole issue which requires to be decided in this review is whether or not the Department is correct, in the light of the provisions of the FOI Act, in deciding to refuse access to the remaining records within the scope of this review, that is, Records 11 - 26 as described in the attached table.

Findings

Preliminary Matters

I note that neither the original decision maker, nor the decision maker at internal review stage, dealt with the public interest provisions in section 21 which must always be considered where section 21(1) is invoked as the basis for refusing an FOI request. I regard this as a significant omission and a serious defect in the decision making process in this particular case. I take the view that requesters are entitled to expect that FOI decisions will reflect, comprehensively, the relevant provisions of the Act in a way which will allow the requester take a fully informed view on the decision. Regrettably, this did not happen in this case.

Before dealing with the exemptions claimed by the Department I should explain 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 in the course of a review to prevent disclosure of information contained in an exempt record. I must also refrain from disclosing information which an interested party 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 I can give only a limited description of the records at issue. The attached table (Table I) lists the records, their description, the exemption claimed by the Department and my views in relation to each record. The numbering system is (for convenience) that adopted by the Department in its letter dated 20 January 2004.

Furthermore, I have had regard to the provisions of section 34(12)(b) of the FOI Act which provides that, in a review, "a decision to refuse to grant a request under section 7 shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified." This places the onus on the Department of showing, to my satisfaction, that the decision to refuse access to the records at issue in this case is justified under the provisions of the FOI Act. I deal below with each of the provisions claimed as providing a basis for exempting the records in question.

The Department's original decision and its internal review decision cite "section 21(b)" and "section 21(c)" as the grounds for refusal of your request. I take it that this was intended to be a reference to section 21(1)(b) and to section 21(1)(c), respectively.

Section 21(1)(b) Section 21(1)(b) of the FOI Act provides: "A head may refuse to grant a request under section 7 if access to the record concerned could, in the opinion of the head, reasonably be expected to-(b) have a significant, adverse effect on the performance by a public body of any of its functions relating to management (including industrial relations and management of its staff)........"

In arriving at a decision to claim a section 21 exemption, a decision maker must, firstly, identify the potential harm to the functions covered by the exemption that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur. The test of whether the expectation is reasonable is not concerned with the question of probabilities or possibilities. It is concerned simply with whether or not the decision maker's expectation is reasonable.

In the case of the Sunday Times Newspaper & Others and the Department of Education and Science (case number 98104) the previous Information Commissioner, Mr. Kevin Murphy, explained the approach which he adopted to applying this exemption. In summary, the exemption is concerned with whether or not the decision maker's expectation is reasonable. It seemed to him that in arriving at a decision to claim a section 21 exemption, a decision maker must firstly identify the potential harm to the functions covered by the exemption that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur. I concur with my predecessor's views in this matter.

In the case of a claim under section 21(1)(b), the establishment of "significant, adverse effect" requires stronger evidence of damage than the "prejudice" standard of section 21(1)(a). When invoking section 21(1)(b), the public body must make an assessment of the degree of importance or significance attaching to the adverse effects claimed. Not only must the harm be reasonably expected but it must also be expected that the harm will be of a more significant nature than that required under section 21(1)(a).

In invoking this exemption the Department claims that release of the records in question would have a significant adverse effect on the performance of its functions in relation to management, specifically in relation to industrial relations. In particular, the Department says that the closure of St. Catherine's has been announced and the Department has commenced discussions with the management authorities of the College with regard to making the necessary practical arrangements involved in the closure of the College. Other than to assert that release of the records will have a significant adverse effect, the Department has not specified how precisely such an adverse effect would be manifested. Furthermore, it is not at all clear - nor has the Department attempted to clarify this - that the Department actually exercises management functions in relation to St. Catherine's College. If it is the case that the Minister for Education is in a position to decide on the effective closure of St. Catherine's College, then clearly the Minister and his Department do exercise important functions in relation to the College; however, it is not at all clear that these functions may reasonably be described as "functions relating to management" and the Department has not demonstrated that this is the case.

In this particular case I am not satisfied that release of the records in question can reasonably be expected to have a significant adverse effect on the performance by the Department of any of its "functions relating to management". I find that the exemption allowed for in section 21(1)(b) is, therefore, not applicable to the records in this case.

Section 21(1)(c) Section 21(1)(c) of the FOI Act provides: "A head may refuse to grant a request under section 7 if access to the record concerned could, in the opinion of the head, reasonably be expected to-(c) disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations carried on or being, or to be, carried on by or on behalf of the Government or a public body".

The FOI Act provides strong protection for negotiating positions of public bodies. The only requirement for the exemption to be met is that release of records would disclose such positions. There is no requirement that disclosure would have an adverse effect on the conduct by the body of its negotiations. Records relating to past, present or future negotiations may be protected. I have examined the records in question and it is clear that release of the records would not disclose a negotiating position relating to past, present or possible future negotiations to be carried on by the Department. The records are concerned solely with the closure of St. Catherine's and they do not disclose negotiations in respect of that decision. In the case of record number 23, it is noted that the costings are based on the terms of the Voluntary Redundancy/Early Retirement Scheme that applied when Carysfort College of Education closed in 1988. These details are already in the public domain and, as such, can only be considered to be a starting point for negotiations. Accordingly, the records in question in this case would not disclose any possible negotiating position relating to past, present or possible future negotiations to be carried on by the Department in respect of the closure of St. Catherine's.

Other than to assert that section 21(1)(c) applies, the Department has given no specific information or argument as to why it believes the exemption does apply. In the circumstances of this case, and in the light of the failure of the Department to show that it does apply, I find that section 21(1)(c) does not apply to the records at issue.

As I find that neither the exemptions in sections 21(1)(b) or 21(1)(c) apply in this case, it is not necessary for me to consider the public interest considerations as required in section

21(2). However, for the sake of completeness I will now consider the public interest provisions of section 21(2)

Section 21(2) I note again that the Department has failed to address the public interest aspect which must be considered where a section 21 exemption is invoked.

Section 21(2) of the Act provides: "Subsection (1) shall not apply in relation to a case in which in the opinion of the head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the request under section 7 concerned".

In my view the following public interest factors favour release of the records in this case:

• the public interest in individuals being able to exercise their rights under the FOI Act in order to enhance their understanding of the reasons for courses of action taken by a public body;
• the public interest in members of the public knowing how a public body ensures that its decisions are predicated on ensuring value for money;
• the public interest in members of the public knowing how a public body performs its functions particularly in a context where a decision has consequences for existing employees and their families and,
• the public interest in ensuring openness, transparency and accountability in relation to the expenditure of public money.

The following public interest factors favour withholding the records:

• the public interest in public bodies being enabled to perform their functions effectively and efficiently particularly in relation to issues concerning the good management of public finances;
• the public interest in managers in the public service being allowed the opportunity to formulate plans without undue interference; and,
• the public interest in avoiding the premature disclosure by public bodies of plans and positions which they may adopt.

In weighing up the relative strengths of these opposing public interests, I consider that the public interest would be better served by releasing the information in the records. The records sought concern a decision to close a third level college and it is a decision which has very significant implications for existing staff and for potential future students; it is a decision, also, which seems likely to have significant financial implications into the future. In these circumstances, I believe the public interest arguments in favour of openness and accountability are particularly strong.

Even if I had not found that neither of the exemptions in sections 21(1)(b) or 21(1)(c) apply in this case, the provisions of section 21(2) would indicate that release serves the public interest.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act, 1997 (as amended) I hereby annul the decision of the Department and I direct the Department to grant you access to the records in question, that is to records 11 - 26 (inclusive) as set out in the attached table.

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