Case 040097. Request for access to records relating to the decentralisation of Government Departments/Agencies - whether records were submitted to the Government - section 19(1) - whether access could disclose the negotiating position of the Department of Finance and/or other Departments - section 21(1)(c) - whether records relate to the deliberations of the Department of Finance - public interest in disclosure of records relating to the deliberative process of the Department of Finance - section 20

Case Summary

Please see letter of clarification which issued to The Sunday Times on 7th March 2006

Facts

The Sunday Times sought access to a number of records relating to the Government's plans to decentralise a number of Government Departments and Agencies. The records, which included the numbers of staff proposed for decentralisation, were created prior to the Government's announcement of the locations and numbers proposed for decentralisation in 2003. The Department refused to release four of the records under section 19 of the FOI Act, which provides protection for records submitted to Government or records of the Government. The Department also claimed that other documents were exempt from disclosure under section 21(1)(c) of the FOI Act. Section 21(1)(c) applies where access to a record could disclose the negotiating position of a public body and where the public interest lies in protecting the contents of the record.

Decision

The decision accepted that section 19 applied to an Aide Memoire for Government and notes of Government decisions (which had not been published). However, the decision did not accept that an internal note prepared by an official of the Department and sent to other officials containing a list of decentralisation issues for discussion was exempt from disclosure under section 19. The note in question quoted and paraphrased Memorandums for Government (which themselves were exempt from disclosure under section 19). However, section 19 is not concerned with the contents of a record but rather with the purpose of a record and the circumstances in which it was created i.e. it must have been submitted or proposed to be submitted to Government by a Minister and have been created for that purpose. The note created by the official was not submitted to Government by a Minister or indeed, by anyone else and was clearly not created for that purpose.

The Department also claimed that the note, along with two other documents were exempt from disclosure under section 21(1)(c) of the FOI Act. Section 21(1)(c) only applies where access to a record could disclose the negotiating position of a public body and where the public interest lies in protecting the contents of the record. Two of the documents contained the lists of figures for each Government Department/Agency/Office under three headings: (i) current staffing numbers, (ii) the number proposed (at the time) for decentralisation, and (ii) the numbers previously put forward by each Department, etc. The Department arguments were rejected. The records were clearly created as part of the Department's deliberations and not in an attempt to reach some compromise or agreement with the unions. The numbers being decentralised and locations involved was not an issue that was subject to negotiation with the unions. However, it was accepted that section 20, which applies to records relating to a public body's deliberative process, might apply to the records.

Section 20 is also subject to a public interest test. In relation to the public interest the decision did not accept that disclosure of the records would harm the Department's negotiations or the negotiations of any individual Department, etc. in any significant way, particularly given that the final numbers and locations were subsequently announced in December 2003. There was a considerable public interest in release of the records given the significant nature of the decentralisation policy and its impact on the citizens of Ireland. Therefore, access was granted to the three records.

Date of Decision: 22.12.2005

Our Reference: 040097

22.12.2005

The Sunday Times

Dear Sirs

I refer to your application for review of the decision of the Department of Finance ("the Department") in response to your request under the Freedom of Information Act ("the FOI Act") for records relating to the 'decentralisation' of Government Departments, Offices and Agencies. At the outset I wish to apologise for the long delay in dealing with your application which was due to the large number of applications received by this Office in the early years of the FOI Act.

Background

I have been authorised by the Information Commissioner to conduct this review on her behalf. I have conducted my review is accordance with the provisions of the Freedom of Information Acts, 1997 and 2003. In conducting my review I have had regard to the submissions of the Department dated 27 April 2004, 3 November 2005 and 21 November 2005. I have also examined the records which were the subject of your request.

In your e mail of 19 December 2003 to the Department you confined your request to records created in 2003 concerning the 'decentralisation' issue and excluded representations from local communities and T.D.'s, press statements and Dail questions. In its initial decision of 20 January 2004, the Department granted you access to twenty five records and refused you access to ten records. In your request for 'internal review' of the Department's initial decision you indicated that you were seeking access to eight of these ten records. (You did not wish to appeal in relation to records numbered 33 and 34. Staff of this Office confirmed this point with you following your application to this Office.) In its 'internal review' decision the Department located a further record - record "36", to which it decided to refuse access. The Department also refused access to seven of the eight records which were the subject of your request for internal review. (In its internal review decision the Department granted access to record numbered 21).

During the course of my review the Department pointed out that two of the eight records to which it now refused access (i.e. records numbered 20 and 22 in the Department's initial decision of 20 January 2004) were created in 2001 and not 2003. I have examined these records. The records are, respectively, appendices 6 and 9 to a draft Memorandum for Government dated 22 January 2001. It is clear that these records were not created in 2003 and as they are outside the scope of your request I cannot include them in my review. In any event these records would be exempt from disclosure under section 19(1)(a) of the FOI Act.

Scope of Review

My review is concerned with whether the Department's decision to refuse access to records numbered in its initial decision of 20 January 2004 as records 7, 9, 10, 15 and 25, and its decision to refuse access to the record subsequently numbered 36, is justified.

Findings

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.

I must also point out that section 34(12) of the FOI Act provides that the Department must show to my satisfaction that its decision to refuse access is justified.

Section 19 - records numbered 7, 9, 10 and 36

The Department refused access to records numbered 7, 9, 10 and 36 under various sub-sections of section 19 of the FOI Act. Section 19(1) provides that a public body must refuse 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, ...

(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...".

Record 7 is an "Aide-Memoire for Government" dated 13 May 2003. The Department has stated that the aide-memoire was submitted to the Government by the Minister for Finance. Having regard to the nature of the record and the circumstances in which it was submitted to Government I am satisfied that the Department was justified in refusing access to it under section 19(1)(a).

Record 9 is a note of the Government decision of 13 May 2003 created by the Secretary General to the Government. Record 10 is a note of an informal decision of the Government dated 9 July 2003. Both these records are exempt from disclosure under section 19(1)(b) of the FOI Act.

Record 36 is a note dated 27 August 2003 prepared by an official of the Department. The note was sent to four other officials seeking their comments on a draft list of issues for discussion in advance of a proposed meeting with the Minister for Finance. The Department claims that section 19(1)(a) applies to parts of the note. The Department argues that as the record contains material from Memorandums that were submitted to Government in January and July 2001 the note should enjoy the same protection as the Memorandums. In its submission the Department also draws my attention to section 2 of the FOI Act which defines a "record" as including :

"any memorandum, book, plan, map drawing...and anything that is a part or a copy, in any form, of any of the foregoing or is a combination of two or more of the foregoing and a copy, in any form, of a record shall be deemed, for the purposes of this Act, to have been created at the same time as the record".

I do not accept the Department's argument. In order to be exempt from disclosure under section 19(1)(a) the record in question must fulfill three criteria. It must (a) have been or proposed to be submitted to the Government (b) by a Minister of the Government and (c) have been created for that purpose. Clearly record 36 was not submitted to the Government by a Minister or anyone else and was clearly not created for that purpose. The note does indeed refer to the contents of the two Memorandums in question. Parts of the note quote from the Memorandums while other parts paraphrase and summarise the contents of them. However, section 19(1)(a) is not concerned with the contents of a record unlike, for example, section 19(2)(a). Section 19(1)(a) is concerned with the nature of the particular record, the circumstances of its creation and its subsequent use. The fact that record 36 quotes or paraphrases the contents of records which may be exempt under section 19(1)(a) is irrelevant in considering whether section 19(1)(a) applies to record 36.

It is not clear to me why the Department has referred to the definition of a "record" in section 2. If the Department's argument is that by virtue of the definition the Memorandums and the relevant parts of record 36 are effectively the same record then I disagree. The definition defines what constitutes a record for the purposes of the FOI Act. It is clear to me that there are three separate records being referred to by the Department: (i) the Memorandum of January 2001, (ii) the Memorandum of July 2001 and (iii) record 36.

Neither do I accept that record 36 or parts of record 36 can be described as a "copy" of either of the Memorandums. Its purpose, as described in its cover note, is to set out the developments which have occurred on the issue of decentralisation since 1999 and to set out a list of issues to be explored. In doing so it inevitably refers to, and quotes from, the contents of the Memorandums for Government. Furthermore, if the Department's argument is that parts of record 36 are copies of the Memorandums then the logical extension of the Department's argument is that record 36 (which is dated 27 August 2003) should be deemed to have been created at the same time as the Memorandums for Government in 2001. This is because the definition of a "record" in section 2 provides that "a copy, in any form, of a record shall be deemed, for the purposes of this Act, to have been created at the same time as the record". Clearly this cannot be the case in this instance. I find that section 19(1)(a) does not apply to record numbered 36.

However, the Department also claims that record 36 is exempt from disclosure under section 21(1)(c). This claim is considered below.

Section 21(1)(c) - records numbered 15, 25 and 36

The Department claims that records numbered 15, 25 and 36 are exempt from disclosure under section 21(1)(c) of the FOI Act. Section 21(1)(c) provides that a public body may refuse to grant a request 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."

Generally speaking paragraph (c) is designed to protect negotiating positions or plans etc. from being disclosed directly or indirectly. I would also accept that, generally speaking, proposal-type information relating to a public body's negotiations would also be exempt from disclosure under section 21(1)(c).

I believe it would be useful to give a general description of the contents of records 15, 25 and 36. I have already described record 36 as being a note setting out the developments which have occurred on the issue of decentralisation since 1999 and listing issues to be explored. Records 15 and 25 contain lists of figures, for each Department/Office/Agency under three headings: (i) current staffing numbers, (ii) the number proposed for decentralisation and, (iii) where appropriate, the numbers "previously offered". I understand that the numbers "previously offered" refers to the numbers of staff put forward earlier in the process by the relevant Department, etc. All three records were created in 2003.

Much of the Department's argument is concerned with the harm that might arise if the contents of these records were disclosed. In summary, there are two main arguments being put forward by the Department: (i) that disclosure would adversely affect both the Department's present and future negotiations with the public service unions and (ii) that disclosure would adversely affect each Department/Office/Agency's industrial relations with its own staff/unions. However, these arguments are more appropriately dealt with when considering the public interest in protecting the information from release. The first question I must consider is whether access to the material in these records could accurately be described as disclosing positions taken, etc. "for the purpose of any negotiations [my emphasis] carried on or being, or to be carried on by or on behalf of the Government or a public body". The Department's submissions suggest that the negotiations in question here are negotiations between it and the public service unions, and also between each Department/Agency/Office and the unions.

The Oxford English Dictionary defines "negotiation" as "the action or business of negotiating or making terms with others". It goes on to define the verb "negotiate" as "to hold communication or conference (with another) for the purpose of arranging some matter by mutual agreement; to discuss a matter with a view to some settlement or compromise".

I would agree that access to the information in these records would meet the requirements of section 21(1)(c) if the purpose of the records was to try to reach some compromise or some mutual agreement with the unions. However, this is not the case. The records were created as part of the Department's internal deliberations in order to ascertain a realistic figure for the numbers of staff that could be decentralised. The Government announced its plans for decentralisation including, in the vast majority of cases, the numbers and locations involved, in its budget of December 2003 The numbers being decentralised and locations involved was not an issue that was subject to negotiation with the unions, as opposed to for example the subsequent arrangements regarding promotions, or the obligation on civil servants to move with their Department, etc. It may well be that the matter will be the subject of future negotiations. However, having regard to the contents of the records and the circumstances in which they were created, I am not satisfied that access to the records could disclose the positions taken, etc. by the Department of Finance for the purpose of a negotiation. The records do not contain any proposal for settlement or compromise. They do not contain any indications of 'fall-back' positions or other information created for the purpose of negotiations nor do the documents indicate the Department's negotiating strategy.

However, the Department also argues that access to the records could disclose the negotiating plans, positions, etc. of each Department/Agency/Office. I have already noted records 15 and 25 contain, in most cases, the number previously offered by each Department/Agency/Office for decentralisation Given the relatively low threshold for section 21(1)(c) to apply i.e., "could...disclose positions taken..." etc" and not "would...disclose," I accept that access to these figures could disclose the position taken by each Department/Agency/Office for the purpose of its negotiation with the Department of Finance.

I also accept that the contents of all three records can be said to relate to the deliberative process of the Department and may therefore be exempt from disclosure under section 20(1) of the FOI Act.

Therefore, subject to the public interest test set out in section 21(2), I find that section 21(1)(c) applies to the fourth column headed "previously offered" in records 15 and 25 but not to record 36. I find that section 20(1) applies to all three records. However, both section 20(1) and 21(1)(c) are subject to a public interest test which is addressed below.

Public Interest

Sections 20(3) and 21(2) provide that the exemption does not apply where the public interest would on balance, be better served by granting than by refusing to grant the request. In considering the public interest I must take account of the fact that neither section 20(1) or section 21(1)(c) contain a harm test (unlike, for example, section 21(1)(a) and 21(1)(b)). In order to meet the criteria for section 20(1) a record must only contain " matter relating to the deliberative processes of a public body". A record is capable of qualifying for exemption under section 21(1)(c) despite the fact that any negotiating positions, plans etc. which it might disclose relate to past negotiations and even if such positions, plans etc. are of no conceivable relevance to any current or future negotiations.

In decision 98166 - involving the Department of Enterprise, Trade and Employment - the then Information Commissioner, Mr Kevin Murphy said:

"While section 21(1)(c) makes no distinction between disclosures which have the potential to prejudice current or future negotiations in some way or to cause some other harm and disclosures which do not, it seems to me that such a distinction should be made in applying the public interest test in section 21(2) to records which disclose positions taken etc. for the purposes of negotiations. Put simply, if release of such records cannot harm current or future negotiations or cause any other harm, then the public interest in openness in the workings of Government means that, in the absence of any other applicable exemption, the records should be released. On the other hand, if access to records which disclose positions taken etc. for the purposes of past negotiations could reasonably be expected to prejudice current or future negotiations or cause some other harm, then this is a matter which must weigh heavily in the application of the public interest balancing test."

The present Commissioner, Ms Emily O'Reilly, agrees with this view. A similar approach applies to section 20(1) which I have found applies to all the records, i.e. I accept that the material relates to the deliberative process of the Department.

In the present case, the Department has expressed a number of concerns regarding the release of the three records. It has argued that the issue of locations and numbers for decentralisation is still a matter for negotiation with the unions. In support of its argument the Department has pointed to the passing of a motion by one public service union at its annual conference to have certain public bodies removed from the programme. The Department argues that, if disclosed, the unions would use the material in the three records to press for alterations to the decentralisation programme which would, in turn, weaken the Department's negotiating position. The Department also contends that if it had to alter its position the material in the records may form part of the Department's negotiating strategy. The Department argues that, similarly, disclosure of the figures in records 15 and 25 would result in an adverse effect on the negotiations between individual Departments/Offices/Agencies and their staff as such negotiations would be broadened to include past positions.

In relation to the Department's contention that disclosure of the information would result in the unions "pressing for alterations on the make up of the present programme" it seems to me from the Department's submission that this is already the position of some unions. I accept that there is a public interest in protecting the negotiating position of a public body. However, I do not accept that disclosure of the information in these three records would harm the Department's negotiating position or the negotiating position of individual Departments, etc. in any significant way. The records disclose the Department's thinking in 2003 in terms of coming to a figure that it believed was realistic for decentralisation. Inevitably in such a process a number of figures are considered before a final figure is decided upon. The final figure and in respect of the vast majority of cases, the locations decided, were announced by the Minister for Finance in December 2003. The Government's position is that the programme will be implemented in full. I do not accept that knowledge by the unions of figures which fed into the Department's and the Government's deliberations in 2003 could undermine the Department's negotiations in any significant way. I am fortified in this view by the fact that it has already been disclosed that a number of Secretaries General of Government Departments wrote to the Minister for Finance outlining their opposition to the whole decentralisation process. It seems to me that disclosure of such information would have a more significant impact on the debate than the information in question here. Yet it appears to me that such disclosure has not resulted in the Government or Department encountering significant difficulties in its negotiations with the unions as a result. In any event, any suggestion by the unions that the Government should revert to numbers considered in 2003 prior to the official announcement would, in my view, be very easily dealt with by the Government's negotiators.

While I accept that disclosure of this information prior to the official announcement in December 2003 would have had a greater impact on the Department's deliberations and negotiations I am satisfied that disclosure at this stage would have no significant impact.

I consider that there is a considerable public interest in granting access to records 15, 25 and 36. The programme to decentralise is a very significant one in terms of Government policy and its impact on the citizens of Ireland. Access to the three records sheds some light on the Department's deliberations on the numbers and locations which were formally announced in December 2003. Access would also contribute to the public's understanding of the process. This public interest is acknowledged by the Department in its submissions in which it states that it has no objection to release of the records when the numbers being decentralised is no longer an issue.

In this case I find that the public interest in disclosure of these records outweighs any possible damage that may occur to the Department's deliberations or negotiations, or the negotiations and deliberations of individual Departments, Agencies or Offices. I find that sections 20(1) and 21(1) do not apply to records 15, 25 and 36.

Possible existence of other records

During the course of my review I examined the contents of record 36 - the note from a Department official to four other officials seeking their views on the list of issues addressed in the note in advance of a proposed meeting with the Minister for Finance in September 2003. However, no records of any response from the four officials have been identified or forwarded to this Office by the Department. Furthermore, no records of the meeting between the Department official and the Minister have been identified. Staff of this Office requested that the Department conduct a further search of its files to locate the records, if they existed, and any other records which fell within the scope of your request which had not been listed in the Department's schedule. It was also pointed out to the Department that if it was its position that no further records exist then the Department would need to justify its position in accordance with section 10(1)(a) of the FOI Act. Section 10(1)(a) allows a public body to refuse access to a record where the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken.

In response, the Department indicated that it could not locate any further records. In a submission to this Office the Department stated that it identified three Sections or Divisions in the Department where records relating to decentralisation created in 2003 may exist. These were: the Votes Control Sections of the Organisation, Management & Training (OMT) Division, the Public Expenditure Division (PED) Division and the Central Decentralisation Policy Unit. The Department stated that officials were asked to conduct a search of records in each of these areas to determine whether any additional records existed. The Department said that the results of the search did not reveal any additional records. In its submission the Department outlined the outcome of its searches:

"In summary the results of the search were as follows:

• PED advised that they have carried out a comprehensive check and cannot locate any record of a response to the note in question or a note of Mr. Scanlan's discussion with the Minister.
• OMT advised that they searched their files and the files in the basement (i.e. registry) and can find no relevant records.
• The Central Decentralisation Policy Unit carried out a search of the files in the Unit and requested file ref. S2/3/00 from Registry (the file record 36 is on) but could locate no additional records.

The Department also consulted with Mr. Michael Scanlan, former Assistant Secretary in the area, who has confirmed that any relevant records would be contained on the Departmental files."

The Department was also asked to contact other officials mentioned in the note, including Mr Quigley, Mr Errity and Mr Hurley. The remaining two officials mentioned in the note no longer work in the Department. The Department has stated that it consulted with all the officials and that none has any recollection of replying to Mr Quigley's note. The Department also said that it conducted a further search of the files including file E 142/1/93 - 'General correspondence on decentralisation', but could not locate any records relevant to your request or record 36.

In the circumstances and having regard to the further searches carried out by the Department I am satisfied that the Department has justified a decision in accordance with section 10(1)(a) of the FOI Act.

Decision

Having carried out a review under section 34(2) of the FOI Act I have decided to vary the decision of the Department and direct that access be granted to records numbered 15, 25 and 36.

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 that eight weeks from the date of this letter

Yours sincerely

Patrick Whelan
Director General