Case 090202. The Senior Investigator found that the Council is not justified in its refusal of access to the record. He annulled the decision of the Council and directed it to release the record in question.

Case Summary

Whether the Council is justified in its decision to refuse access to a record of a Hazard Identification and Risk Assessment report on the basis that the record is exempt from release under the provisions of section 20(1) of the FOI Act.

Date of Decision: 30.11.2009

Review Application under the Freedom of Information Acts 1997 and 2003 (the FOI Act) to the Information Commissioner

Background:

In an FOI request dated 6 April 2009, the Applicant sought a copy of a ''Health and Safety Audit of Aras an Chontae ...produced for the Council in 2008". In its decision letter, dated 7 May 2009, the Council refused access to the record claiming that it was exempt from release under section 20 of the FOI Act. It said that, pending the approval of a Safety Statement by Management, ''it is not possible to release any details of the Safety Audit". On 27 May 2009, the Applicant sought an internal review of the Council's decision. The internal reviewer, on 19 June 2009, upheld the original refusal stating that, as the Safety Statement is in draft form, ''it is not in order'' to release the record. The Applicant applied to this Office on 7 August 2009 for a review by the Commissioner of the Council's decision.

In conducting this review, I have had regard to the submissions of the Council as well as those of the Applicant; the provisions of the FOI Acts and the contents of the record entitled ''Hazard Identification and Risk Assessment" dated October 2008. I note that a "preliminary views" letter, dated 22 October 2009 was sent to the Council by Elizabeth Dolan of this Office. She had previously asked the Council to reconsider its refusal on the basis that she did not think it justified under the FOI Act. As the Council has made no further submissions, I have decided to bring this review to a close by the issue of a formal, binding decision.

Conducted in accordance with section 34(2) of the FOI Act by Sean Garvey, Senior Investigator, Office of the Information Commissioner (authorised by the Information Commissioner to conduct this review).

Scope of Review

This review is concerned solely with the question of whether the Council is justified, in terms of the provisions of the FOI Act, in its decision to refuse access to the one record at issue. The Council relied solely on section 20 of the Act in its decisions; therefore, I do not intend to consider any of the other exemptions in the FOI Act.

Submissions

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Findings

Preliminary Matters

Section 34(12)(b) of the FOI Act provides that, where a decision to refuse a request is being reviewed by the Information Commissioner, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Thus, in this case, the onus is on the Council to satisfy me that its decision is justified.

I note that the Council failed in its decisions to give any consideration to the public interest balancing test as required by section 20(3). The FOI Act provides that decisions made by public bodies must be adequate. Section 8 (2)(d) provides that, if access is refused, the reasons for the refusal shall be given and "any provision of this Act pursuant to which the request is refused and the findings on any material issues relevant to the decision and particulars of any matter relating to the public interest taken into consideration for the purposes of the decision" shall be given. Having regard to the fact that the FOI Act has been in force for local authorities since 1998 and that many training resources, including published decisions of the Commissioner, are available to decision makers, I find it surprising and regrettable that the reasons given to the Applicant and to this Office for the refusals in both the initial decision and the internal review are inadequate.

Section 20

Section 20 of the FOI Act, 1997, as amended, provides:

"(1) A head may refuse to grant a request under section 7 if the record concerned contains matter relating to the deliberative processes of a public body (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)."

According to the Council, the report is still being considered by the management team. I have some doubts as to whether the assessment type report at issue actually contains matter relating to the deliberative processes of the Council. However, given the stress laid by the Council on the fact that the Safety Statement of which the record is said to be ''a supporting document'' is still in draft form, I am prepared to accept, for the purposes of this decision, that the record requested is potentially the type of record envisaged by the section 20 exemption.

Before the question of the public interest falls to be considered, any decision that a record qualifies for exemption on the basis of section 20(1) must first be considered in the context of the exceptions set out in sections 20(2) and 20(3) which provide, inter alia,

"(2) Subsection (1) does not apply to a record if and in so far as it contains - ...

(b) factual information,...

(d) a report of an investigation or analysis of the performance, efficiency or effectiveness of a public body in relation to the functions generally or a particular function of the body,

(e) a report, study or analysis of a scientific or technical expert relating to the subject of his or her expertise or a report containing opinions or advice of such an expert and not being a report used or commissioned for the purposes of a decision of a public body made pursuant to any enactment or scheme.

(3) Subsection (1) does 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."

Section 20(2)(b)

It could be argued that parts of the report are not exempt under section 20 because they comprise factual information about inspections, conditions and practices in the building. This would bring most of the report within the exception to section 20(1) envisaged by section 20(2)(b) of the FOI Act. However, the situation under sections 20(2)(d) and 20(2)(e) seems to me to be more definite in regard to the report as a whole so I will not undertake an analysis of the report to identify the factual elements which fall to be released. The Council made no mention of the section 20 exceptions even when these were brought to its attention by this Office.

Section 20(2)(d)

I consider that the risk assessment and hazard identification process is an investigation as to how the Council carries out its functions in relation to the workplace and the premises used by its staff and clients. Clearly, the report sets out to assess the Council's performance, efficiency or effectiveness in relation to its functions insofar as health and safety are concerned. Therefore, I find the report in question to be excluded from the section 20(1) exemption by virtue of the provisions of section 20(2)(d).

Section 20(2)(e)

The authorship of the report is not clear. However, given the methodology and terminology used, I think it is reasonable to conclude that the report contains the findings and advice of a person or persons who are or technical experts in their field. The Council has not made any case that any decisionson foot of the recommendations of the report are being made pursuant to any enactment or scheme as required to put them outside of the section 20(2)(e) exception. Thus, I consider that the record also comes within section 20(2)(e) and is not exempt from release under section 20(1) of the FOI Act.

Section 20(3)- the public interest

If I had found above that section 20(1) applied to exempt the record from release, it would have been necessary to consider, in accordance with section 20(3), whether, on balance, the public interest would be better served by granting than by refusing the request.

As outlined above, the Council makes no reference to the public interest considerations in favour of or against withholding the record. The Applicant says that the audit has potential consequences for the working conditions of the union's members and should be released so that any issues can be dealt with. I consider that openness and transparency in such matters as ensuring safety in the workplace and in public buildings is a strong public interest consideration. The Council gives no information as to any harms or prejudices which might result from release of the record; neither has it identified any public interest in withholding the information until its Safety Statement is completed. It has not stated whether the publication of the Safety Statement is imminent. The fact that the Council would prefer not to reveal the content of the audit until it has finalised its Safety Statement is not a public interest consideration in the absence of reasons for this view and in the context of a report completed over a year ago.

Given my finding that section 20(1) of the FOI Act does not apply for the reasons explained above, I have no basis for finding that any harm that disclosure might cause outweighs the public interest in granting the request. Overall, I find that the Council has failed to justify its withholding of the record under section 20.

Decision

Having carried out a review under section 34(2) of the FOI Act, as amended, I hereby annul the decision of the Council and direct the Council to release the record.

Right of Appeal

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 decision.

Seán Garvey

Senior Investigator

30 November 2009