Whether the Department is justified in its decision to withhold a certain record on the grounds of sections 20 and 26 of the FOI Act.

Case Summary

The Senior Investigator found that neither of the exemptions (sections 20 and 26) applied to the record, and was not satisfied that its decision to refuse access had been justified by the Department.  The Senior Investigator annulled the Department's decision directed that the record should be released.

Date of Decision: 12.02.2010

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

Background:

On 19 December 2007, the Applicant wrote to the Department requesting an earlier draft ("the draft") of a study published in June 2003 and 2005 that had been undertaken by Consultants Z. On 30 January 2008, the Department stated that it was confirming its decision in relation to a previous request dated 9 March 2007, by refusing his current request in accordance with section 20(1) of the FOI Act. On 13 February 2008, the Applicant wrote to the department seeking an internal review of its decision. in his submission he drew attention to the fact that this exemption is subject to a public interest test and that the exemption does not apply to specific categories of records such as certain scientific or technical reports.

On 4 March 2008, the Department upheld its original decision to withhold the draft. in relation to the public interest test it stated that it considered that release of the draft would not be helpful to the ongoing deliberative process, that it would create confusion and that it could be used to improperly undermine public confidence in the final report.

On 3 April 2009, the Applicant applied to this office for a review of the Department's decision and on 30 December 2009, Mr. Colin Stokes, Investigator in this Office wrote to both parties outlining his preliminary view of the issues in this case.  Following this preliminary view, both parties made further submissions and I have decided that it is now appropriate to make a formal binding decision on the issue.

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

Scope

This decision is confined to the question as to whether the draft should be released. In arriving at my decision I have taken account of the submissions made by both parties. I will, for the sake of completeness, revisit some of the facts and issues as laid out by Mr. Stokes in his preliminary view.

Submissions

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Findings

Section 20

Section 20(1) of the FOI Act 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.

As Mr. Stokes pointed out in his preliminary view the Department's arguments against release of the draft are that release would not be helpful to the ongoing deliberative process; that the draft could be used to improperly undermine public confidence in the consultant's final report and that it would create confusion. In its most recent submission it has developed this later argument and asserted that anything that undermines public confidence in what are necessary, safety considerations could ultimately result in air traffic accidents with possible fatalities or serious injury. In addition, the Department in its latest submission has, for the first time raised, the issue of confidentiality and the exemption provided for under section 26.

I would like to emphasise that under section 34(12)(b) of the FOI Act, a decision to refuse to grant access to a record is presumed not to have been justified unless it is shown to the satisfaction of the Commissioner that the decision was justified. This provision has the effect of placing the burden of proof for refusing access to a record on the public body.

Regarding its point on the creation of confusion the previous Commissioner found that there is no provision in the FOI Act to justify withholding information on the grounds of the need to protect the public from confusion or from the possible misuse of released information (see case no: 020358). I agree with the previous Commissioner on this point. While the Department has contended that release of the draft would undermine public confidence in the final report, and that this could result in air traffic accidents, it has not demonstrated how either of these consequences would come about. Therefore, and in line with section 34(12)(b), I consider that a strong enough case has not been made in the circumstances of this review to justify exemption of the record. In addition, I do not accept that release of the draft could reasonably be expected to lead to the catastrophic results advanced by the Department.

In support of its contention that the deliberative process is ongoing, the Department has stated that some legal issues arising from the full report have yet to be resolved and the question of extending Public Safety Zones to non-State airports has not yet been decided. On this basis I can accept that the deliberative process on the matters referred to in the draft are ongoing and that the record falls to be considered under section 20.

Public Interest

That is not the end of the matter however, as section 20 contains a public interest clause, the terms of which must be satisfied before a decision to exempt a record under section 20 is justified. Even if I had been convinced by some or all of the Department's arguments, section 20(3) provides for the granting of a request where the public interest would, on balance, be better served by granting than by refusing to grant the request. I consider that the following public interest considerations would, on balance, favour release:-

• the public interest in individuals being able to exercise their rights under the FOI Act to the fullest extent
• the public interest in members of the public knowing how a public body performs its functions and being able to form an opinion as to whether those functions are being properly discharged,
• the public interest in increasing the openness and transparency of decisions taken by public bodies thereby enhancing understanding of the reasons for courses of action taken by a public body,

I have considered above the various arguments advanced by the Department in support of its contention that this specific record should be withheld. The following additional and more general public interest considerations are relevant in relation to the reasons public bodies seek to withhold information:-

• public bodies are charged with executing specific functions and are accountable for their actions in a variety of ways, for example to the Dáil or the Comptroller and Auditor General. They should be allowed exercise their remit without being subjected to additional scrutiny,
• requests for the release of records such as, in this case, an early draft of a commissioned report, diverts resources away from their primary responsibilities both in dealing directly with the request and with any confusion that release of the record may cause.

I am not convinced that the arguments made in favour of exempting the record outweigh the arguments in favour of release. I am therefore satisfied that, the public interest would, on balance, be better served by granting than by refusing to grant the request. I find accordingly.

As I mentioned earlier the Department has recently argued that the record should be refused on the grounds of confidentiality, as provided for under section 26.

Section 26

Section 26 provides for the refusal of requests if the record concerned contains information given to the public body in confidence. The Department argues that because the draft was never intended for circulation outside the Department since it was an incomplete working document and that therefore section 26 applies. The Department quoted section 26(1)(a) in support of its contention but offered no supporting additional arguments to justify its assertion that the record is exempt under any of the provisions of section 26. Indeed, it made no reference at all to that section in its correspondence with either the applicant or this Office until its quotation from 26(1)(a) in its submission of 20 January, 2010. Therefore, in line with the provisions of section 34(12)(b), I am satisfied that it has not shown to my satisfaction that its contention that the record is exempt under section 26(1) was justified. I find accordingly.

Public Interest

Section 26(3) provides that the exemption provided for by section 26(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..". As I have found that section 26(1) does not apply to the record, it is not necessary for me to consider the public interest further in the circumstances of this case.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby annul the decision of the Department and find that the draft report should be released.

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 letter.

Seán Garvey

Senior Investigator

12 February 2010