The Senior Investigator affirmed the Department's decision and found that the records should be withheld in accordance with section 21(1)(c) of the FOI Act.

Case Summary

Whether release of records relating to trade union recognition is against the public interest as it would reveal the deliberative process of a public body or would disclose the negotiating position of a public body, in accordance with sections 20 and 21 of the FOI Act.

Date of Decision: 26.02.2010

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

Background:

On 30 July 2008, the Applicant sought records of correspondence between the Department and interested parties on the issue of trade union recognition. The Department on 29 August 2008 released a number of records and withheld others, both in full and in part, citing sections 20, 21, 26, 27 and 31 of the FOI Act. The Applicant sought internal review of the Department's decision on 10 November 2008.

In a late internal review decision of 8 December 2008 on that application, the Department regarded the decision as being confined to four records: one record sourced from Intel (Ireland) Ltd. and three others (one a duplicate) from the Industrial Development Authority (IDA). In that internal review decision, the Department withheld the Intel record on the basis of sections 20, 21 and 26 of the FOI Act and the IDA records on the basis of sections 20 and 21 of the FOI Act, while acknowledging that the records were not exempt under sections 27 and 31 of the FOI Act. On 2 January 2009 the Applicant applied to this Office for review of that decision.

The Intel record, dated 23 June 1999, is listed as number 1 on the schedule of records provided by the Department to the Applicant. It was a response to the consultation undertaken by the High Level Working Group, established in 1999 by the Department to consider the issue of trade union recognition in Ireland, and was exempted by the Department on the basis of sections 20, 21 and 26 of the FOI Act. On 5 March 2009, Intel was informed of, and given an opportunity to comment on, this Office's outline position that the record was not exempt under any of the above provisions and, accordingly, that it should be released to the Applicant. In a further letter dated 22 May 2009, Intel was given a further opportunity to comment on this Office's outline proposal to release the record and was informed that non-reply would be taken to mean that this Office had no argued basis from Intel upon which to conclude that it objected to such release. As no reply was received to either letter, I am satisfied that, having been given an opportunity to do so, Intel has not made a case that it regards the record as being exempt in line with the relevant sections of the FOI Act and having been informed of this position, the Department subsequently notified this Office of its agreement to administratively release the Intel record. Accordingly, this record will not be considered further as part of this review.

In setting out this decision, I have had regard to correspondence between the Department and the Applicant; the submissions made to this Office by the Applicant and the Department; the original and internal review decisions; the relevant records; and the provisions of the FOI Act.

Preliminary Matter

Scope

The Applicant did not dispute the Department's confinement of his internal review application to the four records referenced above. therefore, as the Department subsequently agreed to release the Intel record, the scope of this review is confined to the three remaining IDA records. my consideration of the Department's decision of the records is set out below.

Section 34(12)(b) of the Act provides that decisions to release records will be presumed to have been justified unless public bodies objecting to release of records show to the satisfaction of the Information Commissioner that the decisions were not justified. Therefore the onus on this case is on the Department to demonstrate that a decision not to release the records is justified.

In his application to this Office, the Applicant gave an undertaking not to divulge any information, if released to him, that may have been received in confidence by the Department. In making this decision, I cannot have regard to that undertaking as release of records under FOI is akin to release to the world at large, and my decision in this case is made in that context.

Submissions

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Findings

While I am required by the FOI Act to give reasons for my decision, I must also have regard to section 43(3) of the Act which requires me to take all reasonable precautions to prevent disclosure of information contained in a exempt record, or information as to whether a record exists or does not exist where the FOI Act requires the non-disclosure of the existence of a record. For that reason the extent of the reasons which I can give in this case is limited.

The IDA Records

These three records were listed as numbers 6, 16, and 29 on the schedule of records provided by the Department to the Applicant. Record 6 is a letter of 11 March 1999 from the then Chief Executive Officer of the IDA setting out his views on the issue of trade union recognition in the context of the proposals made in the Report of the High Level Working Group. Record 16 is a memorandum dated June 2005 from Planning Division in the IDA to the Department on the matter, with record 29 being an electronic duplicate of the contents of record 16. As two of these records are identical, I will refer to there being two IDA records for the purpose of this review. The records were exempted by the Department under sections 20 and 21 of the Act. My consideration of these provisions is set out below.

Section 21 - Negotiations of Public Bodies

Section 21(1) provides for exemption of records that would prejudice the effectiveness of investigations etc. carried out by public bodies [21(1)(a)], that would have a significant, adverse affect on the ability of public bodies to carry out its management functions [21(1)(b)], or disclose the negotiating position of public bodies [21(1)(c)]. It is 21(1)(c) that has been cited by the Department in this case, which provides as follows:

"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 purposes 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 as the only requirement for the exemption to be met is that release of records would disclose such positions. Generally speaking section 21(1)(c) is designed to protect negotiating positions or plans from being disclosed directly or indirectly to other parties. There is no requirement that disclosure would have an adverse effect on conduct by the body of its negotiations. Records relating to past, present or future negotiations may be protected.

I have examined the two records created by the IDA encompassed by this review. Section 21(1)(c) protects records which could reasonably be expected to disclose positions taken or to be taken for the purpose of any negotiations carried on or being or to be carried on by a public body. In my view, it is clear that both records clearly outline the position of the IDA on the issue of trade union recognition.

It is apparent that the issue of union recognition has been the subject of negotiations on the social partnership agenda for some considerable time. Indeed, the issue of voluntary collective bargaining was included in Partnership 2000, where it was agreed that the issue would be considered by a High Level Group on trade union recognition involving the Department of the Taoiseach; Finance; Enterprise, Trade and Employment; ICTU; IBEC and the IDA; the Programme for Prosperity and Fairness; and in Sustaining Progress. Most recently, the Towards 2016, Review and Transitional Agreement 2008-2009 provided for a review of the issue of employee representation in light of relatively recent developments in the area. With regard to these discussions the Department, in a submission to this Office dated 10 February 2010, has informed this Office that it "continues to maintain that the confidential advice and assessment on the issue of trade union recognition that it was provided by the IDA, as its executive agency, in 1999 and 2005 remains directly relevant to the conduct of current deliberations with the Review Group established under the Transitional Agreement [Towards 2016, Review and Transitional Agreement 2008-2009] and that their disclosure, at this stage, would undermine the potential scope and leverage of the Government's negotiating position in the current review process".

With regard to the relationship between the IDA and the Department, the Department makes the point that the IDA's views were sought by the Department. It says that "once they [its views] were received, they were automatically taken into consideration. It would, on the basis of the well-known and long-standing relationship between IDA, its parent Department/Minister and Government generally, be completely unreasonable to suggest that IDA's views on this important issue would be ignored". It further states that "there is a very strong possibility that the disclosure of the IDA position will, in effect, mean the disclosure of the Government's position". Indeed, the Department provided this Office with some records, not covered by this FOI request, which illustrated that disclosure of the IDA position on trade union recognition would indeed serve to disclose the position of the Department in such negotiations.

As these negotiations have been ongoing in various fora for some time and as the wording of section 21(1)(c) is such as to give its provisions historic application, having examined the records. I find that the Department's decision justified in claiming that they are exempt under section 21(1)(c) of the FOI Act is justified.

The Public Interest

However, section 21(2) provides that a head may decide to release records even when the conditions set out in section 21(1)(c) are met if, in his or her opinion, "the public interest would, on balance, be better served by granting than by refusing to grant the request". I will now consider where the balance of the public interest lies in this case.

I consider that the following public interest factors favour release of the records in question:

• 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 performs its functions;
• the public interest in clarifying the role of the IDA in the formulation of Government policy and the Department as well with regard to trade union recognition; and
• the public interest in increasing the openness and transparency of the process of the formulation of public policy.

I consider that the following public interest factors favour withholding of the records in question:

• the public interest in ensuring that FOI is not used to the detriment of public bodies being able to protect their negotiating position;
• the public interest in public bodies not being impaired or prejudiced in other such negotiations with trade unions;
• the issue of the records remaining relevant to the conduct of current deliberations of the Review Group established under the Towards 2016, Review and Transitional Agreement 2008-2009, and that their disclosure, at this stage, would undermine the potential scope and leverage of the Government's negotiating position in the current review process;
• the need to allow negotiations to proceed without being adversely effected by premature publicity; and
• the public interest in public bodies being enabled to perform their functions effectively and efficiently particularly in relation to the exchange of views between public bodies.

With regard to the issue of policy formulation, the Applicant has submitted that release of the records is in the public interest in order to establish whether or not the IDA or the Department, in adopting the positions which they did on the issue of negotiations on trade union recognition, breached specified international Conventions dealing with the rights of workers to trade union recognition, to which Ireland is a signatory. In my view, the Department has adequately explained the IDA's role in the formulation of its policy on trade union recognition and I consider this to be sufficient to satisfy the public interest in clarifying the role of the IDA in formulating of this policy. The issue of whether or not the Department or the IDA breached these international Conventions is not an issue for this Office to consider and in my view it is outside the scope of this review. The role of this Office is confined to considering whether or not the Department's decision to exempt the records is provided for under the terms of the FOI Acts.

I believe that in view of the importance of the issue on the social partnership agenda and the fact that the issue to which the records refer remains relevant to current deliberations, that in those particular circumstances the release of the records could be reasonably expected to disclose the public body's current negotiating position. In this regard, I am not aware, nor did the Applicant draw the attention of this Office when requested to do so, of any publicly available statement which would disclose the IDA's position on the issue of trade union recognition. Accordingly, I find that the public interest would not be better served by release of the information in the records concerned to the Applicant.

As I have found the records to be exempt under section 21(1)(c), there is no need for me to consider section 20(1) of the FOI Act further.

Decision

I affirm the decision of the Department and find that the three records relevant to this review should be withheld in accordance with section 21(1)(c) the FOI Act.

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

26 February 2010