The Commissioner did not accept that the records at issue were exempt under any of the provisions cited, with the exception of section 20(1) of the FOI Act. She considered, however, that the public interest warranted the release of the details concerned.

Case Summary

Whether the Department is justified in refusing certain records relating to its Minister's refusal of permission for the Association to affiliate to the Irish Congress of Trade Unions ("ICTU"). The Department argued that the records were exempt under section 21(1)(b) (which provides for the refusal of a record release of which could impact on the Department's functions relating to management, including industrial relations); 21(1)(c) (which provides for the refusal of negotiation positions); section 20(1) (which provides for the refusal of records relating to the deliberative process); and sections 26 and 27 of the FOI Act (which provide for the refusal of confidential and commercially sensitive information, respectively).

Date of Decision: 13.12.2010

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

Background:

The Applicant made a request to the Department, on 26 November 2008, for various records concerning the Minister's refusal of permission for the Association to affiliate to ICTU (to which I will refer in this decision as the affiliation request). The Department's decision of 23 December 2008 released 23 records and withheld a further 24 under sections 20(1), 21(1)(c), 26(1)(a) and 27(1)(c) of the FOI Act. The Applicant made an application for internal review, dated 12 January 2009, following which the Department upheld its refusal of the remaining 24 records by way of internal review decision dated 29 January 2009, in which it also relied on section 21(1)(b). The Applicant made an appeal to my Office for a review of the Department's refusal of the remaining records at issue, on 30 June 2009.

In my review, I have had regard to the various correspondence between the Department and Mr Sean Garvey, Senior Investigator, and Ms Anne Moran, Investigator in my Office. I have also had regard to correspondence between Ms Moran and the Departments of Defence, the Taoiseach and Finance regarding views expressed by these Departments on the affiliation request, as detailed in the records at issue. I have also had regard to correspondence between Ms Moran and the Applicant; to copies of the records the subject of the request, which were provided to my Office for inspection; and, finally, to the provisions of the FOI Act.

Conducted in accordance with section 34(2) of the FOI Act, by Emily O'Reilly, Information Commissioner.

Scope of the Review

The Department of Defence advised Ms Moran that it agreed to the release of references to it in the records, given that they did not reveal information which is not already in the public domain. Furthermore, the Applicant accepted Ms Moran's view that details of views on the affiliation request expressed to the Department, by third parties who were not other Government bodies, were exempt under section 21(1)(b) of the FOI Act; thus, I do not intend to detail any arguments made in the Department's submissions as to why such details should be withheld.

The remaining details can be described as comprising the views of the Department and of the Departments of the Taoiseach and Finance (to which I will refer in the remainder of this decision as "the other Departments") on the affiliation request; details of any advantages or disadvantages they perceived would arise from granting the request, and options that were considered by the Department on foot of the affiliation request. My review is confined to the sole issue of whether the Department's refusal to release these details is in accordance with the provisions of the FOI Act.

It is important to note that section 34(12)(b) of the FOI Act places an onus on the Department to justify its refusal of the details at issue. However, I would also expect any third parties who consider that the records should be withheld, particularly public bodies subject to FOI such as the other Departments, to provide sufficient details and arguments in support of their own positions. It is also important to note that section 43(3) of the FOI Act requires this Office to take all reasonable precautions to prevent disclosure of information which any party contends is contained in an exempted record, so as to preserve that party's right of appeal to the High Court.

Submissions

Summary of Submissions Made

The Department

The Department's initial submission to this Office, dated 22 July 2009, argued that the documents consist of material directly linked to negotiations concerning the conditions of service for members of An Garda Síochána, specifically the Association's application for changes to arrangements for such negotiations. It argues that this is a significant area of industrial relations that raises important policy issues for the Department and a number of other parties, including the other Departments. In order for the Department to adopt its own position on the affiliation request, it argues that it needed to consult with those parties on the basis of confidentiality. In particular, it contends that release of details of views and correspondence exchanged with the other Departments would "clearly create severe operational and negotiating difficulties ... ." Its submission also stated that membership of ICTU is being pursued by various Garda associations at the Garda Síochána Conciliation and Arbitration Council, all proceedings of which are confidential (the Department later clarified that this Council has no role in deciding on the affiliation request, but that the third parties to this review are members of that Council).

In his initial contacts with the Department of 10 September 2009, Mr Garvey accepted that certain of the records at issue were exempt from release under section 21(1)(c) of the FOI Act. In responding to Mr Garvey's request for further comment as to why the remaining records should be exempt from release, the Department's letter of 1 October 2009 reiterated certain points set out above. It considered that the relevant parties, including the State, must be able to ensure that their positions are not undermined though the disclosure of information or material that they have compiled in the course of dealing with a particular issue or set of issues. It states that it had been accepted that discussions between the various parties, whether or not they arise within the Council framework, will be conducted on a confidential basis to facilitate the exchange of information and to speed up the identification of points on which consensus is likely to be achieved or on which further work is likely to be required. In arguing that the records also related to a deliberative process, it said that the public interests against release (particularly the need to mitigate against the serious damage to sensitive industrial relations within a vital public service that would be caused by any breach of confidence) outweighed the public interests for release.

In a letter dated 23 July 2010, Ms Moran sought clarification on a number of issues, and outlined that she considered the Ministerial decision making process on the affiliation request not to amount to negotiations for the purpose of section 21(1)(c). The Department responded, on 2 September 2010, that while it is a matter for the Minister to decide to permit a Garda association to affiliate with an outside body, this did not mean that discussions between officials and an Association on any such request could not be categorised as negotiations. It maintains that "such discussions - where options are explored, arguments are challenged, and efforts are made by both sides to persuade the other of the merits of a particular case - are negotiations in a very real sense." It also stated that the consultations were part of a deliberative process that are part of an ongoing discussion, and that the issue had been raised again in negotiations around the Croke Park agreement.

Ms Moran, in a letter dated 14 October 2010, reiterated to the Department that, while the records contain many positions, such positions were not for the purpose of negotiations. She referred the Department to this Office's decision in case number 000257, in which my predecessor, Mr Kevin Murphy, outlined what he meant to be understood by the term "negotiations" and the details he would expect to see in a record pertaining to same. That case also involved the Department.

Mr Murphy's decision noted the Oxford English Dictionary definition of "negotiation" as "the action or business of negotiating or making terms with others"and of "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".He noted that while the record at issue contained factual background, a summary of public policy in relation to a particular matter, and "a mix of opinion, interpretation, contention and conclusions" in relation to a particular European Commission opinion, it did "not contain any proposal for settlement or compromise" nor did it "contain any indications of 'fall-back' positions or other information created for the purpose of negotiations."

Ms Moran noted that, in the case the subject of this review, one of the records at issue set out various options initially considered to be open to the Department, which one could argue were fall back positions for the purpose of negotiations. However, she drew the Department's attention to other details in the records at issue, which I cannot describe further here due to the requirements of section 43(3) of the FOI Act, which seemed to her to counter any suggestions that the affiliation request could be negotiated on.

She also outlined a view that, while negotiations can fail at the end of which a unilateral decision might be made, one would expect such a decision to have been preceded by attempts on both sides to achieve a settlement or compromise on some sort of middle ground. She noted that one meeting had been held with the Association, the record of which showed no evidence of any bartering or "horsetrading". She also noted that, while a particular alternative was discussed at the meeting (which would appear from another of the records at issue to have been an existing mechanism in any event) of which the Association was noted to have sought details, the records did not indicate that the Department had made any further contact with the Association to try to reach an alternative that might be some way agreeable to both parties, prior to the Minister taking a decision on the matter. She also noted that the recommendation to the Minister did not refer to any negotiations having taken place, and indeed that the records suggested that affiliation was seen as entirely separate to the alternative so discussed.

Ms Moran noted that the meeting with the Association was held halfway through the Department's seeking of views from various interested parties, and drew the Department's attention to another relevant fact in this regard, which I cannot detail due to section 43(3). She said that she would expect there to have been more meetings between the Department and the Association if there had been any attempts to negotiate and reach common ground. She also noted that, while it could have been intended that this meeting would identify issues that might later be negotiated on once the Department had finalised its own position (taking into account the views expressed by the other parties), the Minister made his decision without any further contact with the Association. She also questioned how the single meeting with the Association could have been a negotiation when at that stage the Minister did not have all relevant views to hand, and how views made known to the Department after its meeting with the Association could have informed any 'negotiations' it might previously have attempted with the organisation. She also noted that the language in the records was not commensurate with negotiation (which, again, I cannot detail here due to section 43(3)).

Ms Moran said that, in summary, she considered that one party seeking to persuade another party to do something that is entirely within the latter's gift, and which does not depend on some sort of mutual exchange between the parties, is not a "negotiation". Thus, she saw the third party views in this case as having been sought and given in the context of an information gathering exercise for the purpose of the Minister's deliberations, and that section 21(1)(c) could not apply to any records the subject of the request.

In its final submission of 4 November 2010, the Department said that the fact that the Minister has the final word on whether to permit affiliation with ICTU does not mean that "an exchange of views between the Department and the Association, where the Association sought to persuade [the Department] of the merit of [its] position, cannot be characterised as a negotiation." It contended that the situation was not one sided, as it was "aware of the possibility that the prohibition on Garda members joining a trade union could be legally challenged by any association." It also states that any other association which makes the same case would be aware of the arguments put (and not put) to the Minister, which "undoubtedly would disclose [its] position."

Ms Moran's letter had also set out that she did not see how Government Departments could refuse to cooperate with each other in an industrial relations context, and that while the Association might not agree with the views expressed by these Departments, or with the Department's own analysis and views as contained in the records, she did not see how this of itself could cause such "severe operational and negotiating difficulties" so that there could be a "significant, adverse effect" on the Department's performance of its functions relating to industrial relations with the Gardai. Thus, she said that she did not consider section 21(1)(b) to be applicable to such details. She also outlined that she saw no reason for the details of comments made by the Association, and other details in the remaining records, to be so exempt.

The Department's letter of 4 November 2010 reiterated certain points outlined in respect of section 21(1)(c). It maintained that the purported negotiations formed part of its industrial relations with the Association and "that it is not conducive to the effective conduct of industrial relations for us to release details of our internal position on industrial relations matters."

While accepting that section 20 is applicable to the records in their entirety, Ms Moran took the view that the fact that the Association had not been given any reasons for the refusal of its affiliation request was relevant to consideration of the public interest. She noted that there is a general public interest in those who have been affected by the decision of a public body being given reasons for that decision and an opportunity to rebut the arguments concerned, thus ensuring the public body's accountability for its decisions. She said that those public interests do not appear to have been served in any way to date.

Ms Moran accepted that details of the Departments' analyses of the advantages and disadvantages of granting the affiliation request would be placed in the public domain for the first time, which she accepted could lead to the Association seeking to re-engage with the Minister in this regard. Noting that the Department would not advise her of the extent to which any deliberations may currently be ongoing in respect of other affiliation requests made, she accepted that the remaining details at issue could be of interest to any other association seeking to affiliate with ICTU in future.

However, she said that she did not see how enabling the Association or any other defence association to take issue with the various views expressed in relation to this affiliation request could impact on the Department's ability to manage industrial relations in relation to the Gardai. She said one would assume that the withheld details are robust enough to withstand criticism, and that it did not seem to her that disclosure thereof would of itself oblige the State to grant the Association's affiliation request (or that of any other association) against its better judgement. In summary, she said that she did not see how the Department's consideration of future applications could be damaged by the release of these details, and thus why the public interest should require them to be withheld. The Department replied that, on the basis that a public body should presumably always be able to stand over its position on any issue, Ms Moran's argument suggested that all details sought to be withheld by public bodies should be released.

The Department of Finance

In a letter dated 10 November 2010, the Department of Finance stated that it has "serious reservations" about the release of the records at issue and in particular any reference to its own views. It "endorse[d] the position [of] ... the Department of Justice and Law Reform that the records in question should not be released and that they should remain confidential."

The Department of the Taoiseach's Submissions

In a letter, also dated 10 November 2010, the Department of the Taoiseach said that it "strongly [held] the view that [the records] should be withheld under sections 20(1); 21(1)(b); 21(1)(c); 26(1)(a); and 31(1)(a) [of the FOI Act]." It stated that it considered it "vital to the integrity and proper functioning of our process of social dialogue that these records - and in particular references to views held by the Department of the Taoiseach contained therein - remain confidential. Indeed, disclosure of the information contained in these records could prejudice the ongoing implementation of the Public Service Agreement 2010-2014 (the Croke Park Agreement) and could be detrimental to ongoing relations between this Department and the ICTU. "

The Department of the Taoiseach also stated that the records were the Department of Justice and Law Reform's interpretation of its views as expressed during telephone conversations and meetings and that the reporting of its position on the affiliation request was not an agreed account. In this regard, it pointed to a particular comment in one of the records that it considered to be incorrect. The Department of the Taoiseach said that for these reasons it felt it would be inappropriate to release the documents at issue.

Findings

Section 21(1)(c)

This provision allows for the refusal of a record where its release could "reasonably be expected to 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". A record found to be exempt under that provision may be released, however, if the public interest in granting the request outweighs the public interest in refusing it (section 21(2) refers).

I agree with Ms Moran's view that the records at issue, the contents of which I note have actually been described by the Department as the Association's attempts to "persuade [the Department] of the merit of [its] position", do not concern negotiations. In particular, I note that the Department did not seek to contradict the conclusions Ms Moran drew from the many details in the records to which she had brought the Department's attention. It also seems to me that the possibility of a legal challenge to the Minister's decision is irrelevant in considering whether or not there have been negotiations; legal action could potentially be open to anyone who did not obtain a particular benefit being requested from a public body. In any event, I note no reference in the records to any attempts by the Association to leverage its position by threatening legal action, nor do I note any details of any fallback position that the Department intended to adopt in such an event.

Having regard to the requirements of section 34(12)(b) of the FOI Act, it seems to me that the Department has not satisfied me that the positions in the records at issue pertain to negotiations. In so finding, I have noted the Department's claim that the records are relevant to (presumably ongoing) negotiations concerning conditions of service for members of an Garda Síochána. However, there are no details in the records that concern any condition of service other than that affecting affiliation to ICTU (which I do not accept to have been subject to negotiation). While I accept that the details at issue may concern how the Association may take part in negotiations concerning changes sought to be made to other conditions of service, it remains that the records do not disclose positions that might be taken in such negotiations, nor has it been explained how such negotiations could be affected by release of the details at issue. The Department has also claimed that the affiliation issue has been raised in negotiations around the Croke Park agreement. While I presume that the Minister's refusal to allow the Association to affiliate to ICTU can impact on the role that the Association could expect to take in such negotiations, no explanation has been given as to how release of the details at issue could be to the detriment of the successful implementation of the Croke Park Agreement.

Ms Moran's letters to the other Departments made it clear that she considered section 21(1)(c) not to apply to any records the subject of the request. The Department of Finance did not comment on this view. While the Department of the Taoiseach maintained that section 21(1)(c) was applicable to the records at issue, it did not set out why it considered this to be the case. As noted earlier, I consider that these Departments have some responsibility in setting out arguments as to why records should be withheld. Taking into account the Department's failure to meet the requirements of section 34(12)(b) and the lack of explanation given by the other Departments in support of the views they expressed to this Office, I have no reason to find that the details at issue should be withheld under section 21(1)(c).

Section 21(1)(b)

Section 21(1)(b) of the FOI Act provides that a request for access to a record may be refused if such release could reasonably be expected to "have a significant, adverse effect on the performance by the body of any of its functions relating to management (including industrial relations ...) ".

The Department will be well aware that this Office considers 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. It should also be aware that, in the case of a claim under section 21(1)(b), the establishment of "significant, adverse effect" requires stronger evidence of damage than, for example, the "prejudice" standard of section 21(1)(a) (or the even lower standard of section 21(1)(c), which merely requires that release of a record would result in the disclosure of negotiation positions). Furthermore, 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).

I accept that knowledge by the Association and indeed any other Garda association with similar requests would increase the likelihood of the Department (and the other Departments) being asked to justify the stances adopted in relation to the affiliation request. However, while presumably unwelcome, it is not clear to me how such an outcome would "not [be] conducive to the effective conduct of industrial relations" such that there would be a significant and adverse effect on the Department's management of industrial relations within An Garda Síochána. Neither has any attempt been made by the Department to spell out how its relations with other Government bodies would encounter "severe operational and negotiating difficulties ..." further to release of the records at issue (or what such difficulties might arise). Thus, I do not accept that it has met the requirements of section 34(12) in making its arguments in respect of section 21(1)(b).

Again, no comment was made by the Department of Finance as to why section 21(1)(b) should apply in this case. The Department of the Taoiseach, while maintaining that "the integrity and proper functioning of our process of social dialogue" required that the details in the records be withheld, and claiming that disclosure thereof could prejudice both the ongoing implementation of the Croke Park Agreement and ongoing relations between it and ICTU, did not set out how it envisaged these outcomes arising from the release of the particular details at issue. Neither Department outlined how they considered that relations between them and the Department could deteriorate (whether a breakdown in cooperation between these bodies or some other effect at a lesser level) through release of the details at issue. It follows that I have no reason to accept their arguments, accordingly. I would also add that it is not necessary that all parties referred to in a record must agree to its content in order for it to be released under FOI. Finally, in so far as the Department of the Taoiseach is correct in its contention regarding an error in a particular record, it does not seem to me that the error concerned would be of such a nature that it, and all the records at issue, should be withheld under any provision of the FOI Act.

Having regard to the above, I find that section 21(1)(b) does not apply to the details in the records at issue. In this regard, one would suggest that meaningful dialogue between public bodies and associations such as the Association - to the extent that they are given at least general reasons for decisions affecting them - could actually serve to improve industrial relations.

Section 20

Section 20(1) provides that a request may be refused where the requested record 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 purposes of those processes). Section 20(3) provides that a record to which section 20(1) has been found to apply may still be released if the public interest would, on balance, be better served by granting rather than refusing to grant the request.

I accept Ms Moran's view on the application of section 20(1) in light of the relevance of the details at issue to the Department's potential future deliberations on similar affiliation requests (notwithstanding that the Department refused to advise this Office of the extent to which any such deliberations may currently be ongoing, despite the reference in the earlier submissions to another Association having raised the affiliation issue at the Council, and to "ongoing discussion" on the matter). However, I note that none of the Departments commented on Ms Moran's assertion that the lack of reasons given to the Association in respect of its affiliation request was a factor to be given particular consideration when assessing the public interest in this case.

The Department's letter to the Association of 16 June 2008 in respect of its affiliation request outlined that it had considered that request "in some detail" and that "officials [had] consulted with a wide range of bodies on this matter and all relevant details [had] been brought to the Minister's attention." It stated that "[a]fter careful consideration, the Minister is not persuaded that the case has been made for granting the permission requested ...". It seems to me that the Association should have been given at least some general details of how it had failed to make its "case" (language that is hardly in keeping with the proposition that the affiliation request was amenable to negotiation) and a general outline of the "relevant details" considered by the Minister. The Department has not explained why it took this approach in its dealings with the Association, but it does not seem to me to be necessarily in the public interest to withhold details on the basis that doing otherwise might cause the Association to take issue with the Minister's views, or to make a further "case" that attempts to address the weaknesses in any earlier applications.

I also agree with Ms Moran's view that the Departments' positions should be robust enough to withstand any such criticism that may be levelled against them. While the Department considers that this is an argument for releasing all details of a public body's considerations on a matter, it seems to me that such an outcome would not arise where a public body can demonstrate, or at least outlines in sufficient detail, what might result from the release of a record. I also note no comment to Ms Moran's view that disclosure would not, of itself, oblige the State to grant any further affiliation requests that may be made. Thus it is the case that the Department has not explained how its consideration of future such affiliation requests could be damaged (nor has it set out the extent of such damage) by the release of the details at issue in this case, and thus why the public interest would require them to be withheld.

Again, the other Departments did not comment on how the deliberation process within the Department can be impacted upon by release of the details at issue (nor did it outline any envisaged effect on their own deliberations, or deliberations that might take place between them and the Department).

In a situation where the Department and the other parties to the review have failed to outline in sufficient detail why they consider that particular outcomes will result from release of the records at issue, and particularly where the Department did not give the Association any reasons for its refusal of the affiliation request in the first instance, I conclude that, on balance, all details of views expressed by the other Departments, and the Department itself, should be released in the public interest. This is somewhat in keeping with the general requirements of section 18 of the FOI Act, which requires a public body to set out the reasons for a decision and any findings on material issues of fact (so long that this does not divulge information in an otherwise exempt record, which I have not been satisfied is the case here).

Section 26

Section 26(1)(a) provides that a FOI request shall be refused where the record concerned contains information:

• given to the public body concerned in confidence and,
• on the understanding that it would be treated by it as confidential and,
• its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and,
• it is of importance to the body that such further similar information as aforesaid should continue to be given to the body.

However, section 26(2) of the FOI Act provides that section 26(1)(a) shall not apply to a record which is prepared by a member of the staff of a public body in the course of the performance of his or her functions "unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than a public body or head or a director, or member of the staff of, a public body or a person who is providing or provided a service for a public body under a contract for services".

The Department's submissions concerned the application of section 26(1)(a) to information provided to it by the Garda Associations in particular. As the applicant has accepted Ms Moran's view that these details are exempt, I see no need to consider this exemption further. While I accept that the Department has not argued that section 26(1)(a) could apply to information received from the Departments (other public bodies), the provisions of section 26(2) would require me to find that section 26(1) of the FOI Act could not apply to such information in any event.

Section 27

Section 27(1)(c) of the FOI Act provides that, subject to the public interest, a head shall refuse to grant a request for a record if the record concerned contains information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates.

The Department's submission of 1 October 2009 outlined that it considered the records should be withheld as "disclosure could prejudice the conduct or outcome of contractual or other negotiations with the Garda Representative Associations". As noted earlier, I have not been satisfied that the records at issue concern negotiations. No attempt has been made to explain how the release of the details could have any impact on negotiations with the Associations that might be taking place at the present or in the near future. Thus, I see no reason for section 27(1)(c) to apply under the circumstances.

Section 31(1)(a)

Section 31(1)(a) provides that a request may be refused if access to a record, and in particular one to which section 31(2) applies, "could reasonably be expected to have a serious adverse affect on the financial interests of the State or on the ability of the Government to manage the national economy."

The Department of the Taoiseach, in citing this provision, made no attempt whatsoever to outline how the detail in the records at issue could cause a deterioration in the State's finances or impact on the Government's ability to manage the economy. I have no reason to accept its contention as to the relevance of the provision, further to section 34(12)(b), and I find that section 31(1)(a) does not apply to the details at issue.

Decision

Decision

Having carried out a review under section 34(2) of the FOI Act, I direct the release of the details at issue. For clarification, this is subject to the redaction of details concerning the third party bodies (specific details thereof will be provided to the Department, and general details thereof will be provided to the applicant, in my cover letters to this decision). Details of comments made by the Department of Defence are also to be released further to its consent to such release, regardless of any appeal on my decision as set out above.

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 on which notice of the decision was given to the person bringing the appeal.

Emily O'Reilly

Information Commissioner

13 December 2010