The Senior Investigator found that the Department failed to meet its burden of proof under section 34(12)(b) to justify its exemption of the record. He annulled the Department's finding and directed it to release the record concerned.

Case Summary

Whether the Department of Finance ("the Department") is justified in its decision to refuse, by reference to sections 20, 21, 23, 27 and 31 of the FOI Act, access to the Department's Risk Management Strategy for 2006.

Date of Decision: 23.02.2010

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

Background:

On 24 June 2009 the Applicant sought, under the FOI Act, a copy of the "Risk Register/Risk Management Strategy maintained by the Department as it stood on the following date: December 31, 2006". The Department, in its decision of 24 July 2009, notified the Applicant that it was refusing release of the record on the basis that the record was exempt under sections 20, 21, 23, 27 and 31 of the FOI Act.

On 16 August 2009, the Applicant applied for an internal review of the Department's decision. In a late internal review decision dated 16 October 2009, the Department affirmed its original decision contending that the withheld record was exempt from release under sections 20(1)(a), 21(1)(a), 23(1)(a), 27(1)(b) and 31(1)(a) of the FOI Act. The Applicant then applied to this Office, on 26 October 2009, for a review of the Department's decisions.

In conducting this review, I have had regard to the relevant submissions of the Department as well as those of the applicant (including those he made to the Department); the provisions of the FOI Act and the contents of the record (a copy of which have been provided to this Office by the Department for the purposes of this review).

Section 43 of the FOI Act requires 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. These constraints mean that I can give only a limited description of the record at issue.

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 Department is justified, in terms of the provisions of the FOI Act, in its decision to refuse access to record identified above on the basis that it is exempt from release. It is noted that the Applicant has confirmed to this Office that he is not seeking access to the appendix to the record which is entitled "ICT Security" and therefore that appendix will not be considered further as part of this review.

As set out at section 34(12)(b) of the FOI Act, 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 Department to satisfy me that its decision is justified.

Submissions

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Findings

Section 20

Section 20(1) of the FOI Act provides as follows:

"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),

The Department has made the point that the record relates to risk management which is not an event but rather a process that needs to be constantly monitored. I accept, therefore, that the records are potentially exempt on the basis of section 20(1) of the FOI Act.

However, the exemption provided for at section 20(1) is not a mandatory exemption unlike, for example, the exemption provision contained at section 20(1A) of the FOI Act. In invoking a discretionary exemption, the Commissioner expects that a public body will make a clear case in support of the need to rely on that particular exemption. Given that section 20, in broad terms, is intended to protect a deliberative process of a public body, one can reasonably expect that a public body, seeking to rely on section 20(1), will say why, in its view, release of the records will have a detrimental effect on the particular deliberative process in question. The Department has failed to make any explicit arguments to this Office as to why section 20(1) might apply in this case, but rather made the general point that "section 20(1)(a) of the 1997 Act covers situations against undue intrusion into the advisory and decision making processes of public bodies thus protecting the deliberative process so that an ongoing activity of formulating, considering, weighing up, advising and deciding on issues is not interfered with".

Section 34(12)(b) of the FOI Act, which I refer to above, provides that, in a review, "a decision to refuse to grant a request under section 7 shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified." The Department was informed, on 4 February 2010, of the preliminary view of this Office that the record was not exempt under section 20 and was invited to make a submission in response to that view, but did not reply. However, in its reply dated 23 December 2009, to a previous preliminary views letter, the Department said that "the issues raised with regard to the above request [current FOI request] have been considered and the Department's views remain as previously stated". Therefore, having been invited to do so, the Department has not shown to the satisfaction of this Office that its refusal, in so far as it relies on section 20, is justified. Accordingly, in keeping with the provisions of section 34(12)(b) of the FOI Act, as the Department has not shown to my satisfaction that its decision to exempt the record is justified, I find that the record is not exempt under section 20.

Sections 21, 23, 27 and 31

The Department has also relied on sections 21, 23, 27 and 31 of the FOI Act as a basis for its refusal of the record. I do not intend to repeat all the arguments here which were set out in this Office's preliminary views letter of 7 December 2009 concerning these sections. However, that letter informed the Department of this Office's view that the general nature of the record's contents was such that its release could not have any of the effects to which the Department referred, nor had a case been made by the Department outlining the basis for its contention that these outcomes would be likely to happen on release of the record. That letter further informed the Department that section 34(12)(b) clearly places the burden of proof on it to satisfy the Commissioner that its decision to exempt the record was justified. As referred to above, the Department, when given the opportunity, subsequently declined to make any further substantive submission or to make such a case. As the Department, having been given the opportunity to do so, declined to make any further substantive submission to meet that burden of proof, I hereby find that neither section 21, 23, 27 nor 31 apply to the record.

Sections 20, 21, 23, 27 and 31 have public interest clauses which provide that as well as coming within the scope of these sections of the Act, it must also be the case that the public interest would, on balance, be better served refusing than by granting release of the record. As I have found that none of these sections apply, it is not necessary for me to consider the public interest further in this case.

Accordingly, I find that the record is not exempt and should be released.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I annul the decision of the Department of Finance and I direct the Department to release the record in question.

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

23 February 2010