The Senior Investigator annulled the Department's decision and found that the records should be released.

Case Summary

Whether release of records relating to the Planning (Mahon) Tribunal is exempt on the basis that it was obtained in confidence, in accordance with section 26(1)(a) of the FOI Act, or against the public interest as it would reveal the deliberative process of a public body, in accordance with section 20 of the FOI Act.

Date of Decision: 30.07.2010

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

Background:

On 28 July 2009, the Applicant sought certain records concerning the Planning Tribunal. In its decision of 8 October 2009, the Department released a number of records and withheld others, both in full and in part, citing sections 19(1)(a), 19(1)(b), 19(1)(c), 20, 22(1)(a) and 26(1)(a) of the FOI Act as the basis for claiming exemption. The applicant sought internal review of the Department's decision on 8 December 2009.

In an internal review decision of 12 January 2010 on that application, the Department affirmed its original decision. On 16 March 2010 the Applicant applied to this Office for a review of that decision.

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.

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

Scope

The original FOI request sought records relating to 5 separate issues concerning the Planning Tribunal. The applicant confirmed to this Office that he wished to appeal one component of his original FOI request. It is noted that the Applicant agreed with the Department that the wording of this component would be amended to the following: "all correspondence and memos in the Department, from May 2007 to date, on the subject of - the pay and expenses of the lawyers working for the Tribunal - the number of days worked by such lawyers; and when the Tribunal might finish". This review is based on the agreed revised wording.

The Applicant accepted, following communications with this Office, that certain records were properly exempted on the basis that they concerned the business of the Government, business of the Tribunal, legal professional privilege or are otherwise outside the scope and he agreed that these records do not need to be considered further as part of this review. This means that the scope of the Applicant's request is confined to the following record/parts of records on the schedule prepared by the Department: 8, 15 (apart from paragraphs 4 and 5), 22 (apart from paragraphs 4 to 9), 26 (apart from last paragraph on 2nd page and 3rd and 4th pages), 28, 29 (apart from last paragraph on 2nd page and 1st paragraph on 3rd page), 30 and 40. The Department has contended that these remaining records/parts of records are exempted under sections 20 and 26(1)(a) of the FOI Act and these exemptions are considered below.

Submissions

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Findings

Preliminary Matter

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

Settlement Proposal

In my view, it should not have been necessary to issue a formal decision in this case and, therefore, the insistence of the Department that a formal decision issue, without providing adequate reasoned arguments as to why the records should be exempted, has led to unnecessary time and resources being applied to this case. This Office tried to settle the case without the need for a formal decision and, during the course of this process, the Department had agreed to release all the above records administratively except for one (record no. 22), albeit on a without prejudice basis. The views of the Tribunal on the relevant records were sought and following receipt by this Office of a submission from it, it was agreed by this Office and the Applicant that further records and portions of records were properly exempted were therefore by agreement removed from the scope of the review. With regard to the record in dispute, record number 22, the Tribunal made the case that a substantial proportion of that record should be exempt, based on section 22(1A) of the FOI Act, a section which the Department had not sought to rely upon. This was agreed by this Office and by the Applicant. However, the Department maintained its position that the proposed settlement was based on this particular record being exempted in full and that it required this Office to go to formal decision on all of the records in the absence of the Applicant accepting that record no. 22 was exempt in full. The Tribunal confirmed that it had no objection to the release of the remainder of the records.

I fully accept that any proposal to settle an application received by this Office is subject to the agreement of the parties involved, and that in this case the Department, as is its right, did not accept the proposed settlement. However, it stated in correspondence with this Office that it required a final decision on the matter and that such a decision would provide clarity on this Office's position on the records. As the position of this Office on the records was set out in correspondence with the Department, I do not accept that a final decision is necessary to provide such clarity. It must be stated that while the Department has contended that these records are exempt, as required by section 34(12)(b) of the FOI Act, it has not provided the necessary evidence that would demonstrate why the remainder of the records should be exempted. The fact that the Tribunal has no objection to the release of the records in question in my view fatally undermines any case the Department could have made that the records were obtained in confidence in accordance with section 26(1)(a) of the FOI Act. Furthermore, it has not provided any basis for its contention that any deliberations in accordance with section 20(1) of the FOI Act would suffer as a result of the release of the records.

In addition, the head of a public body may exercise his or her discretion under sections 20 and 26 in favour of disclosure. As with all discretionary exemptions, I take the view that the public body must show that the refusal of access is justified in the circumstances and that the refusal of access does not fly in the face of the aims, principles and policies underpinning the FOI Act. On this point, while the purpose of the Act, according to its long title, is to enable members of the public to obtain access to information in the possession of public bodies to the greatest extent possible consistent with the public interest and the right to privacy, and to provide for a right of access to records held by such bodies, the long title also recognises that such right is subject to "necessary exceptions". In this case the Department has failed to show that the refusal of access is justified.

Analysis and Findings

Section 20 - the deliberative process

The Department made no substantive arguments in support of its position in either its original decision or in its internal review decision other than an assertion that the records are exempt under section 20 of the FOI Act and that it considers, on balance, that they should be released in the public interest, although no public interest arguments were advanced. The records concerned are 8, 15 (apart from paragraphs 4 and 5), 22 (apart from paragraphs 4 to 9), 26 (apart from last paragraph on 2nd page and 3rd and 4th pages), 28, 29 (apart from last paragraph on 2nd page and 1st paragraph on 3rd page), 30 and 40.

Section 20(1) provides:

" 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 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. I have already referred to section 34(12)(b) of the FOI Act which 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." For these reasons, I find that section 20(1) does not apply to these records.

Even if I were to find that section 20(1) did apply, I would have to consider the public interest test provided for at section 20(3) which provides:

"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."

Were it necessary to apply the public interest test in this case, I feel that the arguments in favour of releasing the records would be likely to outweigh those favouring refusal. Firstly, there is a strong public interest in release of information concerning the Tribunal in view of the large amount of public money involved. Secondly, the only argument put forward by the Department concerning section 20 is that its "view in this matter was that the staffing and duration of the Tribunal were clearly under consideration in the period in question and were the subject of a number of reports to government and government decisions. It was my view therefore that there was an ongoing deliberative process in relation to the duration and staffing of the Tribunal in the period in question". In this statement the Department appear to be saying that the deliberative process to which the records relate has been completed which, in keeping with previous decisions of the Commissioner, in my view provides further grounds for the release of the records in question in the public interest. Finally, there is a general public interest in release of information concerning Tribunals which conduct business on behalf of the public and at the public's expense. It is not clear what additional public interest is served by refusing the records as no evidence has been presented by the Department that release will have any damaging consequences and the Tribunal itself has no objection to the release of the records.

Section 26: Information given in confidence

The Department made no substantive arguments in support of its position in either its original decision or in its internal review decision other than an assertion that the records are confidential. The records concerned are 8, 26 (apart from last paragraph on 2nd page and 3rd and 4th pages) 28 and 29 (apart from last paragraph on 2nd page and 1st paragraph on 3rd page).

Section 26(1)(a) requires that a head refuse a request where the record concerned contains information

• given to a 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 should continue to be given to the body.

Section 26(1)(b) requires that a head refuse a request where disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment or otherwise by law. The Department has not claimed that disclosure would constitute a breach of confidence provided for by law as provided by Section 26(1)(b). The issue which I have to consider, therefore, is whether the exemption in Section 26(1)(a) applies.

It is contended by the Department that release of the records would reveal information that was communicated in confidence to the Department and section 26(1)(a) has been cited to exempt the records. That section contains four elements, as listed above, all of which must be satisfied before 26(1)(a) applies to a record. One of the four elements is that disclosure of a record "would be likely to prejudice the giving to the body of further similar information from the same person or other persons". Having examined the records, this Office, in preliminary views letters of 4 May and 1 June 2010, put it to the Department that the obvious provider of information in this case is the Tribunal, and given the nature of the relationship between it and the Department which funds it, this Office did not accept as realistic a contention that the Tribunal would refuse a request by the Department to it for information on behalf of the Minister. On this basis, this Office informed the Department that it did not accept than any records are exempt under 26(1)(a). In a substantive response, dated 8 July, the Department contended that the matter "was not quite as clear cut as this" and said that "while the Tribunal would of course provide information on request to the Department, it is nonetheless possible that communications received might be somewhat different, if it were known that they would be made available to other parties. I consider that there was at least an arguable case that the 4th test [third bullet point above] in section 26 was also, in fact, met ..."and that "it is in the interest of any Department which is the parent Department to a Tribunal - which is not in itself subject to the FOI Acts - to receive communications from that Tribunal which are as open and informative as possible". Having further examined the records in detail, I do not accept the Department's contention, with regard to the subject matter of the records in question (i.e. staffing and duration of the Tribunal), that the Tribunal would have been less open and informative should it have known that the documents could be made public under FOI. In any event, in the circumstances where the provider of the information, the Tribunal, has no objection to the release of the information, I cannot see how this argument has any validity in this case.

Previous Decisions

Case No. 99035

As previously stated, the Tribunal has notified this Office that it has no objection to the release of the records in question. On 12 July 2010, this Office drew the attention of the Department to a previous decision of the Commissioner - case no. 99035, Mr. X and the Department of Enterprise, Trade and Employment (Department of ETE) - which is relevant to the current case. In that case, the Department of ETE sought to rely on section 26(1)(a) of the FOI Act as it contended that it was likely that Shannon Development would not supply it with relevant information if records containing that information were to be released on foot of an FOI request. In his decision, the then Commissioner stated that "Shannon Development advised this Office that it had no objection to the release of the records at issue. It seems to me that Shannon Development's acceptance that these records can now be disclosed fatally undermines the Department's argument on this point since it is a clear indication that the third requirement of section 26(1)(a) is not met". In the current case, in view of the fact that the Tribunal has advised this Office that it has no objection to the release of the records in question, the Department's argument, that its disclosure would be likely to prejudice the giving to the Department of further similar information from the Tribunal, is similarly undermined. No comment was received from the Department on this point, but it confirmed to this Office that it continued to seek a formal decision in the case. Therefore, I find that the third element above has not been satisfied and that section 26(1)(a) of the FOI Act does not apply to the records.

Case No. 98084

In the current case, the Department also contended that some of the records should be exempt on the basis that they were "often signed by a member of the Tribunal and are invariably marked "Strictly Private and Confidential, For Addressees Eyes Only"". This issue was dealt with previously in case number 98084, AAQ and the Irish Pensions Board. In that decision the then Commissioner stated:

"In relation to the first requirement, I note that the letter in question is headed "strictly private and confidential". This tends to support the view that the communication was intended to be kept confidential. However, an examination of the contents of the letter suggest that there is nothing in it of an inherently confidential nature".

Similarly, in this case having examined the contents of the records in question, I cannot see anything in the records to suggest that the information is of an inherently confidential nature and in view of the fact that the Tribunal had no objection to release of these records copperfastens this view. In view of this, I do not accept that this is a basis for section 26(1)(a) to apply.

Even if I were to find that section 26(1)(a) did apply, I would have to consider the public interest test provided for at section 26(3) which provides:

"subsection (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."

Were it necessary to apply the public interest test in this case, I feel that the arguments in favour of releasing the records would be similar to those considered in the context of the deliberative process above and would therefore outweigh those favouring refusal.

Decision

I annul the Department's decision and find that the records should be released.

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 July 2010