Case 100213

The Senior Investigator found that the Department is not justified in its decision to refuse access to the records; he annulled the decision of the Department and directed the release of the records.

Case Summary

Whether the Department is justified in its decision to refuse access to records under sections 20(1), 21(1)(a) and 21(1)(c) of the FOI Act. The records requested relate to the pilot scheme for Community National Schools and to the religious education programme in those schools.

Date of Decision: 26.08.2011

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

Background:

On 30 March 2010, the applicant made the following request under the FOI Act:

"All correspondence between the Department of Education and the National Council for Curriculum and Assessment regarding the Religious Education programme being designed for use in the Pilot Community National Schools.

All material including preparatory material and/or background documents, memos etc that relate to plans to involve (or not involve) the NCCA and/or Clare Maloney in devising the Religious Education curriculum for the Community National Schools".

The Department issued a decision to the applicant on 7 May 2010 releasing some records and withholding others under sections 20(1) and 21(1)(c) of the FOI Act.

The applicant sought an internal review of this decision on 9 June 2010.  The Department upheld the original decision on 12 July 2010 and applied an additional exemption to one record under section 21(1)(a) of the FOI Act.

The applicant wrote to this Office on 24 August 2010 seeking a review of the Department's decision.

In conducting this review, I have had regard to the submissions of the Department and of the applicant as well as those of the requester. I have also had regard to the content of the records at issue as well as to the provisions of the FOI Act.

Conducted in accordance with section 34(2) of the FOI Act by Mr Fintan Butler, Senior Investigator, who is authorised by the Information Commissioner to conduct this review.

Scope of Review

The Department has identified 15 records as relevant in this case. Of these, Records 9,10,11, 12 and 14 have been released in full. Records 2, 4, 5, 8, 13 and 15 have been released in part only; and Records 1,3,6 and 7 have been refused in full. In the case of Records 2, 4, 5, 8 and 15, the material deleted is not material encompassed in the request and, thus, does not require to be considered further. However, this is not the case with Record 13 where the deleted material is encompassed in the request as made.

The records at issue in this review, therefore, are: Records 1,3,6 and 7 as well as the deleted material in Record 13.  This review is concerned solely with the question of whether the Department is justified in its decision to refuse access to the applicant's request for these records under section 20(1), 21(1)(a) and 21(1)(c) of the FOI Act .

Submissions

.

Findings

Records 1, 3, 6 and 7

Records 1,3,6 and 7 were withheld under section 20(1) of the FOI Act.

Section 20  provides:

"(1) 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).

(1A) ....

(2) ...

(3) 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.

The "matter" in these records does relate to a deliberative process of a public body, namely, the Department's deliberations on how best to advance the development of community national schools and the religious education programme in those schools. On the face of it, and since there is no harm test within the provision, section 20(1) is capable of applying in this case. However, as is clear from sub-section (3), the exemption at sub-section (1) will apply only where the public interest is better served by refusing the request than by granting the request. Thus, the public interest balancing test must be applied.

In this context, the primary public interest consideration suggesting that the request be granted is the public interest in transparency in government; this is a public interest reflected in the FOI Act itself, taken in its totality. The primary public interest consideration suggesting that the request should not be granted is the public interest in protecting the workings of government including the deliberative processes of government; this public interest is reflected in section 20 of the FOI Act.

In attempting to balance these competing public interests, it is legitimate to look in the particular case at the consequences of granting or not granting the request. In this particular case, it is relevant to consider what harm to the workings of government might ensue from the granting of the request. A particular consideration is the extent to which the deliberative process in question has been advanced and/or whether the process has actually been completed.

Records 1,3,6 and 7 relate to the Religious Education Programme in the Pilot Community National School model. The Department says that a decision in relation to the suitability of the model as an alternative to existing patronage models and the roll-out of the model on a wider basis has not yet been taken. In this regard, the Department's position is that deliberations have not been completed. The Department also argues that the release into the public domain of details of initial proposals on how the Religious Education Programme might be delivered has the potential to compromise both the action research and the ongoing evaluation of the Community National School pilot. In particular, it considers that consultations with the school communities, and especially those with parents, would be adversely affected by media coverage of the issue delivered out of context.

On examination of the records, it is clear that they relate to the development of the Religious Education Programme for Junior and Senior Infants initially. As this element of the Programme is already being delivered, I am satisfied that the Department's deliberations on this aspect are largely complete. I take the view that the grant of the request in relation to these records will not impinge negatively, to any significant extent, on the public interest in protecting the workings of government. On the other hand, the public interest in governmental transparency will be promoted significantly by the grant of the request. I find, therefore, that "the public interest would, on balance, be better served by granting than by refusing to grant the request" in the case of Records 1,3, 6 and 7.

Record 13

Record 13 is an email communication  from the Marino Institute of Education (MIE) to the Department and deals with the [then] proposed involvement of the Institute in the development of material for the Religious Education Programme, at infant class level, in the community national schools. The material deleted from Record 13 deals with a preliminary estimate of the costs involved. The Department has relied on the exemptions at section 20(1), section 21(1) (a) and 21(1) (c) of the FOI Act in justification of the withholding of this material.

The Department's position is that the "overall project", as referred to in the withheld material, is ongoing and will continue until modules of the religious education programme have been developed for delivery in all class years, i.e. junior infant class through to sixth class. On this basis, it claims section 20(1) - the provision is set out above - should apply. As this pilot project has been largely completed, I see no basis for redacting the record under section 20(1) of the FOI Act.

Section 21 provides:

(1) "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-

(a) prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of a public body or the procedures or methods employed for the conduct thereof;

(b) ...

(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 purpose of any negotiations carried on or being, or to be, carried on by or on behalf of the Government or a public body.

(2) 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 under section 7 concerned."

In the case of section 21(1)(a), I cannot see that there is even a prima facie case that this exemption applies.

In the case of section 21(1)(c), the Department says that the withheld material relates to preliminary estimates of the indicative cost of the MIE carrying out an action research project and includes details of the various elements involved and the estimated individual costs of those elements. The Department points out that the project did not proceed entirely on the basis proposed by the Marino Institute of Education. It says that the "overall project" is ongoing and will continue until modules of the religious education programme have been developed for delivery in all class years, i.e. junior infant class through to sixth class.

While the project did not proceed entirely on the basis proposed by the MIE, its proposals reflect an understanding that the project was then at a very preliminary stage. It is difficult to see that the Department has made out any case that, prima facie, any of the section 21 grounds for exemption apply.

Even if there were a prima facie case that one or other of the section 20 or section 21 grounds for exemption apply, the public interest balancing test would have to be applied. The Department takes the view that the public interest would be better served by not releasing the withheld material as it claims that premature release could prejudice the effectiveness of the ongoing activity of the action research project being undertaken to develop a religious education programme for the community national schools. I am not convinced that there is any realistic basis for believing that this "harm" would be brought about by virtue of releasing the material. Thus, for the same reasons as set out above in relation to Records 1, 3, 6 and 7, I find that"the public interest would, on balance, be better served by granting than by refusing to grant the request" in the case of the material withheld from Record 13.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby annul the decision of the Department and direct that the records at issue be released to the appellant.

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.

Fintan Butler

Senior Investigator

26 August 2011