Whether the Department was justified in its decision to refuse a request for access to records on the basis that records are exempt from release in accordance with section 20 of the FOI Act.

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

Background

On 21 February 2012 the applicant wrote to the Department seeking to access to "all high level electronic and written correspondence including memos, background papers, preparatory advice, submissions, advice from experts if asked for and received, including a Forfas report on the matter, given to the Minister regarding the impact on jobs and/or competitiveness of proposed changes to sick pay payments". In its decision of 21 March 2012, the Department refused access to 26 records under section 20 of the FOI Act. On 28 March 2012 the applicant sought an internal review of the Department's decision. In its internal review decision of 11 April 2012 the Department upheld its original decision to refuse access to the records. On 23 April 2012, the applicant applied to this Office seeking a review of the Department's decision.

During the course of the review, the Department decided to release record Number 2 to the applicant on the ground that the record largely mirrors information which is already in the public domain but claimed that the remaining records are exempt from release under section 20 of the FOI Act. Mr Brian Murnane, Investigator, wrote to the applicant outlining his preliminary views on the case on 4 July 2012 The applicant did not respond to this letter and it is now appropriate to conclude this review by means of a formal binding decision. In conducting this review, I have had regard to the correspondence between the applicant and the Department relating to the FOI request, to the various submissions and clarifications provided by the Department; to the oral submissions of the applicant to this Office, to the content of the records at issue and to the provisions of the FOI Act.

Scope of Review

Before addressing the question of the exemption of records, I should explain that while the Department refused access to all 26 records which it identified as coming within the scope of the applicant's original request on the grounds that they contain matter relating to an ongoing deliberative process, it is clear that a number of the records at issue contain no such related matter. For example, two of the records are simply internal covering emails which contain no matter relating to the deliberative process identified by the Department. In a telephone conversation with Mr Murnane, the applicant confirmed that he does not require the extracting of particular factual sentences or occasional paragraphs or low level standard records. Rather, as described in his initial request, he seeks access to "high level ... memos, background papers, preparatory advice, submissions, advice from experts if asked for and received, including a Forfás report on the matter". Having regard to the contents of the records and to the applicant's requirements, I am satisfied that records numbered 1, 7, 8, 15, 21, and 24 are not of a type sought by the applicant and I have therefore excluded those records from the scope of this review.

Accordingly, the scope of this review is concerned solely with the question of whether the Department was justified in its decision to refuse access to records numbered 3, 4, 5, 6, 9, 10, 11, 12, 13, 14, 16, 17, 18, 19, 20, 22, 23, 25 and 26 as listed in the Schedule provided to the applicant by the Department, on the basis that the records are exempt from release under section 20 of the FOI Act.

Analysis and Findings.

Section 20(1)
Section 20(1) of the FOI Act provides that:-

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 records at issue in this case comprise briefing notes and related correspondence between the Minister for Jobs, Enterprise and Innovation, his advisors, Departmental staff, and staff of Forfás, all relating to the Department's consideration of the introduction of a statutory sick pay scheme. The Department explains that the records were created on foot of the consideration of a proposal for a statutory sick pay scheme and that the views and analysis of officials from the Department and Forfás were sought as part of the internal Departmental process of considering the proposal. It adds that the deliberative process of reflecting on the wisdom or expediency of the proposal and weighing up alternative options is ongoing in two strands, as follows;

• the policy formulation is being led by the Department of Social Protection and the process is ongoing, and
• the Department of Jobs, Enterprise and Innovation is continuing to formulate a final position on the matter.

Furthermore, the Department claims that the examination of the overall impact of any proposal on a scheme has yet to be submitted to Government for its consideration.

Having examined the records at issue in this case, I am satisfied that they contain information relating to the deliberative processes of the Department. However, that is not the end of the matter. Section 20(2)(b) provides that section 20(1) does not apply to a record if and so far as it contains factual information while section 20(3) provides that section 20(1) does not apply where it is considered that the public interest would, on balance, be better served by granting than by refusing the request.

Section 20(2)(b)
The Department accepts that a number of the records at issue contain factual information. However, it argues that the disclosure of the factual information would at the same time disclose the process of selection involving opinion, advice, or recommendation for the purpose of the deliberations on the proposal for a statutory sick pay scheme. Whether or not the Department is correct, the fact remains that section 20(2)(b) does not allow the Department to withhold purely factual information contained in the records at issue on the grounds that section 20(1) applies. However, during the course of the review, the applicant made it quite clear that he has no interest in receiving standalone factual extracts from the various of records. In view of this, and having regard to section 13(2) of the FOI Act which provides that the requirement on a public body to prepare a copy of so much of a record as does not consist of exempt information does not apply if the copy provided would be misleading, I have decided not to consider the question of whether certain parts of the records at issue should be released under section 20(2)(b).

Section 20(3)
As I have indicated above, section 20(3) provides that "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." In deciding whether or not to release a record on public interest grounds, the FOI Act requires a balance to be struck between the competing public interest factors in favour of release of a record against those favouring exemption of a record.

The Department accepts that there are a number of public interest factors in favour of the release of the records at issue, including

• 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 actions taken by a public body, in this case the Department,
• the public interest in increasing openness, transparency and accountability in the manner in which the Department carries out its decision making processes, and
• the release of the records could allow for a more informed public debate on the matter.

On the other hand, the Department argues that the release of the records at this point in the pre-decision stage would be an intrusion into its full and comprehensive consideration of a significant policy issue. It refers to the comments of the sponsoring Minister when the Freedom of Information Bill was being debated in the Oireachtas in 1997, that;

"The purpose of this section [section 20] is to protect certain narrow elements of the policy making process until a decision has been taken" and

"The purpose of the section is to ensure public bodies can get on with making decisions".

The Department also argues that the disclosure of the records could undermine the advisory function of Forfás during the development of policy decisions by the Department and that this is not in the public interest. On the question of increasing openness and transparency, the Department further argues that a certain degree of openness and transparency currently exists in relation to the ongoing deliberative process on the proposal under consideration. It explains that the Minister for Social Protection hosted a consultative seminar on the feasibility and implications of introducing a statutory scheme of sick pay on 20 February 2012 which was attended by a broad range of key stakeholders and who were afforded an initial opportunity to discuss the complex issues involved. According to the subsequent report published by the Department of Social Protection on the matter, the forum represented a valuable opportunity to gather the views of key stakeholders and had identified the very wide range of issues which required to be further explored in advancing consideration of a statutory sick pay scheme.

Having considered the Department's arguments, I fail to see how the disclosure of the records at issue might undermine the advisory function of Forfás. However, I do accept that there is a strong public interest in the ensuring that the Department can properly and fully develop full and comprehensive consideration of a significant policy issue and that impairing the Department's ability to do so is not in the public interest. In my view, it is a reasonable proposition that the Department should be in a position to engage in a pre-decision deliberative process without undue or unreasonable interference. I am satisfied that the records at issue contain material relating to the Department's deliberations on the final position, or decision, it wishes to take in relation to the proposal for the introduction of a statutory sick pay scheme. Furthermore, while I accept that the existence of a certain degree of openness and transparency relating to a deliberative process does not, of itself, mean that further measures should not be taken to increase such openness and transparency, I am conscious of the need to strike a balance between increasing openness and allowing public bodies to engage fully in unimpaired pre-decision deliberative processes. Accordingly, I am satisfied that the public interest in favour of the release of the records at issue is outweighed, on balance, by the public interest in refusing the request. I find, therefore, the the Department was justified in refusing access to the records at issue pursuant to the provisions of section 20(1) of the FOI Act.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby affirm the decision of the Department in this case.

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.

Stephen Rafferty
Senior Investigator
18 September 2012.