Whether the Department was justified in its decision to refuse a request for access to records under section 7 of the FOI Act in accordance with the provisions of sections 6(4) and 20 of the FOI Act.

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

Background

On 22 December 2010, the applicant made a Freedom of Information (FOI) request to the Department of Education and Skills seeking access to all records in relation to:

(1) its qualification, the Secondary School Teacher's Drawing Certificate,
(2) records, briefing notes etc. created before and after a meeting the applicant had with the Secretary General, and any records created after she sent details of the Secondary School Teacher's Drawing Certificate and other documents to the Secretary General on 24 February 2009,
(3) the record entitled "Report on the TS Examinations 2007" by John Byrne, and
(4) minutes of meetings of the Department's Management Advisory Committee (MAC) which contain records concerning the applicant's meeting with the Secretary General.

On 14 February 2011, the Department issued a decision on her request. The applicant requested an internal review of this decision on 4 March 2011 and on 24 March 2011, the Department issued a decision on internal review. The Department has refused access to:

(i) pre-commencement records on the grounds that the records are exempt from release as they fall outside the scope of the Act and therefore that section 6(4) of the FOI Act applies;

(ii) the following records on the basis that they contain the personal information of third parties and therefore that section 28 of the FOI Act applies -
"Report on the TS Examinations 2007" by John Byrne - pages nos. 49-55 (in their entirety)
Parts of Records referred to by the Department as A12 and A16, A74-76, A78-79
Parts of Records referred to by the Department as B1, B3-4, B12, B14, B16, B18, B20-21;

(iii) the names of examiners which are contained on pages 92-107 of the "Report on the TS Examinations 2007" by John Byrne on the grounds that the records contain information, the disclosure of which may be prohibited by another enactment and therefore that section 32(1)(b) of the FOI Act applies;

(iv) the following records on the basis that they contain information which is subject to the deliberative process and therefore that section 20 of the FOI Act applies -
"Report on the TS Examinations 2007" by John Byrne - parts of pages nos. 18-21, 24-27, 32, 35, 117-119; and

(v) any additional records on the grounds that no further records relevant to the review exist or can be found and therefore that section 10(1)(a) of the FOI Act applies.

The applicant sought a review of the Department's decision by letter dated 23 September 2011. I note that Ms Rachel Dunn, Investigator, wrote to the applicant on 5 February 2013 informing her of her preliminary view that the decision of the Department was justified in this case. The applicant responded in a letter dated 22 February 2013 with further details which she deemed to be relevant to the review and indicated at this point that it was only numbers (i) and (iv) above which she now wishes to appeal. I consider that the review should now be brought to a close by the issue of a formal, binding decision. In conducting this review, I have had regard to the provisions of the FOI Acts, to the submissions of the applicant (including those made to both the Department and this Office), and to those of the Department. I have also examined the records at issue.

Scope of the Review

As the applicant has now confirmed that she does not wish to appeal (ii), (iii) and (v) listed above, the scope of this review is concerned solely with the question of whether or not the Department was justified, in accordance with the provisions of sections 6(4) and 20 of the FOI Act, in its decision to refuse the applicant's request for records on the grounds that they are either pre-commencement records or that they are records which are currently subject to the deliberative process.

Analysis and Findings

Sections 6(4) and 6(5) - Pre-Commencement Records
Section 6(4) of the FOI Act confers a right of access to records created after its commencement, i.e. 21 April 1998. Section 6(5) of the FOI Act provides for access to records created before the commencement of the FOI Act in two circumstances. The first is where access is necessary or expedient in order to understand records created after such commencement. The second is where the records relate to personal information about the person seeking access to them. The applicant did not argue that the pre-commencement records to which she is seeking access relate to personal information about her, nor do I consider this to be the case. Therefore, the only matter to be considered in relation to the pre-commencement records is whether access is necessary or expedient to understand records created after commencement.

The Information Commissioner has previously dealt with the application of section 6(5)(a) in a number of published decisions such as Case Number 98117 (Mr ABE and the Department of Marine and Natural Resources), Case Number 98169 (Mrs ABY and the Department of Education and Science) and Case Number 090194 (Mr X and Dun Laoghaire Rathdown County Council). The level of proof required by the Information Commissioner regarding section 6(5)(a) is very high. In dealing with the meaning of the word "understand" in the context of section 6(5), the Information Commissioner has previously determined that the word "understand" is not used in a narrow, literal sense. Rather, the section is directed not at the question of whether a record can be understood in a literal sense without reference to earlier records but at whether its substance (or gist or subject matter) can be understood. Having said that, the fact that a document does not contain all of the information which a reader might wish to have does not mean that the substance of a document cannot be understood. The fact that an earlier record may throw fresh light on the subject discussed in a later record or that it may enable a requester to extend or analyse information contained in a later record, does not of itself mean that access to the earlier records is necessary or expedient in order to understand the later record.

The Information Commissioner has also previously considered the significance of the use of the word "expedient" in section 6(5)(a) and has taken it to mean "fit, proper or suitable to the circumstances of the case" [OED]. The word "expedient" is less restrictive than the word "necessary". The Information Commissioner has previously rejected arguments that the use of the word "expedient" is designed to enable a requester to gain access to pre-commencement records where that access enhances his/her understanding of a post-commencement record and said that the release of a pre-commencement record is justified only to the extent that such access is a suitable means of achieving the end of understanding the substance of the post-commencement record.

When making her application for review in this case, the applicant argued that she cannot understand a particular post-commencement record without having access to pre-commencement records. The post-commencement record in question is a letter dated 30 July 2010 which was sent by the then Tánaiste and Minister for Education and Skills, Mary Coughlan T.D., to the applicant in which she explained why the Department did not consider the applicant to be a qualified art teacher until 1986. The letter explained that the Department's Memorandum V.31 provided for the award of the Art Teachers' Certificate (a qualification to teach Art) on the basis of the Technical School (TS) examinations and required a pass in 4 elements at Advanced Level. Minister Coughlan said that she understood that while the applicant had passed the Principles of Teaching Art course in 1972 the applicant did not have any of the first class passes required under section B(ii) of Memorandum V.31 in order to be considered a qualified Art teacher until she had successfully achieved the fourth and final first class pass in an Advanced TS subject in 1986. The letter also said that Circular 23/74 introduced an option of taking the various examinations by way of assessment rather than through a set examination.

The applicant argued that she needed the pre-commencement records because she had met the requirements of the "Secondary School Teacher's Drawing Certificate" in 1972 but was not awarded this qualification. However, section 8(4) of the FOI Act expressly provides that decision makers shall, subject to the provisions of the FOI Act, disregard any reasons that the applicant has, or is believed to have, for making a request. Regardless of the importance of such issues to the applicant, the jurisdiction of this Office is confined to examining the records in conjunction with the relevant FOI legislation to decide whether or not the records should be released.

In her request for access to pre-commencement records, the applicant referred specifically to a sentence in Minister Coughlan's letter which said "Notwithstanding the additional material you furnished following your meeting with the Secretary General and Minister O'Keeffe's Special Advisor, my Department's view remains the same". In view of the Information Commissioner's interpretation of section 6(5)(a), as outlined above, I am restricted to considering whether or not the substance of the post-commencement record (i.e. Minister Coughlan's letter) allows it to be understood in the absence of pre-commencement records. I am satisfied from examining this letter that the substance of the letter sets down quite clearly and unambiguously the position in relation to the conditions which needed to be satisfied in order to be awarded the "Art Teacher's Certificate" from September 1968 onwards and explains that while the applicant passed the PTA in 1972 she did not fulfil all of the requirements set down in Memorandum V31 to be considered a qualified art teacher at that stage. The letter further explains that the applicant did not fulfil the qualification criteria (set down in Memorandum V.31) until she passed the last of the required Advanced TS subjects in 1986 and that this is the Department's view, notwithstanding any additional information which the applicant had sent it.

I am aware that the additional material which the applicant submitted to the Department included a Prospectus for the 1968/69 Session in the Crawford Municipal School of Art Cork and that this prospectus outlined the conditions which applied from 1 July 1955 onwards for the award of the Department's "Secondary School Teacher's Drawing Certificate" which the applicant says was an alternative qualification to teach art. However, I am satisfied that there is no ambiguity in the substance of Minister Coughlan's letter regarding the "Secondary School Teacher's Drawing Certificate" because the Coughlan letter focusses solely on the "Art Teacher's Certificate" and does not refer to the "Secondary School Teacher's Drawing Certificate". Therefore, having examined the content of Minister Coughlan's letter, I am satisfied that the substance of the letter is clear and unambiguous and that access to pre-commencement records is neither necessary nor expedient to understand this record. Accordingly, I find that section 6(5) does not apply in this case and the Department is justified in refusing to release pre-commencement records.

Section 20 - Deliberative Process
Section 20(1) of the FOI Act, which is the provision supporting the Department's claim of deliberative process for parts of pages nos. 18-21, 24-27, 32, 35, 117-119 of the "Report on the TS Examinations 2007" by John Byrne 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 purposes of those processes).

Having examined Mr Byrne's report, I note that it contains an analysis of the TS examinations, some criticism of the syllabi and his own opinions and recommendations for possible reform of the particular areas and that the Department has released the report to the applicant with the exception of material which it has redacted on pages 18-21, 24-27, 32, 35, 117-119 (and material which contains personal information or the names of examiners).

Ordinarily, due to the passage of time, the Information Commissioner would not consider a report which was authored in 2007 to be eligible for exemption under section 20(1) as it would be expected that the decision making process in relation to the future of the TS examinations should have been finalised at this stage. Under the circumstances, this Office requested that the Department provide evidence that the records in question form part of a decision-making process in relation to the future of these examinations. The Department provided clarification in relation to both the delay in carrying out its review of the TS examinations and the current position in relation to the review. I note that Ms Dunn provided the applicant with details of the clarification provided by the Department and while I do not intend to repeat those details here, they are relevant for the purposes of this decision.

The applicant has argued that the Byrne report is a discrete piece of work and that the deliberative process cannot apply to it. However, I am satisfied that the Byrne report contains a critical analysis of the TS examinations and that it will feed into the current review of the TS examinations which is being carried out by Mr Byrne and a former Principal Officer of the Department who has been assigned to make recommendations in relation to reform of the TS examinations. I am also satisfied from examining the Department's arguments that the Department is now actively engaged in carrying out a review of the TS examinations and that final decisions have yet to be made by the Minister in relation to the future of the TS exams. Therefore the question for this Office to consider is whether or not the Department's contention that to release the information would adversely affect those deliberations is justified.

Subsection 20(1) provides that material forming part of the decision making process of a public body can be exempt from release if the public interest is not better served by such release. The deliberative process can be described as a thinking process that refers to the way a public body makes decisions. It involves the gathering of information from a variety of sources and weighing or considering carefully all of the information and facts obtained with a view to making a decision or reflecting upon the reasons for or against a particular choice. In the circumstances of this particular review the Department contends that disclosure would have the effect of interfering with those deliberations and disclose information that would be detrimental to its decision making process in relation to reform of the State examination process.

Deliberations naturally involve stages and public bodies need to be free to bring matters to conclusion. It is also reasonable that certain sensitive information should not be prematurely released before the deliberative process, relevant to that information, has been completed. While I am satisfied that the provisions of section 20(1) apply to the records under review and that they contain information which relates to the deliberative process, they are not automatically exempt as a class of documents. This is because it is necessary to consider the public interest before making a final decision to exempt a record.

Public Interest Test.
Section 20(3)
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.

In this case, the factors which could be considered in favour of release are the right of the public to have access to information; the accountability and scrutiny of the decision making process and the principles of openness and transparency including the release of information to allow for a more informed public debate. Factors against release would be the unnecessary intrusion at this point in time into the ongoing deliberative and decision making process and possible interference with the Minister's policy-making function.

A review which is being carried out under section 34 of the FOI Act is in the nature of a de novo review which means that the Information Commissioner is not bound by the original decision of the public body in reaching her decision. Instead, she will consider all of the material before her and will make her decision having regard to the circumstances which exist on the date on which she makes her decision. I am satisfied that the Department has demonstrated that there is, at this point in time, a strong public interest in maintaining its ability to develop appropriate policy responses in relation to its review of the State examinations without such information being made public before they have been properly formulated. I accept that section 20 of the FOI Act does not require, as a matter of principle, that material should be withheld until the conclusion of a deliberative process. However, in the circumstances of this case, I consider that release of the withheld records at this stage would reveal details regarding the future of the TS examinations on which the Department has yet to finalise its deliberations, and that such release could prejudice the Department's ability to properly conclude those deliberations. I am satisfied that, in this case, the public interest would not, on balance, be better served by granting than by refusing to grant the request and that the records continue to be part of the deliberative process. Accordingly, I find that the records are exempt from release in line with 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
4 March 2013