Whether the Department was justified in refusing access to 11 records relating to the applicant's request for "all information pertaining to the Pension Board Funding Standard for defined benefit schemes announced 7 June 2012".

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

Background

On 8 June 2012, the applicant made an FOI request to the Department for "all information pertaining to the Pension Board Funding Standard for defined benefit schemes announced 7 June 2012". The Department's decision of 6 August 2012 withheld 11 of the 12 records it identified as relevant to the request under various unspecified provisions of section 19(1), and also under section 19(2), of the FOI Act. As it did not respond to the applicant's internal review application of 1 October 2010, the Department thus effectively upheld its earlier refusal of the 11 records. On 9 November 2012, the applicant sought a review by this Office of the Department's refusal to release the relevant records. On 14 November 2012, the Department told the requester that it did not consider the remaining records should be released, citing sections 19(1)(a), (b), (c) and 19(2) as applicable to them.

In carrying out my review, I have had regard to copies of the records of relevance to the request (which were provided to this Office for the purposes of the Commissioner's review); to correspondence between the Department and the applicant as set out above; to details of various contacts between this Office and the Department; and to details of various contacts between this Office and the applicant, particularly the letter sent to him by Ms Anne Lyons, Investigator, dated 30 January 2013 (to which I will refer as "the preliminary views letter" in the remainder of this decision, as necessary).

As the timeframe in which Ms Lyons invited a response to her preliminary views letter has now elapsed without reply from the applicant, I have decided to conclude the review by way of a formal binding decision.

Scope of the Review

The scope of this review is confined to assessing whether or not the Department is in accordance with the terms of the FOI Act in refusing to release 11 of the 12 records it considered relevant to the applicant's FOI request (record 9 thereof having been released). The review does not extend to any material in the records relating to matters that fall outside the scope of the request.

Findings

As explained to the applicant in the preliminary views letter, section 8(4) of the FOI Act does not allow this review to have regard to any reasons as to why he is seeking the withheld records, whilst section 43(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record.

Section 19
Section 19(1)(a) provides that a record shall be not be released pursuant to an FOI request where the record has been, or is proposed to be, submitted to the Government for its consideration, by a Minister of the Government or the Attorney General, and was created for that purpose.

Section 19(1)(b) provides that a record shall not be released pursuant to an FOI request where it is a record of the Government other than a record by which a decision of the Government is published to the general public by or on behalf of the Government.

Section 19(1)(c) provides that a record shall be not be released pursuant to an FOI request where the record contains information (including advice) for a member of the Government, the Attorney General, a Minister of State, the Secretary to the Government or the Assistant Secretary to the Government for use by him or her primarily for the purpose of the transaction of any business of the government at a meeting of the Government.

Section 19(3)(a) provides for the release of factual information that is contained in a record to which section 19(1) applies, "if and in so far as it contains factual information relating to a decision of the Government that has been published to the general public".

Finally, section 19(6) provides that the term "record" includes a "preliminary or other draft of the whole or part of the material contained in the record". As explained in the preliminary views letter, a record is exempt under sections 19(1)(a) or (c) if it is a preliminary or draft of a record to be submitted to Government, or a preliminary or draft of a record for the Minister's use primarily for transacting the business of Government at a meeting of Government, even when not submitted to Government or provided to the relevant Minister. Section 19(6) also extends the definition of the term "Government" to include a "committee of the Government, that is to say, a committee appointed by Government whose membership consists of - (i) members of the Government, or (ii) one or more members of the Government together with either or both of the following: (I) one or more Ministers of State, (II) the Attorney General ... ".

Application of Section 19
Sections 19(1)(a), (b) and (c) of the FOI Act are mandatory exemptions, and therefore must be applied to records that meet the criteria therein.

Previous decisions by the Information Commissioner have accepted that section 19(1)(a) applies to records such as Memorandums for Government, Aides Memoire for Government, or preliminary or draft versions of the whole or part of such documents. Section 19(1)(a) has also been found by the Commissioner to apply to preliminary, draft, or finalised Ministerial observations in relation to proposals within Memorandums for Government. Records 1, 2, 3, 4 and 6 are draft Memorandums for Government, whilst record 5 contains preliminary observations on a draft Memorandum for Government. Accordingly, I find that these records are exempt from release under section 19(1)(a) of the FOI Act.

Records 11 and 12, respectively, are a note to the Minister for use at a Government meeting and a record of the Government i.e. a note of a Government decision. I find these records to be exempt under sections 19(1)(c) and 19(1)(b) of the FOI Act respectively.

As outlined in the preliminary views letter, records 7 and 8 are preliminary versions, or drafts, of record 10, which was sought by, and thus prepared for, a particular committee of the Government (as defined) for the primary purpose of transacting the business of Government. I find records 7, 8 and 10 to be exempt from release under section 19(1)(a), or alternatively, section 19(1)(c) of the FOI Act.

As I have found the records at issue to be exempt under various provisions of section 19(1) of the FOI Act, there is no need for me to consider the relevance of section 19(2). Finally, as outlined in the preliminary view letter, it is not entirely clear from the case file if there is a published Government decision relevant to the subject matter of the request. However, I do not feel it necessary to pursue this matter because I feel that, if those very limited excerpts of the records at issue that could be described as factual information were to be released under section 19(3)(a), the ensuing copies of the records would be rendered misleading. As section 13(2) provides that excerpts of an otherwise exempt record shall not be released if the copy provided for thereby would be misleading, I find that no factual information in the records at issue falls to be released under section 19(3)(a) in any event.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the Department's refusal of the withheld records.

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
22 February 2013