Case Number: 160034

Whether the Department was justified in its decision to refuse access to parts of records concerning Innovation Fund Ireland (IFI) on the basis of sections 28(1), 36(1), 37(1), and sections 40(1) and (2) of the FOI Act

Conducted in accordance with section 22(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 26 May 2015, the applicant made an FOI request to the Department seeking access to all records pertaining to any communications the Department had with any Government body relating to Innovation Fund Ireland (IFI). The Department issued a decision on 9 July 2015 identifying 14 records relevant to the FOI request. It granted access in full to nine records and refused access to parts of five records on the basis of sections 36(1), 37(1) and 40 of the FOI Act. In its internal review decision of 24 July 2015, the Department varied its original decision and released one additional record in full. It also stated that it had located a further 22 records relevant to the request. The Department released 19 of these records, withheld one record in full and partially released two records on the basis of sections 28(1), 36(1), 37(1), 40(1) and 40(2) of the FOI Act.

The applicant wrote to this Office seeking a review of the Department's decision on 22 January 2016. He was concerned at the Department's handling of his request and said that the redactions may not be accurate.

During the course of this review, the Department released additional records to the applicant. Using the numbering system adopted by the Department, the remaining withheld records/parts of records are 1.13, 2.2, 2.9 and 2.12 which were withheld on the basis of sections 28(1)(a), 30(1)(c), 36(1)(c), 37(1), 40(1)(a), 40(1)(c) and 40(2)(n) of the FOI Act. I consider that the review should now be finalised by way of a formal, binding decision.

In conducting my review I have had regard to the submissions from the applicant and the Department and to correspondence between them. I have examined the contents of the records provided to this Office for the purposes of this review by the Department and had regard to the provisions of the FOI Act.

Scope of the Review

This review is concerned solely with whether the Department was justified in its decision to refuse access to records/parts of records 1.13, 2.2, 2.9 and 2.12 under sections 28(1)(a), 30(1)(c), 36(1)(c), 37(1), 40(1)(a), 40(1)(c) and 40(2)(n) of the FOI Act. The applicant's submissions included a detailed analysis of his experiences of engaging with many State bodies in relation to allegations of mismanagement of Government funds; however, my remit under the FOI Act is confined to considering his right of access to the records at issue.

Analysis and Findings

Section 18
Firstly I should draw attention to section 18 of the FOI Act which provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. However, the Commissioner takes the view that neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent.

Section 22(12)(b)
It is relevant to note that section 22(12)(b) of the FOI Act provides that a decision to refuse a request under section 12 shall be presumed not to have been justified unless the head of the FOI body shows to the Commissioner's satisfaction that its decision was justified. This means that the onus is on the Department to satisfy the Commissioner that its decision to refuse access to the records was justified.

Section 25(3)
Although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the records at issue and the material that I can refer to in the analysis is limited. The release of a record under the FOI Act is considered, effectively, as release to the world at large.

Section 15(1)(a)
The applicant contends that further records within the scope of his request may be held. Section 15(1)(a) of the Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner's role in cases such as this is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision and also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in "search" cases consists of the steps actually taken to search for records, along with miscellaneous other evidence about the record management practices of the FOI body, on the basis of which the FOI body concluded that the steps taken to search for records were reasonable. On the basis of the information provided, the Commissioner forms a view as to whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found.

According to the Department, it identified the records covered by the request and at internal review, following further searches, an additional 22 records were located. I must say here that the Commissioner finds it unsatisfactory that the Department's initial decision making process failed to identify all of the records within the scope of the request. It is fair to say that when this happens, requesters are likely to be sceptical about the adequacy of the searches carried out. Nonetheless, it is the case that the deficiency was identified at internal review stage. On 6 April 2016 the Department, following searches which it says it carried out across all electronic files and folders including saved emails, emails on the server and hard copy files, forwarded to this Office the records relevant to this review. The Commissioner's role is not to search for records and having regard to the Department's role (as opposed to that of the National Treasury Management Agency (NTMA)), I have no reason to dispute the Department's position that no further records within the terms of the applicant's request exist or can be found. Accordingly, I find that the Department's effective position to refuse access to any additional records on the basis of section 15(1)(a) of the FOI Act was justified.

Section 30(1)(c)
The Department refused access to parts of record 2.2 on the basis of sections 36(1), 40(1) and (2). Subsequently, in its submission, it also claimed that section 30(1)(c) applied. Firstly I will examine section 30(1)(c). This is a discretionary exemption which allows an FOI body to refuse a request if access to the record could reasonably be expected to "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 an FOI body". It is subject to a public interest balancing test contained in subsection (2).

Section 30(1)(c) does not require any expectation of harm; it applies where the granting of access can reasonably be expected to disclose certain information. An FOI body relying on this exemption must show to the Commissioner that release of the record could reasonably be expected to disclose positions taken (or to be taken) or plans etc. used or followed (or to be used or followed) for the purpose of any negotiations.

According to the Department, IFI was set up under the Ireland Strategic Investment Fund (ISIF) previously the National Pensions Reserve Fund (NPRF) and managed by the NTMA. The Department states that the ISIF is a €7.9 billion sovereign development fund with a statutory mandate under the NTMA Act 2014 to invest on a commercial basis in a manner that supports economic activity and employment in Ireland. The Department contends that record numbered 2.2 relates to a pre-marketing trip to the United States in 2010 for the IFI and that the details in the record relate to companies and individuals who expressed an interest in engaging with the IFI.

According to the ISIF website, it is managed and controlled by the NTMA and is therefore an FOI body for the purposes of the FOI Act. I accept that the records at issue can be described as relating to negotiations between an FOI body and business concerns in so far as both bodies were involved in discussions with a view to reaching agreement on matters relating to investment in the IFI. Despite the age of the records in this case, I also accept that granting access to the records could reasonably be expected to disclose positions taken by the FOI body for the purpose of those negotiations. I consider that section 30(1)(c) therefore applies.

However as I have outlined above, that is not the end of the matter as section 30(2) provides that section 30(1) shall not apply where the body considers that the public interest would, on balance, be better served by granting than by refusing the request.

While section 30(1)(c) makes no distinction between disclosures which have the potential to prejudice current or future negotiations in some way or to cause some other harm, it seems to me that such a distinction should be made in applying the public interest test in section 30(2) to those records. Put simply, if release of such records cannot harm current or future negotiations or cause any other harm, then the public interest in openness in the workings of Government means that, in the absence of any other applicable exemption, the records should be released. On the other hand, if access to records which disclose positions taken etc. for the purposes of past negotiations could reasonably be expected to prejudice current or future negotiations or cause some other harm, then this is a matter which must weigh heavily in the application of the public interest balancing test.

In this case, the withheld parts of the record identify the parties that the then NPRF met and those who expressed varying degrees of interest in the IFI. The names of business concerns and some commentary on their engagement with ISIF and future plans have been redacted and I accept the Department's view that the note gives an insight into the commercial strategies and negotiations of and between the entities concerned. The Department submits that it is essential that Funds can engage with the ISIF without concern that the information they provide or even the fact they are engaging would be released into the public domain. It claims that the ISIF may at a future date consider investment in these funds and it is important that the ISIF can continue to undertake its functions without interference. It also contends that the information indicates that certain parties did not pursue or were not given funding from the IFI and that release of this information could have a negative impact on ISIF's ability to carry out its legislative mandate to promote investment and economic growth in the state by negatively impacting on its future negotiations. I accept that it is likely that the companies involved in 2010 or similar entities could be involved in current or future similar negotiations regarding investment in Ireland.

The FOI Act itself recognises a public interest in ensuring the openness and accountability of public bodies, regarding how they conduct their business. The FOI Act further recognises the public interest in persons being able to exercise their rights under the FOI Act. However, where, as in this case, significant parts of the record have been released, I am satisfied that the public interest is served to some extent by such release and I find that on balance, in the circumstances of this particular case, the public interest would not be better served by release of the information to which section 30(1)(c) applies.

As I have found that the Department was justified in refusing access to record 2.2 under section 30(1)(c), I do not consider it necessary to examine the application of sections 36(1), 40(1) and 40(2).

Section 28
The Department refused to release records 2.9 and 2.12 on the basis that they are exempt under section 28(1)(a) of the Act which provides:

"(1) A head may refuse to grant an FOI request if the record concerned-
(a) has been, or is proposed to be, submitted to the Government for its consideration by a Minister of the Government... and was created for that purpose

Section 28(1) is subject to section 28(3) which provides:

(3) Subject to this Act, subsection (1) does not apply to a record referred to in that subsection-
(a) if and so far as it contains factual information relating to a decision of the Government that has been published to the general public, or
(b) if the record relates to a decision of the Government that was made more than 5 years before the receipt by the head concerned of the FOI request concerned."

For section 28(1)(a) to apply, three requirements must be met. In order to be exempt from disclosure the record must fulfil the following three criteria: that the record has been (or is/was proposed to be) submitted to the Government for its consideration and
has been (or is/was proposed to be) submitted by a Minister of the Government or the Attorney General and was created for the purpose of submission to the Government for its consideration.

Section 28 also provides that ''record" includes a preliminary or other draft of the whole or part of the material contained in the record. Section 28(1)(a) provides a discretionary exemption for certain records submitted to the Government. It is not a harm based exemption and there is no "public interest override".

Having examined records 2.9 and 2.12, I note that both records are draft memoranda for Government for the establishment of IFI. Record 2.9 has two appendices and record 2.12 has three appendices. It is clear that both records were proposed to be submitted by the Taoiseach and the Minister for Enterprise, Trade and Innovation to the Government for its consideration and were created for that purpose. Therefore, I find that records 2.9 and 2.12 are exempt on the basis of section 28(1) of the FOI Act.
However, that is not the end of the matter because section 28(1) is subject to exceptions which are provided in section 28(3). The exceptions are for factual information relating to a published decision of the Government and records relating to a Government decision made more than 5 years before the FOI request.

Section 28(3)
Section 28(3)(b) provides that records which would otherwise be exempt under section 28(1) will not be exempt if the record "relates" to a decision of the Government that was made more than 5 years before the receipt by the head concerned of the FOI request concerned. It is clear that in order for a record to "relate to" a decision of Government it need not result in an actual decision. There is no requirement that the Government agreed with or adopted the material.
I am satisfied that these records are the type of documents intended to fall for release under section 28(3)(b) after the expiration of the five year period and that they "relate" to decisions of Government. Record 2.9 is dated 1 June 2010 and record 2.12 is dated 23 June 2010 and the Government decision was made in July 2010. The FOI request was received by the Department on 27 May 2015, therefore the five year period referred to above had not yet expired. I therefore find that section 28(3)(b) does not apply to these records.
Section 28(3)(a) provides that records which would otherwise be exempt under section 28(1) will not be exempt if the record contains factual information relating to a decision of the Government that has been published to the general public. The Cabinet Handbook (2006) states that every Memorandum for Government should present factual information so that it can be easily extracted for FOI purposes. The term factual information is defined in section 2 of the Act as including information of a statistical, financial, econometric or empirical nature, together with any analysis thereof. The Commissioner takes the view that the use of the word "includes" in the definition of factual information means that while information of a statistical etc. nature should be regarded as factual, regard must also be had to the ordinary meaning of the term when considering its scope. The Commissioner considers that factual information would generally include, for example, material presented to provide a factual background to the central topic in a record. He also takes the view that factual information is distinguishable from information in the form of proposal, opinion or recommendation. The decisions sought in the memoranda were published to the general public in 2010. Having examined records 2.9 and 2.12, I find that section 28(1)(a) does not apply, by virtue of the provisions of section 28(3)(a), to the following factual information contained in the record relating to a decision of the Government that has been published to the general public:

Record 2.9
Section 2 Background/Reason for Memorandum, sections 2.1 - 2.3; paragraphs 1 - 3 of section 2.4 as far as "... contacts made".
Section 3 Other Relevant Information as far as paragraph 6 page 8 "... total sales"
Section 4 (viii) Other Considerations
Section 6 Ministerial Observations

Record 2.12
Section 2 Background/Reason for Memorandum, sections 2.1 - 2.3; paragraphs 1 - 3 of section 2.4 as far as "... contacts made".
Section 3 Other Relevant Information
Section 4 (viii) Other Considerations
Section 6 Ministerial Observations

Section 37(1)
The Department refused access to a part of record 1.13 on the basis of section 36(1) and section 37(1) of the FOI Act. Section 37(1) provides that access to a record shall be refused if access would involve the disclosure of personal information. The FOI Act defines the term "personal information" as information about an identifiable individual that either (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual or (b) is held by an FOI body on the understanding that it would be treated by the body as confidential.

The withheld part of this record is part of a sentence concerning a named individual, (other than the applicant). The information does not directly concern IFI. I am satisfied that the redacted part of the record 1.13 is exempt from release on the basis of section 37(1).

I am further satisfied that none of the exceptions set out in section 37(2) apply and that the public interest in releasing the individuals personal information does not outweigh the public interest in upholding the privacy rights of that individual. I find, therefore, that the Department was justified in redacting that part of record 1.13.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the decision of the Department to refuse access to the withheld records. I affirm the Department's decision that parts of the withheld records are exempt under sections 28(1), 30(1)(c) and 37(1). I annul the Department's decision in relation to the factual information in records 2.9 and 2.12 and I direct it to release the parts of these records identified above on the basis of section 28(3)(a) of the FOI Act.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

Elizabeth Dolan
Senior Investigator