Case Number: 170017

Whether the Department has justified its refusal to release records relating to a feasibility report drawn up by it in relation to Action 94 of the Road Safety Strategy 2013 to 2020

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

The Road Safety Authority (RSA) published the Road Safety Strategy 2013-2020 (the Strategy) in March 2013, which identified 144 key Actions. For each Action, the Strategy listed the lead agency and the particular post within the agency responsible for its implementation, the relevant support agency(ies), and target dates for completion. Action 94 reads as follows:

"Carry out a feasibility report on establishment of independent post-collision engineering assessment programme to review fatal and serious injury cases to include on-site NRA/AGS/RSA/engineering inspections."

The lead agency listed was the Department, the post within the Department listed as "responsible" was its Secretary General, the target date for completion was Q3 2013 and the support agencies were listed as the RSA, National Roads Authority (NRA), An Garda Síochána (AGS) and the County and City Managers' Association (CCMA).

On 26 July 2016, the applicant re-submitted an FOI request he had made to the Department in February 2016 for a "full copy of the feasibility report" prepared by the Department further to Action 94, along with copies of all correspondence, minutes and other reports held by the Department in relation to the Action. He said Action 94 "was decided three years ago.".

The Department's decision, dated 4 August 2016, refused to grant access to any relevant records. It relied on "Section 20", which it said was a provision under which records relating to the deliberative process of a public body may be refused. The relevant provision is, in fact, section 29. It appears likely that the Department was referring to section 20 of the Freedom of Information Act 1997 (as amended), which was revoked by the 2014 Act.

On 22 August 2016, the applicant sought an internal review of the Department's decision and reiterated that the deadline for a decision on Action 94 was Q3 of 2013. The Department's internal review decision of 19 September 2016 affirmed its refusal of the requested records on the basis that they related to a deliberative process that there was "no evidence or indication" of having been concluded.

On 10 January 2017, the applicant sought a review by this Office of the Department's refusal of his request.

I have now decided to conclude my review by way of binding decision. In carrying out my review, I have had regard to the above; and to correspondence between this Office, the Department and the applicant. The applicant was invited to make a submission in this case, but did not do so. I have also had regard to the records at issue, copies of which were provided to this Office for the purposes of this review, as well as the provisions of the FOI Act.

Scope of the Review

This review is confined to whether or not the Department has justified its refusal of the requested records. My remit does not extend to examining any decisions or recommendations made by the Department as set out in the records.

Preliminary Matters

At the outset, it is relevant to note a number of preliminary matters.

Section 13(4) of the FOI Act provides that, subject to the other provisions of the Act, FOI decision makers must disregard any reasons (whether stated or suspected) for the request.

Section 18(1) provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the public body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). I take the view that, generally, neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from the remaining withheld details for the purpose of granting access to those particular sentences or paragraphs.

Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant an FOI request shall be presumed not to have been justified unless the head of the relevant public body shows to my satisfaction that its decision was justified.

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.

Finally, the release of a record under the FOI Act is understood, effectively, to be equivalent to its release to the world at large.

Findings

This Office's request for submissions drew the Department's attention to the fact that, while its decision of 4 August 2016 had claimed "section 20", the relevant provision for the deliberative process exemption is section 29 of the FOI Act. The Department's submission did not comment on this. It is important to note that the "new" provision has been in force for over two years and that it provides for a different public interest test to the provision that it replaced. Requesters are entitled to expect that decision makers have recourse to training and that they would use the resources available, including guidance notes and manuals, to enable them to apply the Act properly.

The Records
The Department has identified 15 records as relevant to the applicant's request.

Only point number 6 of record 1 and point number 9 of record 12 concern Action 94. The other points in these records are not relevant to the request and are outside the scope of this review.

Section 29 of the FOI Act

Section 29(1) provides that an FOI request may be refused (a) if the record concerned contains matter relating to the deliberative processes of an FOI body (including opinions, advice, recommendations, and the results of consultations considered for the purpose of these processes), and (b) the granting of the request would, in the opinion of the head of the FOI body, be contrary to the public interest.

These two requirements are independent. The fact that the first is met carries no presumption that the second is also met. It is therefore important for FOI bodies to show to this Office's satisfaction that both section 29(1)(a) and section 29(1)(b) have been met.

Section 29(1)(a)
When considering section 29(1)(a), this Office considers that a deliberative process may be described as a thinking process which informs decision making in FOI bodies. 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. Thus, it involves the consideration of various matters with a view to making a decision on a particular matter. It would, for example, include some weighing up or evaluation of competing options or the consideration of proposals or courses of action.

The applicant maintains that the records sought relate to a report that was completed by the end of 2013. He says that the Department decided not to proceed with the proposal in Action 94 on the basis that the current system was working well, but had not released the report providing its reason for reaching that conclusion.

The Department's submission describes the feasibility report (record 2), dating from October 2013, as a "draft". It says that the various withheld records relate to the consideration given to proposals in that report, and to other subsequent proposals, relating to Action 94 of the Strategy.

The Department also says that the dates proposed for Actions under the Strategy were target dates, not binding deadlines, and were "front loaded and provisional with completion dates of 2013-2015 set for the vast majority of Actions". It explains that Action 94 was downgraded, in terms of work priorities and other demands in the Department's Road Safety and Roads Division, following completion of the draft report. The submission says that there was "some confusion" around whether Action 94 was completed or not and was shown as "completed" when it had not been. In this regard, I understand that the Department's press advisor outlined to the applicant the general nature and outcome of the Department's report in January 2016, and told him that Action 94 was consequently "completed". The Department's submission says that, further to a change of management in the Road Safety Division in late 2015 and reconsideration of Action 94 in early 2016, it was agreed that further work was required. I also note that the applicant was told in July 2016 that the deliberative process "is very much still active". According to the Department, due to a lack of resources and competing priority demands, the Road Safety Division was not in a position to finalise its deliberations during 2016. The submission also refers to relatively recent contacts the Department says it had with the RSA, AGS, and Transport Infrastructure Ireland (of which the NRA is now part). It says that the Action is expected to be completed in the second quarter of 2017, when a decision will be made on any further steps to be taken to deliver the outcome of the deliberations regarding the Action.

Having considered the records, I am satisfied that records 1-13 are concerned with the consideration given by the Department, in conjunction with the views of other bodies, as to whether policy changes are necessary further to Action 94 of the Strategy. I accept that the records contain information relating to the Department's deliberative processes and that they meet the requirements of section 29(1)(a) of the FOI Act. It is irrelevant in this regard whether the deliberations have concluded.

Records 14-15 contain emails and a copy of record 2. The emails concern contacts between the applicant and the Department in 2016 concerning the feasibility report and the outcome of Action 94. These emails are arguably primarily concerned with dealing with the applicant's queries. However, all that is required for section 29(1)(a) to apply is that a record contains matter relating to a deliberative process. As the records also relate to the deliberative process regarding Action 94, I find them also to meet the requirements of section 29(1)(a).

Section 29(1)(b)
In relation to the issue of the public interest, it is important to have regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner[2011] IESC 26 ("the Rotunda case"). It is noted that a public interest ("a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest.

Furthermore, the public interest test contained in section 29, as set out in section 29(1)(b), differs from the public interest test found in other exemptions under the FOI Act. Other exemptions require the public body to be of the opinion that the public interest would be better served by release. To avail of section 29, the public body must be of the opinion that releasing the records would be against the public interest. In my view, this exemption tends more strongly towards release of records, and public bodies have a higher hurdle to overcome in demonstrating that it applies. Section 29 also specifically requires consideration of whether the requester would, by the release of the record(s), become aware of a significant decision that the relevant FOI body proposes to make.

Therefore, public bodies must show, to this Office's satisfaction, that release of the material at issue would be contrary to the public interest. Generally speaking, this requires a body to identify a specific harm to the public interest flowing from release. While there is nothing in the exemption itself which requires the deliberative process to be ongoing, as acknowledged earlier in this decision, the question of whether the process is ongoing or at an end may be relevant to the issue of the public interest.

The applicant refers to comments made by the RSA and the EU Petitions Committee, which he said suggested that current arrangements were not optimal. I take this to be an argument that the Department's views in the report may be wrong. However, it is not appropriate for me to direct release of records on such a basis. He also describes the Strategy as "a public document [that] judges action items on whether they were completed". However, I have no basis to direct release of records further to section 29(1)(b) simply because a target date for completion of the Action has passed.

There is a public interest, as recognised by the FOI Act itself, in ensuring that the Department is open about, and can be held accountable for, policy decisions regarding road safety. This is acknowledged in the Department's submission in so far as it says that release of the records will bring to light considerations in relation to road safety, and allow the general public "to understand decisions made by public bodies".

The Department also says that the release of the records is contrary to the public interest, because deliberations regarding Action 94 are not yet complete and require further interaction between it and the bodies referred to earlier. It says that disclosure "would be unhelpful to the deliberative process" and "could be expected to prejudice the deliberative process". It did not comment on whether the requester would, by the release of the record(s), become aware of a significant decision that the relevant FOI body proposes to make and I see no need to consider this aspect of section 29(1)(b) further.

Although it did not provide me with any evidence of the recent contacts it says it has had with other bodies, I have no reason to dispute the Department's position that it is currently progressing the steps that may be taken in relation to Action 94. I accept, accordingly, that the Action is not "complete".

However, the fact that a deliberative process may not have concluded does not mean that all records relating in any way to that process should be withheld under section 29 until it has been fully completed. Some records are, by their nature, less sensitive than others and can have little or no impact on a deliberative process even if released in the course of it. Furthermore, there may be discrete stages in a deliberative process. Early release of records concerning discrete stages that have concluded may not necessarily harm the later, ongoing, stages of the deliberative process. Equally, however, it may also be the case that all records relating to a deliberative process, including a concluded deliberative process, should be withheld under section 29 of the FOI Act. In any of these scenarios, it is for the FOI body to put forward relevant arguments and explanations to this Office.

The Department has not explained how the outcomes it envisages (as described earlier in this decision) might occur, either in general terms or having regard to the specific contents of the records at issue.

Records 1- 4 date from 2013 and concern the feasibility study. The fact that the report may be a "draft" does not of itself mean that it, or records relating to it, should not be released until the report becomes "finalised" from the Department's perspective. Furthermore, Parliamentary Question (PQ) No. 805, which was for written answer on 21 July 2016, concerned Action 94 and sought the feasibility report requested by the applicant. In reply, the Minister for Transport, Tourism and Sport (the Minister) said that the feasibility study "concluded that the advantages of a detailed engineering investigation, by a separate engineering inspectorate, after each fatal collision, were not apparent (and in fact identified a number of potential disadvantages in relation to e.g. possible enforcement action). As part of the study, the practices in other countries were examined, including some of the top-performing countries in terms of road safety performance. The post-collision investigation practices employed by Ireland since the introduction of the Garda Forensic Collision Team compared very favourably with these.". The Minister went on to outline in general terms how fatal or serious injury collisions are investigated in Ireland. He concluded by saying that the feasibility study is not being released "until the deliberative process in relation to the matter is fully completed, including what other measures may assist in delivering its road safety objectives. " I note that the Minister did not refer to the feasibility report as a draft, or suggest that this was the case. Draft or not, it seems to me that the Minister has placed general details of the report and its outcome in the public domain, as did the Department's press officer in contacts with the applicant. In addition, I note that comments of other bodies were sought and received on the basis of the Department's proposals in this "draft" report (records 5-9, dating from 2013, refer). The Department has not explained how release of the details in records 1-4 could impact on the current deliberations.

Records 7 - 9 and 10 - 13 (dating from 2013 and 2014) contain views from the NRA and RSA, and a subsequent proposal, details of which do not appear to be in the public domain. However, this alone is not a sufficient basis on which to withhold the relevant records, in the absence of some explanation from the Department as to how their release could impact on the deliberations it says is ongoing. No such explanation was given.

As noted already, records 14 and 15 date from 2016. The emails therein seem to be primarily concerned with dealing with queries from the applicant in relation to Action 94 and related matters and are in my view are least likely to impact upon the ongoing deliberations. Again, the Department has not explained how such harm could arise from release of these records.

Accordingly, I do not consider the Department to have justified its refusal of the withheld records on the basis that their release would be contrary to the public interest. I find them not to be exempt under section 29 of the FOI Act.

I note that records 14 and 15 include emails sent to the applicant outside of FOI, which name identifiable individual third parties. The applicant has confirmed that he is not seeking access to those names and they should therefore be redacted from the emails. If I had to decide on the matter, however, the fact that the applicant already has the names in his possession does not create an entitlement to them under the FOI Act, and so I would find the names concerned to be personal information about the third parties that is exempt under section 37 of the FOI Act.

Section 29(2) - The Exceptions to Section 29(1)
In light of my findings above, it is not necessary for me to consider section 29(2).

However, I intend to comment on section 29(2), because the Department's original and internal review decisions do not indicate that it gave any consideration to this provision, which was also poorly addressed in the Department's submission to this Office.

This Office's published Guidance Note on section 29 makes it clear that FOI bodies are required to consider section 29(2) where they are refusing records under section 29. I would expect the Department to do this in future cases. I note that the Investigator's request for submissions asked the Department to address section 29(2), and highlighted its key aspects. However, the Department's submission simply says "Content as per section 29(2): No such factual content found".

The question of whether a record contains factual information is only one aspect of section 29(2). It provides that the exemption does not apply if and in so far as the record contains any or all of the following: (a) matter such as rules, procedures, guidelines, interpretations and precedents used, or intended to be used, by an FOI body for the purpose of making decisions, determinations or recommendations; (b) factual information; (c) the reasons for the making of a decision by an FOI body; (d) a report of an investigation or analysis of the performance, efficiency or effectiveness of an FOI body in relation to the functions generally or a particular function of the body; (e) a report, study or analysis of a scientific or technical expert relating to the subject of his or her expertise or a report containing opinions or advice of such an expert and not being a report used or commissioned for the purposes of a decision of an FOI body made pursuant to any enactment or scheme.

Not only did the Department's submission fail to fully address section 29(2), I do consider it to have given proper consideration to section 29(2)(b). For instance, the Minister's description of record 2 in his PQ reply suggests that it contains factual information about road collision practices in other countries and in Ireland. Having examined record 2, I am satisfied that parts 2 and 3 of, and Appendix 1 to, the record contain such factual information. This information can be distinguished from views expressed by Department officials in relation to such practices, or any recommendations it made based on such views. Accordingly, if it were necessary for me to do so, I would have directed the release of parts 2 and 3 of, and Appendix 1 to, record 2 (and any other copies record 2 it that are contained in the other 14 withheld records). I should also make it clear that I would consider such release in this case to be in keeping with the requirements of section 18.

In short, if necessary, I would not consider the Department's submission on section 29(2) to meet the requirements of section 22(12)(b).

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Department's refusal of the requested records. I direct that they be released subject to the redaction from records 14 and 15 of the names of the private third parties referred to in them.

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 not later than four weeks after notice of the decision was given to the person bringing the appeal.

Elizabeth Dolan
Senior Investigator