Case Number: 170255

Whether the Department was justified in refusing to grant access to correspondence in 2016 between the Department and the office of the Data Protection Commissioner (ODPC) relating to the Public Services Card (PSC), pursuant to section 29(1) 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 24 October 2016, the applicant sought access to copies of correspondence in 2016 between the Department and the ODPC in relation to the PSC. The Department identified one relevant record, which it withheld in full on the basis of section 29(1) of the Act (deliberative process). The applicant sought an internal review on 15 December 2016. The internal reviewer identified one additional record, and refused access to both on the basis of section 29(1) of the Act.

The applicant appealed to this Office on 26 May 2017 for a review of the Department's decision. She indicated that as the PSC project was at such an advanced stage, she did not accept that the relevant records related to a deliberative process. She also argued that the public interest lay in the release of the records at issue.

I have decided to bring this review to a close by way of a formal binding decision.

In conducting this review I have had regard to the Department's decisions on the matter and its communications with this Office; the applicant's communications with this Office and the Department; and the contents of the records concerned.

Scope of Review

This review is solely concerned with whether the Department was justified in its decision to refuse to grant access to the records at issue on the basis of section 29(1) of the FOI Act.

Preliminary Matters

I would draw the Department's attention to its obligations under section 13 of the FOI Act to provide reasoned decisions. While it quoted section 29 in both decisions it did not explain how it applied to the records at issue. Neither did it explain how release would be contrary to the public interest as required by section 29, other than to state in the internal review decision that the information was part of a wider deliberative process. In this regard, I encourage decision makers to use the FOI resources available, including guidance on the FOI Act published by the Central Policy Unit of the Department of Public Expenditure and Reform and by my Office, to assist them in their decision-making and in ensuring that their decisions comply with their obligations under the Act.

It is important to note that section 22(12)(b) of the FOI Act provides that, where a decision to refuse a request is being reviewed by the Information Commissioner, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore, in this case, the onus is on the Department to justify its decision to refuse access to the records sought.

Analysis and Findings

Section 29(1)
Section 29(1) provides for the discretionary refusal of a request 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 by the body for the purpose of those processes and the body considers that the granting of the request would be contrary to the public interest. These are two independent requirements and 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 the satisfaction of the Commissioner that both requirements have been met.

Deliberative Process
The first requirement which must be met in order for section 29(1) to apply is that the record must contain matter relating to the 'deliberative processes' of an FOI body. An FOI body relying on this exemption should identify both the deliberative processes concerned and any matter in particular records which relates to these processes.

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 records at issue in this case are a letter from the ODPC to the Secretary General of the Department dated 19 August 2016 (Record 1) and a brief email on 8 September 2016 in response (Record 2). The letter sets out the ODPC's observations on the use of the PSC and related matters. The email suggests that a meeting should be arranged between the Department and the ODPC to discuss. In response to queries from this Office, the Department stated that as there were "significant disagreements of a factual nature" on the contents of the letter, staff from the Department met with staff from the ODPC to discuss it. It also stated that these discussions had "not yet been finalised" and that consequently the record was still viewed as "being part of the deliberative process".

I note that Ms Murdiff of this Office asked the Department to clarify the nature of the deliberations and it replied that the matter under discussion was "still live". It stated that senior Department officials and the ODPC met on 20 September 2016 and that there had been a number of engagements since. It also stated that a further meeting to discuss the issues was expected in August 2017.

I accept that there are ongoing deliberations in the Department concerning the PSC. However, the Department also has to satisfy me that release of the records at issue would be contrary to the public interest.

Contrary to the Public Interest
The public interest test contained in section 29(1)(b) requires the FOI body to be of the opinion that releasing the records at issue would be contrary to, or against, the public interest. Generally speaking, this requires a body to identify a specific harm to the public interest flowing from release. A mere assertion without supporting evidence is not sufficient to satisfy the requirement that access to the record could reasonably be expected to result in the outcome envisaged.

Ms Murdiff asked the Department why it was of the view that the letter should not be released, bearing in mind that it had been written nearly a year ago. She also reminded it that simply because a deliberative process exists and is ongoing does not mean that the exemption automatically applies without consideration of all the provisions of section 29, and that equally, if a deliberative process is at an end this does not mean that the exemption automatically does not apply. She also asked the Department why it was of the view that release would be contrary to the public interest. Having regard to the above, she asked the Department to explain why it considered that the exemption should apply in this case; in other words what harm it expected would arise from release of the records concerned.

In its response, the Department referred to the Government's eGovernment strategy, and stated that the release of the views expressed in the letter would misinform the public about the PSC. It stated that this would erode public confidence in the project and/or in the ODPC. However, it did not explain the reasoning used to arrive at this conclusion. In any event, I take the view of a former Commissioner, who found in Case No. 98114 et al., (Eircom Plc and The Department of Agriculture and Food, available at www.oic.ie) that the possibility of information being misunderstood is not a good reason to refuse access to records under FOI. Furthermore, it would be open to the Department to put further information in the public domain, if that were necessary, to clarify matters.

The applicant has put forward many arguments that release of the records concerned would be in the public interest. She argued that the Department holds a position of considerable power as a government department processing personal data on every citizen in the State. She also stated that it must therefore be held to a high standard with regard to projects involving databases or technologies which had the potential to intrude on people's privacy. The applicant also stated her position that the PSC had been introduced in recent years with minimal public scrutiny or debate. Having regard to all of the above, she is of the view that disclosure of the records concerned is fundamentally in the public interest.

There is a strong public interest in ensuring openness and accountability, as recognised by the FOI Act itself, in respect of the PSC card and the Department's interactions with the ODPC in this regard, as well as the ODPC's views on the matter. I note that the Department stated that once discussions have concluded, the letter would be considered for release, as the public could then be made aware of the various opinions. However, having considered the matter carefully, I am of the view that release of the records concerned would further the public interest in openness and transparency, and also enable public debate about the issues raised by the ODPC. Furthermore, in my view the Department has not adequately demonstrated that the release of the records at issue at this time would be contrary to the public interest.

Accordingly, having regard to the provisions of section 22(12)(b), I find that the Department has not satisfied this Office that its decision to refuse access to the the records sought was justified on the basis of section 29(1). I direct the release of the records to the applicant.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby annul the Department's decision. I find that it has not justified its decision to refuse to grant access to the records at issue on the basis of section 29 of the FOI Act. Accordingly, I direct the release of the records concerned to the applicant in full.

I specify that, subject to sections 24 and 26 of the FOI Act, effect shall be given by the Department to my decision within five working days of the expiration of the 4 week period for the bringing of an appeal to the High Court from this decision, as provided for at section 24(4) 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 not later than four weeks after notice of the decision was given to the person bringing the appeal.

Elizabeth Dolan
Senior Investigator