Whether the Department was justified in refusing to grant access in full or in part to records relating to state support and monitoring of a named charity, on the basis of sections 29, 30 and 36 of the FOI Act

30/04/2018

Background

On 14 March 2017, the applicant sought copies of records relating to all financial and other state support given to a specified charity by Irish Aid/the Department to date. He also sought access to records relating to the review of a) the charity's applications for funds and b) how those funds were used. Finally, he also sought access to records showing any Irish Aid/Department funds given to a named foundation.

The Department's decision identified 133 records as coming within the scope of the first two parts of his request. It granted access to 72 of these in full. It relied on sections 29 and 36 of the FOI Act in its decision to grant access to 56 records in part and to withhold the remaining 5 records in full. It stated that it held no records relating to the third part of his request. I note that the applicant confirmed to this Office that he accepts that the Department holds no records relating to the final part of his request.

On 9 May 2017, the applicant requested an internal review of the Department's decision on the basis that the public interest had not been sufficiently considered. The Department's internal review decision on 2 June 2017 varied its original decision, and granted further access to 8 additional records in part and 1 record in full. It affirmed its earlier decision in respect of the remainder of the records on the same grounds.

On 19 July 2017 the applicant applied to this Office for a review of the Department's decision. He reiterated his view that there was a strong public interest in transparency relating to the expenditure of state funds.

I note that, during the course of this review this Office's Investigator contacted the Department and drew its attention to a decision of a previous Commissioner (Case No. 99309 (The Sunday Times and the Department of Foreign Affairs) refers, available on our website at www.oic.ie). That case concerned a report on a charity which had been commissioned by the Department. The then Commissioner noted that there was a clear public interest in ensuring that there is accountability in the manner in which public funds are used, to which he attached significant weight. In submissions to this Office the Department indicated that it remained of the view that its decision to refuse access to the records concerned was justified, and that it was also relying on section 30 in that regard.

The Investigator also contacted the charity and informed it of this review and invited it to make a submission if it objected to the release of the information in the records sought. The charity's response supported the Department's decision to refuse access to records in full or in part on the basis of section 36 of the Act.

Having completed my review, I have decided to bring this matter to a close by way of a formal, binding decision. In conducting this review, I have had regard to the correspondence between the Department and the applicant as set out above. I have also had regard to the communications between this Office and both the applicant and the Department, as well as the contents of the records concerned. I have also had regard to the submissions made by the charity in relation to this case.

Scope of Review

During the course of this review, the Investigator contacted the applicant and informed him of her view that some of the records contained personal information (relating to various staff members/external contractors) as well as information relating to other charities, both of which she considered to be outside the scope of his request. He agreed with her view. Accordingly the following records will not be considered as part of this review: Records 12, 48, 49, 51, 52, 53, 68, 69, 70, 71, 72, 74, 75, 76, 77, 83, 84, 85, 90, 91, 94, 95, 118, 119, 120 and 121.

Therefore, this review is solely concerned with whether the Department was justified in its decision to refuse to grant access to Records 1, 2, 8-9, 20, 22, 30, 34, 36-38, 40, 47, 50, 54-55, 63, 73, 78-80, 82, 86, 93, 106, 125, 130-131 and 133 in part and Records 16, 19, 26, 33 and 128 in full, on the basis of sections 29, 30 and 36 of the FOI Act.

Preliminary Matters

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

In relation to the charity's submissions, I note that it expressed views about the reasons the applicant was seeking the information concerned. I wish to make it clear that this type of argument goes to the motive and identity of the requester and I cannot cannot give it any weight in this case. Section 13(4) of the FOI Act provides that, subject to the Act, FOI bodies must disregard any reason given for the request or their opinion as to the requester's reasons.

Analysis and Findings

The Department refused to grant access to the records sought in full or in part on the basis of sections 29, 30 and 36 of the FOI Act. The records withheld comprise evaluations of the charity and its applications for funds, as well as assessments of its work and how the funds were used. The records date from 2010 to 2017.

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.

In submissions to this Office, the Department has indicated that it is relying on section 29(1) to withhold access to the following records: 16, 19, 26, 33 and 128 (refused in full) and 20, 22, 30, 34, 37, 38, 40, 47, 50, 54, 55, 63, 73, 78-80, 82, 86, 93, 106, 125, 130, 131 and 133 (refused in part).

In its submissions the Department stated that it had two relevant funding schemes: the Humanitarian Call for Proposals and the Civil Society Fund (Irish Aid's main funding mechanism). It stated that both of these processes are highly competitive and that not all applicants are successful in receiving funds. It also stated that the deliberative process concerned is that undertaken by its staff in making decisions in relation to the granting of funds to NGOs and the monitoring of the funds once granted. It stated that the records included "approval scoring processes, statements of opinion and recommendations by staff" which add up to a deliberative process, meeting the requirements of section 29(1).

I accept that some of the information in the records at issue comprises opinions, advice and recommendations considered by the body or by the staff of the body for the purpose of deliberative processes. 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 it 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.

The Department stated that it had considered the right of the public to access information, the public interest in the scrutiny of decision-making processes and the importance of accountability in the use of public funds in making its decision. It stated that, on balance, it considered that release of the records concerned would impair its decision making without providing any benefit to the public. It also stated that it considered that it was in the public interest to withhold the records concerned to protect the competitive nature of the fund application process. It was of the view that release of these records could result in an unfair and inappropriate competitive advantage to other organisations.

The Department also acknowledged the public interest in openness relating to the use of public funds. However, it argued that the FOI Act was not designed as a means to open up the operations of private enterprises to scrutiny. In essence, it argued that the public interest in openness and transparency had been met to a large extent by the release of records in full or in part to the applicant and that very few records were withheld in full. It also stated that only information of "particular sensitivity" had been withheld, allowing for a "broad understanding of how the Department has assessed funding applications... and monitored funding" relating to the charity concerned.

The Department stated that the organisations involved in development and humanitarian efforts operate in a highly pressurised, time-sensitive environment and carry out much-needed work. In essence, its position is that the Department needs to be able to make informed decisions, and staff need to have the space to deliberate freely and to make the best decisions possible based on the circumstances. As I understand it, this may sometimes involve allocating funds to organisations which are not well-established or who might not meet all of the criteria normally required, but who are in the best position to respond to a crisis in a timely manner.

The Department said that release of the information concerned would be contrary to the public interest as the internal deliberations of staff in decisions to grant funding and monitoring that funding, could be impeded. It stated that the records which were already released in full or in part made clear the funding granted to the charity and the purposes of that funding, as well as giving an overview of the deliberative processes used by the Department in making such funding decisions.

In essence, the Department argued that frank appraisals of development or humanitarian programmes would often involve negative as well as positive findings. It also argued that release of such information could potentially damage an organisation's ability to raise funds. It stated that the deliberative process in this instance was confidential, in that subjective opinions were expressed which may or may not have had a bearing on the final decision. In this regard, it was of the view that these opinions may be mistaken as fact if the records were to be released in full. I agree with the view of a former Commissioner, who found in Case No. 98114 et al., (Eircom Plc and The Department of Agriculture and Food which is available on our website 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 or the charity to put further information in the public domain, if that were necessary, to clarify matters.

I note that the Investigator asked the Department why it was of the view that the records should not be released, bearing in mind that most dated back to 2010. In this regard, it is important to note 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. The Department's response stated that the records remained sensitive, as the past track record of applicant organisations is taken into account when making funding decisions. It also stated that this was likely to be taken into account by other donor organisations when deciding whether to provide funding to the charity. Furthermore, the Department argued that other organisations could potentially use it to guide the content of their applications. However, it also acknowledged that most of what was contained in the records was "older information" which would no longer be relevant. Furthermore, the Department has indicated that its competitive process has evolved over time, as has its appraisal process.

The applicant argued that there is a need for greater transparency about how Irish Aid assesses whether charities should receive state money. He also stated that there needs to be greater transparency over assessments of whether the charities and their projects are having a positive effect in the countries in which they work. In this regard, he stated that "given the scandals" that had emerged in relation to some Irish charities, it was necessary for the public to be satisfied that the State is taking the necessary steps to ensure that state funding is being properly used and accounted for. He argued that withholding information means there is a lack of openness about how the charity has used state funds and how Irish Aid is holding the charity to account.

There is a strong public interest in ensuring openness and accountability, as recognised by the FOI Act itself, in respect of the activities of FOI bodies. 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 in how the Department oversees the disbursement of funds granted by Irish Aid. 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, as required for the section 29 exemption to apply.

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 records sought in full or in part was justified on the basis of section 29(1) of the FOI Act.

Section 30(1)(a) - Functions and Negotiations of FOI bodies

In its submission to this Office, the Department also relied on section 30(1)(a) in respect of its decision to refuse access in full or in part to Records 20, 22, 30, 34, 37-38, 40, 47, 50, 54-55, 63, 73-80, 82, 86, 93, 106, 125, 130-131 and 133 in part and Records 16, 19, 26, 33 and 128 in full.

Section 30(1)(a) provides that an FOI request may be refused if access to the record concerned could, in the opinion of the head, reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body, or the procedures or methods employed for the conduct thereof.

The Department stated that the internal deliberations of its staff in relation to the granting of funds to NGOs and the monitoring of the use of these funds was the function to which the records relate. It went on to say that the records included "approval scoring processes, statements of opinion and recommendations" by Department staff. It was of the view that this function would be prejudiced by the release of the records at issue. It did not elaborate as to how the content of the records related to "tests, examinations, investigations, inquiries or audits" carried out by the Department or to "procedures or methods employed" for their conduct.

The Department also said that it no longer released the full content of appraisals to organisations applying for funding, as it had found that they may focus excessively on one part of the appraisal, which might lead to inappropriate changes in strategic direction. While I accept that the Department may have found this to be the case, most of the records at issue are not current, in that they date from 2010. Furthermore, the records concerned specifically relate to one organisation and it is open to the Department to discuss these records with the charity if it is concerned that they could be misconstrued or misapplied. In any event, bearing in mind the historic nature of much of the information, coupled with the fact that the Department has changed its appraisal processes, it has not satisfied me that the release of these particular records would cause any of the harms identified above.

Section 30(1)(b)

The Department also referred to section 30(1)(b) in its submission. While it argued that release of the information would be contrary to the public interest as the internal deliberations of Department staff would be impeded and that decision makers would be affected, it did not make any specific arguments that release of the information concerned would have a significant adverse affect on the Department's performance of any of its functions relating to management.

While I note that the Department has provided arguments in relation to the public interest test found at section 30(2), in the circumstances, I do not consider that it has made the case that section 30 applies to the information contained in the records at issue. I find that the application of the section 30 exemption has not been justified.

Section 36(1)(b) - Commercially Sensitive Information

The Department relied on section 36 to refuse to grant access to information contained in Records 1, 2, 8, 9, 19, 20, 22, 26, 30, 33, 34, 37, 38, 40, 47, 50, 54, 55, 63, 69, 73, 78-80, 82, 86, 106, 125, 128, 130, 131 and 133.

Records 1, 2, 8 and 9

The Department withheld access to the charity's bank details in records 1, 2, 8 and 9. I note its concern that release of this information could give rise to fraud and result in a material financial loss. However, the charity is a charitable organisation, actively seeking donations from the public and the same details are published on its website. Accordingly, I do not accept that a harm is likely to arise from the release of these records. I find that the section 36(1)(b) exemption does not apply to these records.

The information withheld from the remaining records mainly comprises frank appraisals of the charity by the Department, including reviews of its applications for funding, its governance and its activities.

Section 36(1)(b) provides, insofar as is relevant:

"Subject to subsection (2), a head shall refuse to grant an FOI request if the record concerned contains -“

... (b) financial, commercial, scientific or technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation".
 

However, section 36(1) does not apply if the public interest would, on balance, be better served by granting rather than refusing the request (section 36(3) refers).

The essence of the test in section 36(1)(b) is not the nature of the information but the nature of the harm which might be occasioned by its release. The harm test in the first part of subsection (1)(b) is that disclosure of the information could reasonably be expected to result in material financial loss or gain. I take the view that the test to be applied in this regard is whether the decision maker's expectation is reasonable. The harm test in the second part of subsection (1)(b) is whether disclosure of the information "could prejudice the competitive position" of the person concerned. The standard of proof necessary to meet this test is considerably lower than the standard to meet the test of "could reasonably be expected to" in the first part of subsection 36(1)(b).

The Department is of the view that release of this information could prejudice the charity's competitive position. In essence, it stated that the charity's fundraising ability could be negatively affected and that its beneficiaries would potentially suffer as a result. The Department also argued that the competitive process for funding was commercially sensitive for the Department, although I do not see how can be the case. In its submissions it also referred to section 36(1)(c) although it made no argument as to how this applied.

The charity stated that it opposed the release of the information concerned, which it said was commercially sensitive as it set out details of the charity's internal processes, capacity and strategies. It said that disclosure could reasonably be expected to result in financial losses to the charity, as the release of negative or incomplete information could have a negative impact on future donations. It was also of the view that release of the records concerned could prejudice its standing as a reputable and trustworthy organisation. It agreed with the Department's view that disclosure of the information could negatively affect its competitive position in terms of fundraising and operations.

In essence, it argued that while a number of the records related to its original proposals for funding and the Department's evaluations of its activities, they presented an incomplete picture, as they did not reflect the various updates, clarifications and correspondence between the charity and Irish Aid following its initial submissions. However, some of the information withheld from the records released in part specifically refers to conditions which needed to be met before grants were issued. Similarly, later records refer to these conditions being met and the grants being provided (for instance, Records 36 and 37). Therefore, it seems to me that release of this information would assist in providing a fuller picture of the process and substantially address the charity's concerns in this respect.

The charity was also concerned that release of these records to the world at large, without any context or any way of comparing the charity's scores to those of other similar organisations, could paint what could be misconstrued as quite a negative picture. Essentially, it argued that the release of the frank appraisals in the records would be misleading without an understanding of the process. For instance, it stated that it was ineligible for a certain number of points available within each evaluation due to the area it operates in. The charity stated that Irish Aid's priority was sub-Saharan Africa (which is borne out by its website) and that its points in the scoring process used by Irish Aid to evaluate proposals would be lower because of this. While I note the charity's arguments, it seems to me that, as stated above, it would be open to it to put further information in the public domain if it so wished in order to clarify matters.

The applicant was of the view that commercial sensitivities were not a factor in this case, as this was "an Irish charity being financed by the State". He stated that revealing how its applications were dealt with by the Department could not give a commercial advantage to other charities in its particular sector, as it was one of the few Irish charities based exclusively in that area. 
 

Conclusion

It seems to me, having examined the records at issue, that the Department has essentially released mostly neutral or favourable comments about the charity, but has withheld anything which might be construed as negative. In my view, this presents a distorted or skewed version of events and does not demonstrate how the Department evaluates requests for funding or how it monitors how funds granted are used. Neither, in my view, does it present a balanced view of the charity and how it uses public funds. Frank appraisals are undertaken by the Department in order to ensure minimum requirements are met and that objectives are reached. It is required to carry out such appraisals, both pre- and post- granting of funds, as part of its remit. I am of the view that release of the records in full will serve to throw greater light on how the Department carries out its functions. Furthermore, I do not agree that remarks relating to how the charity operated in its early days would have the effect that the Department or the charity envisages. Neither am I satisfied that release of the records as a whole would cause harm to the charity. The vast majority of the remarks and evaluations are positive and in my view, taken overall, with the inclusion of the redacted remarks, the records do not paint a negative picture of the organisation such that it would deter people from making donations. It seems to me that the records demonstrate how the charity has evolved and made improvements in a number of areas over time.

Having regard to the above, I find that the Department's decision to refuse access to the records sought was not justified under section 36(1)(b) of the Act.

Public Interest

While I have found that the Department was not justified in refusing access to any of the records at issue on the basis of sections 30 or 36, I should say here that even if I were to have found any of the relevant provisions to apply, I would have been obliged to consider whether, on balance, the public interest would be better served by granting rather than refusing to grant the request for access to the records sought.

The charity was of the view that the release of the information contained in the records concerned would not serve the public interest. It stated that while there is a great public interest in how charities operate, how donations are used, and how state funding to charities is granted, this information must be presented fairly, accurately and objectively in order to serve the public. The charity believes that the release of these records would not achieve this. Essentially, the charity is of the view that the independently audited information in its Annual Reports, published on its website, and through the Companies Registration Office presents more objective information than that in the records concerned. It also said that the public interest had been fairly and sufficiently met by records already released in full or in part by the Department.

It is worth noting that the charity is not subject to FOI. The FOI Act is concerned with the promotion of transparency and accountability in public bodies and while it is open to the Minister for Public Expenditure and Reform to extend the provisions of the Act to community and voluntary organisations, this has not been done to date. However, it seems to me that the public interest in releasing the information sought arises in relation to the manner in which public funds are granted to such organisations by the Department and how it oversees their use.

While I have had regard to the charity's argument that the public interest has been met by the release of the material already provided to the applicant, I do not accept that this is the case. I have also had regard to the charity's argument that the older records were irrelevant to the public interest. Furthermore, I have had regard to the Department's submission that it had considered the public interest in ensuring the accountability of the Department and the need to enable proper scrutiny of the Department's decision-making when arriving at its decision to refuse to grant access to the records sought. The records at issue contain details of the Department's administration of grants and evaluations of how they are used. In my view, this is where the pubic interest lies. In Case No. 99309 a previous Commissioner found it difficult, in public interest terms, to draw a distinction between the use of public funds by charitable organisations and other grant-aided bodies, on the basis of the objects for which they were established. He stated that transparency and accountability are required in relation to funds provided by the Exchequer, however they are used. While I accept that there is a public interest in ensuring that the work of charities is not disrupted, there is also a clear public interest in ensuring that the objectives in respect of which public funds are allocated are met and that there is accountability in relation to how these funds are used. The then Commissioner stated in Case No. 99309 that he attached a significant weight to the latter. I adopt this reasoning and consider that it is relevant to this case.

As I have found that the Department has not justified its refusal under any of the exemptions relied upon, I hereby direct the release of the records withheld in full to the applicant, with the exception of the information previously identified as personal information or other information relating to third party organisations, not within scope of the applicant's request. In the interests of clarity, I should state that I am directing the release of all information relating to the charity contained in Records 1, 2, 8-9, 20, 22, 30, 34, 36-38, 40, 47, 50, 54-55, 63, 73, 78-80, 82, 86, 93, 106, 125, 130-131 and 133 (refused in part) and Records 16, 19, 26, 33 and 128 (refused in full).

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby annul the decision of the Department to refuse to grant access to the records at issue. I direct the release of the remaining information relating to the named charity contained in the records concerned.
 

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