Whether the Department was justified in its decision to refuse the applicant's request for a record concerning representations made by RTÉ regarding the General Scheme of the Social Welfare and Pensions Bill 2017

18/01/2018

Background

On 24 August 2017, the applicant sought all records of representations made to the Department by RTÉ and the RTÉ Superannuation Fund concerning the measures to increase protection for members of defined benefit occupational pension schemes under the General Scheme of the Social Welfare and Pensions Bill 2017 (the 2017 Bill).  The Department identified one record as relevant to the request and notified RTÉ of the request in accordance with section 38.  Following receipt of a submission by RTÉ, the Department issued its decision refusing access to the record under section 35 of the FOI Act.  

On 7 September 2017, the applicant sought a review by this Office of the Department's decision. During the course of the review, both the Department and RTÉ revised their views on the relevant exemptions they considered to apply to the record at issue. Both argued that the record is exempt under section 29.

In conducting this review, I have had regard to the submissions of the applicant, the Department and RTÉ.  I have also had regard to the content of the relevant record.  I have decided to conclude the review by making a formal, binding decision. 

 
Scope of Review

This review is concerned solely with whether the Department was justified in refusing access to the record it identified as coming within the scope of the applicant's request under section 29 of the FOI Act.

Preliminary Matters

Before I address the substantive issues arising, I would like to make a number of preliminary points. Firstly, a review by this Office is considered to be de novo, which means that it is based on the circumstances and the law as they pertain at the time of the decision. As such, I consider it appropriate to examine the Department's claim for exemption under section 29, notwithstanding the fact that it did not originally rely on this exemption to refuse access to the record at issue.

Secondly, it is important to note that under section 22(12)(b), a decision to refuse a request is deemed not to have been justified unless the public body can satisfy this Office that its decision was justified.

Analysis and Findings

Section 29(1) provides that a request may be refused if (a) the record concerned contains matter relating to the deliberative processes of an FOI body (including opinions, advice, recommendations, and the results of consultations), and (b) the body considers that granting the request would 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 satisfy this Office both that requirements have been met.

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 record at issue contains what are described as RTÉ's preliminary comments in relation to the 2017 Bill. Both RTÉ and the Department argued that the record contains matter relating to the deliberative processes of both bodies. The Department argued that the record forms part of its deliberations on the Bill as it was created as part of a process whereby the Department is gathering views from various aegis bodies, advisory entities and other Departments for the purpose of informing an approach to the Bill. It also argued, as did RTÉ, that the record contains matter relating to the deliberative processes of RTÉ as the comments in the record do not represent RTÉ's conclusive position on the matter.

I am satisfied that the record contains matter relating to the deliberative processes of an FOI body and that the first requirement for section 29(1) to apply is met. The question I must consider, therefore, is whether the release of the record would be contrary to the public interest. For release to be contrary to the public interest, this Office would generally expect the 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 granting access to the record would be contrary to the public interest. 

The Department argued that it is in the public interest that bodies can circulate preliminary views regarding draft legislation without concern that such material will be provided to the public. Specifically, it argued that it would be misleading and possibly prejudicial to public discourse to release the record at issue while the deliberative process in RTÉ, the Department and the Oireachtas is underway and that it considers this likelihood to mislead and potential to prejudice legislative process to be contrary to the public interest. RTÉ also argued that it may be misleading to release the record if it is not in line with the approach the Department has taken in relation to the Bill.

I accept that RTÉ's comments are preliminary in nature and may not necessarily represent its final opinion. Nevertheless, it seems to me that the fact that the comments may not represent its conclusive position on the matter or that they may or may not form part of the ultimate approach to the draft Bill does not, of itself, mean that the release of the record at issue would be misleading. The record itself makes it clear that the comments should be considered as preliminary. As such, I do not accept that the release of the record would be likely to mislead a reader of the record. In any event, this Office has previously found that the possibility of the public misunderstanding information is, generally speaking, not a good cause for refusing access to the records of public bodies. In Case 98078 - Mr Martin Wall and the Department of Health and Children, the then Commissioner considered that, apart from anything else, such an argument seems to be based on an assumption, which he did not accept, that public bodies are incapable of explaining their records to the public and are unable to present information to the public in a way which will allow any objective observer to draw accurate and balanced conclusions.

I would add that while the Department argued that release of the record might also prejudice the legislative process, it has not explained how such harm might arise. It is also noteworthy that under section 11(3) of the Act, an FOI body performing functions under the Act must have regard to, among other things, the need to inform scrutiny, discussion, comment and review by the public of the activities of FOI bodies and facilitate more effective participation by the public in consultations relating to the role, responsibilities and performance of FOI bodies.

Having regard to the provisions of section 22(12)(b), I find that the Department has not satisfactorily explained why the release of the record at issue would be contrary to the public interest. I find, therefore, that section 29(1) does not apply.

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 and I direct the release of the record at issue.

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.  

Stephen Rafferty
Senior Investigator